Two groups seeking to dismantle existing work authorization programs have filed legal challenges to the H-4 and OPT work authorization rules.
H-4: Save Jobs USA v. United States Department of Homeland Security
An Obama administration rule that allows spouses of H-1B high-skilled visa-holders with pending green card applications to obtain work authorization while the H-1B visa holder waits for the green card application to be adjudicated is in the midst of a legal challenge from a group called Save Jobs USA. The lawsuit claims that the Department of Homeland Security exceeded its legal authority by permitting H-4 spouses to seek work authorization.
The U.S. District Court held that Save Jobs USA lacked standing to file the lawsuit; this decision has been appealed to the Court of Appeals for the District of Columbia Circuit. Although the U.S. Department of Justice was originally supposed to file a brief by February 10, 2017, in defense of the District Court’s decision, DOJ instead asked for a 60-day pause in the case to allow the Trump administration time to consider whether it would in fact defend the H-4 rule.
Because of prior negative comments regarding the H-4 rule by Attorney General Jeff Sessions and out of concern that DOJ might choose to decline to defend the rule, a national non-profit advocacy organization has requested to join the lawsuit to ensure that the H-4 rule would be defended in future litigation.
OPT: Washington Alliance of Technology Workers vs U.S. Department of Homeland Security
Optional Practical Training (“OPT”) is a long-standing program that offers up to 12 months of work authorization to international students upon their completion of their U.S. education in order to allow hands-on professional experience as part of their student status. A more recent rule provides an additional period of OPT work authorization for students graduating with STEM (science, technology, engineering math) degrees who are employed by participants in the E-Verify employment authorization program. Both OPT programs are subject to a lawsuit also arguing that the Department of Homeland Security exceeded its statutory authority by offering the OPT work authorization. Although the lawsuit has been dismissed by federal courts on several occasions, an appeal is pending.
Apart from the success of the litigation itself, of greater concern are President Trump’s executive orders on immigration that could result in the OPT rules being voluntarily revoked or altered by the federal government itself due to the alleged impact on U.S. workers.
