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New Case Challenges New H-4 Regulation That Would Allow Spouses to Work in U.S.

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A few weeks ago we blogged about a new regulation allowing H-4 visa holders(dependents of H-1B visa holders) to work in the United States. However, a case has just been filed in Washington D.C. federal court challenging this regulation. The lawsuit, Save Jobs USA v. U.S. Department of Homeland Security, was filed last Thursday by Save Jobs USA, a group representing former California computer workers, claiming that the regulation violates the Immigration and Nationality Act and asking the court to vacate the H-4 rule allowing spouses to work in the UnitedStates.

Save Jobs USA backs up its claims by stating there is no statute that authorizes H-4visa holders to work in the United States and that in promulgating this rule, the Department of Homeland Security has exceeded its authority. The effect of this, as much of the complaint is focused on, is the increase in foreign competition, which inturn burdens U.S. citizens by increase the difficulty of finding a job. Specifically it states the new rule will increase the foreign workforce by 179,000 in the first year and 55,000 following years. Save Jobs USA goes on to list three instances of SaveJobs USA members who have been replaced by H-1B visa holders.

Save Jobs USA claims the Immigration Nationality Act has provisions that are designed to protect American workers. For instance, the Labor Conditions Application (LCA) limits the number of visas to be issued to foreign workers.However, allowing H-4 holders to obtain work, works against the protection that limits the amount of foreign workers

The complaint also cites the Department of Homeland findings that the new H-4regulation will make the H-1B visa more attractive and cause employers to retain the H-1B workers that are already working for United States companies. Save Jobs USA warns that an increase in H-1B workers staying in the United States in conjunction with an influx of new H-1B workers coming to the United States each year, will only work against the United States citizen's ability to find viable employment.

Another issue raised by Save Jobs USA is a website that contains postings for foreign workers in the United States on H-4 visas. The website already has 15 job posting listed, all for computer jobs. Therefore even though the new regulation allowing H-4 workers to work has yet not gone into effect, there is already increased competition for jobs when these jobs could potentially go to U.S. citizens.

Save Jobs USA is asking the court to vacate the H-4 rule and prevent H-4 visa holders from working in the United States. If they win this could upset the projected179,000 foreign workers who would apply for work under this new provision in the next year. The United States government will be defending this case and will likely argue it does have the power to pass this regulation.

The arguments raised by Save Jobs USA are very narrow in scope and does not consider the broader economic benefits of the regulation. Many families will benefit from the regulation because it will allow both parents to work outside of the home and bring in additional income. Additionally allowing spouses of H-1B holders to gain work authorization will increase the number of highly-skilled workers in the workplace. This will benefit many U.S. companies that require highly-skilled workers, particularly in the technology sector. Save Jobs USA's arguments are narrow and are only focused on the increased competition and fails to address any of the many benefits this regulation provides.

Contact the Law Offices of Sweta Khandelwal for updates on this case or to discuss work authorization for H-4 visa holders or any other immigration questions.Attorney Khandelwal is an immigration attorney located in the Silicon Valley.

Cited Sources:

Save Jobs USA v. U.S. Dep't of Homeland Security, Filed April 23, 2015

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