Immigration in Courts

Immigration Litigation – Employment Authorization in the Courts

H4 Work Authorization Complaint Dismissed

The United States District Court for the District of Columba this week ruled against a group seeking a preliminary injunction against the Department of Homeland Security’s Employment Authorization program for certain H-4 dependent spouses. H-4 spouses have H-1B principal visa holders who are employed in a specialty occupation. Until this past Tuesday, all H-4 spouses were barred from employment. A limited class of H-4 visa holders can apply for work authorization: 1) if they have an approved I-140 petition and are waiting for their date to become current or 2) they are in a period of extended H-1B stay as a result of 106(a) and (b) of AC21 (American Competitiveness in the 21st Century Act).

The District Court denied the preliminary injunction because the group failed to show “irreparable harm.” In order to succeed, the group had to show their employment was directly threatened by the availability of these nonimmigrants, who were previously barred from employment. The group is composed of IT workers, so they had to show that their employment in the IT field would be threatened. The court determined that their claim was speculative and purported injuries did not merit relief.

USCIS is adjudicating employment authorization for those certain H-4 dependents who apply.

Faster Employment Authorization Decisions

On the topic of employment authorization, a class action lawsuit has been filed against USCIS (May 22). The Northwest Immigrant Rights Project is seeking declaratory and injunctive relief because there have been delays in adjudicating applications for employment authorization. By law, USCIS is required to render decisions within 30 days for certain employment authorization applications and 90 days for others. The complaint demands that USCIS render their decisions within those timeframes.

Employment authorization is important for nonresidents of various statuses. Some visas are employment-based and some prohibit employment. There is often a “limbo” period for some people in changing their status and employment authorization is crucial for having legal employment.