Tag Archives: permanent residency

Immigration in Courts

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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.

Judge Stops DAPA and New DACA

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A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

 

The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

 

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.