By Nicole Narea

December 18, 2018

The D.C. Circuit on Monday allowed immigrants to intervene as defendants in a case challenging the Obama-era rule allowing spouses of H-1B skilled worker visa holders to apply for work authorization, taking the place of the U.S. Department of Homeland Security, which has proposed scrapping the rule.

In a one-page order, a three-judge panel allowed Immigration Voice, a group that represents highly skilled immigrants, and two individual immigrants to intervene in the case and set a new briefing schedule, removing the case from abeyance.

An organization called Save Jobs USA — comprised of IT workers who claim they lost their jobs to H-1B workers — had sued the DHS, claiming the rule was unlawful. The court also denied the organization’s request to expedite the case on Monday.

“Intervenors have a ‘legally protected interest’ in the action because it directly affects their right to work legally and earn a living in the United States,” the immigrants’ March 2017 brief states. “If Save Jobs USA is successful, intervenors will suffer irreparable harm in the form of inability to work in the United States, permanently lost wages, lost employment opportunities and, in many cases, the need to return to their country of citizenship to work — causing their immigrant families to separate and harming their American-citizen children.”

The case concerns a rule promulgated by the DHS under the Obama administration, which allows certain spouses of H-1B visa holders seeking green cards to get work permits in the meantime. The agency had projected that the rule would allow as many as 179,600 spouses to seek work permits on their H-4 visas within the first year, and 55,000 more for every year thereafter.

The rule was upheld at the district court, and Save Jobs appealed to the D.C. Circuit.

After President Donald Trump was elected, DHS asked the appeals court to put the case on hold, saying it would promulgate a new rule that would rescind H-4 employment authorization. The agency said in a December 2017 notice that it was reviewing the rule in light of President Donald Trump’s “Buy American, Hire American” executive order, which purports to increase employment of U.S. workers and their wages. Any of the proposed changes will likely be open to a period of public comment once released.

The immigrants consequently petitioned the court to intervene in March 2017, claiming that DHS would not adequately represent the views of those who benefit from the rule. They asserted that the Trump administration may instruct DHS “not to vigorously defend the lower court’s decision” keeping the rule in place, as exemplified by its request to hold the case in abeyance to give new personnel time to “consider the issues.”

The immigrants had noted, however, that the administration can only rescind the rule through proper rulemaking procedures of offering public notice and an opportunity to comment under the Administrative Procedure Act.

The court, however, repeatedly granted DHS’ request to keep the case on hold — until Monday.

“In the order, the D.C. Circuit, which apparently tired of waiting for DHS to promulgate a proposed rule to repeal the existing rule, removed the case from abeyance, ordered a new briefing schedule, and importantly, granted our motion to intervene,” according to Edward Evans, spokesman for Boies Schiller Flexner LLP, counsel for the intervenors. “Courts rarely grant a motion to intervene when a case is already on appeal, and the fact that the D.C. Circuit granted our motion to intervene is significant.”

John Miano, counsel for Save Jobs, said that the court’s decision reduces standing requirements for intervenors to “absurdity.”

“[W]e now have foreign guestworkers having standing to argue that American citizens do not have standing in the courts of their own country to defend the protections Congress has given them,” he said.

The government does not comment on pending litigation.

U.S. Circuit Judges David Tatel, Thomas Griffith and Sri Srinivasan sat on the panel for the D.C. Circuit.

Save Jobs USA is represented by Michael Meriwether Hethmon, John Michael Miano and Dale Lee Wilcox of the Immigration Reform Law Institute.

The government is represented by Glenn Matthew Girdharry and Erez Reuveni of the U.S. Department of Justice’s Civil Division.

The intervenors are represented by Carl Goldfarb of Boies Schiller Flexner LLP, and Jennie Santos-Bourne of Americans for Immigrant Justice.

The case is Save Jobs USA v. U.S. Department of Homeland Security, case number 16-5287, in the U.S. Court of Appeals for the District of Columbia.


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