DC court upholds H-1B spousal work permits

The US Court of Appeals for the District of Columbia has upheld an Obama-era program authorizing some spouses of highly skilled foreign workers on H-1B visas to get work permits.

The court Friday rejected a challenge to the lower court ruling in favor of certain H-4 spouses from an organization of former IT workers who say they are being displaced by temporary visa holders.

A district court ruling had affirmed the legality of an Obama-era rule allowing roughly 90,000 H-1B spouses, an overwhelming majority of them from India, to work in the US.

READ: Ro Khanna disappointed over Biden’s green card, H-1B visa inaction (June 25, 2024)

Issued during the Obama administration in 2015, the Department of Homeland Security regulation — “Employment Authorization for Certain H-4 Dependent Spouses” — allows certain spouses of H-1B visa holders to work in the United States.

Save Jobs USA, a group representing US-born tech workers, appealed the US District Court for the District of Columbia’s March 2023 ruling in favor of the government. The group argued that DHS lacked authority to allow H-4 spouses to work in the United States.

In upholding the district court’s decision, Circuit Judge Justin R. Walker wrote for the court, “This court has already interpreted the relevant provisions of the [Immigration and Nationality Act] to answer a similar question in favor of DHS” in the litigation challenging Optional Practical Training (OPT) for F-1 students.

“Because Save Jobs USA has not meaningfully distinguished this case from that binding precedent, we affirm the district court’s grant of summary judgment.”

Chief Judge Sri Srinivasan and Judge Robert L. Wilkins joined the opinion.

Save Jobs USA first filed a lawsuit challenging the H-4 employment authorization rule in 2015. The litigation was put on hold while the Trump administration considered whether to rescind the regulation.

After the Biden administration took office, the parties filed motions for summary judgment, ultimately resulting in the March 2023 decision favoring the government.

Leading companies and business organizations filed an amicus brief in the lower court case supporting the H-4 rule, saying eliminating H-4 work authorization “would not only siphon off US gross domestic product, but gift that productivity — and the innovation that comes with it — to other nations.”

The US Supreme Court declined Save Jobs USA’s request last year to take up the case while it was still pending at the DC Circuit.

Tech giants like Apple Inc. and Amazon.com Inc. as well as business groups like the US Chamber of Commerce have urged the courts to preserve the program, arguing that work eligibility for spouses is a critical factor in families’ decisions to move to or remain in the US.

The ruling Friday safeguards “the right of thousands of lawfully admitted immigrants, many with masters degrees or PhDs, to continue to work in the United States while their spouses are waiting to get permanent residency,” said Carl Goldfarb, a partner at Boies Schiller Flexner LLP and counsel for Immigration Voice.