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Lawsuit Against H4-ead Rule

Discussion in 'H4 employment authorization' started by binu2007, Apr 25, 2015.

  1. binu2007

    binu2007 Senior Member

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  2. ColumbusDude

    ColumbusDude Active Member

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    Well, they are showing their true colors and going all out against any immigration and digging their own 2016 Election grave. As they say - "You can't fix STUPID".

    Save Jobs USA v. DHS

    http://irli.org/wp-content/uploads/2015/04/Complaint.pdf
     
  3. Senram

    Senram Member

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    It is anti immigration. My understanding is when H1b was introduced in 1990 that law prohibited H4 from working. On 1990 congress did that. Is that mean that USCIS did over reach on that? Under what Authority USCIS modified the rule which was done by congress? If they place this kind of argument Judge may be thinking?
     
  4. Kamakazee

    Kamakazee Super Moderator

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    Firstly, DHS has the authority to provide work authorization to anyone. The final rule itself have stated that in response to the comments submitted in opposition to the rule that DHS is overreaching.

    Secondly, when a new rule is proposed by the agency it has to follow the rulemaking process - proposed rule, approval of proposed rule by OMB, notice and comment period, final rule, approval of final rule by OMB. The H4 EAD rule followed all the steps of the rulemaking process. This lawsuit does not have merit and will not stand.
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I agree.
     
  6. speedracer

    speedracer Guru

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    Can't the administration sue to pay for damages for delaying the H4 ead process which was legally done as a part of rulemaking process. These kind of law suits should be made an example to make sure future futile lawsuits are avoided..
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If a case is completely without merit, the court can award sanctions under Rule 11. This case, while lacking merit, isn't that far out of the mainstream. The one thing that may get them sanctioned is the fact that all of the plaintiffs are in California, but the action was filed in DC because that's where the anti-immigration law firm that is pursuing this is located.
     
  8. speedracer

    speedracer Guru

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    in that case rather than just sanctions ... shouldn't these lawyers be de-barded for not really knowing the law and wasting the time of court..
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I disagree with their position, but I don't think that it is so outrageous as to warrant discipline - unlike the Texas case.
     
  10. speedracer

    speedracer Guru

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    I agree with Texas cases... well its Texas.. kind of a no brainer.. but this is just a beginning of law suits like these and they need to be stopped before it gets out of hand...
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The case has to be pretty outrageous for the court to sanction the attorneys.
     
  12. Kamakazee

    Kamakazee Super Moderator

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    The courts should simply dismiss the case and everyone can move on.
     
  13. Senram

    Senram Member

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    It is not simple as you think. Whatever Obama and his DHS did lot of unprecedented actions similar to many items in CIR. We will discuss about H4-EAD

    1. H4-EAD has unprecedented in numbers. Around 180k. That is similar to almost 3 year H1b cap. Every year 55k is similar to another 80% H1 every year. It was estimated that more than 80% will search only in high skilled jobs.
    2. My understanding is the law clearly tells that H4 cannot work at the same time DHS can apply discretion. Most lawyers are relying on the discretion of the DHS but silent about law forbidding H4 to work. H1 has lot of worker protection but H4 does not have. Judge can notice that if they place proper arguments about that
    3. I think the case may have a merit but most cases plaintiffs were not able to establish that they will be harmed by EA. So in that case Judge could cancel as quick as possible
    4. Note the point that most judges in that court were appointed by Obama. So that could play favorable for H4-EAD.
    5. By surprise one court accepted the case on Nov 2014 against OPT extension done by Bush but no injunction was given. Infact WH admin argued that court does not have authority to interfere. Judge did not accept that. Still Judgement for OPT case can go anyway depends on how WH argues. If WH keep on insisting that court does not have authority instead of merit of the case they will get setback similar to Texas case.
     
  14. nohohon

    nohohon Junior Member

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    I know CIS is essentially an anti-immigration group, but the link below is a blog from the plaintiff's attorney regarding the H4 EAD case.
    http://cis.org/miano/lawsuit-asks-whether-president-can-give-work-authorization-anyone

    I hadn't realized that they were requesting a preliminary injunction - so this could potentially go the way of DACA/DAPA if the court decides that this case has legal standing. And even if the preliminary injunction is not granted but the court decides to accept the case, it could scare away potential employers unless the ruling is made in the ~90-120 days that it takes to get the EAD card.
     
  15. cuckoo

    cuckoo Super Moderator

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    Ron:
    It does appear that the plaintiffs could prove standing in this. Of course, given the choice of California and DC, they chose DC. If they overcome the choice of venue, the issue would be statutory authority to grant EAD. Is this the same as that which allows EAD to AOS applicants and recently to dreamers? Also, it appears that the issue may be the same if I-140 beneficiaries were to be granted EADs as we are all hoping for.
     
    Last edited: Apr 30, 2015
  16. Senram

    Senram Member

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    There is a little bit difference between the difference in 17 months OPT extension case and this. They did not get standing on 12 month OPT as it was there from 1942. But Judge accepted the case against 17 month extension as Plaintiffs clearly established that they suffered a harm. Now they have 50% chance of success if there is a merit in the case and that may do away 17 month OPT extension. Similarly it is very difficult for establish harm in H4-EAD unlike OPT case as the rule did not come yet. But plaintiffs placed very good arguments and tried their level best. Usually Judge is expected to throw away the injunction and case. But still I think opinion of Judge matters a lot as the law is supporting both ways. Surely if Judge is sympathatic towards planitiff that will play a role. Of course any court house is ruled by Judge as the country is ruled by President.
     
  17. Kamakazee

    Kamakazee Super Moderator

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    The plaintiff is saying that H4s will compete against them for jobs. Why are they assuming that all H4s will go into IT or H4 EADs are a substitute of more H1Bs? When we attended the OMB meeting, this was specifically asked to us, so it is not like DHS/USCIS or OMB did not consider this. There are many jobs, careers which the H4s can now pursue for which they are certainly qualified like journalism, interior design, marketing etc. How are they competing against the plaintiffs?

    And finally, these H4s have already taken significant steps to get permanent residency in this country, they have shown intent to immigrate. If not for the country cap on EB, most of them would have already gotten their EADs anyway and entered the job market. The increase in workforce is around 0.06% and NOT EVERYONE is going into IT to compete with the plaintiff.
     
  18. ColumbusDude

    ColumbusDude Active Member

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    Check this out:
    How Millennials Could Damage the US Economy
    http://www.cnbc.com/id/102635156

    "A new study finds that Millennials, who will dominate the U.S. labor market for the next 50 years, may face another problem: They're less prepared for today's job market than many of their international peers, putting them (and the country) at a distinct disadvantage in an increasingly global economy."
     
    Last edited: Apr 30, 2015
  19. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Personally, I don't see where these folks have standing to sue. I didn't like the war in Iraq. It was funded through my tax dollars. My grandchildren will still be working to pay it off. Did I have standing to sue to stop President Bush from engaging in an undeclared war? Clearly I did not. There are a lot of things that the government does that have a direct and adverse effect on individuals or groups. The remedy is to go through Congress or elect another President. If the courts allow individuals or groups to sue every time the government does something they don't like, there will be chaos.

    Putting aside the standing argument, there is also the matter of the preliminary injunction. The first element of proof for a preliminary injunction is that the Plaintiffs have to show that they are likely to prevail on the merits. There is no case law supporting the claims made in this action. This will be difficult, if not impossible, to prove. They must also show imminent irreparable harm. According to the Department of Labor, there is a severe shortage of qualified IT professionals in southern California.
     
  20. cuckoo

    cuckoo Super Moderator

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    I have no clue about the facts but the plaintiff's attorney starts with: "It is well known that the utility Southern California Edison recently H-1B'd about 500 American employees." Note the term "H-1B'd", as if the action is common enough to be turned into a verb. Anyhow, I agree that a preliminary injunction is unlikely. Showing likelihood of success on the merits of the case would be tough and this may not be California but it is DC not Texas. I wonder why they did not file it in Texas. They could probably find at least one Texas employee who lost a job and was replaced by an H1B. However, extending injury from an H1B to that by a potential EAD carrying H4 would take some significant effort in the absence of any real life cases.
     

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