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Lawsuit Against H4-ead Rule

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

  1. Kamakazee

    Kamakazee Super Moderator

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    This should be resolved by next year. DACA lawsuit was dismissed within a year too. You should keep your OPT though. You pay less taxes!
     
  2. Hardik Gandhi

    Hardik Gandhi New Member

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    Thanks. Yeah OPT would be more beneficial but the other thing is that the timeline to process both applications would be around total of 4-5 months next year. So I won't be able to work for at least 3 months after OPT expires.
    I am in a dilemma whether to take the risk now while I am in school
     
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The next step will likely be dispositive. The two sides will file cross-motions for summary judgment. This should happen and be resolved within two to four months.
     
  4. Mira21

    Mira21 New Member

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    Hi Ron ,

    My husband has h1b validity until dec 2015 and same with my h4 !

    He is on 9th year of h1b and have i140 approved with 2012 priority date
     
  5. Mira21

    Mira21 New Member

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    Continuing above message - with jan 2012 priority date ! We have applied for h4-ead !

    If he is switching his job around July time frame before I get the ead will there be any confusions ? Or is it better to wait until the approval of ead ?
     
  6. giri26

    giri26 Member

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    As long as your husband's previous employer does not revoke the I140 you should be fine. Even if the EAD is approved if your husband's previous employer revokes the I140 there is possibility that your EAD can be canceled.
     
  7. Hardik Gandhi

    Hardik Gandhi New Member

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  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Bad link.
     
  9. Hardik Gandhi

    Hardik Gandhi New Member

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    Any info on the lawsuit? Hearing date?
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    No, I'll check PACER later.
     
  11. Hardik Gandhi

    Hardik Gandhi New Member

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  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I didn't see a hearing date, but based on the pleadings, it is likely late July or early August.
     
  13. Hardik Gandhi

    Hardik Gandhi New Member

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    Thank You Ron
     
  14. Hardik Gandhi

    Hardik Gandhi New Member

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    Law360, New York (June 24, 2015, 5:24 PM ET) -- The U.S. Department of Homeland Security and a group of computer workers fighting over a visa rule that allows immigrant spouses to get work permits spun further into an abyss of filings and counterfilings this week as the federal government seeks to dismiss the case.

    DHS filed a brief Tuesday in D.C. federal court that was titled in part “Defendant’s Response to Plaintiff’s Opposition to Defendant’s Motion to Deny Plaintiff’s Motion For Summary Judgment,” arguing that its submission of a declaration from a U.S. Citizenship and Immigration Services employee in support of its motion to dismiss for lack of jurisdiction doesn’t transform it into a bid for summary judgment.

    “Pure issues of law cannot be inextricably intertwined with factual issues presented by a motion to dismiss for lack of subject matter jurisdiction,” DHS argued. “Accordingly, plaintiff’s claim that defendant’s motion to dismiss for lack of subject matter jurisdiction must be treated as one for summary judgment is baseless.”

    DHS has urged U.S. District Judge Tanya Chutkan to dismiss the suit against the H-4 work rule, which is being brought by Save Jobs USA, a group created by individuals who used to work at electric company Southern California Edison.

    The agency argued that Save Jobs has failed to show that its members compete directly with any potential beneficiaries of the new rule for H-4 visa holders, and has fallen far short of showing how they’d been hurt for standing purposes.

    The workers, who say they were replaced by immigrants on H-1B visas, have said the program allows for increased competition in the computer job market where its members make a living. They argue there isn't any statutory authorization for an H-4 visa holder to work and that the rule’s purpose is simply to increase foreign labor by drawing more people to the H-1B program.

    "The reason this case is important is that DHS has asserted in oral argument ... that it has the authority to allow any alien to work in the [U.S.] unless Congress explicitly prohibits it," John M. Miano of the Immigration Reform Law Institute, an attorney for the workers, told Law360 on Wednesday. "That is the opposite of the way things work under the Constitution where DHS only has the power that Congress gives it."

    On Monday, the workers had argued that by introducing the new evidence DHS converted its motions to dismiss for lack of subject matter jurisdiction or for failure to state a claim into a motion for summary judgment.

    “DHS may well have believed that it was submitting matters outside the pleadings only related to jurisdiction,” the workers argued. “However, the same piece of evidence can serve multiple purposes. If it made that assumption, DHS did not consider the relevance of the new matters to the Rule 12(b)(6) part of its motion.”

    The workers also acknowledged that the arguments between the sides are beginning to become circular, as the issues in the case are all questions of law that are “not going to change, no matter how many times the parties repeat them.”

    “Both parties are already repeating themselves at this point,” the workers said. “DHS’s response to the preliminary injunction motion ... is nearly word-for-word identical to its memorandum in support of its motion to dismiss. Save Jobs USA’s arguments are repetitive too.”

    USCIS has declined to comment as the litigation is ongoing. An attorney for the workers could not immediately be reached for comment Wednesday.

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

    The DHS is represented by Erez Reuveni, Glenn M. Girdharry and Sarah S. Wilson of theU.S. Department of Justice.

    The case is Save Jobs USA v. Department of Homeland Security, case number 1:15-cv-00615, in the U.S. District Court for the District of Columbia.

    --Additional reporting by Allissa Wickham and Matthew Bultman. Editing by Brian Baresch.




     
  15. Mira21

    Mira21 New Member

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    http://www.immigration-law.com/XXIV.html

    "09/06/15 : unfinished court business ... "

    Good morning Ron .

    Can you throw some light on what is being said in the link mentioned above about H4 EAD lawsuit ? is there going to be any bad news for the h4 EAD law ?
     
  16. prabpra1

    prabpra1 Well-Known Member

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  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Under the Federal Rules of Civil Procedure, all motion pleadings must be submitted to the court at least two weeks before the hearing date. That means that the earliest the hearing can be held is Monday, October 26th. IF the hearing is held that day, the judge may rule from the bench or may take the matter under advisement and rule later. There is no deadline for the court to act.
     
  18. Satish.txt

    Satish.txt Member

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    Ron,

    How many precent chances here court will trash lawsuit?
     
  19. Kamakazee

    Kamakazee Super Moderator

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    The court did not dismiss the lawsuit before, so we are already past that. I think the court will allow the motion pleadings to be submitted and then ultimately rule in favor of DHS. Plaintiff's only standing is that DHS does not have authority to give EADs to H4s since Congress clearly stated which visa holders should get EADs.

    The last time I checked, no where did Congress mention which undocumented people should get EADs, yet some of them (people brought to this country as children) now that EADs. DHS has already won that lawsuit saying that they have the authority to give EADs. So, on that ground, I believe the court will ultimately rule in favor of DHS.
     
    Satish.txt likes this.
  20. robertodino

    robertodino New Member

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    your assessment makes sense kamakazee.... also, the latest OPT ruling also works in favor of the DHS, that they do have authority to grant EADs, just with appropriate rule making.



     

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