D.C. Circuit Affirms District Court’s Grant of Summary Judgment to DHS holding that DHS is authorized to extend employment authorization to H-4 spouses (Save Jobs USA v. DHS)

The D.C. Circuit affirmed the district court’s decision awarding summary judgment to  Department of Homeland Security (“DHS”) holding that DHS is authorized to extend employment authorization to H-4 spouses rejecting Save Jobs’ contention on three reasons under its analysis in Washington Alliance of Technology Workers v. United States Department of Homeland Security. 

The first reason was that INA explicitly vests authority in the Secretary of Homeland Security to establish such regulations as the Secretary may deem necessary for carrying out his authority. It further provides that  ‘admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.’ Id. (first quoting 8 U.S.C. §1103(a)(3), then quoting id. § 1184(a)(1)). In Washington Alliance of Technology Workers v. United States Department of Homeland Security, the plaintiff had challenged DHS’s authority to grant Optional Practical Training (OPT) extension of STEM graduates by 24 months by arguing that the Secretary does not have time-and conditions authority to extend OPT of F-1 students after they complete their coursework. 

Accordingly, the D.C Circuit said that the second reason of its analysis is premised in § 1184(a)(1) that vests DHS the authority to set conditions of F-1 students admissions. DHS and its predecessors have been authorizing student visa-holders to work at jobs related to their studies since at least 1947. Across decades of the Executive doing so openly, Congress has chosen to maintain the relevant provisions of the INA. Thus, “Congress has not just kept its silence by refusing to overturn [an] administrative construction, but has ratified it with positive legislation,” which renders “that construction virtually conclusive.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986)).

Thirdly, by passing Immigration Control and Reform Act (“IRCA”) in 1986, Congress verified “that DHS may lawfully authorize employment for nonimmigrants”. 8 U.S.C. § 1324a(a)(1) and  § 1324a(h)(3)) confirm that Congress has deliberately granted the Executive power to authorize employment.

Therefore, D.C. Circuit said that the Save Jobs USA had not meaningfully distinguished the case from binding precedent in Washington Alliance of Technology Workers v. DHS and accordingly affirmed the district court’s grant of summary judgment in favor of DHS. 

The U.S. Supreme Court had denied cert. in Save Jobs USA v. DHS, et al., on October 30, 2023. On March 28, 2023, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia had granted DHS’s motion for summary judgment, concluding that DHS possessed the requisite statutory authority to issue the H-4 EAD rule, and that the plaintiff had failed to demonstrate that the H-4 EAD rule was arbitrary and capricious. 

Vijay Bhagwati, Esq.

Founder and Managing Partner