Panel Revives Lawsuit Over Permits for Guest-Worker Spouses

WASHINGTON (CN) — The D.C. Circuit on Friday reinstated tech workers’ challenge to a Homeland Security rule allowing the spouses of guest workers to apply for jobs, finding they face increased competition due to the rule.

The rule permits spouses of those with H-1B visas – which allow American employers to hire foreign workers in specialty occupations for a limited time – to obtain a job through separate documentation, an H-4 visa. Previously, partners of nonimmigrant H-1B visa holders could still apply for an H-4 visa to remain in the country with their spouse but were not authorized to work.

Save Jobs USA, an organization representing Southern California Edison computer workers, sued over the Department of Homeland Security rule, saying it increased the competition for jobs for U.S.-born workers in the tech field who already struggle to gain employment in the face of foreign workers.

A federal judge dismissed the case, finding that the group lacks standing because it did not prove the rule would hurt its members.

However, the D.C. Circuit reversed on Friday, ruling that Save Jobs USA has demonstrated increased competition exists because the rule gives visa holders an incentive to stay in the U.S.

Two members of the group were 15-year veterans in information technology until they were fired and replaced by H-1B visa holders. Another employee, a system analyst, was let go in favor of an H-1B visa worker, after 20 years of service, according to the opinion written by U.S. Circuit Judge David Tatel.

“The Department insists that any injury to Save Jobs is caused by the H-1B visa program, not by the rule. We disagree,” the Bill Clinton appointee wrote. “Save Jobs has shown that the rule will cause more H-1B visa holders to remain in the United States than otherwise would—an effect that is distinct from that of the H-1B visa holders’ initial admission to the country.”

During oral argument, the Department of Homeland Security claimed that no person with an H-1B visa would compete with the tech employees because would first have to be offered a job that no American worker could fill. But the three-judge panel rejected that argument as well.

“The rule, as well as the Department’s own briefing here and before the district court, explains that for H-1B visa holders’ spouses to qualify for employment authorization, the H-1B visa holders need only be the beneficiaries of pending labor certification applications,” Tatel wrote. “While the application remains pending H-1B visa holders compete in the labor market against Save Jobs’ members. Even more, after the labor certification is issued, in certain circumstances H–1B visa holders may change jobs without obtaining new certifications.”

The panel found that the tech workers have standing to bring the case and send it back to the lower court to rule on the merits.

Tatel was joined on the panel by U.S. Circuit Judges Thomas Griffith, a George W. Bush appointee, and Laurence Silberman, appointed by Ronald Reagan.

John Miano, an attorney representing Save Jobs USA, said in an interview Friday that he doesn’t think the organization’s arguments will change as the case heads back to district court. He said the group will continue to ask for a decision on merits of the rule.

“It’s what we expected would occur, the court had said that we weren’t going to be able to argue the merits so we knew [the ruling] wouldn’t decide the merits,” Miano said. “The standing precedent here was well established. All the members of the panel had written opinions supporting us previously.”

Miano said he’s worked at a few companies that have been affected by H-1B visa workers vying for the same positions as American workers but left the company for law school before being adversely affected.

“I was a computer programmer before, so I saw all this garbage that plaintiffs went through,” he said.

A Department of Justice attorney did not respond Friday to an email request for comment.

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