Right to work remains on track for spouses of H1B workers

Washington: A new court ruling affirms the US government can allow the spouses of H1B visa holders to work in America while they wait for employment-based green cards. The court’s decision follows other favorable rulings for the spouses against an organization’s lawsuit that sought to end their ability to be employed in the US labour market.

The judges ruled the end of Chevron deference for federal agencies did not invalidate a previous court ruling for H1B spouses. That is a potentially significant conclusion for the legality of Optional Practical Training for international students. On August 2, 2024, the US Court of Appeals for the DC Circuit affirmed a district court’s grant of summary judgment in Save Jobs USA vs DHS in favour of H1B spouses and the Department of Homeland Security.

The rule was introduced by the Obama administration in 2015, to mitigate the problems faced by certain sections of immigrants (such as the Indian diaspora) who faced backlogs running into several decades to obtain an employment based green card.

Under the rule, in those cases where the H-1B visa recipient is on track for a green card or has got an extension beyond the permitted six years, the spouse holding an H4 visa can apply for employment authorization.

Save Jobs USA, a group of tech workers, have been challenging the EAD policy for several years on the ground that the Department of Homeland Security (DHS) exceeded its authority under the Immigration and Nationality Act (INA) by permitting unrestricted employment for spouses on H4 dependent visas.

In its order, Circuit judge Walker said, “This court has already interpreted the relevant provisions of the INA to answer a similar question in favor of DHS.”

This case was that of the Washington Alliance of Technology Workers, which had challenged the Optional Practical Training (OPT) extension of two years for international students in the STEM (Science, Technology, Engineering and Mathematics) arena.

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