Federal appeals court finds DHS rule unlawfully increased competition for US News
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Federal appeals court finds DHS rule unlawfully increased competition for US

The US Court of Appeals for the District of Columbia Circuit ruled Friday that a group of US-born tech workers had a claim that a Department of Homeland Security (DHS) rule allowing temporary-work visa holders’ spouses to seek employment unlawfully increased competition in the labor market.

The case reached the DC Circuit Court after the federal district court granted a motion for summary judgment in favor of DHS, finding that the plaintiffs failed to demonstrate injury. The appellant, Save Jobs USA, an association formed to “address the problems American workers face from foreign labor entering the United States job market through visa programs,” includes members who were terminated from their jobs and replaced by H-1B visa holders.

H-1B visa holders are highly skilled workers who are permitted temporary residence in the US for a period of employment. These visa holders are considered “nonimmigrant” visa holders because their stay is temporary. An H-1B visa holder’s spouse is permitted an H-4 visa, which allows the spouse to be in the US but not seek employment. H-1B visa holders may seek a permanent resident visa, known as a green card. This process is often time-intensive, and the H-1B visa is extended. Noticing the economic hardship placed on those seeking permanent residence due to the spouse’s inability to seek employment, DHS promulgated a rule allowing spouses to seek employment during the extension period.

In an opinion written by Judge Tattle, the court stated that “[t]he doctrine of competitor standing recognizes that “when regulations illegally structure a competitive environment—whether an agency proceeding, a market, or a reelection race—parties defend concrete interests in that environment suffer legal harm under Article III.” The circuit court determined that the lower court erred in granting summary judgment because the DHS rule removed an obstacle that encouraged H-1B visa holders to leave the US after its expired and Save Jobs USA could demonstrate that some of its members were replaced in their employment by H-1B visa holders.

The case was reversed and remanded for trial. If the DHS rule is overturned, many H-1B visa workers’ spouses who have obtained employment since the rule was promulgated in 2015 will have to leave the workforce.

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