I have been travelling, but, recently got some time to read an article by Trisha Thandani on SFO Chronicle regards an informed analysis of H-4 EAD revocation delays. In my view the analysis in SFO Chronicle has missed a key point which I will highlight below. Excuse my tardiness as I type this on my cell phone while in between flights, however, I hope that I can relay the point accurately.
Why is DHS seeking more time to publish a proposal for revocation of the H-4 EAD ? As per DHS filing, they claim that “they have reevaluated the rule and determined that significant revisions to the draft proposal were necessary.” Those revisions include a new economic analysis that required several weeks to perform”
“they have reevaluated the rule and determined that significant revisions to the draft proposal were necessary.” Those revisions include a new economic analysis that required several weeks to perform”
If they need to carry out economic analysis to retain the rule, then, they do not need to do any analysis, they can just inform the court that the rule will stay in its current form. DHS will prevail over Save Jobs in such a case. District Courts have clearly outlined before that DHS does have the authority to issue work authorizations for legal immigrants. There are two ways DHS could proceed from here (Hypothesis 1 is more likely) versus Hypothesis 2
Hypothesis 1 : If DHS intends to revoke the rule, they may have pivoted from the initial strategy of fully revoking the rule to significantly throttling the rule. They could do this by maintaining H-4 EAD work authorization but asking employers to specifically file for an H-4 exactly under the same guidelines as H-1B Visas. They could increase the burden on employers to prove that the role is stipulated clearly, that the employer (s) did try to hire Americans for the role and are not displacing any Americans already employed. DHS could also set minimum salary benchmarks and start issuing RFE’s where they need further information. By doing this, they could take away the open work mobility that comes with an H-4 EAD Visa and lock down each prospective visa holder to a specific employer. They could also discourage employers from filing for H-4 EAD due to the legal costs with submitting multiple responses to query. In this way, DHS will keep the rule and still significantly revoke the rule. The economic analysis is also probably more internally focused i.e what will it cost the government to process H-4 EAD applications under the changed rules basis which it will asks for outlay of a slice of the 2018-2019 budget.
Hypothesis 2 : In this scenario, DHS will have to carry out significant research (which could turn out to be less effective argument incase of court challenge) that H-4 EAD workers are taking away jobs from Americans thereby economically depriving American workers of first right of employment over immigrants. If such a research was possible and a strong correlative argument could have been made, Save Jobs and others critical of this program would have done it already. The arguments that claim that a study of positive economic impact of H-4 EAD holders continued employment to the American economy are probably missing the key point here. DHS intends to revoke the rule and not keep the rule. They will avoid any research or researched based argument in the court that may work against them in the ongoing case.