Supreme Court Urged to Hear Case Over H-1B Holders Spousal Right to Work

A group of information technology workers is urging the U.S. Supreme Court to review a district court ruling upholding the policy of allowing spouses of H-1B visa holders employment authorization. The basis of their spousal right to work complaint is the U.S. Department of Homeland Security did not have the authority to create the policy.

The group, Save Jobs USA, told the Court that DHS used legislative power beyond its control when creating the policy allowing spouses of H-1B visa holders with pending green cards the option to work while awaiting the requests to be processed. The group further stated that policies created allowing noncitizens to work have surged over the last decade, citing five regulations since 2015. The group believes only Congress has the power to approve noncitizens’ right to work. Save Jobs USA sued the federal government in 2015, challenging the regulation of allowing H-4 visa holders with employment authorization. A federal judge in Washington D.C. district court upheld the Obama-era policy in late March, accepting DHS’ reasons for spousal work permits.

The Judge stated DHS noted the rule would not create new additions to the workforce, only an accelerated timeframe for spouses to begin employment. Further, the judge clarified that even if every spouse of an H-1B visa holder accepted the early right to employment, it would be less than 0.12% of the country’s workforce. Per the finding, Congress granted authority to DHS to set the time and requirements for a visa holders’ stay, including what their accompanying spouses may do while in the country. Other similar visa classes offer employment authorization for accompanying spouses, including some international students and foreign government officials.

ILBSG continues to actively monitor ongoing proceedings regarding U.S. immigration law to ensure our clients get the right advice with some insight as to current legal actions and proposed updates to policies. If you have questions about the spousal right to work or any immigration-related issue, contact us at ILBSG.