D.C. Circuit Upholds DHS Regulation Granting Work Authorization to Certain H-4 Visa Holders

On August 2, 2024, the U.S. Court of Appeals for the District of Columbia Circuit upheld a regulation from the U.S. Department of Homeland Security (DHS) that grants work authorization eligibility to certain H-4 visa holders, in the case of Save Jobs USA v. DHS. H-4 visas are issued to dependent spouses or unmarried children (under 21) of H-1B visa holders, who work in specialty occupations. This decision affirms the DHS's authority to allow H-4 spouses to work under specific circumstances, despite challenges that the regulation exceeded the agency’s statutory powers.

The core of the challenge by Save Jobs USA revolved around whether DHS had the authority under the Immigration and Nationality Act (INA) to grant work authorization to H-4 visa holders, particularly given the stringent requirements and limitations imposed on H-1B visa holders. The plaintiffs argued that the INA does not explicitly grant DHS the authority to allow H-4 spouses to work and that doing so could harm American workers by expanding the labor pool without congressional approval.

However, the D.C. Circuit found that the DHS regulation was consistent with a previous ruling in Washington Alliance of Technology Workers v. DHS (Washtech), which upheld DHS's authority to issue work authorization under the INA’s general provisions. The court emphasized that precedent and the principle of stare decisis, which requires courts to follow established rulings, were central to its decision.

The court also noted that without intervention from the Supreme Court or a change in legislation, the DHS's ability to issue work authorizations under its regulatory authority would likely remain intact. This ruling reinforces the executive branch's power to interpret and implement immigration laws in ways that expand work authorization for nonimmigrant visa holders.