United States District Court, District of Columbia
TANYA S. CHUTKAN, District Judge.
Plaintiff Save Jobs USA ("Save Jobs") brings this action against the U.S. Department of Homeland Security ("DHS") for violations of the Administrative Procedures Act ("APA"). Save Jobs alleges that DHS violated the APA when it issued a final rule that will allow certain H-4 visa holders to apply for employment authorization. See Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10, 284 (Feb. 25, 2015) (to be codified at 8 C.F.R. pts. 214.2, 274a) (the "Rule"). Before the court is Save Jobs' motion for a preliminary injunction. Because Save Jobs has failed to show it will suffer irreparable harm absent preliminary relief, the motion is denied.
Save Jobs is an organization whose members are former technology workers at Southern California Edison ("SCE"). (Mot. 1). Save Jobs members all allegedly lost their jobs and were replaced by foreign workers authorized to work in the U.S. under the H-1B guest worker program. This case arises from Save Jobs' allegation that its members will face even more competition from foreign workers as a result of the Rule, which authorizes a subset of H-4 visa holders to apply for employment authorization-those H-4 visa holders whose spouses have H-1B visas and are currently on the path toward legal permanent resident status.
In support of its motion for a preliminary injunction, Save Jobs submitted the affidavits of members D. Stephen Bradley, Brian Buchanan, and Julie Gutierrez. Each of these individuals is a former employee at SCE who worked in the information technology ("IT") field. Between April and July 2014, they were all fired and replaced with H-1B visa holders employed by Tata Consultancy Services, an Indian IT company. (Bradley Aff. ¶ 8, Buchanan Aff. ¶ 9, Gutierrez Aff. ¶¶ 9-10). Bradley, Buchanan and Gutierrez all allege that as a condition of receiving severance, they were forced to train their replacements.
The U.S. immigration system is complex, and the court will provide only a brief synopsis of the applicable statutes here. Citizens from other countries are admitted into the U.S. as either immigrants, non-immigrants, or refugees. Immigrants are those foreign citizens who are in the U.S. on a permanent basis, whereas non-immigrants are in the U.S. temporarily-for tourism, work, etc. U.S.C. Title 8, Section 1101(a)(15) authorizes DHS to admit non-immigrants for various purposes. Non-immigrant visas are commonly known by the letter and number of their subsection within Section 1101(a)(15). For example, the A-1 visa for diplomats is authorized by 8 U.S.C. § 1101(a)(15)(A)(i). Subsection H authorizes various H visas for certain categories of foreign workers. 8 U.S.C. § 1101(a)(15)(H). Subsection H-1B allows U.S. employers to hire temporary foreign workers to perform services in a specialty occupation; these visas are particularly common in the technology field. H-1B status is valid for an initial period of up to three years, but may be extended for up to an additional three years, for a maximum of six years.
H-1B visa holders seeking legal permanent resident status through employment-based ("EB") immigration may seek such status under five EB preference categories. Generally, the second (EB-2) and third (EB-3) preference categories require employers to obtain a labor certification which states that there are no U.S. workers who are able, willing, qualified, and available for the job, and that the employment of the visa holder will not adversely affect the wages and working conditions of workers in the U.S. 8 U.S.C. § 1182(a)(5)(A).
There are quotas for the total number of EB-2 and EB-3 immigrant visas, and according to DHS, they have been oversubscribed for a number of years, causing long delays before applicants in those categories (including H-1B visa holders) are able to obtain legal permanent resident status. According to DHS, U.S. businesses employing H-1B visa holders suffer disruptions when such workers are required to leave the U.S. at the termination of their H-1B status as a result of these delays. Congress attempted to alleviate this burden when it passed the American Competitiveness in the Twenty-first Century Act of 2000, as amended (commonly referred to as the "AC21"). That statute allowed for the extension of H-1B status past the sixth year for workers who are the beneficiaries of certain pending or approved EB immigrant visa petitions or labor certification applications.
Importantly for this case, subsection H also authorizes what are known as H-4 visas. H-4 visas allow "the alien spouse and minor children of any such alien specified in this paragraph if accompanying him or following to join him" to reside in the U.S. 8 U.S.C. § 1101(a)(15)(H). For example, the spouse of an H-1B visa holder may receive an H-4 visa that allows him or her to live-but not work-in the U.S.
The Rule-which goes into effect on May 26, 2015-would amend DHS regulations to allow certain H-4 visa holders to apply for employment authorization. The Rule applies only to spouses of H-1B visa holders who have shown an intent to stay in the U.S. by beginning the process of becoming a legal permanent resident. Specifically, the Rule would allow H-4 visa holders to work if their spouse holds an H-1B visa and is either the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or has been granted H-1B status pursuant to sections 106(a) or (b) of the AC21. The Rule states that its primary purpose is to increase "incentives of certain H-1B nonimmigrants who have begun the process of becoming [legal permanent residents] to remain in the United States and contribute to the U.S. economy as they complete this process. Providing the opportunity for certain H-4 dependent spouses to obtain employment authorization during this process will further incentivize H-1B nonimmigrants to not abandon their intention to remain in the United States while pursuing [legal permanent resident status]." 80 Fed. Reg. 10, 284, 10, 309.
Save Jobs argues that the Rule must be invalidated because DHS lacks the statutory authority to allow H-4 visa holders to work, and because the Rule is arbitrary and capricious in light of the Congressional policy of restricting H-4 visas to residency only. Save Jobs seeks a preliminary injunction to stop the Rule from taking effect and to preserve the status quo until the merits of its challenge can be heard.
II. LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an "extraordinary and drastic remedy" that is "never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). The moving party must demonstrate a likelihood of success on the merits, id., and some injury, as "[t]he basis of injunctive relief in the federal courts has always been irreparable harm." Sampson v. Murray, 415 U.S. 61, 88 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)).
In the past, courts in this Circuit used a "sliding scale" approach in analyzing the four preliminary injunction factors, meaning a particularly strong showing in one factor could outweigh weakness in another. It is not clear whether this approach survives after Winter, which suggested that a likelihood of success on the merits must always be shown. See United States Ass'n of Reptile Keepers, Inc. v. Jewell, No. 13-2007, 2015 WL 2207603, at *3 (D.D.C. May 12, 2015); Arpaio v. Obama, 27 F.Supp. 3d 185, 196-98 (D.D.C. 2014). Under either approach, however, the movant must always show irreparable harm or injury, and if a party makes no showing of irreparable injury, the ...