This article was last updated on May 25, 2022
Today was the hearing for the preliminary injunction over the DHS regulations authorizing work under H-4 visas (for the spouses of H-1B visa holders; some background on the lawsuit is here.) This hearing was not on the merits of the case – whether DHS is permitted by law to grant work authorization to H-4 visa holders – but rather whether implementation of the new regulations (which are scheduled to go into effect next week) should be put on hold until the lawsuit is resolved. Normally, each party spends 15 minutes answering the judge's questions. I was answering questions for 45 minutes.
One thing is clear: The case is being taken seriously by the court.
Here are the requirements for a preliminary injunction:
A plaintiff seeking a preliminary injunction must establish  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.
These four issues, plus the question of standing (making it five issues) were before the court.
It's hard to speculate on what a judge will do from oral argument. However, this is what I take away.
Judge Chutkan said she was not interested in getting into the merits of the case. Because this is the first requirement of a preliminary injunction, I would think it is most likely the motion would be denied. Judge Chutkan asked most questions about irreparable harm, or the lack thereof. If the motion is denied, I suspect that would be the reason.
We got into the standing arguments as well. We poked around the frontiers of standing law. However, the law on increased competition injury in the D.C. Circuit is so clear that I do not see an issue there beyond intellectual discussion:
[The D.C. Circuit] repeatedly [has] held that parties suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition. [emphasis added]
It is indisputable that the H-4 Rule allows aliens to work in competition to the plaintiffs. Clearly, there is standing.
Judge Chutkan did ask DHS some questions on the merits of the case. The responses left no doubt that the rule is in excess of DHS authority.
I see the most likely outcome being that there will be no injunction and that we will have to wait a few months for the case to conclude. Success at that time would cause any work authorizations already issued to be revoked.
Things may change, but my impression at this point is that the final decision here will be a few months down the road. But only the judge knows for sure. There can always be surprises.
So, at worst, the decision on the merits will be postponed.
Addendum: One important point I forgot to mention: During the hearing, the DHS attorney made the astonishing claim that the agency had the authority to allow any alien to work in the United States unless Congress explicitly prohibits it. The judge sensibly responded that, if that were so, what's the point to the whole system of immigration law?
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