A recent Supreme Court ruling may shake up US immigration laws, specially for H-1B workers

The US Supreme Court recently overturned a 40-year-old precedent set by the Chevron case, which required courts to defer significantly to federal agency decisions. This landmark decision has far-reaching consequences for immigration laws, affecting the Indian diaspora in various ways.

Immigration attorneys suggest that this ruling could improve the success rates for US employers hiring immigrant employees, particularly those on H-1B visas, when contesting unfavorable decisions by the US Citizenship and Immigration Services (USCIS). For example, challenges against visa extension denials based on the occupation's specialization might see more favorable outcomes. Conversely, the work authorization for H-4 visa holders, who are spouses of H-1B visa holders on the path to a green card, may face renewed legal challenges.

In late June, Chief Justice John Roberts, while ruling on the Loper Bright Enterprises case, emphasized that courts must independently determine if an agency has acted within its statutory authority. Rajiv S. Khanna, managing attorney at Immigration.com, explained, “The Loper Bright decision cuts both ways, helpful and harmful. Because of this order, courts can now review both the beneficial and pernicious decisions made by USCIS and the Department of Homeland Security (DHS) based on their interpretation of various factors. Agency interpretations are not presumptively entitled to judicial deference.”


The ruling is indeed a mixed bag. It may enable US employers who hire H-1B or L-1 workers through intra-company transfers to have a better chance of winning their cases.

Cyrus D. Mehta, a New York-based immigration attorney, told TOI's Lubna Kably, “Without Chevron, federal courts will no longer pay deference to a government agency’s interpretation of a provision in the Immigration and Nationality Act (INA). Hence, employers may be able to find a court willing to give a more favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.”

Mehta also noted that the USCIS's stringent interpretation of categories like "extraordinary ability" or "outstanding researcher" in employment-based first preference petitions might face successful challenges in federal court. “The USCIS will be held to the strict language of the statute and its expansive interpretation of the statute may no longer be allowed to stand,” he added.

Save Jobs USA, an advocacy group for tech workers, has an appeal pending in the DC Circuit Court of Appeals, challenging the H-4 employment authorization documentation (EAD) rule. They argue that the Loper Bright decision invalidates the H-4 EAD program because the US Congress did not delegate the power to create it. Courts have previously upheld the DHS's authority to issue work authorization to lawfully admitted individuals. Khanna pointed out that the earlier court decision, which supported the EAD rule, did not rely on the overturned legal doctrine.

Nearly 100,000 Indian spouses on H-4 dependent visas, primarily women, hold employment authorization documentation (EAD), enabling them to work or be self-employed. The EAD rule, introduced by the Obama administration in 2015, aimed to alleviate the challenges faced by immigrants, including the Indian diaspora, who experience long waits for employment-based green cards. Under this rule, if the H-1B visa recipient is on track for a green card or has received an extension beyond the six-year limit, the H-4 visa holder can apply for employment authorization. However, with new litigation, these families face uncertain times.

Mehta remains optimistic, stating, “Even if Chevron no longer helps, there is also a clear authorization in the INA for the USCIS to issue work authorization to noncitizens and to set time and other conditions for nonimmigrants under the INA without having to rely on an expansive interpretation of the statute to issue such benefits.”

with inputs from TOI