Unfortunately – and as I predicted from the hearing – the preliminary injunction in the H-4 case was denied, solely on the issue of "irreparable harm". (See background on the lawsuit here – it is a challenge to DHS's unilateral grant of work authorization to holders of H-4 visas, who are the spouses of H-1B foreign workers. This was one of the executive actions President Obama announced in November, and it will go into effect as scheduled on Tuesday.)
We obviously disagree, but Judge Chutkan’s opinion is well-reasoned. We would never have filed the motion if we did not think we should prevail. The reason we worked so hard to get the motion filed is to provide the public with certainty. But we are not the judge and we do not have the judge's responsibilities. Judges have a hard job and a motion like this puts a judge in a no-win situation.
To use a football analogy, we lost a close game but we cannot blame it on bad calls from the referee.
I do not want to be a spin-doctor. A loss is a loss. However, the situation here is much like losing the last preseason game of the NFL season: It hurts but it does not count in the quest for the Super Bowl. The case goes on and the only issue the court decided, irreparable harm, is only an element of a preliminary injunction and is not part of the case from now on.
My fellow Americans, don’t give up hope yet. There is still hope that we can restore to you the meager protections that Congress has created in the immigration system.
Game One of the NFL regular season is DHS’s motion to dismiss. The issues coming up are:
- Whether a claim has been stated upon which relief can be granted.
The court said in its opinion that the case was "non-frivolous". I do not expect the case to be dismissed. After all the paperwork is filed, I hope to go over these issues in more detail.
In the meantime, American programmers have to hope that the continuing uncertainty will cause employers not to hire H-4 programmers while this case lingers, since the new H-4 work authorizations could end at any time, requiring any new hires to be dismissed.