Pro-American lawyers are pressuring federal appeals court judges to kill a covert legal claim used by government officials to sneak at least two million salary-cutting foreign workers into U.S. workplaces.
The three judges at the United States Court of Appeals for the D.C. Circuit have three broad options when interpreting section 1324a of the immigration law, said John Miano, one of the lawyers who is arguing to kill the legal claim on behalf of the Immigration Reform Law Institute and a group of U.S. graduates in the Save Jobs USA coalition.
The judges could agree with business groups and agency officials to declare that section 1324a of the immigration law gives President Donald Trump unlimited authority to issue work permits, said Miano. But that approval would be “just amazingly unconstitutional” because it would provide enormous unrestricted power to Trump and future presidents, Miano said.
The judges may declare that section 1324a means only Congress has the authority to issue work permits. That would be the correct decision, Miano said, but “they are opening up a can of worms.”
The can of worms is that a Congress-only verdict would knock out the legal foundations for the decision by President George Bush to create the OPT program which steered professional jobs to 400,000 foreign graduates in 2017. It would also knock out President Barack Obama’s legal justification for giving work permits to 800,000 ‘DACA’ illegals and to 100,000 spouses of H-1B visa workers.
More importantly, a Congress-only interpretation of 1324a would sharply reduce the number of foreign graduates who would volunteer to stay for years in low-wage H-1B jobs throughout the white-collar sector.
If the various 1324a outsourcing programs are revoked, perhaps 400,000 foreign graduates would be required to go home. The resulting correction of the white-collar labor market would force high-tech investors to raise salary offers to young Americans, including the 800,000 Americans who will earn 2019 degrees in business, design, software, engineering, healthcare, architecture, science, and math.
Miano wants to raise white-collar salaries because he represents a group of Americans who argue that their salaries and career opportunities are being throttled by Obama’s 2015 “H4EAD” giveaway.
Obama’s agency claims that section 1324a allowed him to award “Employment Authorization Documents” work permits to the 100,000 spouses of H-1B temporary workers. The H-1B spouses arrive on H4 visas, so Obama’s work-permit program is called H4EAD.
This high-stakes legal and political drama was created in the early 2000s when federal judges did not quickly squash or approve the various Bush and Obama work-permit giveaways based on the 1324a claim, said Miano. But it continues because a string of federal judges who are hearing two lawsuits have passed the decision to each other, so dragging the litigation out for 11 years, he said.
The third option for the federal appeals court is to continue the delays and dodge the political conflict by sending the case back down to a lower judge, said Miano.
But that dodge would be pointless, said Miano because the lower court judge has already announced she will decide against Miano’s case. If the decision goes back to her, Miano said he will promptly appeal her denial verdict back up to the appeals court.
Top-level officials at the DHS have been dodging the 1324a issue for years, Miano said.
Under Bush, Obama, and Trump, DHS officials decided to neither defend nor denounce the work-permit claim. DHS “has been taking a dive in the case because the deep state wants to preserve this ability to do unlimited work permits … and [President Donald] Trump did not clean out the deep state [in DHS],” Miano said.
For example, the Department of Justice declined in 2017 to litigate Obama’s 1324a claim that he could award work permits to 800,000 DACA migrants in 2012. “The government does not raise these arguments, however, so the Court will not consider them,” a D.C. district court said in 2018.
Also, DHS has repeatedly delayed and dodged Miano’s lawsuits by claiming that American professionals cannot sue because they are not disadvantaged when the agency provides work permits to competing foreign professionals. For example, the DHS agency’s April 1 brief said that Miano does not have “standing” to file a lawsuit because:
Save Jobs never established how its members, who work only in the information-technology sector, would clearly or immediately be harmed by the H-4 Rule—which affords employment authorization eligibility across a far broader range of economic sectors. Instead, Save Jobs pressed a capacious and boundless view of competitor standing that would allow anyone to challenge an agency action that may result in more people entering the U.S. job market as a whole, in any occupation.
But this no-standing, no-proven-harm claim contradicts DHS’ 2014 rationalization for creating the H4EAD program. Back then, the agency justified its decision to start awarding work permits to the H-1B spouses by saying it would provide additional H-1B tech workers for employers:
DHS believes that this rule would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents, to the detriment of their U.S. employer, because their H-4 nonimmigrant spouses are unable to obtain work authorization.
…
The benefits of this rule would accrue to U.S. employers and the U.S. economy by increasing the likelihood of retaining highly-skilled persons who intend to adjust to lawful permanent resident status.
But now U.S. business associations and group of Indian college graduates who are seeking green cards are touting the 1324a claim that the President has the authority to issue as many work permits as he wishes.
“The only plausible reading of Section 1324a is that the Attorney General may authorize a noncitizen to work wholly apart from any express work authorization provided in the statute,” said the legal brief submitted by the U.S. Chamber of Commerce, the Information Technology Industry Council, and the Manufacturers Center for Legal Action. The groups include nearly all well-known U.S. companies, and their submission says:
Although courts’ and the agencies’ longstanding interpretation of Section 1103 provides ample authority for the H-4 Rule, that provision does not stand alone. In 1986, Congress explicitly ratified the Executive’s authority to permit noncitizen employment by enacting 8 U.S.C. § 1324a, which imposes penalties on those who employ “unauthorized aliens.” … As relevant here, the statute defines that term to mean “that the alien is not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by [the INA] or by the Attorney General.”
“The Secretary has broad authority to issue work authorization as he or she deems fit,” says the legal brief submitted April 8 by the Indian group, Immigration Voice, to the three-judge panel. The group claims to represent at least 350,000 Indian graduates who are trying to get green cards by working as long-term H-1B and L-1 temps in a wide variety of professional jobs. The brief says:
Congress had good reason to grant the Secretary dual authority to issue work authorization in cases when Congress has not acted. Congress has long-recognized that the ever-changing requirements of the immigration system often necessitate nimble Executive Branch decision making.
According to the Indians’ claim:
The Immigration and Nationality Act (“INA”) grants the Secretary of DHS broad authority to “establish such regulations,” to “issue such instructions,” and to “perform such other acts as he deems necessary for carrying out his authority” to “administ[er] and enforce[]” immigration laws. 8 U.S.C. 1103(a)(3).
Consistent with this broad statutory command, DHS (and its predecessor agencies) have understood for over 50 years that the Executive Branch has the authority to issue work authorizations, and accordingly, have issued work authorizations to millions of people. Congress has never repudiated this long-standing and consistent interpretation. Indeed, Congress has blessed it, expressly recognizing the Executive’s authority to issue work authorization. 8 U.S.C. 1324a(h)(3).
Miano’s brief countered:
Intervenors’ claim that the H-4 Rule is within DHS authority is based on the proposition that Congress created a statutory framework of “dual authority” under which Congress and DHS can both authorize alien employment independently. Needless to say, no provision of law expressly creates such a system of shared, coequal power between Congress and DHS. Rather, Intervenors ask this Court to adopt the preposterous claim that this unprecedented transfer of authority to an agency comes from DHS’s general authority. To the contrary, Congress does not delegate decisions of economic and political significance in such a cryptic fashion.
Even if Congress had attempted to create such a framework of dual authority in itself and DHS, such dual authority would be unconstitutional under the separation of powers and nondelegation doctrines.
The three judges will likely hear the case by June.
But the loser will appeal, so “the Supreme Court will have to decide this,” Miano predicted.
The top court punted on the issue when it split 4:4 in January 2016 on whether to hear a federal decision from Texas which dismissed the 2015 claim that Obama could use 1324a to create work permits for the illegal-immigrant parents of U.S. born citizens.
Miano does not expect Trump’s deputies to give up the 1324a claim. “The problem that Trump has is that DHS has sabotaged him on this 1324a thing. They could have said ‘DACA is illegal because we don’t have the power [to award work permits,’ but they said] ‘It is illegal, but we can’t say why it is illegal.'”
Meanwhile, business groups launched a lobbying, political and P.R. campaign to preserve their imported supply of cheap temporary workers.
The lobbying campaign includes pressure on President Trump’s Office of Management and Budget which is considering whether to approve a pending regulation that ends the H4EAD program without implicating the 1324a visa programs.
The H4EAD rule was drafted by Francis Cissna at the U.S. Citizenship and Immigration Services agency, but sources say it is getting a hostile reception at the OMB’s Office of Information and Regulatory Affairs. The office’s appointed leadership includes several former lobbyists and advocates, and they are being lobbied by layers, lobbyists, and advocates recounting sad stories about the spouses of H-1B workers.
Business lobbies argue that the H4EAD is vital to encourage a huge backlog of roughly 350,000 H-1B temp workers to stay in their U.S. jobs while they wait to get U.S. green cards. Without H4EAD, many of the bored and unemployed spouses will pressure their H-1B husbands to return to India or China.
That is a huge economic issue for investors because almost 1 million H-1B graduates are working in U.S. jobs, including about 350,000 graduates who are in the waiting line for green cards. Without a large supply of H-1B graduates and their H4EAD spouses, U.S. investors would have to start competing for American graduates, so driving up salaries for a very broad range of Americans graduates, from accountants to journalists to pharmacists to designers to software experts.
Nationwide, the H-1B, OPT, L-1, J-1, TN, and other visa-worker programs allow roughly 1.5 million non-immigrant, foreign graduates to work in white-collar jobs sought by U.S. graduates. Most work for low wages in the hope of getting green cards. A draft bill in Congress, S.386 and HR.1044, would lift “country caps” t0 speed the award of green cards to Indian visa-workers if they take Americans’ white-collar jobs.
Miano’s IRLI is just one of several pro-American groups working to block the extension of the H4EAD. They include Progressives for Immigration Reform, Protect US Workers, NumbersUSA, and the Federation for American Immigration Reform. These advocates claimed a success in the 2018 election when they helped defeat GOP Rep. Kevin Yoder, and are pushing the White House to protect Americans wages in the run-up to the 2020 election.
Americans who oppose the visa worker programs also say the H4EAD spouses are being trained and hired by the Indian-owned firms who brought them and their H-1B spouses to the United States, despite a large number of underemployed American graduates and mid-career professionals:
The Business Pitch
In their lobbying campaign, U.S. investors dodge the argument over cuts to Americans’ salaries and careers. Instead, they say the H4EAD program grows the economy by adding more workers and consumers. The growth increases profits for investors and Wall Street – but does it shrinks the average wage of Americans who are replaced by the foreign graduates who rationally accept very low wages in the hope of winning green cards.
For example, FWD.us, a lobbying group West Coast investors, has also joined the chorus for the H4EAD program. In April, FWD.us declared:
In the long-term, Congress should take up the issue of work authorization for spouses as part of broader high-skilled immigration reform. Congress started down the right path in 2001, when it passed a law permitting work authorization to spouses of L-1 visa holders, a nonimmigrant work visa similar to that of the H-1B (A committee report noted the legislation was needed because “working spouses are now becoming the rule, rather than the exception in the U.S. and many foreign countries’ multi-national corporations are finding it increasingly difficult to persuade their employees abroad to relocated to the United States. Spouses hesitate to forgo their own career ambitions or a second income to accommodate an overseas assignment”).
Business-backed groups are also touting the growth from a greater inflow of H4EADs and other visa workers.
“Workers currently holding an H-4 visa are almost exclusively skilled workers. thus, eliminating their work authorizations would have a small negative impact on skilled domestic workers, a large negative impact on unskilled domestic workers, and a significant negative impact on new business formation in the U.S.,” said one report by staffers at a pro-migration group, the Jack Kemp Foundation.
However, the report admitted in the footnotes that “our estimate of lost productivity is based on the reported incomes of the H-4 job holders.” H-4EAD holders have an incentive to exaggerate their resume, skills, and income, especially if they were selected via an advocacy group for H4EAD. Two advocacy groups help run the survey, the report admits:
The American Immigration Lawyers Association distributed a questionnaire we prepared to its approximately 14,000 members, encouraging them to ask their H-1B or H-4 clients to complete the survey. At the same time, an H-4 advocacy group called Save H-4 EAD sent the survey to its approximately 7,000 members.
Another business-backed report predicted the H4EAD program could grow up to 289,000 foreign workers and ignored the impact on Americans’ wages as it described multiple benefits for investors:
The H-1B program has multiple economic benefits, including expanding the pool of high-skilled labor available to U.S. employers, offsetting growing labor shortages, generating new economic activity and productivity gains, and fueling technological innovation.
The H4EAD program is backed by Microsoft, which gains when salaries for software professionals remain low. Jack Chen, associate general counsel at Microsoft, tweeted:
The pro-migration, cheap labor bill is also back by ethnic advocates and pro-migration progressives, such as Indian immigrant Rep. Parmila Jayapal.
Immigration lawyers warn that the ending H4EAD will reduce the number of people who want to hire immigration lawyers:
Establishment media outlets have supported the H4EAD workers, often with soft-focus, sympathetic stories about the vibrantly diverse foreign workers. Pavni Mittal, a reporter for PBS, for example, offered this article about ‘Kriti,’ a software employee in Seattle, Wash., who confirmed critics’ claim that the H4EAD encourages the outsourcing of Americans’ jobs:
Now, with their future uncertain, “the environment at home is tense,” Kriti said. “There’s nothing [else] I talk about. I can’t concentrate on anything… This is the only thing on my mind. If I am watching the news, I am just waiting for something on H4 EAD, if I am searching online, it’s about H4 EAD … My entire life is revolving around this.”
Kriti had an arranged marriage and said that she only tied the knot after she was assured that she could apply for work authorization after she moved. While the withdrawal of her H4 EAD would bear a significant economic cost — including putting her mortgage at risk — she said the uncertainty has also had a huge emotional impact on her, especially since her family back in India has been pressuring her to have children.
“Life is so uncertain right now I don’t know what’s going to happen tomorrow,” she said. “If I am not able to work, I don’t want to stay here anymore.”
PBS’ Mittal, an Indian graduate, also talked to an Indian accountant and a patent researcher but did not talk to American accountants, software experts or patent researcher who were sidelined by Kriti and her imported peers.
Labor Force Numbers
Each year, roughly four million young Americans join the workforce after graduating from high school or university.
But the federal government then imports about 1.1 million legal immigrants and refreshes a resident population of roughly 1.5 million white-collar visa workers — including approximately 1 million H-1B workers — and approximately 500,000 blue-collar visa workers. The government also prints out more than 1 million work permits for foreigners and rarely punishes companies for employing the population of at least 8 million illegal migrants who sneak across the border or overstay their legal visas.
This policy of inflating the labor supply boosts economic growth for investors because it ensures that employers do not have to compete for American workers by offering higher wages and better working conditions.
This policy of flooding the market with cheap foreign white-collar graduates and blue-collar labor shifts enormous wealth from young employees towards older investors even as it also widens wealth gaps, reduces high-tech investment, increases state and local tax burdens, and hurts children’s schools and college educations. It also pushes Americans away from high-tech careers and sidelines millions of marginalized Americans, including many who are now struggling with fentanyl addictions. The labor policy also moves business investment from the heartland to the coasts, explodes rents, shrivels real estate values in the Midwest, and rewards investors for creating low-tech, labor-intensive workplaces.
Follow Neil Munro on Twitter @NeilMunroDC or email the author at NMunro@Breitbart.com
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