Congress muddles on H-1B reform to the detriment of US workers

March 26, 2018

By Dale L. Wilcox

In Geoffrey Chaucer’s classic medieval epic, “The Canterbury Tales,” the character Franklin said, “Patience is a virtue.” If there is truth to the proverbial phrase, my law firm’s been pretty virtuous.

When President Obama’s Department of Homeland Security (DHS) in 2015 began handing out work-permits to the spouses of H-1B guestworkers applying to permanently immigrate, we took the agency to court. On behalf of a group of displaced and out-of-work U.S. tech workers, we claimed that the hundreds of thousands of work permits due to hit the tech-labor market as a result of the new rule (according to DHS’s own estimates), violated our plaintiffs’ labor rights, was designed to circumvent the H-1B visa-cap, and represented a corruptive hand-out to the Obama administration’s tech-industry allies. Thankfully, President Trump agreed, and when his own DHS was installed one of its first orders of business was to draft a rescission-rulemaking taking us back to the pre-2015 status quo.

Unfortunately, they now appear to be dragging their feet. The agency has continuously delayed the rule’s implementation, which, in the process, has kept our lawsuit alive but frozen by the courts. It might be that the pull of the tech lobby in Washington, D.C. (and within DHS itself) is too much to bear even for the Trump administration. Indeed, Bay Area Democrats are apparently smelling blood and just last week mounted a DHS-lobbying campaign to curb the rescission.

When it was originally proposed that spouses of H-1B guestworkers, residing here on so-called H-4 visas, obtain work authorization, the AFL-CIO rightly attacked it as an expansion of the H-1B program itself. That program, originally created way back in 1990 to cure a “temporary” work-shortage in the then-burgeoning tech industry, is perhaps the very last federal program that needs expanding.

In its original rulemaking announcement, the Obama administration was refreshingly frank about the proposal being a hand-out to its Big Tech allies. As the rule’s rationale stated, DHS sought to “encourage H-1B skilled workers to remain in the United States … [to] not abandon process their efforts to become lawful permanent residents” and to “remove the disincentive for many H-1B families to start the immigrant process.”

No factual basis for this “disincentive,” was offered, however, and as the AFL-CIO has pointed out, the vast majority of public comments made to the rule didn’t actually say that potential immigrants were abandoning the immigration process because their spouse couldn’t work.

The Obama DHS’s legal justification was also baseless. As we point out in our suit, the agency relied on a previously little-known provision of the immigration code, § 274A(h)(3), to “prove” it has the authority to hand out work-permits to anyone it wants. The provision, however, is merely definitional and describes what an “unauthorized alien” is (i.e. someone who can’t work) for the purposes of punishing employers who hire them. On its face, it gives no authorization to anyone to do anything. If DHS already had such broad authority, one would think Congress would’ve laid it out clearly in the statute. As the Fifth Circuit Court of Appeals said when it knocked down the Obama DHS’s work-permit theory elsewhere, Congress doesn’t “hide elephants in mouseholes.”

Also curious is Congress’s routine authorization of the DHS secretary to grant work-permits, like in the Haitian Refugee Immigration Fairness Act of 1998 or the Violence Against Women Act of 2005; efforts that would not be necessary if the Secretary already had broad work-authorization powers. Indeed, the latter enactment explicitly gives work-permits to H-4 visa-holders who’ve suffered battery and abuse. Further, when Congress was debating the Gang of Eight’s monolithic amnesty bill in 2013, it included a provision that would’ve inserted into § 274A a line expressly giving all H-4s authorization to work. Why would Congress have bothered if the statute said H-4s could work already?

To be fair, what Congress proposed in the 2013 bill differed slightly with what the Obama DHS eventually did: they wanted to condition the spousal work-permits on receiving reciprocity from India, similar to the 650,000 H-1B guestworkers in the U.S. Indian nationals take up a whopping 80 percent of H-4 visas. India, like many other nations, does not reciprocate this U.S.-granted privilege.

Before critics excoriate the Trump DHS for winding back H-4 work-permits, they should remember that while the U.S. immigration system is by far the biggest and most open in the world, generosity has to have limits, and it is our own working people and the American rule of law that must come first.

Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at: Dale L. Wilcox, Congress muddles on H-1B reform to the detriment of US workers, The Hill, March 26, 2018