IRLI Unmasks DHS

April 29, 2019

Demolishes agency’s claim that it can authorize aliens to work at will

WASHINGTON – Today the Immigration Reform Law Institute (IRLI) filed its reply brief on behalf of its client Save Jobs USA, an organization of displaced American tech workers, in its appeal to the U.S. Court of Appeals for the DC Circuit. Save Jobs USA has sued the Department of Homeland Security (DHS) over the agency’s H-4 rule, which allows the spouses of H-1B guest workers to work in the United States.

The district court had dismissed Save Jobs USA’s case for lack of standing. In its brief, IRLI shows that, on the contrary, many H-4 spouses permitted to work under the rule are in the tech field themselves, and thus in direct competition with Save Jobs USA’s members. IRLI also shows that DHS believed that the H-4 rule would help H-1B workers stay in this country, competing with American tech workers, for longer than they otherwise would. Under very clear DC Circuit precedent, when an agency rule increases competition against a party, that party suffers an injury, and has standing to sue.

On the merits, IRLI makes an argument showing that DHS lacks the sweeping power it asserts to authorize aliens to work. A group of intervenors in the case argued that Congress, in the Immigration and Nationality Act (INA), set up a system of “dual authority,” under which both Congress and DHS can, as they see fit, authorize aliens to work. DHS itself claims such sweeping authority, which it has used both to give H-4 aliens work permits and to authorize beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program to work.

The problem, IRLI points out, is that when Congress supposedly granted this power to DHS, it did so without setting forth any standards for how the agency should exercise it. Such standardless delegations of power from Congress to an agency violate the separation of powers and non-delegation principles of the U.S. Constitution. And, if at all possible, courts should avoid reading a statute in a way that makes it unconstitutional.

“Here, there is very little warrant – no warrant, really – for reading the INA as DHS wants,” explained John Miano, of counsel for IRLI. “The overwhelmingly natural reading of the statute is that DHS cannot authorize aliens to work unless Congress has expressly delegated that authority to it in specific areas and given standards for how the agency should exercise it. Reading the statute as DHS wants makes it glaringly unconstitutional, so the Court has to adopt our interpretation to save the statute.”

“The implications of this argument are staggering,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “DACA is another program where DHS claimed broad authority to allow aliens – even illegal aliens – to work in this country, in the process displacing innumerable American workers. This argument shows that was authority DHS never had. Congress may not create another Congress in the form of an agency, to authorize aliens to work as it sees fit,” Wilcox continued. “Under the Constitution, we are not to be governed by business interests in cahoots with the unelected activist bureaucrats who dominate federal agencies and routinely sell out our interests and our livelihoods. Congress could not have set things up that way even if it had wanted to.”

The case is Save Jobs USA v. DHS, No. 16-5287 (D.C. Circuit).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]