The Department of Homeland Security has delayed plans to end the H-4 outsourcing program which has given work permits to 100,000 spouses of imported white-collar guest workers since 2015.
But the delay is being used to hide a much bigger problem, said lawyer John Miano, who represents a group of white-collar professionals who have been sidelined by the agency’s several white-collar outsourcing programs.
The hidden problem is the lawyers’ little-noticed claim that a federal law — 1324a — entitles it to grant work-permits to an unlimited number of foreigners, regardless of the harmful impact on Americans, he said.
When the agency lawyers are asked to justify the 1324a claim, “they keep on asking for delay and delay” said Miano, even though they tell other judges that “the president can do whatever he wants on immigration and that Congress does not control immigration at all.”
The 1324a claim is politically risky for President Donald Trump because it complicates his efforts to shut down the huge DACA program, which has provided work permits to more than 680,000 illegals, Miano said. Moreover, Trump’s Inauguration Day promise of a “Buy American, Hire American” policy is undermined by his own deputies’ determination to preserve the 1324a outsourcing programs — even as the 2018 elections draw closer.
The lawyers’ 1324a claim helps the anti-Trump, pro-amnesty lawyers who are trying to preserve the DACA program. On February 13, a New York judge blocked officials from ending DACA, in part, because of the 1324a claim. On February 26, a California judge said the administration cannot withdraw work-permits from DACA illegals without a formal process.
More importantly, the 1324a claim is on thin ice — and so are the outsourcing programs — because Texas’s Fifth Circuit Court of Appeals rejected the 1324a claim in November 2015, saying:
The interpretation of those [1324a] provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.
The lawyers’ interpretation of the (h)(3) clause in 1324a allows a minor “miscellaneous provision” to eat the entire purpose of the law, said Miano. That main purpose is outlined in the first section of 1324a:
(1) In general It is unlawful for a person or other entity —
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment …
The lawyers use the (h)(3) section to justify their claim that officials can grant work-permits to anyone:
(H) Miscellaneous Provisions …
(3) Definition of unauthorized alien
As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.
But the shaky 1324a claim is so important for outsourcing that the lawyers keep bringing it up in courtrooms. For example, on February 14, the DoJ filed a Supreme Court brief in an Arizona lawsuit arguing:
Congress has provided that an alien is authorized to work if he is a lawful permanent resident or is “authorized to be so employed by th[e INA] or by the Attorney General” (now the Secretary). 8 U.S.C. 1324a(h)(3).
The agencies lawyers’ now-you-see-it, now-you-don’t 1324a claim is also being used to stall a lawsuit by Miano on the huge “Optional Practical Training” program which outsources more than 300,000 graduate jobs per year.
Also, the 1324a has backfired on the administration’s declared efforts to shut down the “International Entrepreneur Rule.” That program was created three days before Trump’s inauguration, and it provides visas for entrepreneurs backed by U.S. venture-capital investors.
All told, the holdover lawyers in the DHS are using the 1324a claim to justify handing out more than 1 million work-permits to illegals, spouses of visa-workers, former students, and foreign entrepreneurs — despite the huge impact on the 4 million young Americans who will graduate from school or college in 2018.
Those 1 million 1324a workers are employed alongside the 750,000-plus foreign graduates working in the United States under the H-1B, TN, L-1a, L-1b and J-1 visa programs, and the million-plus additional foreign workers who are holding “Employment Authorization Documents.”
All of the 1324a outsourcing programs were created or expanded by officials working for former President Barack Obama.
The Trump administration’s equivocation and the judges’ refusal to rule on the 1324a claim is “nuts,” said Miano. “What is happening here is that the litigation is exploding” as various groups struggle to get judges to actually make a decision for or against the claim, he said.
The campaign to keep 1324a out of the courtrooms is being helped by sympathetic judges and reporters, said Miano. “The judges want this DACA thing to continue … and the media views this totally in terms of DACA,” he said. The white-collar reporters do not want to follow the money into the issue of white-collar outsourcing, he said. “They don’t want to go there …the media doesn’t discuss that.”
In Miano’s lawsuit against the H-4 program, the agency’s U.S. Citizenship and Immigration Services division told a judge on February 28 that it has delayed for 90 days the release of a draft regulation ending the program so that it could conduct an economic analysis.
In 2015, Obama’s deputies said the H-1B spouses deserve the to get new H-4 work permits because otherwise, they would remain idle for years while their H-1B spouses wait in line to get green cards. But the law which created the H-1B program does not include any language allowing officials to give work-permits to H-1B spouses — so prompting officials to claim section 1324a allows them to award the H-4 work permits.
The lawsuit is being brought by Save Jobs USA, a group of American professionals in California who lost their jobs when Southern California Edison outsourced the work to imported white-collar visa workers, including H-1B workers.
The judge quickly granted the request for a delay in the H-4 lawsuit, preventing any ruling against the H-4 program for several extra months.
Business groups and immigration lawyers applauded the extension.
Todd Schulte, director of the FWD.us lobby group, welcomed the delay, saying “We are encouraged by the news that, for now, over 100,000 people can continue working, providing for their families, and contributing to their communities.”
Schulte’s organization was created by investors and employers who hire white-collar professionals. The H-4 program is just one of several ways in which FWD.us is raising the supply of applicants for jobs. On February 27, for example, the organization held a cheap-labor rally in Colorado, according to the FWD.us blog, which quoted one business supporter saying “In a tight labor market like we have in Colorado, we need all the talent that we can get … [so] we regularly employ DACA recipients.”
Schulte also suggested that the administration cannot end the H-4 program without explaining how it damages individual Americans — although no analysis is needed if the 1324a claim is invalid. He wrote:
The H-4 rule is common sense: it lets the spouses of highly-skilled immigrants work once they have begun their wait for legal permanent residence. There is no evidence to show that the H-4 rule harms American workers in any way, and this latest delay shows that this Administration cannot make a case that does not exist … DHS considered economic impact when they issued the rule [in 2015] in the first place, and argued there would be minimal impact to the labor market … Allowing spouses of highly-skilled workers who already have approved green card petitions to begin working is good for our workforce and for the well-being of future American residents and citizens.
Lawyers who import salary-cutting workers for companies also applauded the delay:
— Leon Fresco (@FrescoLeon) March 1, 2018
Looks like an immediate reprieve for the H4 EAD program. It's not completely safe but we should have more than enough time for new applications and renewals.
— elissa taub (@ejtaub) March 1, 2018
The delay was also applauded by the foreign spouses who want to keep their work permits:
— Teenu Sharma (@TeenuSharma0111) March 2, 2018
But Americans graduates and voters objected to the delay, which comes eight months before Trump and the GOP will need a surge of voters in the November election.
@POTUS @REALDONALDTRUMP I'M YOUR BIGGEST FAN – I DON'T ASK FOR MUCH — PLEASE STOP H4 EAD & H1B & HR392 – HR392 IS BEING ATTACHED TO REP GOODLATTE'S BILL .. GREEN CARDS FOR H1Bs WHO STOLD ALL AMERICAN TECH JOBS IS ABSOLUTELY OUTRAGEOUS !!!!! THANK YOU!! DAWN @USCIS @CHUCKGRASSELY
— Dawn Casey (@Dawnnewyorker) March 2, 2018
Wages are flat since 2000 – 2017. Please read.
— firstname.lastname@example.org (@ghai5678) March 1, 2018
Four million Americans turn 18 each year and begin looking for good jobs in the free market.
But the federal government inflates the supply of new labor by annually accepting roughly 1.1 million new legal immigrants, by providing work-permits to roughly 3 million resident foreigners, and by doing little to block the employment of roughly 8 million illegal immigrants.
The Washington-imposed economic policy of economic growth via mass-immigration shifts wealth from young people towards older people, it floods the market with foreign labor, spikes profits and Wall Street values by cutting salaries for manual and skilled labor offered by blue-collar and white-collar employees. It also drives up real estate prices, widens wealth-gaps, reduces high-tech investment, increases state and local tax burdens, hurts kids’ schools and college education, pushes Americans away from high-tech careers, and sidelines at least 5 million marginalized Americans and their families, including many who are now struggling with opioid addictions.