Texas DACA Lawsuit Threatens Many Work Permit Giveaways

AP Photo/Reed Saxon

A Texas judge may strike down President Barack Obama’s 2012 DACA amnesty for roughly 700,000 illegal migrants — and undermine other giveaway programs that allow U.S. employers to keep foreign workers in jobs needed by Americans.

In a December 22 hearing, the pro-migration supporters of Obama’s Deferred Action for Childhood Arrivals (DACA) amnesty asked District Judge Andrew Hanen to preserve the award of work permits, regardless of the economic impact on non-college Americans.

Hanen called the hearing after Texas, and other states filed a lawsuit to have the DACA amnesty declared illegal.

The work permits are the primary benefit and biggest legal question mark in Obama’s DACA giveaway, in part, because neither he nor President Donald Trump ever made any serious effort to repatriate the illegals or their parents back to their home countries.

“The strongest part of the case against DACA is the work permit benefit,” said John Miano, a lawyer with the Immigration Reform Law Institute, which seeks to reduce legal and illegal immigration.

“When it comes down to it, the real question is: ‘Where did Congress give these [DACA] people work permits?’ … Congress didn’t do that, [Obama’s deputies] just went and did it, and that implicates all these other [work permit] programs, so no-one wants to talk about it.”

The Texas case will likely force judges to grapple with the legality of various work permit programs that suppress wage raises by keeping roughly two million foreign contract workers and intending immigrants in U.S. jobs, he said.

The work permits, dubbed Employment Authorization Documents (EADs), allowed the DACA migrants to get jobs. Most of the DACA beneficiaries compete for jobs against blue collar Americans, who saw few wage rases from 2000 to 2019.

Only a small share of the DACA migrants hold white collar jobs where they would compete with journalists and progressives for college-graduate jobs.

During the lengthy hearing, the DACA defenders repeatedly claimed presidents are allowed to grant work permits to a large number of foreign nationals — regardless of Congress’ priorities, the economic climate, or the impact on American families.

“The work authorization regulations that have existed for many many years before DACA provides that an individual with deferred action– not DACA, but deferred action … may be able to secure work authorization,” said Nina Perales, a lawyer for the Mexican American Legal Defense and Educational Fund. She added:

This [regulatory] benefit, as it is termed, of work authorization is distinct from what the ]Supreme] Court in Regents [the DACA case] identified as the centrality of DACA — which is Deferred Action or Deferred Removal — and the planitiffs have had abundant amount of time to challenge for work  authorization regulations. They have chosen not. So that piece is not at issue.

The MALDEF lawyer is arguing Obama could award work permits to migrants because of two regulations, said Miano. The two regulations are found at 1324a and 274a.12, he outlined.

If her claim is upheld, Miano added, then the judges are “basically transferring to the executive, through a [legal] definition the power to create work permits at will,” Miano said.

Congress, the courts, and the media have quietly given this power to the White House, regardless of what the constitution, laws, or public opinion, Miano added.

For example, the Optional Practical Training and Curricular Practical Training programs keep roughly 400,000 foreign graduates in U.S. white-collar jobs and hinder the ability of American graduates to get starter jobs in well-paid careers, he said. “When OPT was created, it was done over a dinner party through secret lobbying” by Microsoft and President Geoge W. Bush’s deputies, he added.

Similarly, Obama’s deputies created the H4EAD program to provide work permits for roughly 250,000 spouses of H-1B corporate contract workers. The program was created to help persuade the H-1B spouses to stay working at Fortune 500 companies while they also wait many years for valuable green cards.

The Department of Homeland Security awards many work permits to many other categories of people, including people who cross the border to ask for asylum. Additional work permits are awarded at the statutory direction of Congress. The department does not say how long the work permits usually last, so the resident population of work-permit workers may exceed 2 million people.

Companies are also allowed to import visa workers, such as H-1Bs, L-1s, J-1s, TNs, H-2A, H-2Bs, and E-3. The resident population of visa workers likely exceeds one million.

In addition, a large number of foreign workers use temporary visas — such as B-1/B-2 visas — to legally enter the country so they can illegally work.

The weakness of DACA’s work permit claim was recognized in a 2015 decision by a two-judge majority in a federal appeals court after Hanen blocked Obama’s 2014 extension of DACA. The extension was called “Deferred Action for Parents of Americans,” and it helped the illegal-immigrant parents of U.S.-born children. The appeals court said:

For the authority to implement DAPA, the government relies in part on 8 U.S.C. § 1324a(h)(3), a provision that does not mention lawful presence or deferred action, and that is listed as a “[m]iscellaneous” definitional provision expressly limited to § 1324a, a section concerning the “Unlawful employment of aliens”—an exceedingly unlikely place to find authorization for DAPA.

The justice department’s legal brief to the Supreme Court in 2020 recognized the problem:

Section 1324a may have ratified extending work authorization to aliens who received deferred action on an individualized basis or pursuant to interstitial class-based deferred-action policies.


But it cannot reasonably be interpreted to have “br[ought] about [the] enormous and transformative expansion” in the Secretary’s authority that would be required to support conferring work authorization in conjunction with a deferred-action policy like DACA.

Supreme Court Chief Justice John Roberts acknowledged the problem during the court’s discussion about DACA. “I don’t understand sort of putting what the policy really was about, which is the work authorization and the other things, off to one side is very helpful,” Roberts told one of the lawyers in the court case.

GOP legislators and staffers have repeatedly dodged the use of regulation to provide work permits to the DACA illegals, likely because of pressure from investors and business donors.

For example, Mark Zuckerberg’s FWD.us investors’ pressure group worked with Microsoft to protect the DACA amnesty — and the White House work permits. On December 22, the director of the FWD.us group tweeted his opposition to the Texas lawsuit:

Republicans “want to keep the power [to issue work permits], but they don’t want this particular case,” Miano said.

The GOP-aligned Texas lawyers who brought the case largely dodged the hidden work permit program. For example, during the hearing with Hanen, Todd Disher, a lawyer with the Texas Attorney General’s Office, argued narrowly “President Obama overstepped his authority when his administration issued the DACA memorandum in 2012 … That program was unlawful at inception and continues to be unlawful today.”

Republicans, Democrats, judges, and the establishment media are performing mental gymnastics to avoid recognizing the huge labor-rights issue in the DACA debate, said Miano. But the diversion of jobs from Americans to cheap foreign workers, he said, is built on a legal House of Cards.



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