President Donald Trump’s deputies told the U.S. Supreme Court on Friday that the Attorney General can give work permits to migrants, even though Congress explicitly bars the hiring of illegal migrants.
“Congress authorized the Secretary to include eligibility for employment among the conditions that attach to a nonimmigrant’s admission and continued presence in this country,” the Department of Justice (DOJ) said in a court-ordered response to a 2015 lawsuit that has been ping-ponged by four sets of judges.
The lawsuit was launched by American professionals against President Barack Obama’s 2015 decision to provide work permits to the spouses of the H-1B workers widely used to replace American professionals. Obama’s deputies justified the jobs giveaway by saying it helped companies to retain white-collar workers imported from India and other nations.
“This document gives the impression that the Trump administration is not in control of the Justice Department,” responded John Miano, a lawyer at the Center for Immigration Studies who has fought for American professionals since 2015. “This is the sort of [out-of-control migration] thing that Trump ran on, but the DOJ document is like a cut-and-paste from the briefs filed by Obama,” he told Breitbart News.
“I thought we were getting something different with Donald Trump,” Miano said.
The Justice Department’s legal brief also says that American professionals should not be allowed to sue the government over the 2015 giveaway because they cannot prove they suffer direct economic harm from additional foreign workers. Without harm, the Americans do not have the legal standing to bring a lawsuit, the department claims:
Petitioner did not identify a single member who is ‘suffering immediate or threatened injury’ that is fairly traceable to the 2015 rule… None of the three members who submitted declarations provided any basis to believe that he or she would compete [for a job in the future] against such an H-1B worker, making an injury based on such competition entirely speculative.
But the DOJ admitted that “In 2019, the [DC] court of appeals [decided] that petitioner had standing because the [Obama] rule would ‘subject its members to an actual or imminent increase in competition,’” for jobs.
The dispute began in 2015 when Obama’s deputies agreed with business requests to provide work permits — dubbed Employment Authorization Documents (EADs) to the spouses of H-1B visa workers employed at Microsoft and other companies.
The spouses of H-1B workers carry H-4 visas, so their work permits are dubbed H4EADs.
Obama’s 2015 award was made to help employers, not Americans, the justice department brief admits:
[Obama’s] Secretary further observed that the “lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants” and that those “hardships may increase the longer these families remain in the United States.” Accordingly, the Secretary explained that extending eligibility for work authorization to H-4 nonimmigrant spouses… [would] “minimiz[e] disruptions to U.S. businesses employing such workers.“
The case is critical because it may decide if federal law gives the President’s deputies unlimited power to award work permits even though Congress has also set various rules governing which migrants can work in the United States.
The Justice Department brief says:
The Secretary cited and relied on his general immigration rulemaking authority in 6 U.S.C. 112 and 8 U.S.C. 1103(a)(3), as well as his time-and-conditions authority in 8 U.S.C. 1184(a) and his authority to grant employment authorization under 8 U.S.C. 1103(a)(1) and 1324a(h)(3)(B).
The Section 1324(a) clause has been used to provide millions of work permits to white-collar migrants via various unauthorized programs, including the H4EAD, Optional Practical Training, and Curricular Practical Training programs.
President Joe Biden’s deputies used the claimed power to provide work permits to his huge inflow of illegal migrants, and Obama’s deputies cited it when they gave work permits to 800,000 younger “DACA” migrants.
The U.S. Supreme Court insisted on getting the DOJ statement from the Justice Department because it is deciding whether to take up Miano’s lawsuit after it was denied by the left-leaning D.C. appeals court. Chief Justice John Roberts cited the work-permit issue in a 2019 hearing on Obama’s DACA work-permit program:
CHIEF JUSTICE ROBERTS: But, Mr. Olson, the whole thing was about work authorization and these other benefits. Both administrations have said they’re not going to deport the people. So the deferred prosecution or deferred deportation, that’s not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by — by the memo.
MR. OLSON: Yeah.
CHIEF JUSTICE ROBERTS: So 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. [Emphasis added.]
The work permit question has emerged in multiple lawsuits but has been sidelined by judges even as the number of work permits and related lawsuits has exploded, Miano said. It has been “delay, delay, and delay,” he said.
Visa Worker Programs
The Department of Homeland Security releases very little information about the number of resident temporary foreign workers in American college-graduate jobs. Breitbart News estimates that number at roughly 1.5 million.
Miano estimates there are roughly 250,000 H4EAD workers in U.S. white-collar jobs. The vast majority are the wives of the roughly 1 million Indian visa workers who created a massive backlog in the waiting line for green cards.
The India-created backlog exists because India’s government has encouraged Fortune 500 companies to hire Indian workers instead of Americans. These lower-wage Indian visa workers stay working at Microsoft, Intel, Amazon, Tesla, Apple, and many other smaller companies because the CEOs can withdraw their dangled promise of valuable green cards if the Indians change jobs or go home.
The DOJ’s claim is strongly backed by Fortune 500 companies and tech investors who grow their stock values by shrinking salaries.
Corporate boards and CEOs favor hiring Indians over Americans because they are often cheaper and subservient because of their desire to live in the United States.
The growing army of mixed-skill foreign white-collars workers in the U.S. excludes many young American graduates from professional careers, prevents many skilled Americans from getting promotion into management, and shrinks the creation of innovative firms.
The government’s supply of powerless Indian graduates fuels the Indian-run, semi-secret ethnic hiring networks that recruit Indians for starter jobs, recruitment, hiring, and management roles throughout the U.S. Fortune 500. Those Indians then help each other Indians move into CEO jobs at a growing number of Fortune 500 companies.
The mass movement of mixed-skilled and often unverifiable Indian graduates into American jobs and C-suites is a top priority for the Indian government.
Miano said:
In my programming days in the 1990s, a guy I knew at a bank in New York said he wanted to hire me as a [technology] consultant. He called me up and said, “Okay, but then you have to go through HR.” And then I get a call from HR the next day, and they say, “Oh, but you’ve got to come through a Preferred Vendor [an Indian subcontractor picked by the bank], so I’m going to have them interview you.”
The next day I got a call from someone in India for a tech interview. He calls me up and says, “Hi, do you know C++? [a basic computer language]” I said yes.
Next day, I get a call from [the bank’s] HR, saying, “Well, we can’t bring you on because the Preferred Vendor interviewed you and you don’t know C++.”
The Indian firm was “hoping that by keeping me out, they might keep the next person out too, so that the bank’s only choice would be to hire one of the Indians,” said Miano.
Many American and Indian professionals have told Breitbart News that Indian managers use the visa programs to sell U.S. jobs held by skilled American professionals to aggressive Indian graduates in exchange for salary kickbacks. That hidden international marketplace helps to explain why many Indian managers quickly fire and replace the experienced American professionals in their offices, regardless of the damage to their employers’ economic performance.
The H4EAD program is especially bad, said Miana, because most H4EAD spouses take lower-level jobs that would ordinarily go to new American graduates who may produce the next wave of innovation.
The growing use of imported white-collar workers pushes many American STEM, business, and healthcare graduates out of the middle class and away from entrepreneurship and management careers. The replacement inflow also helps the corporate directors shift more investment and middle-class jobs back to India, regardless of the damage to critical national strengths, including professionalism, innovation, and national security.
Trump’s DOJ deputies have promised to sharpen their focus on white-collar migration crimes.
This week, Trump said the nation needs more automation to grow the economy with less migration. “We’re going to need robots… to make our economy run because we do not have enough people,” he told Breitbart News, adding:
We don’t enough people to do it. So we have to get efficient… we’ll probably add to [the existing workforce] through robotically — it’s going to be robotically… It’s going to be big. Then, somebody is going to have to make the robots. The whole thing, it feeds on itself… we’re going to streamline things. We need efficiency.
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