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 said. “I thought we were getting something different with Donald Trump.”
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.
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