Facebook and Other Companies Petition Supreme Court on Deferred Action

By Jon Feere, March 23, 2016

Companies seeking more cheap labor from abroad have filed an amicus brief with the U.S. Supreme Court in support of the Obama administration, which is seeking to overturn an injunction on President Obama's controversial Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) amnesty and an expanded version of his Deferred Action for Childhood Arrivals (DACA) amnesty.

The brief, signed by 63 employers and business interests, was spearheaded by Facebook's lobbying arm FWD.us, which has promoted expanded immigration since it was started in 2013. In recent years, FWD.us has also produced a number of advertisements promoting amnesty, including one deceptive ad starring former presidential candidate Sen. Marco Rubio (R-Fla.), and another featuring an inaccurate image of the American flag, apparently created by foreign tech workers who were unfamiliar with the Stars and Stripes.

The Supreme Court case is focused on DAPA and an expanded version of DACA, which, even if put into effect, would likely not benefit very many illegal aliens with tech backgrounds, and consequently would likely not benefit Facebook or the IT industry. The reason Facebook pushed for the Rubio-Schumer amnesty, of course, was not because it legalized millions of unskilled illegal aliens, but rather because the bill would have expanded visas for foreign tech workers. As the Congressional Budget Office (which analyzes legislation) found, the Rubio-Schumer bill (S.744) would have lowered the wages of high-skilled Americans (and the wages of lower-skilled Americans as well).

So why would Facebook support DAPA and DACA? Is it that they just really love immigrants, even those engaging in identity theft and other crimes, and simply want to lend a helping hand? A more likely scenario is that Facebook viewed this brief as a way to pull in companies supportive of low-skilled labor who can be called upon by Facebook to back Facebook's push for more high-skilled foreign labor in the future. A coalition of cheap labor-seekers, if you will. Plus, getting involved in the DACA debate helps FWD.us color itself as an "immigrant advocate" group, a description that has a better ring to it than "billionaire tech lobbyist group seeking cheap, foreign labor".

Plenty of the companies that have signed on to the brief do, in fact, benefit from unskilled labor and may potentially be employing illegal aliens who would benefit from DAPA or the extended DACA. The brief argues that there are "labor shortages linked to our immigration enforcement policies", meaning that because some illegal aliens are returned home, businesses can't seem to find replacement workers willing to work for the substandard wages the companies are offering. But America does not have a shortage of workers; it has a shortage of jobs.

The brief is largely a mish-mash of seemingly wonderful factoids about immigrants mixed with unrelated claims about illegal aliens. For example, the brief repeats the claim from a faulty report that "over 40 percent of Fortune 500 companies were founded by immigrants or a child of an immigrant." Even Politifact took issue with this report, noting many problems with the report's analysis, including the following:

General Electric is another example of the ambiguity involved in determining the role of immigrants. The company is listed as founded by the child of an immigrant, Thomas Edison. Born in Ohio, Edison was the son of Samuel Edison of Canada, who emigrated to the U.S. after he took part in the failed Mackenzie Rebellion of 1837. But Edison was also the son of Nancy Matthews Elliot, who was born in New York.

So Edison, a U.S. citizen born in Ohio to a U.S. citizen mother born in New York, is considered to be an "immigrant founder" of General Electric because his father was born in Canada and moved to the United States a decade before Edison's birth. And from this, the Supreme Court is supposed to conclude that President Obama can go around Congress and unilaterally grant work permits and Social Security accounts to millions of law-breaking illegal aliens.

But Politifact didn't go far enough. Was Edison really "the founder" of General Electric? Not according to General Electric. The company was a merger of Edison General Electric and Thomson-Houston Company, meaning the founders of General Electric were four people, three of whom were born in the United States: Thomas Edison, Charles Coffin, and Edwin Houston. The lone foreigner was Elihu Thomson, born in England in 1853. He moved to the Philadelphia with his family at age five. Does this tell us much of anything about what good immigration policy should be today? Not really.

On determining who a company's founder is, the group that wrote the report notes that it "let the companies draw the line with their own narratives". This means that Verizon, founded in 2000, is counted as an immigrant-founded company because Alexander Graham Bell (born in Scotland in 1847) jointly founded the Bell Telephone Company in 1877 alongside Gardiner G. Hubbard (the Boston-born trustee and president) and Thomas Sanders. Later, Bell created the American Telephone and Telegraph Company to handle long-distance calls, and it stayed in business as a monopoly until it was broken up in 1984, creating a number of so-called Baby Bells, including one called Bell Atlantic. Years later, in 2000, Bell Atlantic merged with GTE Corporation, forming Verizon. These are the steps one must go through to conclude that Verizon is an "immigrant-founded" company. Politifact notes that they went with Bell "because the report's authors couldn't identify anyone else as a founder".

In reality, our Director of Research, Steven Camarota, finds that immigrants "are not lacking in entrepreneurship, but it's also not a distinguishing trait of immigrants."

Below is a sampling of some of the business interests that have signed on to the brief and are arguing that because a certain portion of legal immigrants have started businesses, employers should have unlimited access to both unskilled illegal aliens and cheap, foreign, tech workers.

A tech-related company called AlleyWatch wants an immigration policy that "would permit supply of lawful domestic-based employees to match the demand for skilled professionals in the emerging technology space, lest small businesses suffer for not matching the outsourcing strategies of their larger competitors." In other words, since some larger tech companies are outsourcing jobs to places like India, AlleyWatch wants the ability to bring in people from India so they can better compete, rather than have to pay legal residents in the United States a decent wage.

American Apparel has signed on to the brief, a company that was discovered to have hired up to 1,800 illegal aliens in its garment factories and regularly promotes amnesty for its illegal workforce. After the federal government held the company responsible, the result was the removal of about one-third of American Apparel's manufacturing workforce.

Something called Care.com, which bills itself as "the world's largest online destination for finding and managing family care" and offering "services, which include childcare, senior care, pet care, and housekeeping" notes that, "nearly half of the workers in the domestic services sector are immigrants, many undocumented". The site has a section on DACA and DAPA, and informs users that "If you've hired someone that does not have authorization to work in the country, you may be able to help them gain temporary legal work status." In other words, Care.com assumes that it is helping at least some of its clients employ illegal aliens. But it puts the onus on people using Care.com, noting that "you were supposed to verify [your caregiver's] work authorization via Form I-9."

Civitas Learning joined the brief "because it supports consistent and predictable immigration policies." Of course, if Civitas wanted consistent and predictable immigration policies, the last thing it would want is for the White House to unilaterally change immigration policy on a whim without going through the notice and comment process. It seems that Civitas, like many of the companies that have signed on to the brief, has little understanding of what this case is about.

Redfin, an online real estate brokerage company based in Seattle, supports Obama's granting of work permits to illegal aliens (and apparently more immigration, generally) "because current policies have contributed to a labor shortage in new-home construction, resulting in historic inventory lows." In other words, Redfin could make more money if only the U.S. brought in more foreign workers to build more homes.

Broetje Orchards, "one of the largest privately owned apple orchards in the United States with more than 6,000 acres of apples and cherries, serviced by over 1,200 employees year-round (and thousands more seasonal employees)" has signed on to the brief in support of President Obama's unilateral amnesty because Broetje "experiences annual worker shortages that compromise its ability to successfully manage and harvest crops." One wonders how many DACA and DAPA recipients are interested in harvesting cherries, but the point is that Broetje is a supporter of more low-skilled foreign labor.

Fueled Digital Media has signed on because "current immigration enforcement policy has saddled Fueled with extraordinary hiring challenges, as candidates that meet just their technical requirements are few and far between." Furthermore, Fueled "aims to bring all of its overseas staff — and thus their income and taxes — to the United States." Of course, not knowing what Fueled pays its staff, it's a little difficult to know whether this would be beneficial to the American taxpayer.

Cyclo Corp.'s restaurant, Pho Cyclo Café in Seattle signed on to the brief. The owners have been fighting Seattle's $15-an-hour minimum wage, telling a local radio station that it would harm unskilled immigrant laborers because when the wage is lower, businesses would prefer hiring the newly arrived, low-skilled foreigner "rather than hiring someone else at a higher wage". But when the minimum wage goes up, the owner explains, companies like hers would rather hire "better English-speaking" employees. Put another way, it seems the company wants wages low so they don't have to hire long-term residents of Seattle.

Liberty Tax Service, a tax preparation company based in Virginia, supports Obama's grant of work permits to illegal aliens, arguably because it sees these individuals as future clients. In fact, the company has created "Una Familia Sin Fronteras (Family Without Borders) Foundation" to focus on recently arrived immigrants. It notes that the foundation has earned respect and support from the Mexican Foreign Ministry's Institute for Mexicans Abroad. Worried about its dwindling number of customers, the company noted that changes in immigration policy "were expected to push additional filers toward tax preparation services".

Main Street Alliance, a coalition of businesses seeking amnesty and more cheap labor from abroad, signed the brief, arguing that it supports a policy that "stems the exploitive and economically damaging practices of unscrupulous employers toward unauthorized immigrants". Of course, any such business is rewarded with an amnesty since their illegal work force would be able to get work permits. The most recent press release from Main Street Alliance "strongly condemns" proposed legislation that — according to Mains Street Alliance — "prevents Syrian refugees from entering the United States without meeting additional stringent screening requirements."

ThinkFoodGroup, which develops, manages, and operates restaurants run by Chef José Andrés, signed on to the brief. It notes that the chef "knows that the restaurant industry employs immigrants to perform some of this country's most back-breaking, arduous work, and that sound immigration enforcement policy gives them, as well as the millions of undocumented immigrants already in the U.S., a chance to prove themselves worthy of citizenship." Though it is promoting amnesty for illegal aliens and controversial, unilateral, presidential action that goes around Congress, ThinkFoodGroup apparently does use E-Verify.

Many other companies and individuals who make use of H-1B visas and cheap foreign labor signed on. One individual, Jason LeVecke, makes for an interesting case study of the types of people who are taking part in this brief.

LeVecke has been CEO of a restaurant franchise chain with over "200 locations of different restaurants across eight states", according to the brief. He also owns at least 60 Carl's Jr. restaurants in Arizona, a company started by his grandfather. He does use E-Verify there since it's required by state law, but he opposes the program because he's had to let some of his illegal alien staffers go.

His concern is that if the government is going to be using E-Verify, it needs to be "allowing enough people in legally to meet the demands of our economy." Apparently Mr. LeVecke doesn't think there are enough legal residents in Arizona willing to work at the wages he's offering. Arizona currently has the second highest U-6 unemployment rate in the country, after Nevada, at 12.8 percent.

LeVecke is also a supporter of sanctuary cities and at an immigration event in Washington, D.C., referred to people who oppose illegal immigration as "anti-immigrant propagandists". He also doesn't like people pointing out that employers who oppose E-Verify are supportive of cheap, illegal labor. He told the crowd:

They'll say that you just want to keep your "cheap or under the table labor." Don't let them get away with it. Ask each and every time if they have any evidence of someone being paid less then [sic] minimum wage or under the table. Most of the sweeps, raids, and deportations of undocumented workers show that they were making union wages and paying taxes like the rest of us.

Of course employers of illegal aliens want to keep their cheap labor. And it's not always a matter of being paid less than minimum wage. Employers who use illegal labor find it advantageous to hire an illegal alien at $10/hour for a job that might otherwise pay $15/hour. One study, authored by Pulitzer Prize-winning reporter Jerry Kammer, on the 2006 Swift & Co. meat packing raids found that government data show that the average wages of meatpackers in 2007 were 45 percent lower than in 1980. After Swift & Co. lost around 3,000 illegal alien employees, wages and bonuses went up for workers as the company had to offer better wages in order to attract legal residents to the jobs.

As for the claim on illegal aliens not being paid under the table, the generally pro-amnesty Washington Post felt comfortable reporting that "researchers generally agree" that about "40 to 50 percent of illegal immigrants are paid under the table." That's money that is not taxed on either side of the equation, not income taxes nor FICA taxes paid by the employer.

LeVecke doesn't see a problem with companies moving to Canada to take advantage of more robust insourcing policy, explaining: "Microsoft opened operations in Canada just because our country doesn't allow enough workers into the United States to keep Microsoft staffed and Canada has no limits."

He also doesn't think America's borders matter too much, noting that when it comes to supporters of immigration enforcement, "They'll tell you they are defending our nation's sovereignty. The sovereignty they speak of is the sovereignty of a motherland. America was built on the notion that we should be more concerned for the sovereignty of our values not land."

The entire amicus brief is available online at SCOTUSblog.com.