President Trump's H-1B Nuclear Bomb

By John Miano, November 29, 2016

Massive replacements of American workers by foreign workers using the H-1B and other guestworker programs have been going on since at least 1994. Congress's response to these outrages over the decades has been to hold hearings on the subject and then do nothing. In a February 2016 Senate Judiciary Committee hearing I made the prediction that the only thing that would fix this problem is executive action by a President Trump.

President Obama set the precedent for expansive executive interpretation of our immigration laws. Under Obama, imagination ran wild in DHS so that an innocuous provision like this:

8 U.S.C. § 1324a(h)
(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.

became unlimited authority for the president to allow absolutely any alien to work in in the United States.

Sadly, President Obama only used this newly claimed power to bring more foreign workers and did not take any such action to protect working Americans from the absurdities taking place in immigration.

Yet it does not take much imagination to find provisions in the immigration code that could be used to protect Americans. For example, 8 U.S.C. 1182(a)(5) provides:

(i) In general Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

This provision has an odd history. A similar provision was created in the Immigration and Nationality Act of 1965. However, the story gets a bit complicated with the Immigration Act of 1990. The drafters of the 1990 act operated with a level of incompetence and malevolence never seen previously in immigration statutes. Section 601 of the 1990 act created the text shown above. Then § 162 changed that text to read (as suggested by the section numbers, the edits occur for the text being edited):

8 U.S.C. § 1182(a)(5)
Any alien who seeks admission or status as an immigrant under paragraph (2) or (3) of section 203(b) is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that ...

Under the Immigration Act of 1990, the provision above was limited to EB-2 and EB-3 permanent residency petitions.

The very next year, Congress enacted the Miscellaneous and Technical Immigration and Nationalization Amendments of 1991 that changed the provision's applicability back to its current "any alien".

Even though Congress explicitly changed the applicability of 8 U.S.C. § 1182(a)(5) from EB-2 and EB-3 green card petitions to "any alien", this provision has only been consistently applied to those green cards. I say "consistently" because over the years the executive has claimed 8 U.S.C. § 1182(a)(5) as authority for deporting aliens with other visa statuses.

While it takes much imagination to find that 8 U.S.C. § 1324a(h) gives the president unlimited authority to allow aliens to work in the country, the plain text of § 1182(a)(5) explicitly gives the executive the power to exclude aliens who "adversely affect the wages and working conditions of workers in the United States similarly employed."

Imagine the next Disney situation when an employer tells hundreds of Americans they are being replaced by foreign workers and have to train those replacements to collect unemployment. Those workers then complain to the Department of Labor. Instead of encountering an unsympathetic President Obama, Bush, or Clinton, a patriot like President Donald Trump could step in and deport the foreign replacements. Even the New York Times editorial page would have a hard time criticizing President Trump for such an action.

The next company that tries to pull a Disney could find itself left high-and-dry with its foreign workers getting the boot from the country.