My colleague Art Arthur has written about a laudable win by the U.S. Department of Justice (DOJ) against an employer that blatantly discriminated against American workers by refusing to hire them, even as it was availing itself of cheap foreign laborers via the H-2B program.
DOJ under Attorney General William Barr is showing great zeal lately in its immigration-related programs, such as the Protecting U.S. Workers Initiative Arthur was discussing, as well as its new Denaturalization Section.
It puts into sharp contrast, though, the apparent lack of initiatives under the Department of Homeland Security (DHS), which runs those programs and other immigration efforts dedicated to both the granting of benefits and investigation of fraud, as well as pretty much all immigration enforcement. We are left with a number of questions.
First, why did DHS a month ago announce it had decided to up the ceiling of available H-2B visas by 35,000 workers? (Note that 35,000 is just the number of additional slots, not the overall total.) For those who don't know, the H-2B category relates to blue-collar workers. Is this really an area where the U.S. government needed to flood the economy with a cheap, pliable workforce to compete against Americans and lawful residents already struggling to make ends meet? This never made sense, and even less so once the coronavirus (COVID-19) raised its ugly head, which it had by that point.
Although in February perhaps the circumstances didn't seem so dire, it's worth noting that among the non-immigration agencies populating DHS is FEMA (the Federal Emergency Management Agency), which has recently been charged by the president with leading the nation's COVID response. Surely by the third week in February, FEMA and DHS leaders had been briefed by federal health officials on the likely uptick the United States would be imminently facing. Why did this not translate into action to suspend a dubious program rather than an announcement to permit entry of tens of thousands more alien workers?
This leads to a second question: Where is the interdepartmental coordination between DOJ and DHS on matters like the anti-discrimination action? Will DOJ's successes translate into DHS steps to penalize specific employers who abuse temporary worker programs, such as Hallaton and the other eight who've gotten caught? For example, are they barred — at least for a period of time, preferable permanently — from filing future petitions for foreign labor? They should be. If there is truly a shortage of workers in some economic sectors, as DHS Secretary Chad Wolf (a former lobbyist for the foreign worker "industry") and former White House Chief of Staff Mick Mulvaney apparently believe, then surely employers should support such debarment since there are inevitably more petitions filed than available slots, even when DHS shoots the ceiling dramatically higher.
More significant: What does DHS do with the information provided by DOJ, assuming it gets passed on? If it doesn't, the DHS benefits-granting agency, U.S. Citizenship and Immigration Services (USCIS) should be asking for detailed case summaries and profiles. It ought to be conducting postmortems to see what in its business practices is leading its officers to grant visas to companies that engage in such blatant cases of discrimination, in favor of cheap "temporary" labor and against citizens and permanent resident aliens already trying to eke out livings in our economy.
You can bet that if the individuals discriminated against were aliens, there would be a hue and cry to demand reform of USCIS processes. Unfortunately, as another of my colleagues, David North, has noted, the foreign workers' lobby, and the massive middleman hiring companies that match these workers with U.S. employers, seem to be doing a better job of pressuring Congress and executive agencies into opening the floodgates than ordinary citizens and resident aliens are at keeping them in check.
Instead, time after time, we hear horror stories of large corporations pink-slipping Americans in favor of holders of temporary visas. The blog postings here at the Center are filled with examples of this reprehensible practice. Policy analyst Jason Richwine has documented in great detail how often and how blatantly, and shown that with great frequency that the dispossessed victims are themselves minority members.
If the president's Buy American/Hire American executive order is ever to mean anything significant — especially during a pandemic that is throwing our economy into chaos and casting off so many jobs that every household is going to get a payout as a substitute for job security — then DHS generally and USCIS specifically need to get their houses in order. An aggressive anti-fraud program should be instituted to weed out cheats in all of the temporary worker programs before the visas are approved, not after the fact when a citizen or resident worker has either been forced out or denied a job to begin with.
And here's a thought: Maybe Homeland Security Investigations within Immigration and Customs Enforcement (HSI/ICE) could get involved and make a criminal fraud case or two against these corporate cheats. Take a look at the third substantive paragraph of 18 U.S.C. section 1546; it fits the bill nicely. I suspect that DOJ under this attorney general would gladly accept the case for prosecution.
Wouldn't such interagency cooperation to protect jobs for citizens and resident alien workers be a refreshing change of pace?