Lawsuit Asks Whether the President Can Give Work Authorization to Anyone He Wants

By John Miano on April 29, 2015

It is well known that the utility Southern California Edison recently H-1B'd about 500 American employees. A number of these Americans who were replaced by H-1B workers have fought back by filing a lawsuit challenging the recent regulations to authorize spouses of H-1B workers on H-4 visas to work as well. (I am an attorney representing Save Jobs USA, the organization that filed the lawsuit.)

The law firm Berry, Appleman, and Leiden has put out a good summary of the case.

BNA has an article that describes how the H-4 case is related to other actions brought against the administration.

The central issue in DACA, DAPA, OPT, and H-4 (and others in the pipeline) is the same. The Immigration Reform and Control Act of 1986 (IRCA) made it unlawful for employers to hire unauthorized aliens. The question for the courts is whether this provision —

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.

— grants the executive unfettered authority to authorize aliens to work in the United States. That is exactly what DHS claims. It is the basis for the authority that DHS claims for DACA, DAPA, OPT, work on H-4 visas, and planned future authorizations for aliens to work.

Should the courts decide in the favor of DHS, it would upturn the entire immigration system. There would be no point in Congress restricting work to certain visas if the president can authorize work for anyone — with a visa or no visa at all. It would undermine past precedent and render Congress meaningless in the immigration process.

Let me share a couple of observations. First, notice that the definition in question is limited to "As used in this section." That is, 8 U.S.C. § 1324a. Second, IRCA contains seven specific directives to the attorney general (now to the secretary of Homeland Security) to authorize illegal aliens in the legalization process to work. If the statute had omitted the clause "or by the attorney general", such aliens would be authorized to work, but it would be illegal for employers to hire them. The purpose of this section becomes clear when with read in pari material with the rest of the act: It merely defines who employers are not allowed to hire.

The claim that 8 U.S.C. § 1324a(h) authorizes DHS to allow aliens to work is simply nuts.

Apparently, this lawsuit has struck panic at some of the immigration lawyer websites. A friend forwarded me a link to a posting containing an annotated copy of the complaint.

This particular posting states:

1. I think they have a weak case on merits. See my detailed comments in the attached PDF.

I will address some of those below.

2. They have another case pending against the F-1 EAD regulations that was filed back in March 2014 and is still going on.

Actually that case is over and waiting for the judge's decision.

3. They have not asked for immediate action from the court (like the one asked in the Texas case against DACA/DAPA).

I have seen this claim made on several immigration-related forums, but it is not true. Apparently, people have not read the docket.

Let me address some of the comments in this annotated version of the complaint because they reflect some of the issues the government is likely to raise in its defense. I wish I had a more sophisticated critical examination of the complaint to work with, but this is all I have. The government will certainly come up with a much better defense of the rule. However, looking at this annotated complaint will give you some idea of how the case will be defended.

The complaint states:

19. There is no statutory authorization for an alien possessing an H-4 visa to work.

That is the heart of the case. DHS has no authority to allow aliens to work on H-4 visas. To which the annotated complaint's response is:

But there is no statutory prohibition against this either.

OK, but the law says the absence of a prohibition does not mean there is a delegation of authority.

Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.

Ry. Labor Executives' Ass'n v. Nat'lMediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) says there must be some expressed or implied authority for an agency to take an action. If the best the government can come up with is that there is no prohibition on allowing H-4 aliens to work, they are going to lose.

Most of the annotations are related to standing. In order to have standing to bring an action, the plaintiff must show some injury in fact resulting from the challenged regulation. That injury need only be a trifle (e.g., seeing the Ten Commandments hanging in a courthouse). The complaint identifies three specific injuries recognized by the D.C. Circuit that result from the regulation:

23. DHS's H-4 Rule, which grants work authorization to H-4 visa holders, injures Save Jobs USA's members by (1) depriving them of statutory protections from foreign labor (8 U.S.C. §§1182(a)(5)(A), 1182(n), 1184(g)); (2) by increasing the number of economic competitors; and (3) by conferring benefits to their economic competitors on H-1B visas.

As with the government in the OPT case, the annotated complaint ignores the injuries other than increased competitors. Let me briefly explain those injuries.

In regard to the first injury, there is no prohibition against spouses of H-1B workers getting their own guestworker visas. If such a spouse were to apply for an H-1B visa, he would have to comply with the labor condition application requirements and quotas on the number of visas designed to protect American workers like the plaintiffs. The rule allows aliens to work in specialty occupation fields where H-1B applies without conforming to those requirements — an injury to the plaintiff.

Skipping to the third injury, the H-4 rule findings (80 Fed. Reg. 10,284–312) repeatedly describe how the rule will benefit H-1B workers. For example, "DHS expects this change to reduce the economic burdens and personal stresses that H-1B nonimmigrants and their families may experience." (80 Fed. Reg. 10,285.) It is undeniable that the rule confers benefits to H-1B workers because that is the very purpose of the rule. The plaintiffs would then have to prove they are economic competitors with H-1B workers to show this injury.

They have been replaced by H-1B workers. What better proof would you need that they are competitors with H-1B workers?

Returning to the annotations, the second is the most common injury used to establish standing. A "part[y] suffer[s] constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition." (Mendoza v. Perez, 754 F.3d 1002,1011 (D.C. Cir. 2014).)

The annotated complaint asks:

Again, how are ALL H-4 holders competing for these jobs? Desperate? I think so.

That is the wrong question. He should be asking, "does the rule allow H-4 holders to work in computer jobs? Allowing just one competitor into the market is an injury in fact giving rise to standing. (Nat'lCredit Union Admin. v. First Nat'l Bank, 522 U.S. 479, 488 n.4, 504(1998).)

The rule allows aliens on H-4 visas to work in computer jobs because it puts no restrictions on what jobs they may work in.

The competition here is not just from H-4 workers being added to the market. The rule is designed to attract more workers on H-1B visas as well. DHS states:

The final rule will also support the goals of attracting and retaining highly skilled foreign workers.

That too, is more competitors and more evidence of injury to the plaintiffs. (80 Fed. Reg. 10,284.)

What I hope I have conveyed to readers is that a lot of preparation went into this case in a very short time. We examined all the issues raised in the annotated complaint — and a lot more — but (unlike its author) we researched the law. We have research folders on every point likely to be raised in the case. When you challenge a regulation, you have to overcome standing; you have to overcome the high standard of review; and you have to overcome the inherent skepticism of a judge. Clearing those high barriers requires preparation through legal research and analysis.

The motion for a preliminary judgment gives more details on the how the allegations in the complaint fit the law at issue and provide better perspective of the type of research and preparation that go into a case like this.