Why and How DHS Will Take a Dive on H-4 Visa Work Permits

By John Miano on May 9, 2019

I previously wrote that I expect that the deep state within DHS will take a dive on rescinding work authorizations for H-1B spouses. I received a few requests to explain what I mean by that and how it will be done.

To see what President Trump faces in rolling back his predecessor's policies, read this description of the DACA program, which the Trump administration has tried unsuccessfully to end:

DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano, entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." Secretary Napolitano explained that the nation's immigration laws "are not designed ... to remove productive young people to countries where they may not have lived or even speak the language," especially where "many of these young people have already contributed to our country in significant ways," and, because they were brought here as children, "lacked the intent to violate the law." She therefore determined that "prosecutorial discretion, which is used in so many other areas, is especially justified here."

The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she:

  • came to the United States under the age of sixteen;
  • has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on June 15, 2012;
  • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  • has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and
  • is not above the age of thirty [on June 15, 2012].

DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis.

If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action — again, "a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States." In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. Indeed, "DACA recipients are required to apply for employment authorization, in keeping with the Executive's intention that DACA recipients remain 'productive' members of society." Finally, DHS does not consider deferred-action recipients, including those benefitting from DACA, to accrue "unlawful presence" for purposes of the INA's reentry bars.

In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. The original DACA program remained in effect.

In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the administration's new enforcement priorities, stating that "the Department no longer will exempt classes or categories of removable aliens from potential enforcement." However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after "considering a number of factors, including the preliminary injunction in the Texas matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities," Secretary Kelly rescinded DAPA as an "exercise of [his] discretion."

Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton would amend the complaint in the Texas litigation to challenge DACA as well as DAPA.

On September 4, 2017, the day before Paxton's deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General's letter "advised that the Department of Homeland Security ... should rescind" the DACA memorandum based on his legal opinion that the Department lacked statutory authority to have created DACA in the first place. He wrote:

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress's repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

The Attorney General further opined that "because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA."

The very next day, following the Attorney General's directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with a "Background" section that covers DACA, DAPA, the Texas litigation, Secretary Kelly's previous memoranda, Texas Attorney General Paxton's threat, and the Attorney General's letter. Then, in the section titled "Rescission of the June 15, 2012 DACA Memorandum," the Duke memorandum states:

Taking into consideration the Supreme Court's and the Fifth Circuit's rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.

The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a one-month window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA "solely based on the directives in this memorandum." Thus, beginning on March 5, 2018, each DACA recipient's grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017 — the day before the rescission — approximately 689,800 individuals were enrolled in DACA.

This description of DACA hits all the talking points used by the Obama administration. DACA is prosecutorial discretion where each application is evaluated on a case-by-case basis. The DACA program was successful and Obama tried to follow up on that success with the DAPA program. But then the rascally Republicans in Texas blocked DAPA. And now those rascally Republicans are trying to stop Obama's successful DACA program as well.

You might think that this description comes from talking points published by the Democratic National Committee. Well, maybe it does indirectly, but, in fact, this comes from the Ninth Circuit's opinion in Regents of the Univ. of Cal. v. United States Dep't of Homeland Sec., 908 F.3d 476, 489–92 (9th Cir. 2018).

Yes, all three judges on the panel that wrote this bootlicking passage were all appointed by Obama. Opinions such as this should forever put an end to the claim that there are no such things as Republican and Democrat judges. Clearly, no independent, let alone Republican, would write such an opinion.

This is not to say all, or even most, Obama-appointed judges (or even Republican-appointed judges) are political in nature. However, there are enough political animals out there to taint the system. If this taint did not exist, the media would not identify judges by party after every major court decision. It would behoove the chief justice to address this problem rather than to deny it is out there.

DHS knows that it will be challenged in court if it publishes a regulation rescinding work authorizations for H-1B spouses. There will be an organized effort to file multiple cases across the country in courts that have a high percentage of judges perceived to have a political bias. Plaintiffs only need to get one judge to hold in their favor to block a rescission so, given enough tries, they could find judges with a political orientation like the DACA plaintiffs found in the Ninth Circuit.

Given the political landscape of the courts, if DHS wanted such a rescission to have chance of surviving judicial review, it would take a two-pronged approach. First, it would emphasize that the rescission represents a change of policy. It would make policy points, such as:

  • The question of H-1B spousal employment is one for Congress; not the executive.
  • It makes no sense for the principal alien on H-1B to work subject to a labor condition application, but to allow spouses to work with no restrictions whatsoever.
  • The policy of the Trump administration is to put the needs of American workers first and it does not balance their needs against those of foreign guestworkers.

Second, it would get a good legal opinion from the Department of Justice on why DHS had no authority to issue work permits to H-1B spouses.

On the other hand, if the deep state within DHS wants to take a dive on the rescission, like it did with DACA, it would do something like making economic arguments against H-1B spousal employment. It would come up with a proposed rule that uses some kind of balancing test to justify the rescission. The rule would find some kind of net economic benefit — which a politically minded court could find is countered by mumbo-jumbo economic studies paid for by groups representing the plaintiffs. DHS would also take the lawfulness argument out of play by allowing some spousal employment to continue. In fact, it might even go so far as to state that extending spousal employment is within its power in the proposed rule (as it did in the regulatory agenda) — thus teeing up an adverse court decision.

I suspect that DHS did the latter in the proposed rule submitted to the Office of Management and Budget. OMB knows that it is a turkey and, therefore, it will not see the light of day.