IRLI files reply refuting DHS attempt to dismiss displaced American worker lawsuit


May 18, 2015

Save Jobs USA, a group of former Southern California Edison employees displaced by foreign guest workers, filed a reply (attached here) Friday in federal court in Washington, DC to DHS’s response to their motion for a preliminary injunction to stop DHS from implementing its new rule granting work permits to additional foreign workers not authorized by law. DHS argued, among other things, in its response filed Monday, May 11, that Save Jobs USA’s lawsuit should be dismissed because it lacks standing to sue, a legal requirement under the law that a plaintiff demonstrate that it has been injured by the a defendant’s conduct. Save Jobs USA fired back at DHS on Friday for once again employing its failed argument that a plaintiff who alleges competitive standing injury must prove that she applied for a job and didn’t get the job but for an alien worker. The group claimed this argument has been rejected repeatedly in the D.C. Circuit, in which simply letting extra competitors into the market is enough to demonstrate injury.

DHS argued in its response brief that the DHS Secretary has “unfettered” power to allow any aliens of his choosing to work in the United States. Save Jobs USA refuted this claim in its reply brief, showing DHS’s interpretation leads to absurd results and is contrary to the comprehensive statutory scheme Congress enacted to regulate which aliens can and cannot work in the United States. IRLI co-counsel John M. Miano commented, “the main question in the case is whether Congress only has the power to define which aliens can work in the U.S., or whether it shares that power with the DHS.” “The outcome has major implications because, should the court agree with DHS, industry lobbyists seeking additional foreign labor would no longer have to go through Congress,” Miano said, adding that this result would “wipe out all the statutory labor protections in the immigration system.”

Save Jobs USA also refuted DHS’s claim that the new rule will have minimal labor market impacts. The group showed that from 2009 to 2014, the average monthly job creation in the United States was 74,677 jobs and from 2004 to 2014 it was 58,340 jobs. Under the H-4 Rule, DHS is preparing to add 179,600 workers into the already depressed job market—roughly equivalent to two to three month’s average job growth for the entire country.

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