IRLI Targets DHS Power Grab on Alien Employment

June 2, 2021

Asks court to find agency’s claim of sweeping work-permit authority unconstitutional

WASHINGTON—This week, the Immigration Reform Law Institute (IRLI) filed its reply brief on summary judgment in one of its challenges to Department of Homeland Security (DHS) regulations unlawfully authorizing alien employment in the United States.

In this case, IRLI represents Save Jobs USA, which is made up of former employees of Southern California Edison who lost their jobs after being forced to train their cheaper foreign replacements.

At issue is a DHS regulation based on the H-4 visa, which Congress established to allow the spouses of H-1B alien guestworkers to “accompany” the guestworker to or “join” the guestworker in the United States. Under the Obama Administration, DHS added to the law governing the H-4 visa by allowing H-4 spouses to work in the United States. Since many of these foreign tech-workers’ spouses are tech workers themselves, Save Jobs USA filed a lawsuit in the U.S. District Court for the District of Columbia that challenged DHS’s authority to issue these work authorizations.

In its opening brief on summary judgment, IRLI showed that DHS has no power to grant aliens permission to work in the United States without specific congressional authorization, which is entirely lacking here. IRLI also showed that the regulation floods the tech labor market with low-cost foreign workers, greatly to the disadvantage of American tech workers.

In response, DHS argued that vague congressional language allowing DHS to make regulations to enforce the immigration laws gave it “dual authority” with Congress to give work permits to any class of aliens it chose. In its reply brief this week, IRLI demonstrates that if such a power had been given, it would make nonsense of all the times Congress did allow DHS to grant work permits to specific classes of aliens. It also would be glaringly unconstitutional; Congress may not cede such vast power to an agency without providing any guide—and it gave none here—on how the agency must exercise it.

“The media has largely ignored the problem of DHS creating guestworker programs through regulation,” said John M. Miano, counsel for IRLI. “The Constitution gives Congress authority over the immigration system, but more labor now enters the U.S. job market through regulation than under laws passed by Congress.”

“American workers should be very worried by Biden’s claim that his administration has sweeping dual authority to hand out work permits to aliens; if the courts uphold that power, one can easily imagine what this administration would do with it,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We can expect it—in cahoots with its big business supporters—to go on a spree, serially wiping out the protections for American workers that Congress has enacted. We must not allow that to happen, whatever administration is in office.”

The case is Save Jobs USA v. DHS, No. 1:15-cv-00615 (D.D.C.).