US Department of Homeland Security



WASHINGTON (TIP): The lawsuit, co-led by the Immigration Reform Law Institute, centers not on the H-1B “high-tech” employment visa, but on the related H-4 visa that applies to the spouses of H-1B holders. A Department of Homeland Security rule published in the Federal Registrar in February purports to allow H-4 holders the right to work in the country. According to DHS estimates, 179,600 of these work permits will be doled out in the first year alone, with 55,000 more going out in subsequent years. Also according to the rule, DHS has given itself the option of expanding the program to other groups in future. The lawsuit asserts basically what H-1B expert Norm Matloff said recently, that the new H-4 visa rule is yet another example of U.S. Citizen and Immigration Services “taking the law into their own hands.”

The complaint against DHS revolves around two functions of the new visa rule. Besides creating a new category of competitors against American workers, the H-4 rule states: “A primary purpose of this rule is to help U.S. businesses retain the H-1B non-immigrants” (emphasis added). In other words, the rule works to draw in potential H-1B workers from abroad (and who are used to far lower salaries and living standards) while providing work permits to brand-new competitors (their potentially high-skilled spouses) who will directly compete with people like Julie Gutierrez. According to the complaint, advertisements for H-4 visa holders are already popping up on engineering job boards online.

Among the legal claims is that the authority to create work permits under the H-4 visa cannot be found in the Immigration and Nationality Act or elsewhere. But the plaintiffs say that even if a statutory basis could be found, DHS acted “arbitrarily and capriciously” when it concluded that the rule would have only “minimal labor market impacts.” As mentioned, DHS has admitted that the program will hand out nearly 200,000 work permits to new foreign job competitors in the first year, with a further 55,000 every year afterward. This alone shows that DHS’s “finding” that American workers won’t be affected was merely conjecture.

Elsewhere, Save Jobs USA claims that the Department of Labor failed to certify that the new visa rule won’t
“adversely affect wages and working conditions” of similarly employed American workers – that such certifications exist will probably surprise those workers in immigrant-heavy industries who have seen flat-line wages for decades. By contrast, many foreign-visa supporters believe that tech companies must interview Americans first before tapping the pool of H-1B workers; however, there is no such requirement in the law. One expert testified before Congress last month that “employers can easily hire an H-1B worker at wages far below what an American worker is paid.”

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The H-4 and H-1B programs, like most employment visas, confer benefits to other country’s citizens at the expense of American workers. It’s a corporate subsidy paid for by the middle class and everyone from Senator Sanders to Senator Inhofe now seems to agree. As the late Democratic senator Eugene McCarthy warned in 1992, right after the creation of the H-1B program, we cannot let America become “a colony of the world.” For the members of Save Jobs USA and other workers like them, this could give rise to a new Gadsden Flag. Any presidential candidate for 2016 who waves that banner will pull in a new and growing constituency that’s begging to be heard: the displaced American worker.

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