Legislative Update: 9/13/2016

More Qualified Americans Lose Their Jobs Through H-1B Outsourcing

Last week, the University of California and Caterpillar both announced plans to lay off American IT workers and replace them with cheaper foreign labor. (Computerworld, Sept. 7, 2016; Breitbart, Sept. 6, 2016) The nation’s largest university system and the heavy manufacturing giant join a long list of companies who have recently decided to pursue a combination of white-collar layoffs and outsourcing through the H-1B visa program — Disney, Deloitte, many hospitals, Facebook, Intel, Qualcomm, Microsoft, Toys R Us, Cengage, and New York Life. (Breitbart, Sept. 6, 2016)

The University of California layoffs will affect 17% of its San Francisco campus’s total IT staff. (Computerworld, Sept. 7, 2016) While the layoffs will not happen until late February, employees have already been told that they should expect to train their foreign replacements from India-based IT firm HCL. (Id.) It is not yet known if they will be training H-1B visa-holding replacements. (Id.) However, HCL, along with many other India based firms, is considered H-1B dependent under federal immigration law, meaning 15% or more of their U.S. workers hold H-1B visas. (Id.) HCL was sued earlier this year by laid-off Disney IT employees, who alleged the law was broken when they were replaced by H-1B visa holders. (Id.)

While most cases of H-1B abuse and outsourcing can be attributed to private companies seeking to cut labor costs, the University of California case is unique because it is a public institution. (Id.) “It is shocking that the California state government is exploiting loopholes in guest worker programs to destroy American jobs,” said Ron Hira, a Howard University professor, who has testified before Congress regarding H-1B abuse. (Id.) “It is a particularly egregious abuse of the H-1B program since the chancellor of the UC system is Janet Napolitano who served as President Obama’s Secretary of Homeland Security, which oversees the flawed H-1B program,” he added. (Id.)

The Caterpillar layoffs will affect approximately 300 American IT workers in Mossville, Illinois. (Breitbart, Sept. 6, 2016) Earlier this year, Caterpillar asked the federal government for 71 H-1B visas needed to hire foreign IT workers. (Id.) At least 30 of the requested H-1B visas are for engineers and other skilled professionals in Mossville, which is suffering the most layoffs. (Id.) At least 44 of the visas requested so far this year are for foreign professionals who are already working at Caterpillar in the United States. (Id.) These “continuation” visas are automatically approved, and do not count against the annual cap on H1-B visas. (Id.) Another 22 of Caterpillar’s H-1B visa requests are for new hires. (Id.) Since 2012, Caterpillar has requested a whopping 768 visas for H-1B workers. (Id.)

Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers, purported on a “temporary” basis, for “specialty occupations.” The visa is most commonly associated with “high-skilled” jobs, including those in the science, technology, engineering, and mathematics (STEM) fields. (Immigration and Nationality Act (INA) § 101(a)(H)(15)) The law was written to appear to provide protections for American workers by requiring companies to pay H-1B workers the “prevailing wage” for their job and not adversely affect the working conditions of American workers “similarly employed.” (See INA Section 212 (n)(1) (emphasis added)

However, these protections are misleading because of the way Congress defined the “prevailing wage.” According to the statute, the “prevailing wage” is calculated using a governmental survey that provides “at least four levels of wages commensurate with experience, education, and the level of supervision.” (INA § 212(p)(4)) This language allows the employer to determine the prevailing wage based on the position description rather than the H-1B worker’s actual skill level. Therefore, employers like the University of California and Caterpillar can legally replace Americans with cheaper foreign workers by claiming that the H-1B position is different than the displaced American worker’s (regardless of actual job responsibilities) and not in violation of the “similarly employed” provision.

DOJ Urges SCOTUS to Uphold Mandatory Detention in Key Enforcement Case

The Department of Justice (DOJ) recently submitted its brief to the Supreme Court in Jennings v. Rodriguez, one of the most noteworthy cases that will be argued during the October term, urging the Court to reverse the 9th Circuit Court of Appeals. (Law360, Sept. 6, 2016) The Justices will decide whether thousands of illegal aliens who have been held for deportation for longer than six months are entitled to hearings that could lead to their release on bond. (See FAIR Legislative Update, June 28, 2016)

The case is significant because the 9th Circuit determined that aliens must have a bond hearing after every six months of detention and are entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or danger to the community. (Department of Justice Brief, Aug. 26, 2016) It will be up to the Supreme Court to resolve the length of mandatory detention for aliens. The 2nd and 9th Circuits impose a hard cap of six months for detention while the 1st, 3rd, and 6th Circuits say that an alien may be detained for a “reasonable time.” (See FAIR Legislative Update, June 28, 2016)

Interestingly, the Obama administration believes the 9th Circuit’s decision to grant bond hearing is a “radical judicial revision” of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which provides for expedited removal proceedings for inadmissible aliens. (8 U.S.C. 1225(b)(1)(B)(iii)(IV)) The DOJ argued the Appeals Court’s ruling would defeat the very purpose of detaining such aliens: to ensure that the border actually keeps people out and to ensure physical custody over the alien to effectuate that exclusion. (Department of Justice Brief, Aug. 26, 2016)

The DOJ says that it is not the court’s duty to comprehensively rewrite laws to strike a different balance. They argue the statute language is clear that aliens seeking admission who are not “clearly and beyond a doubt entitled to be admitted” are prohibited from physically entering the United States and must be detained during removal proceedings.(8 U.S.C. 1225(b)(2)(A)) Congress would not have intended to create a presumptive entitlement for such aliens to be released into the United States after six months, nor would it wish to provide an incentive for aliens to extend their proceedings to hit that cap. (Department of Justice Brief, Aug. 26, 2016)

Finally, DOJ argues that the 9th Circuit’s ruling will encourage aliens to physically enter the United States and potentially flee, making it nearly impossible to remove them. (Id.) They highlight the Executive Office for Immigration Review (EOIR) report which shows in fiscal year 2015, out of the 27,443 initial case completions by immigration judges for released aliens, 11,325, or 41% of the total, were in absentia orders after the alien bolted. (Id.)

While the DOJ’s position on this case is encouraging, the Obama administration’s concern about incentivizing illegal immigration is ironic given that illegal aliens have been exploiting the President’s non-enforcement agenda for years.

Fifteen Years After 9/11, Key Security Measures Still Not In Place

On September 11, 2001, nearly 3,000 people died when planes hijacked by terrorists slammed into the World Trade Center, the Pentagon, and a field near Shanksville, Pennsylvania. In response, Congress created the 9/11 Commission to investigate how the deadliest terror attack on American soil came about and to “provide recommendations designed to guard against future attacks.” (9/11 Commission) One of the key findings from the 9/11 Commission was the fact that many of the 9/11 hijackers had fraudulently obtained driver’s licenses and used them in planning their attacks. (See FAIR’s REAL ID Fact Sheet) In 2005, Congress passed the REAL ID Act to strengthen national security by requiring states to comply with rules to verify the authenticity of driver’s licenses. Specifically, the REAL ID Act prohibits residents from non-compliant states from using their state-issued IDs for official federal purposes, such as boarding commercial aircraft, entering federal buildings, or accessing nuclear facilities. (Id.) Implementing these requirements will make it harder for terrorists to obtain fake IDs and close loopholes that make it easier for illegal aliens to live and work in the United States. (Id.)

Yet, as the nation observed the fifteenth anniversary of the 9/11 attacks on Sunday, this key national security measure is still not fully implemented. The Obama administration has consistently undermined the REAL ID Act by repeatedly issuing “temporary deferment” to all states that have not yet met its requirements. (See FAIR Legislative Update, Jan. 22, 2013; FAIR Legislative Update, Mar. 26, 2012) Finally, in January Department of Homeland Security (DHS) Secretary Jeh Johnson announced that the REAL ID Act will be fully implemented in 2018, or 13 years after it became law and 17 years after 9/11. (See FAIR Legislative Update, Jan. 19, 2016) 

Phoenix Council Creates ID Cards for Illegal Aliens

At the end of August, leaders in the Phoenix city council voted 5-4 to create a photo-identification card program for the city’s illegal alien residents. (AZ Central, Aug. 31, 2016) While Phoenix is the first city in Arizona to consider offering an ID card to illegal aliens, New York, Los Angeles, and Oakland have also created similar municipal ID programs. (Id.)

In order to receive an ID card, an applicant must demonstrate Phoenix residency and prove their identity. (City Council Agenda) To accomplish this, Phoenix officials will accept a wide variety of unsecure documentation including foreign IDs and documents, utility bills, employee ID badges or pay stubs, and insurance bills. (Id.) All City departments will be required to accept the ID card as valid identification and valid proof of Phoenix residency, however the card will not meet minimal standards set under the federal REAL ID Act to be accepted for federal purposes, including entering a federal building or boarding an airplane, when implemented.

Supporters of the measure say a city-issued ID card will help make the city “inclusive” to all people by helping illegal aliens open bank accounts and gain access to city programs. (AZ Central, Aug. 30, 2016) Supporters also argued it will help law enforcement properly identify illegal alien residents. “It helps us all to know who is in our community and I think we should embrace that,” said Councilman Daniel Valenzuela (D-5), who supported the measure. (Id.)

Opponents of the measure disagreed, saying the cards would do little to prove an individual’s true identity. Opponents also expressed concerns that these identification cards will increase the potential for fraud and abuse, and pose security risks that will put citizens in danger. State Senator John Kavanagh (R-23) announced his plans to reintroduce a bill to prohibit cities from creating such ID cards. (AZ Central, Aug. 31, 2016) “In the name of political correctness, they are jeopardizing public safety and protection from identify theft,” Senator Kavanagh said. (AZ Central, Aug. 30, 20126)

The ID card program is expected to launch in February 2017.