New DHS Rule Will Expand Work Permits To Foreign Guest Workers

Ian Smith | Immigration Reform Law Institute

A highly anticipated rulemaking on immigration that was recently published could provide work permits to over a hundred thousand foreign white-collar workers, according to the rule’s drafters inside the Homeland Security department (DHS). Although the 181-page proposed rule, which is now open for public comment, is vague and overly complex, its likely effects on the American middle class are clearly negative. Pro-labor advocates once again need to speak out about what’s becoming a common trend in DHS’s immigration policy direction.

The new immigration rule covers a broad range of categories, but chief among its proposals is that foreign guest-workers who’ve petitioned for green cards through their employer can be allowed to receive work permits if they fulfil several criteria; namely, that they’re in the country on one of five classes of visas (including the H-1B and L-1) and that they can demonstrate “compelling circumstances” to justify the benefit. What a compelling circumstance could be is not defined although the agency does give some examples, including “whether the worker and his or her family is facing a medical or other emergency” or “retaliation from his or her employer,” or that “the lack of flexibility (from not having a work permit)… result[s] in significant business or economic harm to the employer or worker.” If the foreign petitioner (with the help of their employer’s immigration attorneys) can make out these criteria every year, the permit can be renewed right up until they get their green card.

It’s difficult to understand how many this could apply to. DHS drafters provide an estimate of 155,000 potential beneficiaries within the first two years which, even if the economy and the middle class were growing, should a big concern for pro-labor advocates. Still, it’s not the biggest ‘work-permit giveaway’ the Obama administration’s committed to and tellingly, immigration attorneys are apparently ‘disappointed’ with the rule. It’s possible that the multiple court-challenges to Obama’s immigration agenda did force DHS to narrow the new rule considerably.

Specifically, the rulemaking creates a new opportunity for aliens to get work permits. Current regulations state a guest-worker petitioning for a green card through his or her employer can get it only after they apply to adjust their immigration status (i.e. from temporary to permanent). Once the adjustment-application’s lodged, they can receive a fully-fledged work permit (instead of having one tied to their employer). Reaching that point can take a very long time, however; for some foreign nationals, around a decade. This is due to the caps we have in place on how many green cards can go to any one country annually. For large countries, such as India, the queue to get a green card can therefore be huge. As such, Indian nationals, one of the biggest staffing sources for the tech industry, should be the new rule’s prime beneficiaries. That is, the ones who can fulfil the “compelling circumstances” criteria.

Same goes for their families. The rule also covers guest-workers’ spouses and dependent children, most of whom currently cannot work. Like the guest-worker petitioner previously tied to their employer, spouses and dependent children will receive an open-market work permit allowing them to fully join the American labor pool.

Although DHS claims it’s merely supplementing its existing regulations with regards to when a green-card petitioner may receive a work permit, the rule’s still in violation of the law. DHS asserts in the rule that section 274A(h)(3) of the Immigration and Nationality Act (INA) allows it the authority to allocate the new work permits. This is the same provision they’ve routinely advanced under Obama to say it has the authority to basically give work permits to whomever it wants. Far from giving DHS limitless work authorization powers, the provision has for decades simply been understood as defining the term “unauthorized alien” for purposes of the INA’s employer-prohibition on hiring illegal aliens. The definition excludes both those aliens to whom Congress has instructed the DHS secretary to grant work permits and those aliens to whom Congress has instructed the DHS secretary to exercise discretion as to whether to grant a work permit under specified criteria. Here, Congress has not made such instructions.

This understanding changed after the President’s mass deferred action announcement in 2012. Since then, the provision’s been relied on to hand out work permits to several previously prohibited groups, including spouses of H-1B visa-holders, foreign STEM-grads, and, most notably, to 4.3 million DAPA-recipients. That latter program, put on hold by the Fifth Circuit Court of Appeals, is now being considered for a hearing before the Supreme Court. The former two programs are already being challenged by the Immigration Reform Law Institute (IRLI) elsewhere. Because those cases are in more mature stages of litigation, IRLI’s asking the Supreme Court that it not take up the DAPA case and instead wait for a petition from the other cases. Most importantly for this new rule, a decision from any of these courts knocking down DHS’s interpretation of its own work-authorization powers will likely knock it down as well.

Find the public comment section of the new rule here.

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