Is H-1B Constitutional?
Is H-1B Constitutional?
Date: Friday, November 22, 2002 3:22 PM
H-1B and JOB DESTRUCTION NEWSLETTER
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DRAFT #1 November 20, 2002
by Kim Berry
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CONTENTION THAT H-1B
LEGISLATION IS UNCONSTITUTIONAL
QUESTIONS PRESENTED
1. Whether H-1B Legislation violates the constitutional rights of American
workers
a) Does the provision which only protects American workers from
displacement by nonimmigrants if the employer is deemed “H-1B dependent”
deny equal protection to Americans who work for non H-1B dependent
employers?
b) Does H-1B legislation violate the substantive due process liberty and
property of American citizens by permitting employers to displace and
replace American workers, and hire nonimmigrants when qualified American
workers are available?
STATEMENT OF THE CASE
American technology workers are being displaced and replaced by foreign
workers who are issued H-1B nonimmigrant visas by the Attorney General.
While IT employment has dropped from 10.4 million workers in year 2000 to
under 10 million today due to an economic downturn, the INS has granted over
300,000 nonimmigrant worker visas and permitted these workers to compete
with Americans for insufficient jobs.
Legislation authorizing American workers to be displaced by nonimmigrants
violates the substantive due process of liberty, property, and equal
protection, and is therefore unconstitutional.
STATEMENT OF THE FACTS
In progress…
ARGUMENT
2. H-1B Legislation violates the constitutional rights of American workers
The fourteenth amendment of the constitution declares, “no state shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of
life, liberty, or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the law.”
a) The provision which only protects American workers from displacement
by nonimmigrants if the employer is deemed “H-1B dependent” denies equal
protection to Americans who work for non H-1B dependent employers
In 1998, the 105th Congress passed and President Clinton signed into law the
American Competitiveness and Workforce Improvement Act ("ACWIA"), which
increased the H-1B visa cap from 65,000 (where it had been since 1990) to
115,000. [1] ACWIA also added a prohibition against laying off U.S. workers,
but only on employers that use a high percentage of nonimmigrant workers.
Congress defined “high percentage” in 8 U.S.C. 1182(n) as “H-1B dependent
employer,” where nonimmigrants earning less that $60,000 per year comprise
at least 15 percent of the employer’s equivalent staff.
In doing so, Congress created two classes of American workers – those who
are subject to layoff and replacement by H-1B workers, and those who are
not. Congress has not provided a compelling state interest in these unequal
classes, has not explained how the 15 percent cutoff is not arbitrary, and
has failed to provide adequate layoff and displacement safeguards for the
majority of Americans who do not work for H-1B dependent employers.
Where there is a significant encroachment upon personal liberty, the State
may only prevail upon showing a subordinating interest which is compelling.
Bates v. City of Little Rock (1960) 361 U.S. 516, 524
H-1B legislation further denies equal protection by protecting certain
professions from displacement by foreign workers, while overtly targeting
tech workers. Within the same corporation, IT workers are afforded unequal
protection from foreign displacement as workers in management, accounting,
legal and marketing positions.
b) H-1B legislation violates the substantive due process liberty and
property of American citizens by permitting employers to displace and
replace American workers, and hire nonimmigrants when qualified American
workers are available
For over 100 years, the Supreme Court has held that liberty “is deemed to
embrace the right of the citizen to be free … to earn his livelihood by any
lawful calling; to pursue any livelihood or avocation.” ALLGEYER v. STATE OF
LOUISIANA, 165 U.S. 578 (1897).
Once a citizen has chosen and holds a profession, it becomes a
constitutionally protected property right. “A law which prohibits a large
class of citizens from adopting a lawful employment, or from following a
lawful employment previously adopted, does deprive them of liberty as well
as property, without due process of law.'' Slaughter-House Cases, 83 U.S.
(16 Wall.) 36, 116, 122 (1873) (Justice Bradley dissenting).
A law that impinges upon a fundamental right explicitly or implicitly
secured by the Constitution is presumptively unconstitutional. Mobile v.
Bolden, 446 U.S. 55, 76 (1980)
Substantive due process provides that no state shall abridge the privileges
and immunities of citizens of the United States. H-1B law violates this due
process by allowing companies to lay off United States Workers while
retaining nonimmigrants within equivalent classifications. Since the United
States Worker has a protected liberty and property, the law
unconstitutionally places the rights of nonimmigrant workers equal to those
of United States Workers. In a layoff, the law must demand that nonimmigrant
workers are the first to go.
[T]he Fifth and Fourteenth Amendments' guarantee of ‘due process of law’
[includes] a substantive component, which forbids the government to infringe
certain ‘fundamental’ liberty interests at all, no matter what process is
provided, unless the infringement is narrowly tailored to serve a compelling
state interest.” Reno v. Flores, 507 U.S. 292, 301-302 (1993); "As we said
in Zablocki v. Redhail, 434 U.S. 374, 388 (1978), if a requirement imposed
by a State "significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently important
state interests and is closely tailored to effectuate only those interests."
Cruzan v. Director, MDH, 497 U.S. 261, 303 (1990) (Brennan, J., dissenting).
H-1B law violates substantive due process by allowing contracting agencies
to place H-1B workers in new positions, depriving United States Workers
access to these positions. Current law unconstitutionally provides for the
exclusion of United States Workers in favor of nonimmigrant workers, as
evident by Rapidigm filing 90 LCAs in anticipation of placing nonimmigrants
in new positions with their clients, while having no job openings for
Americans.
CONCLUSION
Over 100,000 Americans have been deprived of their livelihood because of
unconstitutional H-1B legislation. They can never be “made whole.” The
Constitutional Rights of these citizens demand that all H-1B positions be
reposted and assure that qualified Americans be given preference. Since the
H-1B workers are nonimmigrants, they do not have constitutional rights to
these jobs. “Due process does not invest any alien with a right to enter the
United States, nor confer on those admitted the right to remain against the
national will.” SHAUGHNESSY v. MEZEI, 345 U.S. 206, 233 (1953).
H-1B is against the “national will.” Americans oppose foreign workers
displacing qualified Americans. Congress is answering to corporate money
rather than the will of The People.
Congress has not and cannot show a compelling state interest for the
substantial depravation of the mass displacement of United States Workers
with nonimmigrants; of permitting companies to layoff United States Workers
while retaining nonimmigrants in equivalent positions; and authorizing new
positions to be filled by nonimmigrants without a good faith attempt to
place one of the 500,000 unemployed United States IT Workers.
NOTES BELOW
H-1b “indentured servant” status is unconstitutional and sets an unfair
standard for American Workers
Unlike American workers who are free to quit if they are overworked,
underpaid, or abused, H-1B workers are sponsored by a specific employer and
can be deported if they resign – even for just cause. Congress is forcing
Americans to compete in the job market against “slave labor.”
Raj Subbaram, a manager at HCL-Perot and himself an immigrant from India
with permanent resident status, often hires H-1B tech workers to fill the
staffing needs of clients such as Cisco, eBay, and Sun. Among other reasons,
he says foreign workers' willingness to work long hours adds to their
appeal. "The H-1B guy is ready to put in a lot of hours, up to 14 hours a
day, and they don't charge for the extra hours," Subbaram says.[2]
Imagine if circumstances were reversed, and a manager claimed, "I won’t hire
blacks because they won’t work 14 hour days while getting paid for eight,"
He would be fired and sued. But, in violation of equal protection, Raj can
apparently make such hiring decisions with impunity.
Does Congress expect American IT workers to “work 14 hours and get paid for
eight” to further the wealth of our modern-day “Robber Barrons” – CEOs of
Microsoft, Cisco, Oracle, and eBay?
c) Current law provides for Americans to lose jobs while H-1Bs remain and
continue to be hired
Sun Microsytems laid off about 4000 IT workers in November 2001. Employees
from across the country reported that Americans were terminated while H-1Bs
remained. In 2001 Sun had applied for over 5000 LCAs for H-1B workers. In
spite of the evidence, the Justice Department found that Sun had not
violated any “discrimination” statute. On the contrary, if Sun had chosen to
first lay-off its temporary foreign workers, it could have been convicted of
“discrimination.”
Since the H-1B was approved based on a labor shortage, the failure to favor
Americans over H-1Bs in a downturn is a gross injustice and depravation to
American workers. How is there an “IT shortage” when thousands of Americans
are being laid off? (See Appendix C for a partial list.)
U.S. Companies are using L-1 and H-1B visas for the explicit purpose of
replacing qualified Americans with underpaid programmers from India
Twenty American IT workers at Siemens ICN in Florida are being replaced by
foreign workers who are earning India wages.[3] Tata Consulting India
transfers employees to Tata Consulting USA. Then Tata Consulting USA sells
these "consultants" off to American businesses. From July through November
2002 Siemens has been coercing the Americans to train their replacements.
Siemens employees determined that these Indians are in the USA on L-1
"intra-company transfer” visas, and thus believe that they are paid in their
host country. The US is exchanging 20 tax-paying American for 20
non-tax-paying foreigners.
Siemens employees have obtained documents of the Tata Consulting employees
disbursed across the country. One document from the Siemens project lists
79 Tata Consulting employees (foreigners) working on projects all across the
country. Of the 79 employees, 67 are listed as L-1 visa holders. These
foreigners have taken American jobs -- they send their kids to our schools
while Americans are sent to the unemployment line.
Is this the purpose of the L-1 visa program – to transfer consultants from
foreign corporation to take American jobs away from Americans?
http://writ.news.findlaw.com/grossman/20021119.html
Lanning v. Southeastern Pennsylvania Transit Authority (SEPTA).
[1] In October 2000, several months after the dot-com fallout had begun, the
106th Congress passed the American Competitiveness in the 21st Century Act,
which further increased the cap on H-1B visas to 195,000.
[2] Where does H-1b Fit? (Information Week, Feb. 4, 2002)
www.informationweek.com/story/IWK20020201S0021
[3] http://www.hannatroup.com:81/USA/tata/MyStory_20020918.html
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