H1B Legislation is Unconstitutional

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?

c) Does H-1B legislation violate equal protection by forcing American workers to compete with H-1B workers, whose indentured status to the sponsoring employer makes them more desirable?

d) Does the disproportionate use of H-1B by Indian companies and hiring managers demonstrate that the legislation has been implemented in a discriminatory manner?

American technology workers who have been displaced or replaced by nonimmigrants on H-1B visas have suffered economic injury and thus have a "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962). These workers have personally endured constitutional injury, insuring that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972).

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 of property afforded only to citizens -- and the equal protection afforded to all workers within the U.S. -- and is therefore unconstitutional.

While the premise of the H-1B program was for the limited purpose of filling positions in cases where no qualified American could be found, American corporations have abused the program. The law allows employers to fill positions with nonimmigrant without ever seeking or considering qualified Americans. The law allows for Americans to be laid off while H-1Bs remain and continue to be hired. Employers are using the program to train foreign nationals to facilitate the transfer

Sun Microsystems 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 submitted over 5000 LCAs for H-1B workers. In spite of the evidence, the Justice Department found that Sun had not violated any “discrimination” statute – that this sizeable violation of Constitutional rights complied with the law.

Any law authorizing the violation of Constitutional rights is unconstitutional on its face.

H-1B legislation also violates the equal protection of the H-1B worker. Murali Devorakonda, a director of the Immigrant Supports Network, says it's common for H-1B workers to be exploited by employers. The employer actually holds the visa. The employer can decide at any time if it doesn't want that employee to remain in the country. "Once you hire me on an H-1B, my legal status is at your mercy," Devorakonda said.[1]

In many cases, employers go through a "body shop." These are companies that act as intermediaries between H-1B visa holders and employers. In some cases, they can take large percentages of the salaries paid to H-1B visa holders as a commission.

H-1B workers are “persons” under the Constitution, and thus entitled to the same equal protection as Americans.

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. [2] 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 sustaining 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 improperly places the liberty and property rights of nonimmigrants at the same level as citizens by permitting employers to lay off citizens while retaining nonimmigrants in equivalent positions. Since, unlike nonimmigrants, citizens have a protected liberty and property in their jobs, the law unconstitutionally places 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 California clients, while having no job openings for Americans.

c) H-1B legislation violates equal protection by forcing American workers to compete with H-1B workers, whose unequal indentured status to the sponsoring employer makes them more desirable

The Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the law. Yet employees with an H-1B visa are denied equal protection. They are denied the freedom to resign their job without jeopardizing their ability to remain in the U.S., putting them at the mercy of abusive employers. In essence, 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.[3]

Employers can engage in this abuse because H-1B workers are denied equal protection under the law with American workers. American workers are free to quit and seek other employment, and have less to lose by filing labor complaints.

d) The disproportionate use of H-1B by Indian companies and hiring managers demonstrates that the legislation has been implemented in a discriminatory manner

The statistics bear are that Indian corporations and managers are discriminating against Americans in favor of Indian nationals.

· Order that Congress redraft the H-1B legislation in a manner consistent with the Constitutional Rights of U.S. workers.

· Order that all positions held by H-1B workers be reposted, with American workers being given priority. Even if the H-1B worker is “more qualified,” provided an American is qualified, the position must be given to the American.

Suspension of the H-1B program and reopening all H-1B positions to Americans is a proper remedy. A remedial decree must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of discrimination. See Milliken v. Bradley, 433 U.S. 267, 280.

Reposting the H-1B positions is permissible because “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).

Requiring employers to hire qualified Americans even if “more qualified” H-1B workers are available is consistent with 42 U.S.C. S 2000e-2(k), which provides for skill discrimination only if that skill cutoff is "job related for the position in question and consistent with business necessity. . . ." The State must show "at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'" Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)).

Over 100,000 Americans have been deprived of their livelihood because of unconstitutional H-1B legislation. They can never be “made whole.”

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.

It's the concept behind H1B which seems unconstitutional, namely the creation of a "serf-class", required to work for however many hours and at whatever pay their lords choose to pay.

If we're going to let people in, it should be on the basis of standard immigration: skilled people moving here with the intention to become permanent residents and citizens. They should have the same rights to change jobs as anybody else. They should NOT have any rights to goodies from the "Welfare State" -- if they are not self-supporting, they need to leave.

Why do I never hear anyone complain about the thousands of Canadians who move from Toronto to Detroit or Vancouver to Seattle?

I dunno - maybe because 16 times more Indians and Chinese receive H1B visas than do Canadians.

Do you think we might we discuss this without the race card? Its becoming ineffective anyway.

Interview went VERY well. I think they will be making me an offer. It's a temp job, ~3 months, while their regular engineer is on medical LOA. Could go to permanent, failing that, at least I will have bought myself breathing room for the economy to pick up.

Why do I never hear anyone complain about the thousands of Canadians who move from Toronto to Detroit or Vancouver to Seattle?
I dunno - maybe because 16 times more Indians and Chinese receive H1B visas than do Canadians.
Do you think we might we discuss this without the race card? Its becoming ineffective anyway.

Actually, most Canadians don't go the H1B route. They will typically get a TN visa. It is $55 at the border and no Dept of Labor certification is required and there are not caps on how many are issued. The TN visa was created under the FTA (before the inclusion of Mexico). My company switched me from TN to H1B in order to process an employment based immigration petition. THis was because TN's need to be renewed yearly and the H1B can be extended to 6 years. Also, employment immigration is a far, far more difficult path than obtaining an H1B.

You can't use a dissenting opinion as proof of what the law is, since it's the view the court did NOT accept.

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