WASHINGTON—The Immigration Reform Law Institute (IRLI), on behalf of its client Save Jobs USA, an association of technology workers, has petitioned the full DC Circuit Court of Appeals to review a case that challenges the authority of the Department of Homeland Security (DHS) to allow aliens to take half of the new jobs the American economy creates each year.
IRLI shows that DHS, like any agency, only has the authority to implement statutes passed by Congress, and that DHS is not implementing any statutes here, but acting on its own alleged authority.
In this petition, the issue is whether DHS can allow the accompanying spouses of certain H1-B workers to work in the United States, even though the visa that allows them to be in the country says nothing about whether or not they can work.
It is basic to administrative law, IRLI shows, that agencies only have the authority to implement or carry out some principle of action laid down by Congress in a statute. Here, Congress provided no principle in the operative visa statute that DHS could implement to let accompanying spouses take American jobs.
What’s more, if this program is combined with numerous other work programs DHS has created without implementing any part of the Immigration and Nationality Act, it turns out that DHS, without any congressional authorization, is slating half of the new jobs our economy creates in an average year to aliens—with devastating effect on Americans, including long-term unemployed Americans.
“If the courts are serious about reigning in the unconstitutional power of administrative agencies, they should strike down this program,” said Dale L. Wilcox, executive director and general counsel of IRLI. “A simple, powerful principle has been ignored by DHS, and must be made clear: when an agency regulates, it has to be following guidance laid down in a statute. And the practical ramifications here are enormous for Americans in need of new jobs. We hope the full DC Circuit grants review, and confines DHS to the limits set by Congress and the Constitution.”
The case is Save Jobs USA v. DHS, No. 23-5089 (DC Circuit).
