No Fooling: April 1st Is Big Day for Tech Employers

Technologies for your cell phone, favorite and despised apps, car technology, household appliances— the list goes on— were partly developed by H-1B visa workers. Most come from India on a three-year visa. They are usually eligible for a three-year extension. Often, they apply for a green card. Many become U.S. citizens—usually after being in America for 10 or more years.

The H-1B visa window has opened on April 1^st every year since a 1990 law was passed. Within days, the quota for 65,000 is filled (and 20,000 “OPT” visa for foreign-born students who graduate from U.S. universities.

President Trump issued a “Hire American” executive order in April 2017. My forthcoming research article (“Is the “Hire American” Executive Order a Suspect Classification?”) marshals evidence to show that the order is racially discriminatory. 

Two bottom lines: Tech employers are having a harder time hiring H-1B visa workers and are moving this work to Canada. Second, Indian workers are targeted for deportation.

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For a bit more, here is a summary of my article:

Is the “Hire American” Executive Order a Suspect Classification?

Michael H. LeRoy

FORTHCOMING IN WILLIAM & MARY BILL OF RIGHTS JOURNAL (FALL 2019)

Summary

President Trump’s Executive Order 13,788 declares a “Hire American” policy for H-1B visas. This action discriminates against Indians to benefit white American workers. The technology workforce in the U.S. has 4.6 million jobs. Most employees in this large workforce— about 88.4%— are U.S.-born. In this domestic segment, 85% of employees are white. Among foreign-born workers (11.6% of all workers), Asians make up 66%, with Indians predominating.

“Hire American” renews a mostly forgotten history of discrimination against Indian workers. The Immigration Act of 1917 enacted an “Asiatic Barred Zone.” Indian immigration was curtailed to 100 annual arrivals. Typical of the period, the California State Board of Control stigmatized this group: “Hindu is the most undesirable immigrant in the state…. His lack of personal cleanliness, his low morals, and his blind adherence to theories and teachings, so entirely repugnant to American principles, make him unfit for association with American people.” The Supreme Court in Bhagat Singh Thind denied a citizenship petition, crudely theorizing: “It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today.”

The USCIS (U.S. Citizenship and Immigration Services), an agency charged with implementing the “Hire American” order, is already discriminating against Indian H-1B visa holders. In the first quarter of 2017, the agency issued Requests for Evidence (RFEs) for 18% of petitions for Indian workers, far below the 25% rate for all other petitions. The “Hire American Order” was issued in the second quarter, and by the fourth quarter USCIS issued RFEs for 24% of petitions for Indian workers, while all others fell to 19.6%. As a result, more Indians are being denied visa extensions and are deportable. I apply precedents from other facially neutral restrictions aimed at lawfully admitted aliens in Takahashi v. Fish and Game Commission and in Dandamudi v. Tisch to show that the “Hire American” order is a suspect classification. Using evidence in this study, courts should apply heightened scrutiny to review Executive Order 13,788 and its regulations.