Commentary

Judge Rules American Companies Can Be Sued for Preferring U.S. Workers

By John Miano | June 16, 2020 | 12:43pm EDT
Students and supporters of DACA rally in downtown Los Angeles, Calif. on November 12, 2019 as the U.S. Supreme Court hears arguments to make a decision regarding the future of "Dreamers" as beneficiaries of DACA (Deferred Action for Childhood Arrivals) are known. (Photo credit: FREDERIC J. BROWN/AFP via Getty Images)
Students and supporters of DACA rally in downtown Los Angeles, Calif. on November 12, 2019 as the U.S. Supreme Court hears arguments to make a decision regarding the future of "Dreamers" as beneficiaries of DACA (Deferred Action for Childhood Arrivals) are known. (Photo credit: FREDERIC J. BROWN/AFP via Getty Images)

The Supreme Court's decision in DHS v. Regents of the University of California will likely decide the face of the DACA program and that opinion is expected in weeks.

If you have read an article on DACA recently, it is likely that it was a one-dimensional piece featuring some DACA recipient working in healthcare who is facing a loss of employment.

At the same time, you would have more luck looking for a unicorn than you would looking for an article in the nation's elite media that analyzes the legal issues before the Supreme Court or makes any mention of the legal costs of DACA.

One of those costs is the protection for American workers. In the unlikely event that the Supreme Court holds DACA is lawful, it would mean that the process of using regulations to nullify the protections in the immigration system for American workers is also lawful and that it can continue as well. So when business groups do not like some protection for American workers, they can go to DHS to get a regulation allowing them to hire foreign workers without applying that protection.

You would never know it from reading the newspapers, but DACA was not alone. Other examples from the Obama administration include DAPA, H-4 EADs, and an expanded OPT program.

Judge Kathleen M. Williams of the Southern District of Florida served up another DACA-related kick in the teeth to American workers. Up until now, it had been considered settled law that "United States workers" (citizens, nationals, permanent residents, refugees, and asylees) were the protected labor class under immigration law. A patriotic employer could hire exclusively U.S. workers and refuse to hire others.

Procter & Gamble followed the established discrimination rules that allow preference for U.S. workers. For their internship program, they required the applicant to be a U.S. citizen, permanent resident, refugee, or asylee. But no good deed goes unpunished.

An illegal alien on DACA applied for the P&G internships program. P&G rejected him out of hand because he was not a U.S. worker and then the illegal alien sued for discrimination and the court held he had a cause of action.

According to Judge Williams, American companies can now be sued for preferring to hire U.S. workers.

The cost of DACA keeps rising. Unless this gets reversed on appeal, another protection for working Americans bites the dust thanks to DACA.

John Miano, a leading expert on the effect of foreign labor on technology workers, has been a Center for Immigration Studies fellow since 2008. His legal practice focuses on U.S. job candidates and companies in violation of H-1B rules. Author of multiple programming books, Mr. Miano has also co-authored, with Michelle Malkin, his first immigration-centered book, Sold Out.

Editor's Note: This piece originally appeared on the Center for Immigration Studies.

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