Prepared Floor Statement of Senator Chuck Grassley of Iowa
For the Record
Ranking Member, Senate Judiciary Committee
Proposed Rule Extending Employment Authorizations
to Spouses of Certain H-1B Workers

Today, the Departments of Homeland Security and Commerce announced a proposed rule change that would extend employment authorizations to spouses of certain H-1B workers.  The rule says that spouses who have already begun the process of seeking legal permanent resident status through employment, or those who have been granted an extension beyond their six-year limit of stay in the country, are eligible for employment authorizations.  

On a call with media today, Homeland Security Deputy Secretary Mayorkas said that the intent of this regulation is to make it more attractive for foreign workers to come to and stay in the United States.  Under current law, Congress authorized 85,000 H-1B visas to be available each year for high-skilled workers.  Yet, with this sweeping rule, more workers will be allowed to come, work, and compete with U. S. workers in high-skilled fields despite the well-documented fraud in the H-1B program.  The Department believes that the rule change will allow more than 97,000 people to obtain employment authorization in the first year alone. 

While we’re all interested in attracting the best and the brightest foreign workers to the United States, the Obama administration clearly doesn’t seem concerned with the millions of unemployed Americans, and those who have been forced out of their jobs because companies prefer to hire lower-paid workers from abroad.

In addition to their lack of compassion and understanding for American workers, it’s disturbing that the administration is once again circumventing Congress and implementing their own rules.  As with other unilateral actions this administration has taken, I question their legal authority to issue this rule.  

In 2001, Congress explicitly laid out in statute that the Secretary could provide work authorizations to certain spouses of foreign workers.  Congress said that work authorizations could be given to spouses of L1 (intercompany transfers) and E (treaty traders/investors) visa holders.  Congress did not, at that time, give spouses of H-1B visa holders the permission to work.  It could have, but it didn’t.  
The administration may claim that it has broad authority to issue work authorizations to anyone in the United States.  If the executive branch has such broad authority, then why would Congress explicitly lay out the category of visa holders and foreign nationals who could work in the U.S.?

And, what will come next?  Where will this administration stop?  What other categories of individuals will be granted work authorizations?  The rule allows spouses of “certain” H-1B visa holders to work.  What about the others?  Why didn’t the administration do a more comprehensive rule for all H-1B spouses?  Maybe the Department realized they were already pushing the envelope with its authority.  Will the administration push back against advocates of other nonimmigrant categories, or refuse to expand the rule to all spouses of H-1B visa holders?  

What’s frustrating about this rule is that it flies in the face of the immigration bill that the Senate passed last summer.  The bill, if passed, would allow spouses of H-1B holders to work.   Section 4102 of S. 744 would give the Secretary of Homeland Security the authority to issue work authorization to those who are accompanying or following to join a principal H-1B worker.  Inclusion of this provision signals that the Secretary does not currently have authority.  

Originally, the bill written by the Gang of Eight, only gave that authority to the Secretary if the home country of the foreign national did the same for U.S. workers.  The Gang of Eight’s bill said, “The Secretary of Homeland Security shall authorize the alien spouse to engage in employment in the United States only if such spouse is a national of a foreign country that permits reciprocal employment.”  

The intent of the authors of the Senate bill was to ensure that American spouses were treated equally.  The rule does not take this into consideration.  

The Obama administration claims it wants immigration reform, but they can’t wait for Congress.  They act on their own.  And, they do it to the detriment of American workers.  We need to get immigration reform right, and doing ad-hoc rules that fly in the face of the statute are not helpful to the process.  What’s next?  Will the President unilaterally legalize the undocumented population because he can’t have his way with Congress?  President Obama has to prove that he can be trusted.  Otherwise, American workers and the American people will continue to lose out because of his policies.