William & Mary Bill of Rights Journal
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 United States has 4.6 million jobs. Most employees in this large workforce—about 76%—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 United States Citizenship and Immigration Services (USCIS), 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 strict scrutiny to review Executive Order 13,788 and its related regulations.
Repository CitationMichael H. LeRoy, Is the "Hire American" Executive Order a Suspect Classification?, 28 Wm. & Mary Bill Rts. J. 97 (2019), https://scholarship.law.wm.edu/wmborj/vol28/iss1/5
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