Utah’s Sen. Lee Sneaks through S. 386 by Unanimous Consent

Dear All:

If you are a tech worker keeping a journal, the first week of December will probably go down as one of the worst weeks of 2020.

On Wednesday, a day that will live in infamy, Sen. Mike Lee (R-Utah) snuck in H.R. 1044/S. 386 via unanimous consent to an all but empty chamber of the Senate. The day before, a Federal District judge in Oakland, Calif., sided with the Big Tech and open borders plaintiffs to scuttle key provisions of the rule changes enacted by the Department of Labor (DOL) and the Department of Homeland Security (DHS). Namely, they shot down the increases to prevailing wages and changes to what constitutes a specialty occupation. And on Monday, a Federal District judge in the District of Columbia threw out WashTech’s Optional Practical Training (OPT) lawsuit.

The ruling on WashTech’s OPT lawsuit isn’t a big surprise. This same judge earlier attempted to throw out the case based on a failure to state a claim, only to have it remanded back to him from a higher court. This time he ruled on merit, which is rubbish. So, once again, attorney John Miano is preparing an appeal to the Circuit Court where it will in all likelihood prevail.

In early October, DHS and DOL published their interim filing rules on a range of H-1B visa matters to include a correction to the definition of a “Specialty Occupation” and much needed changes to the prevailing wage schedule. As I predicted, these rule changes were met with several lawsuits from the usual suspects.

The Achilles heel in all of this is that the rule changes were rushed because so many Americans are unemployed due to the pandemic. In short, the Trump administration viewed historic unemployment levels as an emergency, even though the Administrative Procedure Act (APA), which governs the process by which federal agencies create and promulgate rule changes, requires most rules to have a 30-day delayed effective date.

According to Politico, “U.S. District Judge Jeffrey White found that the administration didn’t take enough time to consider the changes or to seek public comment on the rules…” This is tragic, given that just about every conceivable enterprise seeking relief from the pandemic has been allowed to proceed almost without question.

In a more perfect world, White’s judgment would simply be appealed to a higher court. However, with a possible administration change, can we count on an appeal? And if the judgment were appealed, will it be appealed with vigor? These are big questions.

While we can criticize the administration for rushing things and for waiting until October 2020 to issue the rule changes, and wonder “What have they been doing since 2017?” I temper my criticism. As an administration, if you are fending off a soft coup (Russiagate) or an impeachment, your focus is probably elsewhere.

This brings us to Sen. Lee and his dastardly wedging of a unanimous consent vote on H.R. 1044/S. 386. Had we been given more time to mount a defense, we may have defeated it again. But we didn’t, and, frankly, Lee would never have even brought this to the floor without the quiet support of both the Democratic and Republican parties.

For more than three years, Congress has tried to cram through this job-killing bill that does nothing more than reward a system that profits by throwing Americans overboard. So, here we are with our livelihoods hanging in the balance, hoping and praying that President Trump will intervene and VETO the bill if it comes across his desk. Or, with just nine working days left for this Congress, we contend with whatever iteration the bill assumes in the next session.

As of  today, we’ve heard nothing from the President. And in general, I don’t put my trust in “hope.” That said, I encourage you to visit the White House website and ask President Trump to VETO H.R. 1044/S. 386.

https://www.whitehouse.gov/contact/

In closing, there was some good news this week. In fact, some great news. The Department of Justice is bringing a lawsuit against Facebook for country-of-origin discrimination. A CBS headline reads, “DOJ sues Facebook, alleging bias against U.S. workers in favor of temporary visa holders.” This is a very big deal, and I would like to see a congressman or senator attempt to justify support for H.R. 1044 in the face of this news. When it comes to PERM employees (Green Card holding), Facebook is just one example of many.

Every once in a while, the system does work.

A long time ago, I was in a yoga class and fell out of a handstand pose. I tried it again and fell again. For the next month or so I kept trying and every time I fell out of it. Later, I attended workshops on it and still continued to fail. Today, I still can’t do an unassisted handstand. BUT, I still try.

I relate that personal anecdote because that is the mindset we need to adopt. It is not hope we need at times like this, rather it is belief. We have to believe in ourselves and believe in our mission. I know I do, as does the staff at USTW, the SWAT Team and many activists.

We cannot predict the future as much as we may want to. But we can work toward a future. And sometimes we find the road to that future is an easy one and sometimes we find it is hard and filled with danger. But we persevere. We fight on.

In Solidarity.