Lawful Permanent Residents Are ‘American Workers’

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Laura D. Francis

Nov. 23 — Lawful permanent residents—i.e., green card holders—are “American workers” who are protected by the Immigration and Nationality Act.

A federal judge in Washington, D.C., Nov. 23 reconsidered an earlier decision suggesting that the “American workers” under the law are only U.S. citizens ( Hispanic Affairs Project v. Perez , 2016 BL 390375, D.D.C., No. 1:15-cv-01562, 11/23/16 ). An organization representing Hispanic sheepherders and livestock workers submitted evidence that some of its members are lawful permanent residents, and that was enough to allow it to continue with the lawsuit.

The case challenges a 2015 Department of Labor regulation under the H-2A temporary foreign agricultural worker program that sets up different rules for sheepherders, goatherders and open range livestock workers, than for other agricultural workers.

Importance of Who Is Protected

The question of who the INA is supposed to protect may become more important, as President-elect Donald Trump has criticized the H-1B temporary visa program for high-skilled foreign workers for displacing U.S. workers. His pick for attorney general, Sen. Jeff Sessions (R-Ala.), has been openly critical of all foreign guest worker programs for the same reason.

In September, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia dismissed the Hispanic Affairs Project from the lawsuit. The provision of the INA covering the H-2A program is meant to protect U.S. workers from having their wages and working conditions undercut by the hiring of foreign workers, she said.

The HAP at the time appeared only to represent foreign sheepherders with authorization to work in the U.S., and so it wasn’t protected by the INA, the judge said.

But in her Nov. 23 opinion, Howell accepted the organization’s evidence that it has at least two green card holders among its members. She also admitted that the U.S. workers the INA protects include green card holders, and not just citizens.

Towards Justice is representing the HAP and individual herders who brought the lawsuit. The Justice Department is representing the federal government.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.