Status of Nonimmigrant Alien Temporary Workers During a Strike ( 1980 )

Status of Nonimmigrant Alien Temporary Workers
During a Strike
Conclusion o f prior opinion, 3 Op. O .L.C . 179 (1979), relating to status o f nonim m igrant
alien soccer players during a strike in N orth A m erican Soccer League, reconsidered
and affirmed.
T here may be situations in w hich Im m igration and N aturalization Service regulation
requiring a nonim m igrant tem porary w orker, as a condition o f his o r her continued
stay in this country, to cease w orking during a strike, w ould be sustained as a valid
exercise o f the A ttorney G eneral’s authority under the Im m igration and N ationality Act.
February 1, 1980
M EM ORANDUM O PIN IO N FOR
T H E A C TIN G COM M ISSIONER
IM M IGRATION A N D N A TU R A LIZA TIO N SERVICE
This responds to your request that we reconsider our opinion of
April 18, 1979 [3 Op. O.L.C. 179 (1979)] relating to the status of
nonimmigrant alien temporary workers during a labor dispute. In this
opinion, prepared in the context of a then-existing strike called by the
North American Soccer Players League, we concluded that the Immi­
gration and Nationality Act (INA) and applicable regulations of the
Immigration and Naturalization Service (INS) neither barred nonimmi­
grant alien players employed by the League from continuing work
during the strike, nor required their deportation if they honored or
refused to honor the strike. Subsequently, in July of 1979, having been
provided with documents suggesting that the INS regulation in ques­
tion had been administratively construed to require nonimmigrant alien
temporary workers to cease working during a strike, we expressed
doubts as to whether that regulation would be upheld in a situation
such as the soccer strike. [3 Op. O.L.C. 294 (1979).]
Since our earlier opinions were prepared, we have been provided
more specific factual information about the relationship between the
regulation’s requirement as so construed and the INA itself. In response
to your request, we have undertaken a reexamination of our earlier
conclusions in light o f this information, focusing now more generally
on the question of the Attorney General’s power under the INA to
require a nonimmigrant temporary worker, as a condition of his or her
continued stay in this country, to cease working during a strike. While
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we believe our earlier opinions correctly state the law, we are per­
suaded that there may be situations in which a sufficient relationship
would be found between such a requirement and the legislative pur­
poses Underlying the INA to sustain it as a valid exercise of the
Attorney General’s authority under the Act.
The INS regulation in question appears at 8 C.F.R. § 214.2(h)(10)
(1981) and reads as follows:
A petition shall be denied if a strike or other labor dispute
involving a work stoppage or layoff of employees is in
progress in the occupation and at the place the beneficiary
is to be employed or trained; if the petition has already
been approved, the approval of the beneficiary’s employ­
ment or training is automatically suspended while such
strike or other labor dispute is in progress.
When this Office was initially asked to advise whether, pursuant to this
regulation, nonimmigrant alien soccer players on H -l and H -2 visas 1
were required to cease working during the pendency o f a strike, we
had before us no information as to the original purpose of the regula­
tion and were advised that no such information was available. Further,
we understood that there was no helpful history of its application to
provide guidance as to its meaning. By its terms, however, the regula­
tion appeared to be intended to prevent an employer involved in a
labor dispute from importing nonimmigrant aliens as strike-breakers. As
applied to aliens whose employment would begin after the commence­
ment of the strike, the regulation seemed only to give particular content
to the statutory requirement that nonimmigrant alien temporary work­
ers not be admitted if unemployed persons capable of performing the
requested service or labor could be found in this country, since it could
reasonably be concluded that the requisite determination in this regard
could not be made while a strike was in progress.
We expressed doubt, however, that the regulation could properly be
interpreted to require the automatic suspension of the employment
approval of nonimmigrant aliens who were already in the country and
working at the time the strike occurred. Our reasoning was that any
such aliens presumably could only have been admitted after a finding
that unemployed workers capable of performing the duties could not be
found in this country, and that the mere existence of a strike did not
suggest that capable domestic workers could be found, thereby war­
ranting suspension of approval of the alien’s employment. In this case,
therefore, we could not see that the automatic suspension of work
1 U nder the IN A , nonim m igrant aliens may, upon petition by an em ployer, be adm itted into the
country on a tem porary basis (1) to perform services o f an exceptional nature requiring distinguished
m erit and ability o r (2) to perform services o r labor “ if unem ployed persons capable o f perform ing
such service o r labor cannot be found in this country. . . . ” 8 U.S.C. § 1101(a)(15)(H)(i) and (ii).
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approval was rationally related to the purposes of the Act and thus
within the Attorney General’s authority.
A second reason for reading the regulation so as not to bar continued
employment of the nonimmigrant alien soccer players was found in the
National Labor Relations Act (NLRA), which has been construed by
the National Labor Relations Board to apply to nonimmigrant alien
temporary workers. Section 7 of that Act, 29 U.S.C. § 157, affords
employees the right to decide whether or not to engage in concerted
activity, including whether or not to participate in or honor a strike. If
the INS regulation were to be interpreted to require the automatic
suspension of employment approval whenever a strike occurs, nonimmi­
grant alien temporary workers would effectively be deprived of the
freedom to decide not to honor the strike. We concluded that the
regulation should not be interpreted in a manner which would occasion
this result.
On July 18, 1979, we responded to a request from Secretary of Labor
Marshall that we reconsider our April 18 opinion. Having in the in­
terim had an opportunity to review a number of documents that were
not available to us at the time our original opinion was prepared, we
concluded that the regulation in question did appear to have been
administratively construed (although never actually applied) to require
a nonimmigrant to cease working during a strike. However, focusing
now not on the meaning of the regulation but on its validity, we
expressed our continuing doubts as to whether the regulation would be
upheld if applied in a situation such as the soccer strike. Our reasoning
remained essentially the same as that in our original opinion. First, the
broad and unconditional requirement that an employee withhold his
services during a work stoppage appeared to impinge upon the individ­
ual’s rights under §7 of the NLRA, and potentially to upset the balance
struck by Congress under that Act between labor and management,
without serving any discernible purpose under the INA. And second,
while the Attorney General’s authority under the Act to impose condi­
tions upon a nonimmigrant’s visa is very broad, in the absence of
specific factual information about how the regulation related to the
purposes of the INA, we questioned whether it extended this far. As
explained in our response to Secretary Marshall, we had been pointed
to no specific instances of employer “stockpiling” or other abuses of
the temporary worker system that enforcement of the regulation could
resolve.
We closed our letter to Secretary Marshall by recognizing that, while
it is generally appropriate for INS to maintain a neutral role in a labor
dispute, there may be situations in which it would be equally appropri­
ate under the INA to limit alien involvement in domestic labor disputes.
We informed him that we had agreed to assist INS in drafting a
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regulation that would be more precisely tailored to the purposes of the
INA and less likely to precipitate conflicts with the NLRA.
Since our July 18 letter to Secretary Marshall, we have had brought
to our attention, most notably by the Solicitor’s Office in the Labor
Department, specific factual information that purports to relate the
regulation to the purposes of the INA. In addition, the broad ambit of
the Attorney General’s authority under that Act to impose conditions
on nonimmigrant aliens has received recent judicial reaffirmation.
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir.), cert, denied, 446 U.S. 957(1979). Finally, your memorandum of January 4, 1980, suggests that
certain modifications in the regulation itself are under consideration;
some of these narrow its reach to situations in which its enforcement
could be shown or at least reasonably presumed to be furthering the
purposes of the INA, and so limit its operation to employees not
covered by the NLRA, such as agricultural workers. While we con­
tinue to believe that difficult legal questions would be presented by the
enforcement of the regulation in many situations, even if it were modi­
fied in one or more of the ways suggested in your memorandum, we
cannot say that there are no circumstances in which it would be
permissible to require nonimmigrant alien temporary workers to cease
working during a strike.
The courts have recognized that an underlying purpose of the IN A ’s
restrictions on immigration is the protection of domestic workers, a
purpose that extends to its provisions on nonimmigrant temporary
workers as well. See, e.g., Flecha v. Quiros, 567 F.2d 1154, 1155 (1st Cir.
1977). The importation of temporary alien workers should not operate
to depress domestic wages, nor otherwise hinder efforts by domestic
workers to improve their wages and working conditions. If it is true, as
the Labor Department has contended, that “[cjontinued employment of
temporary aliens during a strike could have an adverse effect on the
wages and working conditions of the striking domestic employees by
helping to defeat the strike,” some measures to prevent this result may
be appropriate under the INA.
The Labor Department has also argued that nonimmigrant temporary
workers have as a practical matter little true freedom of choice as to
whether to participate or not participate in a strike. Barred by law from
accepting employment elsewhere, they are peculiarly susceptible to
pressure to remain on the job. Their rights under § 7 of the NLRA are,
in Labor’s view, “illusory.” Far from assuring government neutrality in
labor disputes, permitting the continued use of alien labor during a
strike would, it is said, tip the balance of economic weapons in manage­
ment’s favor.
We are inclined to agree that a regulation tailored to meet the
particular problems described by the Labor Department—the peculiar
susceptibility of nonimmigrant temporary workers to employer pres­
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sure, and the threat this poses for efforts by domestic workers to
improve their working conditions through collective action—might
well be held to be an appropriate attempt by the government to pre­
serve for itself a more nearly neutral role in labor-management rela­
tions. The situation in which we think such a regulation is most likely
to be held a valid exercise of the Attorney General’s power under the
INA is that in which temporary workers are not protected by those
federal labor laws which secure an individual’s freedom to participate
or not in concerted activities. Not only is there no potential conflict
with those laws posed by the regulation’s enforcement in this situation,
but there is greater likelihood that nonimmigrants will remain on the
job under pressure if they have no hope of federal assistance against
employer retaliation.
We remain troubled, however, by the notion that a nonimmigrant’s
stay in this country could be conditioned on his not doing precisely
what he was brought here to do, i.e., to work for the petitioning
employer. Unlike a prohibition on unauthorized employment by stu­
dents or visitors, or a regulation requiring a student to request permis­
sion from INS before transferring to a new school, the automatic
suspension of work approval in the event of a strike seems unrelated to
the definition and maintenance of the particular nonimmigrant status of
a temporary worker.
The fact that the present regulation can be enforced only through the
institution of deportation proceedings adds to our concern. As we
stated in our letter to Secretary Marshall, a rule which triggers the
penalty of deportation without some finding that the grounds of entry
no longer exist, or that there are some statutory grounds for deporta­
tion, seems likely to be found unreasonable in many situations. We
think it would present particularly troublesome issues if invoked to
deport an individual solely because he chose not to participate in a
strike against his employer.
On balance, while we think the legal questions raised by a work
suspension requirement are close ones in any case, and likely to be quite
fact-sensitive, we cannot say that the Attorney General does not have
the power under the INA to fashion such a regulation under some
circumstances. As is suggested by the preceding discussion, any such
regulation should be precisely tailored to deal with the potential abuses
pointed out by the Labor Department. In addition to those modifica­
tions you suggest,2 it might be prudent to incorporate a provision
affording a petitioning employer, and possibly the beneficiary of the
petition as well, an opportunity to demonstrate that the nonimmigrant’s
continuing to work during a strike would not adversely affect the
2 W e d o nol mean to imply a preference for any particular modification, nor to suggest that any (or
all) o f those suggested in your m em orandum w ould be necessary to sustain the regulation's validity in
all cases.
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wages and working conditions of domestic workers, in helping to
defeat the strike or otherwise. In the event such a showing could be
made, a corresponding accommodation in enforcing the regulation
would seem in order.
As in the past, we would be pleased to continue to work with you in
reviewing language designed to achieve a fact-specific, case-by-case
mechanism for dealing with the effect of strikes and work stoppages on
nonimmigrant alien workers.
L arry A. H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
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