Could a Unionized Federal Employee Reject a Visa Application for Political Reasons?

Now that IRS officials have been caught red-handed targeting conservative organizations, it is reasonable to ask whether officials at other federal agencies also need more careful oversight. In the IRS’s case, the problem was systematic and involved direct orders from superiors, but no fair estimation of politically-motivations affect agency decisions can ignore the fact that in most instances it would not be systematic or have such a clearly stated policy. Immigration decisions provide a useful case and point.

Six different federal agencies are involved in America’s immigration system, and countless employees with unreviewable and unappealable authority to deny a visa to an employer or employee. Consider the recent case of Sophie Cole, a lawyer originally from Britain and currently here on an F-1 post-graduate student visa. Sophie works for the Cato Institute in Washington D.C., but her work authorization expires next month. Sophie was hired by the Right to Work Legal Defense Foundation, “a public interest law firm/non-profit who represents union employees against their unions/advocates worker freedoms/litigates and promotes right to work laws in the DC metro area.”

But in order to work, Sophie needed an H-1B visa, and in order to get that, she had to demonstrate that she was being paid a competitive wage. The Department of Labor (DOL) refused to accept her employer’s evidence that she was receiving a competitive wage for D.C. non-profit lawyers. Instead, it compared her wages to attorneys in private practice and rejected her Labor Certification—no explanation, no appeal, just “goodbye, Sophie.”

“When people first suggested that the decision against my visa may have been politically motivated, I wasn’t convinced,” Sophie told me. “But a unionized government employee, with the knowledge that they did not have to give an explanation of their denial and that I could not appeal, would have read where I work and where I was going to work and could have felt free to deny my visa on such arbitrary and discriminatory grounds.”

Such discrimination doesn’t need to be any kind of conspiracy. With no accountability, bias can easily creep into determinations by lower-level DOL officials.  “[DOL] may issue a denial on grounds not identified prior to the denial and to which the employer has no opportunity to respond,” notes William Stock, an immigration attorney in Philadelphia. “No matter how perfectly an application is prepared, and how carefully the recruiting steps set forth in the regulations are followed, there are times in which the Department of Labor itself makes errors and misunderstands the information provided to it, and so issues a denial.”

The reality of America’s immigration system is that when bureaucrats can deny an employer and employee a visa without an explanation, the rule of law is utterly absent, and bias can have free reign. Forcing Labor officials to explain themselves would both make any bias clearer to identify and enable employers to understand what they did wrong, so they can correct any errors and refile.

Due process for employees and employers should begin with a thorough explanation of Labor Certification decisions by DOL.