SpaceX And Immigration Law

SpaceX And Immigration Law

By Hart Celler

On Aug. 24, the Department of Justice announced it was suing Elon Musk’s “Space Exploration Technologies Corporation (SpaceX) for discriminating against asylees and refugees in its hiring practices.” The news took off on X, formerly Twitter, with the ferocity of a SpaceX Falcon Heavy rocket, and as to be expected on social media, one man’s opinion quickly becomes another man’s fact.

Almost every tweet echoed the same error which was the lawsuit is about Musk/SpaceX not hiring illegal aliens and/or asylum seekers. The truth is, the suit alleges the company’s hiring practices discriminate against refugees (who at no point were “illegal aliens”) and asylees—aliens the U.S. Government has granted asylum, not all of whom were previously “illegal,” and making any prior illegal entry or period of unlawful presence irrelevant. 

A little background is helpful here for our discussion. When the Immigration Reform and Control Act (IRCA) became law in 1986, Section 101 made it illegal to hire, recruit, or refer for a fee an “unauthorized alien” illegal.  It required the employer to provide proof of identity and work authorization, which led to the creation of the Employment Eligibility Verification Form, or I-9. It also established a mechanism for filing complaints against lawbreakers, placing the onus on the Executive branch to inspect, investigate, and ensure compliance, and it introduced civil and criminal penalties.

While aliens who are unlawfully here, and generally referred to as “illegal aliens,” are typically not authorized to accept work, this isn’t always the case, and it’s why it’s important for Americans to understand the nuances.

Temporary Protective Status (TPS) beneficiaries, DACA recipients, and bona fide asylum seekers who have filed an Application for Asylum, Form I-589, but have not received a decision after 180 days are all examples of aliens who, despite potentially being in the U.S. illegally (referring to a lack of legal immigration status, not lacking an approved period of lawful presence), after receiving a work permit can accept employment.

While Section 101 of the IRCA bans hiring non-employment-eligible aliens, Section 102 addressed potential unfair immigration-related employment practices, of which two of the four exemptions it raises are relevant in the SpaceX case: 

• Discrimination related to ‘national origin’ covered by Section 703 of the Civil Rights Act of 1964. 
• Discrimination occurred due to citizenship status when “required [] to comply with law, regulation, or executive order, or required by Federal, State, or local government contract…

The IRCA also introduced the concept of an “Intending Citizen” and limited the ability to file immigration-related discrimination complaints to those individuals who were either U.S. Citizens, whether natural-born or naturalized, and aliens admitted for temporary or permanent residence (better known as Green Card holders), who completed a “declaration of intention to become a citizen.” Also included were aliens admitted as Refugees who, a year after being admitted to the U.S., must apply for permanent residence or are subject to removal, formerly known as “deportation,” and Asylees. In 1990, as part of the Immigration Act (IMMACT) of 1990, “Intending Citizens” was renamed “Protected Individuals,” 8 U.S.C. §1324b(a)(3), and the requirement for non-U.S. Citizens to declare their intention to apply for citizenship was repealed. 

While there’s an expectation that Green Card holders will become naturalized citizens, as the amnesty portion of the IRCA shows, they don’t necessarily. On the other hand, asylum is a discretionary form of immigration relief. An Asylee may apply for a Green Card a year after being granted asylum; however, unlike Refugees, they’re not required to do so. Also, the U.S. Government can strip an Asylee of their protected status and/or resettle them to another country where they won’t be a victim of persecution.

SpaceX, and its competitors are governed by a complex series of Federal laws and regulations known as “Export Controls,” which are comprised of the ITAR (International Traffic in Arms Regulations) and EAR (Export Administration Regulations) and jointly administered by the Departments of Commerce, State, and Treasury. Export Controls are “designed to prevent the spread of sensitive technologies to foreign actors that could threaten U.S. interests … [These] [c]ontrolled technologies include defense articles (e.g., missiles), defense services (e.g., integration of a spacecraft onto a launcher), and dual[-]use items (e.g., commercial spacecraft and components).“

SpaceX contends it can’t hire non-U.S. Citizens because it must comply with export control restrictions, and Musk, referencing a current Executive Order calls upon the DOJ to sue themselves for their seemingly discriminatory hiring practices of restricting competitive service Federal positions to U.S. Citizens and Nationals. However, both the ITAR and EAR in 22 CFR § 120.62 and 15 CFR § 760.1, respectively, explicitly exempt “U.S. persons,” the former reference, including protected individuals as defined by 8 U.S.C. § 1324b(a)(3).  

It’ll be interesting to see how the lawsuit plays out. Recent espionage cases have demonstrated how naturalized U.S. citizens’ loyalty can be co-opted by a potentially adversarial nation. And it’s startling to note that in 2021, the citizens from that adversarial nation alone received approximately 10% of annual asylum grants.

Notwithstanding the legality of SpaceX’s hiring practices, it seems Congress should reevaluate whether aliens with questionably verifiable backgrounds or potential divided loyalties to their native countries should be allowed to work with or around restricted technology like rockets.

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“Hart Celler” is the pen name for a long-career federal employee working in immigration on issues with a nexus to national security. He writes articles for the Institute for Sound Public Policy and can be found on Twitter with the handle @8USC12.

SpaceX And Immigration Law

SpaceX And Immigration Law