[FlyingA]

The fourteenth amendment of the constitution declares, “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

a) The provision which only protects American workers from displacement by nonimmigrants if the employer is deemed “H-1B dependent” denies equal protection to Americans who work for non H-1B dependent employers

In 1998, the 105th Congress passed and President Clinton signed into law the American Competitiveness and Workforce Improvement Act ("ACWIA"), which increased the H-1B visa cap from 65,000 (where it had been since 1990) to 115,000. [2] ACWIA also added a prohibition against laying off U.S. workers, but only on employers that use a high percentage of nonimmigrant workers.

Congress defined “high percentage” in 8 U.S.C. 1182(n) as “H-1B dependent employer,” where nonimmigrants earning less that $60,000 per year comprise at least 15 percent of the employer’s equivalent staff.

In doing so, Congress created two classes of American workers – those who are subject to layoff and replacement by H-1B workers, and those who are not. Congress has not provided a compelling state interest in sustaining these unequal classes, has not explained how the 15 percent cutoff is not arbitrary, and has failed to provide adequate layoff and displacement safeguards for the majority of Americans who do not work for H-1B dependent employers.

Where there is a significant encroachment upon personal liberty, the State may only prevail upon showing a subordinating interest which is compelling. Bates v. City of Little Rock (1960) 361 U.S. 516, 524

[dirtboy]

In doing so, Congress created two classes of American workers – those who are subject to layoff and replacement by H-1B workers, and those who are not.

Congress has passed laws that create multiple classes of employees in many, many other ways. There are laws, for example, that do not apply to businesses with fewer than 25 employees, and those have not been struck down by SCOTUS or federal appellate courts. I think the best attack against H1B is to simply demonstrate that the underlying pretext is a lie - that there is a shortage of IT workers, therefore we need to allow tens of thousands of foreign IT workers into the country - and build public outrage against H1B so that Congress either curtails the program or kills it. But if you are waiting for SCOTUS to strike down H1B on equal protection grounds, you're gonna have a long, long, long, long wait.