Ohio U.S. Sen. J.D. Vance criticizes SpaceX lawsuit

Last week, the Department of Justice sued SpaceX, alleging the company routinely discriminated against refugee or asylee job seekers. In a letter, Ohio Republican U.S. Sen. J.D. Vance criticized Attorney General Merrick Garland for pursuing the case. Vance contends SpaceX may have made a good faith mistake, while downplaying the ongoing pattern of discrimination the DOJ alleges.

He also suggests the case might be politically motivated — meant to punish SpaceX’s Elon Musk over his management of X (formerly Twitter). Vance adds the agency could have taken “intermediate steps” to clear up SpaceX’s apparent confusion with hiring laws.

The DOJ’s investigation began in 2020, more than two years prior to Musk acquiring Twitter in October 2022. They filed the lawsuit last week.

The complaint doesn’t detail efforts to encourage SpaceX to change its policies. Still, the nature of the investigation wasn’t a secret. The agency informed the company of its probe and requested relevant documents in June 2020. SpaceX declined to comply with that request and then fought a subpoena.

The complaint states the agency notified SpaceX of their investigation’s findings almost a year ago, in November 2022.

The allegations

The case alleges SpaceX routinely rejected applicants based on their citizenship or immigration status. It further states SpaceX employees, including Musk, erroneously told applicants the company could only hire citizens or lawful permanent residents. They blamed provisions like the International Traffic in Arms Regulations (ITAR), and Export Administration Regulations (EAR), for the restrictions.

However, the DOJ notes those regulations give refugees and asylees the same access as citizens or permanent residents. The complaint adds that Congress approved those protections in 1986.

As part of their investigation, DOJ officials were able to see SpaceX’s job application system. The database allows hiring managers to see an applicant’s citizen or immigration status, and they use various codes for rejecting applicants.

The complaint notes company officials “repeatedly” turned down candidates with the code “not authorized to work/ITAR ineligible.” It goes on to note that even in some cases with more neutral codes like not meeting qualifications, hiring managers noted their decision was based on the applicant’s citizenship status.

Zooming out, the complaint paints a stark picture of SpaceX’s hiring practices.

“From September 2018 to May 2022, out of more than 10,000 hires, SpaceX hired only one individual who was an asylee and identified as such in his application,” the complaint states, before adding, “SpaceX hired this asylee approximately four months after (the Immigrant and Employee Rights Section) notified the company of its investigation.”

The company hired no refugees in the same timeframe.

Vance’s critique

Vance argued the legal merits of the DOJ’s case are “questionable,” because the underlying federal code is difficult to parse. While it affords discrimination protections to refugees and asylees, it also allows companies to give preference to citizens in the case of equally qualified candidates. He added SpaceX’s violations were only meant to comply with “perceived” obligations.

“What value does the DOJ perceive in further extracting a pound of flesh from a company that was seeking in good faith to balance competing legal duties?” he asked.

But instead of chalking up SpaceX’s track record to a misunderstanding, Vance argued the policy was actually a good one. He said federal employees often face citizenship requirements, “as they should.”

Those “responsible for developing and maintaining new technologies with clear military applications should be citizens or permanent residents invested in the fortunes of the United States,” Vance argued. “The DOJ should not discourage hiring practices that can shield sensitive intellectual property from theft by foreign actors.”

His letter asks DOJ officials whether they investigated any similar companies and whether they met with SpaceX about changing its hiring practices. He also asks point blank whether Musk acquiring Twitter prompted the investigation and if the agency “believe(s) that favoring American citizens for jobs constitutes discrimination against noncitizens?”

Vance asked for a response by Sept. 29.

The pushback

Bryan Wright from the immigrant and refugee advocacy group Cincinnati Compass thinks stringent citizenship requirements are shortsighted. While there are fields where workers deal with sensitive information, he argued, restricting the labor pool based on citizenship shuts the door on a lot of talented workers.

“Whether it’s semiconductors to aerospace, if we as the US want to continue to be a leader in the tech industry — AI as well — then we need to shift our policies to be more open to attracting and retaining the best and brightest from around the globe,” Wright argued.

Meanwhile, Steve Tobocman who heads up a similar organization in Michigan called GlobalDetroit, argued that those employment protections are important because refugees and asylees have to get on their feet fast. “Within six months, these folks are supposed to be economically self-sufficient,” Tobocman said.

They both stressed how stringent a process refugees and asylees face before getting cleared to work.

As for whether SpaceX may have misunderstood the law, Tobocman said that happens pretty frequently. Still, he noted, “it tends to be less common in Silicon Valley and parts of the economy that rely on high-skilled STEM employment because, by nature, the U.S. doesn’t produce enough workers in those areas, and global talent is much more important in those sectors of the economy.”

Giving refugees and asylees similar access to employment, Tobocman argued, is crucial to integration.

“The ability to be able to secure work and support oneself, we consider it to be an integral part of the integration of refugees asylees and others coming to United States who’re escaping persecution,” he said. “We need to be able to make sure that those people have legal access to jobs and are able to do that in a meaningful way.”

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