Insight into Immigration

U.S.C.I.S. Proposes the International Entrepreneur Rule

imm_3I think my colleagues in the immigration bar will agree that in order to achieve your client’s immigration goal, whatever it may be (e.g., a “Green Card,” citizenship, or whatever), sometimes you need to take baby-steps (e.g., enter the U.S. on a temporary visa before you try to obtain a Green Card). I’ve over-simplified the example, but the point remains the same. And sometimes, unfortunately, there are a lot of baby-steps that need to be taken during the process.

Here’s another issue. I recently had a conversation with a client about how to get a prospective hire into the United States to he could work for the client (in the absence of any immediately available H-1B nonimmigrant worker visa numbers). I told my client he had two (2) options. First, he could wait until Spring, 2017, file a petition with to U.S. Citizenship and Immigration Services (“USCIS”) to qualify his prospective hire as an H-1B nonimmigrant worker, hope that petition would be one of the lucky 65,000 petitions selected by USCIS, and then wait for an October 1, 2017 start date. His second option would be to engage in what I described as some “creative lawyering” and hope for the best. His immediate response to the latter was, “that sounds expensive.” And it would be, with no assurances that it would work.

Alas this is often what my colleagues and I would have to explain to foreign national entrepreneurs when they want to be part of a “start-up” company, either as an investor-owner and/or as an employee. The path to permanent residence (i.e., a Green Card) is not easy, usually time-consuming (i.e., years and years and years), often expensive, and unfortunately, never a sure thing.

Well that may soon be changing, at least in terms of getting away from “creative lawyering.” On August 26, 2016, USCIS announced the proposal of a new rule, which would
allow certain international entrepreneurs to be considered for “parole” (that is, temporary permission to be in the United States) so that they may start-up or scale their businesses in the United States.

The new rule would allow DHS to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under the rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises: (a) who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations; (b) whose startup was formed in the United States within the past three (3) years; and (c) whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by: (1) receiving significant investment of capital (i.e., at least $345,000.00) from certain qualified U.S. investors with established records of successful investments; (2) receiving significant awards or grants (i.e., at least $100,000.00) from certain federal, state or local government entities; or (3) partially satisfying one or both of the prior two criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the rule, foreign national entrepreneurs may be granted an initial stay of up to two (2) years to oversee and grow their startup entity in the United States. In addition, USCIS would entertain a later request for re-parole (for up to three [3] additional years) if the foreign national entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

In general, most commentators agree that the proposed parole period is very reasonable, and the investment thresholds appear not to be overly burdensome. Indeed, the proposed rule seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.

While the rule is not yet final, my primary concern is next steps once an entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a permanent resident, under the proposed rule, they will not be allowed to change their status from their parole status to some other type of lawful nonimmigrant status while they’re in the United States. That means the entrepreneur would have to leave the United States, try to apply for a temporary visa abroad, and then re-enter the United States (assuming this is even a viable option).

While this is not the panacea perhaps foreign national entrepreneurs would hope for, it’s definitely a step in the right direction. Stay tuned for the final rule.

Provisional Waivers Promote Family Unity

??????????????????????????????????????????????????????????????????????????????????????????????Back to the law. Although the Supreme Court ruled against the Obama Administration in the case Texas v. United States, 15-674, one of the immigration “reforms” that the Obama Administration proposed back in November, 2014, which happily was not part of the lawsuit, was recently implemented. Specifically, expanding the use of “provisional unlawful presence waivers” beyond spouses and minor children of U.S. citizens to also include the spouses and minor children of lawful permanent residents (commonly known as LPR’s or Green Card holders) as well as the adult children of U.S. citizens, and clarifying the “extreme hardship” standard that must be met to obtain this waiver.

In general, aliens who are lawfully present in the United States who have spouses or parents that are U.S. citizens or Green Card holders may be eligible to apply for an immigrant visa with a U.S. embassy or consulate outside the United States, or apply for “adjustment of status” with U.S. Citizenship and Immigration Services (“USCIS”) in the United States. In order to obtain an immigrant visa, the alien is required to depart the United States so that he or she can apply for his or her visa at a U.S. embassy or consulate outside the United States.

However, those aliens who have been unlawfully present in the United States prior to their departure generally trigger a three (3) or ten (10) year bar from returning to the United States if the alien has been unlawfully present in the United States for more than 180 days (the three year bar) or one (1) year or more (the ten year bar).

Under current law, these bars from returning to the United States can be “waived” if the denial of the alien’s admission to the United States would result in “extreme hardship” to the alien’s U.S. citizen spouse or parents. However, the time involved in an alien obtaining a waiver, and the attendant risk associated with the alien having to leave the United States not knowing whether he or she will actually receive the waiver and be able to return to the United States, has kept many unlawfully present aliens who could legalize their status in the United States from doing so.

To deal with this issue, in 2013, the Obama Administration began allowing spouses or children of U.S. citizens who are unlawfully present in the United States to request and obtain “provisional waivers” of the three and ten year bars to their admission while they are in the United States. (Once approved, they still need to leave the United States to apply for an obtain their immigrant visa.) This relief, however, was not available to the spouses and children of LPR’s. Until now.

On July 29, 2016, the Department of Homeland Security (“DHS”) published a final rule expanding eligibility for provisional unlawful presence waivers to all individuals who are statutorily eligible for an unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.

The provisional waiver process is meant to promote family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad. The provisional waiver process is a welcome contrast to the normal waiver application process, which requires aliens to first depart the United States and then apply for a waiver. Under the normal process, the alien may be outside the United States for many months, waiting for a decision on their waiver application. This separation, and the uncertainty of whether the waiver will actually be approved, has caused many individuals to simply forgo the opportunity legalize their status. The provisional waiver process eliminates most (but sometimes not all) of the uncertainty by allowing for pre-approval of the waiver prior to the alien’s departure from the United States.

I always counsel my clients that it’s much easier to fight their battles with DHS when they’re physically in the United States. These new regulations now allow them to do so. This is a very welcome change.

The Presidential Field is Set, and We Need Real Comprehensive Immigration Reform

dreamstime_xs_69677827So, the presidential field is set.  Hillary Clinton is the presumptive nominee for the Democrats, and Donald Trump for the Republicans.  To say that our immigration system is broken is an understatement, and although the Obama Administration has made some efforts at reform (whatever you may think of them), Comprehensive Immigration Reform (“CIR”) remains an elusive goal.  And, absent something incredibly positive coming out of the Supreme Court in the case Texas v. United States, 15-674, we’ll likely not see anything significant come out of Washington on the immigration reform front until, at the very earliest, next January (but likely much much later, despite what we hear from one of the candidates).

And yet there are so many important issues to consider (some of which we’ve already been hearing too much about on the campaign trail, although not necessarily in a meaningful way), including, among others, the border wall and enforcement, mass deportation, the overwhelming need for CIR, and the list goes on.

What are the candidates saying on the campaign trail?  At a campaign stop recently in Los Angeles recently, Hilary Clinton said, “Immigration is at the center of this presidential campaign. In my first 100 days I will introduce legislation for comprehensive immigration reform … When he [Trump] talks about deporting 11 million immigrants, he’s talking about ripping apart families.”  She’s right about the latter.  We’ll see about the former.

And the Donald?  At a FOX News GOP debate in Detroit, he said the  following: “I’m not playing to anybody’s fantasies. I’m playing to the fact that our country is in trouble. We have a tremendous problem with crime. The border is a disaster. It’s like a piece of Swiss cheese, and we’re going to stop it. We’re going to … be stopping people from coming into our country illegally. We’re going to stop it.”  How?  By building a “beautiful” wall, no doubt.

What we really need here are creative and progressive ideas to effectuate CIR, to ensure that the U.S. economy continues to grow from the recent recession, and to also ensure that families stay united or are reunited.  Unfortunately, much of what we’re really hearing (from the Donald, anyway) is ridiculous and divisive rhetoric offering non-practical immigration policies, such as removing 11 to 13 million immigrants unlawfully living in the United States, or securing our Southern border with a bigger and more “beautiful” wall that Mexico will (no doubt not) pay for.

Let’s talk details. On the issue of border security and enforcement, quite frankly our U.S. – Mexican border is more secure today than it ever has been. By all accounts, spending on border patrol agents, infrastructure (i.e., the existing “wall”, among other things), and new and improved surveillance technologies to interdict unlawful crossings have grown exponentially; at the same time, unlawful border crossings are at their lowest level in decades. Consider the increase of staffing at the border: in 2014, U.S. Customs and Border Protection (“CBP”) had approximately 21,000 border patrol agents, a more than 500 percent increase from 1992 when there were only about 4,000 agents.

As well, enforcement under the Obama Administration is extremely high.  Federal criminal prosecutions of immigration-related offenses are at their highest point in history.  Since 1992, convictions for all immigration crimes (the vast majority of which are illegal entry and reentry crimes) rose from just 5 percent of all federal criminal convictions to 30 percent in 2014.  Immigration offenses in the first seven years of the Obama Administration totaled 555,974 convictions compared to 251,952 during all 8 years of the Bush administration.  President Obama, a Democrat, deported 2 million illegal aliens after just about five years in office.  It took George W. Bush, a Republican, eight years to reach that number.

I can also state from first-hand experience that Immigration and Customs Enforcement (“ICE”) continues to try to remove people from the United States who pose no threat to our communities, breaking apart families (many of which include U.S. citizen children, spouses and parents).  While the Obama Administration’s policies on the exercise of prosecutorial discretion have no doubt resulted in more fair outcomes for some, anecdotal evidence from my colleagues in the field suggest that prosecutorial discretion is not being exercised evenly (or some would say even fairly).

Hard is this may be to believe, there actually is widespread agreement across the country that Congress should pass CIR that allows unauthorized immigrants to remain in the country so that they may continue to contribute to our economy and the communities that they already reside in. Indeed, a May 2015 Pew Research Poll found that 72 percent of Americans say that undocumented immigrants should be allowed to stay in this country legally (assuming they meet certain requirements).

What about all the discussion about mass deportations?  It’s just not rational to believe that 11 to 13 million undocumented immigrants living in the United States, in our own communities, working and raising their families, are going to leave the United States, or that we frankly have the resources to remove them.  According to the American Action Forum, it would take 20 years and between $100 to $300 billion to arrest and remove the 11 to 13 million immigrants unlawfully living in the United States.  And this is just the cost to remove them back to their home countries.  This doesn’t even take into consideration the huge negative economic impact of removing these workers from the jobs and employers who depend on them every day.  Industries that depend on immigrant labor (e.g., our own dairy farmers in New York States) would falter badly.  Frankly, the effect of employers losing these workers would impact every part of our economy.

Is that how we want to spend our resources?  What we need is a path for these people to obtain a legal status.

Finally, our family- and employment-based immigration system needs reform.  Because our current immigration system is generally built around limited categories of temporary and permanent visas, many who want to come and contribute to our economy, or remain here after their schooling is done, are not able to do so.  I recently spent some time with a friend of mine, a co-founder of a local and very successful technology company, and he was echoing what many in his industry say: the United States loses out when talented immigrants (often who are schooled here) are prevented from using their skills here after graduation, prevented from starting and building businesses, and prevented from using their talents to strengthen our economy. These talented and U.S. educated entrepreneurs and workers take their skills elsewhere, benefitting other countries, to the ultimate detriment of our own.

This needs to stop.  We need real solutions to this problem from serious candidates.  Whether or not you believe border enforcement is a priority (and it is), securing our borders does not need to be a prerequisite for CIR.  We can do it concurrently.  We just need to do it.

Is the Glass Half Full or Half Empty? Supreme Court Texas vs. United States

imm_6On Monday, April 18, 2016, the U.S. Supreme Court heard oral arguments in the case Texas v. United States, 15-674, which is the action by the State of Texas (along with 25 other states) to block the Obama Administration’s implementation of expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).

I noted in an earlier piece that in addition to the questions presented by the Obama Administration’s petition,[1] the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim.[2]  Another big issue that the Court would need to address, indeed a threshold issue, is whether the State of Texas had “standing” to bring the action in the first place.

Prior to oral argument, most commentators (whether legal or otherwise) thought that Chief Justice Roberts might avoid dealing with the main issues in the case, and instead focus on the threshold issue of standing, the question being whether the states challenging the Obama Administration’s plan to implement DAPA and expanded DACA suffered the sort of direct and concrete injury that gives them standing to sue.  Historically, Chief Justice Roberts has not been a proponent of resolving political disputes in the courts, which this one obviously is.

Texas (and the other states) argued that they have standing because they might incur  additional costs when issuing drivers’ licenses to beneficiaries of the DACA and DAPA initiatives.  In reality however, these claims are nothing more than allegations of indirect or incidental effects, and interestingly, since the State of Texas subsidizes driver’s licenses, any alleged harm is really of its own creation.

In my view, the issue of standing became much more important with the passing of Justice Antonin Scalia in February, 2016.[3]  If Chief Justice Roberts was really focused on the threshold issue of standing, he might then try to decide the case on more narrow procedural grounds, and avoid what could end up being a deadlock of 4 – 4 among the remaining voting justices (and thereby allowing the district court’s injunction prohibiting the implementation of the Obama Administration’s November 2014 immigration program to stand).

And then came April 18.  Within minutes of the opening of oral arguments, Chief Justice Roberts seemed troubled, if not unpersuaded, by the Obama Administration’s argument on standing.  Essentially, Chief Justice Roberts stated that if Texas did deny licenses to DACA and DAPA beneficiaries, those individuals would then likely sue the state, perhaps on Equal Protection grounds.  Chief Justice Roberts opined that this would put Texas in “a real Catch-22” (i.e., the state can remedy the legal harm by refusing to give licenses to some immigrants, but in doing so, it would open itself up to a lawsuit).  Not a good start at all.

The Court then went into the real issues, and not surprisingly, the justices were pretty much split down ideological grounds.  So, what could happen?

First, I suppose the Court could still dismiss the action for a lack of standing.  If this happens, the entire case will come to an end.  The Obama Administration could then implement DAPA and expanded DACA.  Unfortunately, I don’t see this as likely (but I can still dream).

Second, the Court could reverse the Fifth Circuit on any number of legal issues, thereby allowing the Obama Administration’s initiatives to move forward. If it did so, however, this would likely not be the end of the lawsuit. That’s because the district court could then go on to decide if the Obama Administration’s initiatives are constitutional. And, then the decision of the district court could be appealed, basically meaning the entire case could go back to the Fifth Circuit and the Supreme Court … again.

Finally, the Court could affirm the Fifth Circuit, which would uphold the district court’s preliminary injunction. This means the case would also go back to the district court for the case to simply continue on.  As with the second scenario, any resulting district court decision could later be appealed, meaning the case could again go back to the Fifth Circuit and the Supreme Court.

I have noted this before.  President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations.  According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.  Today, however, the climate is very different, and what essentially should be a legislative issue being resolved in Congress is now a political issue being resolved in the federal courts.

Now it’s a waiting game until the end of the Court’s term in June.    It seems to me, based upon Chief Justice Roberts’ questions, that the odds of a favorable decision from the Court at this juncture are not very high.

[1] The questions presented by the Obama Administration were (a) whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action, (b) whether the Guidance is arbitrary and capricious or otherwise not in accordance with law, and (c) whether the Guidance was subject to the APA’s notice-and-comment procedures.  The “Guidance” refers to the Secretary of Homeland Security’s memorandum dated November 20, 2014 directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.

[2] The question presented here was “[w]hether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

[3] Clearly nobody who follows the Supreme Court was counting on Justice Scalia to vote in favor of the Obama Administration’s position in this case in any event.

The Right to Counsel in Immigration Court Proceedings for Indigent Children

boydadimmigrationrallyDo you remember the game “Sorry!”? I play it with my 7 year old sometimes.  And every once in a while when I pick a card that sends one of his game pieces back to his Start circle, he slaps his forehead and yells, “Are you kidding me?”

The other day, I had the same reaction (albeit to something a lot different).  You may have read about this.  Jack H. Weil, an assistant chief immigration judge who is actually responsible for training other judges, stated in sworn testimony in a case in which the American Civil Liberties Union (“ACLU”) and other immigrant rights groups are seeking to require the government to provide appointed counsel for indigent children who cannot afford a lawyer in immigration court proceedings, stated:

I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time.  It takes a lot of patience. They get it. It’s not the most efficient, but it can be done. … You can do a fair hearing.  It’s going to take you a lot of time.

Are you kidding me?

Not surprisingly, afterwards, Judge Weil was quoted as saying that his statements did not “present an accurate assessment of [his] views on this topic,” and the Justice Department then quickly chimed in that “[a]t no time has the Department indicated that 3 and 4 year olds are capable of representing themselves.  Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of [the Executive Office for Immigration Review] or the Department of Justice.”

I have repeatedly said in various forums that our immigration laws are extraordinarily complex.  If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum.  If we sometimes cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a 3 or 4 year old to?

Our government does not guarantee legal counsel to asylum seekers and other vulnerable populations facing deportation from the United States. In the past two years, more than 112,000 families and unaccompanied children have appeared before Immigration Judges without lawyers.  It’s virtually impossible for non-English speaking asylum seekers, especially young (or frankly any) children, to understand or navigate our complex immigration system, let alone make sense of legal terms of art such as “persecution” or being a member of a “particular social group.”

In an attempt to rectify this sorry state of affairs, in February, 2016, Senator Minority Harry Reid introduced S. 2540, the Fair Day in Court for Kids Act of 2016, which mandates that unaccompanied children and vulnerable immigrants receive legal representation. Two weeks later, Representatives Zoe Lofgren, Luis Gutierrez, and Lucille Roybal-Allard introduced the House companion bill, H.R. 4646.

Among other things, the law would require the appointment of counsel for children, families and other vulnerable individuals, and the government would also be required to ensure access to counsel for anyone in detention, including border detention facilities, as well as for families and individuals subject to fast-track asylum screenings conducted in border regions.

Just recently, Senator Patrick Leahy of Vermont questioned Attorney General Loretta Lynch why the Department of Justice does not prohibit immigration proceedings from moving forward until children have representation. Attorney General Lynch responded: “I think we’re looking to find any various ways to support that and we’re looking at various ways to get legal counsel appointed in every situation,” responded Lynch. This is a rather ironic response given that the Department of Justice, the very agency which Attorney General Lynch leads, continues to fight the ACLU’s lawsuit that seeks to require that all such children receive legal representation.

I’ve been in the courtroom for these types of hearings.  Children are facing the same charges as adults, and consequently are also being asked the same questions by the Immigration Judge as adults.  I can tell you with absolute certainty that most adults, even with court-provided interpreters, do not understand what they’re being asked by the Immigration Judge.  The charges range from entering the country illegally to  overstaying a visa. The Immigration Judges ask questions that include when and how they arrived in the United States and whether they fear persecution in their home country if they were to return.  You would think these are simple questions, right? Far from it.

The Immigration Judge would also be asking if the child wants to leave the country voluntarily or whether the child would rather be deported. Depending on the child’s answer, he or she may be foreclosed from applying for certain forms of immigration relief in the United States, such as political asylum.

And, these hearing typically happen very quickly.  Indeed in some courtrooms, the average time for a Master Calendar Hearing has been reported to be about 7 minutes.  Imagine trying to make sure a child facing deportation from the United States understands all of his or her rights within 7 minutes (especially if the child is not represented by an attorney).

On the election trail recently, Univision hosts at a CNN debate pressed both Bernie Sanders and Hillary Clinton to make definitive statements that neither would deport children (or immigrants with no criminal record) should they become president. The both did so. That’s a start, at least as far as the Democrats are concerned.  But we still need to worry about the Republicans, and of course the real issue of the right to an attorney for an indigent child still needs to be resolved.


The Supreme Court Is Taking Up President Obama’s Executive Actions



When I first started practicing law, I handled a case involving a commercial landlord-tenant matter.  Counsel for the petitioner commenced a Summary Proceeding in a local Town Court.  I knew my client had a right to cure the alleged lease default, but I questioned whether I could get the appropriate relief in Town Court.  So my client decided to bring a Declaratory Judgment action in Supreme Court along with a request for a Yellowstone Injunction.  At the first hearing before the Supreme Court, counsel for the now defendant (a well-regarded local lawyer by the way) said, “so you’re going to Supreme”.  All that to introduce my latest piece.

The U.S. Supreme Court granted the Obama administration’s petition for a writ of certiorari, and will review the case, Texas v. United States, 15-674, which to date has blocked the Obama Administration’s implementation of expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).  In addition to the questions presented by the Obama Administration’s petition,[1] the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim, as follows: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

When I read this, I immediately thought I need to be careful what I wish for.  The Court is likely to hear the case in April 2016, and make a decision by the end of June.

This of course will create great fodder on the election trail, but I’ll leave that for another day.  The real issue now is this fourth question presented.

In asking the parties to address whether President Obama violated his constitutional obligations to enforce the nation’s laws, the Supreme Court raised the prospect of a broad decision that could significantly alter the scope of presidential power in the area of immigration and far beyond.[2]

I’ve written previously about the President’s discretionary authority over immigration matters, including areas related to immigration enforcement and the granting of immigration benefits or privileges (e.g., work authorization).  I think it’s worth reminding everyone that President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations.  According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together (including the granting of permission to work while they were here).

Like many of his predecessors, President Obama has also relied on the Immigration and Nationality Act’s (“INA”) definition of “unauthorized alien” (i.e., aliens “authorized to be … employed … by the Attorney General [now the Secretary of Homeland Security]”) in claiming broad authority by the Executive to grant work authorization to aliens whose eligibility for employment authorization is not otherwise addressed by the INA.  If the Supreme Court were to find against the Obama administration, this type of Executive discretion could come to a screeching halt.[3] (If we’re going to allow those without status to remain in the United States, even if temporarily, why not allow them to work too and contribute too our economy?)

A finding by the Supreme Court that President Obama violated his constitutional obligations to enforce the nation’s laws could also implicate the original 2012 version of DACA (forget the President’s desire to expand it and create some temporary protections for a new class of aliens).  Why?  It could be argued that the INA provisions discussed by the Fifth Circuit in Texas v. United States bar the granting of deferred action and permission to work to aliens brought to the United States as children and raised here.[4]

Frankly, I am very concerned that a conservative leaning Court may wish to limit the President’s authority to exercise prosecutorial discretion.  History supports the notion that prosecutorial discretion, and specifically prioritizing our nation’s immigration enforcement priorities, has long been considered an executive function. Ultimately, the Supreme Court’s decision could extend far far beyond the world of immigration, and affect any president’s use of executive action.

[1] The questions presented by the Obama Administration were (a) whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action, (b) whether the Guidance is arbitrary and capricious or otherwise not in accordance with law, and (c) whether the Guidance was subject to the APA’s notice-and-comment procedures.  The “Guidance” refers to the Secretary of Homeland Security’s memorandum dated November 20, 2014 directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.

[2] Interestingly, neither the federal district court nor the Fifth Circuit addressed the plaintiff-states’ Take Care Clause claims.  One federal district court has, however, addressed this issue. See United States v. Juarez-Escobar, 25 F.Supp.3d 774, at 788 (W.D. Pa., December 16, 2014) (the Court suggesting that DAPA and the DACA expansion “violate[] the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, [are] unconstitutional.”).

[3]   The Fifth Circuit majority would probably agree with the Supreme Court.  The Fifth Circuit believes that the “miscellaneous definitional provision” does not provide a basis for the Obama administration to grant of work authorization to “millions” of aliens given “Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.” Texas v. United States, 809 F.3d 134, 181 (5th Cir. 2015).

[4] For what it’s worth, the 2012 DACA program was not at issue in Texas v. United States.  It had previously been the subject of unsuccessful legal challenges, including one involving the State of Mississippi.  See Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013).

Could Donald Trump Legally “Ban Muslims from Entering US”?

muslim preacherA little substantive law for this piece.

In the wake of the tragic events in both Paris and San Bernardino, Donald Trump raised the rhetoric, proposing not only to deport 11 million undocumented immigrants, but to also ban Muslims from entering the United States.  In the first television advertisement of his campaign, the narrator of Mr. Trump’s ad states that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States, until we can figure out what’s going on.”[1]  (This verbiage was somewhat of a back-peddling from his earlier remarks for a “total and complete shutdown” of Muslims entering the United States.) New Jersey Governor Chris Christie also has a plan to bar Syrian refugees for the sake of national security.

In my opinion, and I am sure there are some of you who would disagree with me, Mr. Trump’s plan is un-American, inflammatory, and frankly stupid.  But is a ban on Muslims entering the United States legal?  Maybe, but I think the courts would have a field day with it.

Right out of the gate, most constitutional scholars loudly stated that a ban on Muslims from entering the United States would discriminate against a class of people based on their religion (not to mention to punish an entire class of people who have done nothing wrong).  Certainly such a ban would violate constitutional guarantees of “due process of law” and “equal protection” for Muslim-Americans.

But what about those who are not U.S. citizens?

I don’t think anyone would argue that the United States, as a sovereign nation, has the authority to decide who may enter the country, and the conditions for entry by those who seek it.  Most of this power lies with Congress, in its “plenary” power to control admission to the United States, how long a noncitizen is able to stay, and under what circumstances.

The Fifth Amendment of the U.S. Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.” [2] The “due process” clause does not “acknowledge … any distinction between citizens and resident aliens.”[3]  This protection extends to U.S. citizens and noncitizens alike, provided that they have sufficient ties to the United States.[4]  So, noncitizen Muslims who are presently in the United States would seem to be protected.  Those outside the United States, perhaps not so much.

What about the “equal protection” clause in the Fourteenth Amendment?  The Fourteenth Amendment forbids the states from denying any person “equal protection” under the law.  In 1886, the Supreme Court held that the “equal protection” clause is “universal in [its] application, to all persons within the territorial jurisdiction [of the United States], without regard to differences of … nationality.”[5]  More recently, in 1954, the Supreme Court held that this guarantee of equal protection is implicit in the Fifth Amendment’s “due process” clause.[6]

So, the Fifth Amendment limits the federal government, and the Fourteenth Amendment limits the states.  Again, it would seem that noncitizen Muslims who are in the United States are generally entitled the same protection under the law as U.S. citizens.  But those outside the United States, that’s much less clear.

What about other grounds?  Some constitutional scholars have argued Mr. Trump’s ban on Muslims would violate the First Amendment’s “establishment” clause. That provision forbids Congress from establishing an official religion.  The argument goes that Mr. Trump’s policy would essentially require that the federal government make a determination as to who is really Muslim in order to know who to exclude from our borders, and that the “establishment” clause prevents the government from making these types of decisions.

If Congress were ever to take such a drastic step, and the issue thereafter reached the courts, it would be interesting to see what would then happen.  The courts are required to apply “strict scrutiny” to all government actions that tend to discriminate on the basis of a “suspect class” (e.g., race) or upon a fundamental right (e.g., religion).  Because strict scrutiny would apply, the courts will presume that such a law is unconstitutional, and the burden will then be on the government to provide a “strong basis in evidence” that shows the law achieves a “compelling” national interest and that the law is “narrowly tailored” to accomplish that goal.

Surely protecting against terrorism is a compelling national interest, but would such a law be the least restrictive means in order to do so?  I’m not convinced.

One of the most famous Muslims (perhaps in the world) recently said of Mr. Trump’s inflammatory remarks, “True Muslims know that the ruthless violence of so called Islamic Jihadists goes against the very tenets of our religion.”  Going on, this individual said that he believes “that our political leaders should use their position to bring understanding about the religion of Islam and clarify that these misguided murderers have perverted people’s views on what Islam really is.”  Who was that?  Muhammad Ali (a/k/a Cassius Clay).  I could not agree more.  Instead of Congress passing legislation to prevent Muslims from entering the United States, we should simply tone down the inflammatory rhetoric and educate ourselves as to what’s really going on here.  Pure politics.  Just a thought.

[1] The narrator goes on to say that Mr. Trump will “stop illegal immigration by building a wall on our southern border that Mexico will pay for.”  I’ll save my commentary on this one for another day.

[2] U.S. Const. amend. V.

[3] Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953).

[4] See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”). However, aliens who are outside the United States are generally not afforded this constitutional protection. Id. at 269 (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”) But see Ibrahim v. Department of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (an alien not currently in the country, but who had been lawfully present in the United States for four years before departing the country and who was latter prevented from returning, had established a “significant voluntary connection” to the United States sufficient to assert claims under both the First and Fifth Amendments).

[5] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[6] Bolling v. Sharpe, 347 U.S. 497 (1954).

Trump and Merkel Both Named Time Magazine’s “Person of the Year”

donald trumpJust recently Time Magazine named German Chancellor Angela Merkel as its “Person of the Year”.  Among other things, Time noted her role in Europe’s migration crises. Time wrote that Chancellor Merkel had provided “steadfast moral leadership in a world where it is in short supply.”

Do you know who came in third place?  Donald Trump (just behind Abu Bakr al-Baghdadi, head of the Islamic State militant group, commonly known as ISIS).

So let’s see if I have this straight.  Time said that Chancellor Merkel was deserving of the award because, among other reasons, by the end of 2015, “she had steered the [European Union] through not one but two existential crises” with the second being a “thunderclap. In late summer, Merkel’s government threw open Germany’s doors to a pressing throng of refugees and migrants; a total of 1 million asylum seekers are expected in the country by the end of December.”

Susan Rice, President Obama’s National Security Advisor, was quoted in Time that “[Chancellor Merkel] has demonstrated particularly bold moral and practical leadership on the refugee crisis, welcoming vulnerable migrants despite the political costs[.]” I could not agree more.

And what of Candidate Trump?  Well, Candidate Trump has engaged in fear mongering, including proposing a plan to ban Muslims from entering the United States; that’s right, Candidate Trump says we need a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”  Constitutional?  I doubt it.

Nevertheless, the tragic events in Paris and, more recently, in San Bernardino, California, have ramped up Congressional efforts to, among other things, halt the U.S. refugee resettlement program (which yes, includes Muslims trying to come to the United States because they’re fleeing persecution in their own countries).

Quite frankly, there is no need for Congress to end the refugee program for Syrians and Iraqis or to even impose additional security measures. The U.S. refugee program already subjects every individual who will enters the U.S. pursuant to it to extremely rigorous checks performed by multiple federal agencies. Indeed, after decades of operation, not a single refugee has committed a reported act of terrorism in the U.S.

Fortunately, most legal scholars believe that Candidate Trump’s plan would be unconstitutional.  In fact, his plan was even rejected by politicians from both sides of the political aisle, including former Vice President Dick Cheney and House Speaker Paul Ryan. In a press conference, Speaker Ryan denounced Candidate Trump’s comments by stating that they don’t reflect who we are as a nation (or even the Republican Party for that matter).

The campaign trail rhetoric continues to be atrocious (as is some, but thankfully not all, of the rhetoric in Washington, D.C.).  I can only hope that reasoned and informed opinions prevail.

Proposed STEM OPT Extension and “Cap Gap” Relief

female scientistOn October 19, 2015, the Department of Homeland Security (“DHS”) published a notice of proposed rulemaking in the Federal Register seeking to improve and expand training opportunities for F-1 nonimmigrant students with science, technology, engineering or math degrees (commonly referred to as “STEM” degrees). The rule also proposes to expand what is called “cap-gap” relief for all eligible F-1 nonimmigrant students.

While this is a welcome regulation, and there’s a litigation aspect to it that I will not get into here (but probably should given my audience), the fact that we need this regulation at all is just another example that our immigration system is broken.

A brief primer on “practical training.”  Practical training may generally be defined as experiential learning, including paid employment or an unpaid internship, directly related to a student’s major area of study.  It may be authorized for F-1 nonimmigrant students who have been enrolled in a DHS-approved college, school, university, conservatory, or seminary for one full academic year.  There are two kinds of practical training available: (1) curricular practical training; and (2) optional practical training (“OPT”). OPT is the subject of this article.

Generally, students may be authorized for up to 12 months of OPT at each higher level of postsecondary education.  For example, a student may take 12 months of OPT during his or her bachelor’s level, an additional 12 months at his or her master’s level, and an additional 12 months at his or her doctoral level.

It is typically during OPT that a student identifies an employer that may wish to sponsor him or her for longer term temporary or permanent employment.  That requires the employer to sponsor the student, more often than not by filing a petition with U.S. Citizenship and Immigration Services (“USCIS”) to change the student’s nonimmigrant status, usually to an H-1B nonimmigrant worker status.  The problem is, there are more employers wishing to petition for their workers than there are H-1B visas available, and often both employer and student are shut out of the H-1B program as a result.

A related and important issue is that typically a student’s post-completion OPT will run out months before he or she will be eligible for H-1B nonimmigrant worker status, assuming they were one of the lucky ones to be selected.  This brings in the concept of the “cap-gap.”

Spring postsecondary school graduates often face a gap in their period of authorized stay in the United States.  Typically it is the period between the end of their OPT and the beginning of their H-1B nonimmigrant worker status (which is generally October 1, the first day of the government’s fiscal year).  To deal with this, DHS issued an interim final rule in April, 2008 (the same rule that created the STEM extension and which is the subject of the litigation that I am not writing about), commonly referred to as the “cap gap rule.”  It offers an “automatic” extension of the student’s F-1 nonimmigrant status, including any OPT employment authorization that may have been authorized, until October 1 of the fiscal year for which a student is the beneficiary of a timely filed H-1B petition requesting a change of status to H-1B nonimmigrant worker status.  This regulation essentially provides continuing work authorization during the “cap gap” for students engaged in post-completion OPT who are also the beneficiaries of such H-1B petitions.

Under the 2008 interim final rule, F-1 nonimmigrant students who earn a degree in a STEM field may be eligible for an extension of their post-completion OPT for up to 17 months, for a total of 29 months of OPT.  U.S. Immigration and Customs Enforcement’s (“ICE”) Student and Exchange Visitor Program (“SEVP”) has designated certain Classification of Instruction Programs (“CIP”) codes assigned to major fields of study to constitute the eligible “STEM fields.”  While a student may be eligible for additional periods of OPT at each higher level of study, the STEM extension is a one-time benefit, and may be granted only if a student is currently engaged in OPT based on a STEM degree.  (To be eligible for a STEM extension, a student must also have an employer who is enrolled in the E-Verify program.)

The new rule would, among other things, extend the STEM OPT period to 24 months, allow an additional period of OPT for subsequent degrees, and even provide STEM OPT eligibility for a prior degree.  Very importantly for practitioners in this area, the rule also clarifies which occupations qualify.  The new rules also leaves open the possibility of adding eligible fields in the future.  Finally, and importantly, the new rule provides continued “cap gap” relief.

These changes are critical to attracting foreign students to our colleges and universities, and to encourage the pursuit of practical training from leading, innovative businesses in the United States. U.S. businesses that provide STEM OPT training opportunities benefit from this program through employee retention and a strengthened market position both domestically and abroad.
Once again, however, I will stand on my soap box and say our country still needs comprehensive immigration reform.  For the time being, however, we’ll once again need to satisfy ourselves with these regulatory “baby steps.”

The Visa Bulletin : What is it and How is it Used?

boydadimmigrationrallySomething a little different, but if you’re advising a client who is waiting in line for an employment-based or family-based immigrant visa (e.g., basically, a Green Card), it’s critical that you know what the Visa Bulletin is, and how to use it.

So what’s the Visa Bulletin?  The Immigration and Nationality Act (“INA”) creates annual limits on the number of immigrant visas that the U.S. Department of State (“DOS”) may issue to applicants worldwide in each government fiscal year.  For family-based immigrant petitions, the limit is 226,000 immigrant visas per year.  For employment-based immigrant petitions, the limit is 140,000 immigrant visas per year.[1]

The INA has also established an “immigrant numerical allotment and control system” which, as the phrase suggests, controls how these annual immigrant visas are allocated within the groups referenced above.

The immigrant numerical allotment control system is administered by the DOS, and specifically the DOS’s Visa Office.  Each month, the DOS publishes the Visa Bulletin, which summarizes the availability of immigrant visas as allocated among the various family- and employment-based immigrant “preference” categories in light of the numerical limitations noted above.  Every month, the Visa Office determines the number of immigrant visas used thus far in the fiscal year, and then estimates future use and demand.  In doing so, it is able to report which categories are “current” (i.e., immigrant visas are available), and which categories are “oversubscribed” (i.e., there is a backlog).

By reviewing the Visa Bulletin, you can (very) generally advise your client when he or she may be able to apply for an immigrant visa (if they are currently outside the United States) or for their Green Card (if they are currently inside the United States) in light of what your client’s “priority date” is.[2]

Recently, U.S. Citizenship and Immigration Services (“USCIS”), in coordination with the DOS, reported that they were revising the procedures for determining immigrant visa availability for applicants who were in “oversubscribed” family- and employment-based preference categories.  As reported, the revised process is intended to enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for immigrant visa issuance published in the Visa Bulletin.  This was really good news.

In reporting this good news, the DOS revised the Visa Bulletin to now include “Application Final Action Dates”, which are the dates when immigrant visas may finally be issued, and “Dates for Filing Applications”, which are the earliest dates when applicants may be able to apply for their immigrant visas (or their Green Cards, if they are presently in the United States).

Under this new process, if an intending immigrant is presently in the United States, and has a “priority date” earlier than the listed “filing date” for their particular immigrant visa category in the Visa Bulletin, they will now be able to file their applications for their Green Card earlier than they would have been allowed under the old process. (However, they still have to wait for the “final action” date to become current before their permanent residence can be approved.)

For those intending immigrants who are in the United States and are stuck in a category that is substantially oversubscribed, this means they will be able to receive employment authorization and travel documents earlier than they would have under the old system (still while they await final action on their cases).  Again, this is a really big deal (in a time when comprehensive immigration reform has been stymied at every turn).

Our country still needs comprehensive immigration reform.  Without it, however, I suppose we’ll have satisfy ourselves for the time being with these regulatory “baby steps.”

[1] There is actually a third category, for what are referred to as “Diversity” immigrants, and the annual limit in this category is 55,000 immigrant visas year.

[2] A priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by the U.S. Department of Labor.

About the Contributor:

David W. Meyers, Esq. is managing partner of Meyers & Meyers, LLP. David works with individuals, businesses and higher education institutions helping them resolve any issues regarding immigration, citizenship and naturalization for themselves or their employees.

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