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Trump and Merkel Both Named Time Magazine’s “Person of the Year”
Just 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
On 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?
Something 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.
Immigration Reform by Executive Action – Texas v. United States (The Latest)
Back to politics (disguised as a review of a 5th Circuit Court of Appeals decision).
Briefly, on May 26, 2015, a divided panel of the 5th Circuit Court of Appeals refused to lift a temporary injunction against the implementation of President Obama’s executive action regarding the new November 2014 DAPA program and the expansion of the June 2012 DACA initiative. The Department of Justice (“DOJ”) had asked the 5th Circuit to reverse Texas federal district Judge Andrew S. Hanen’s decision to temporarily block implementation of President Obama’s programs while the lawsuit worked it ways through the courts. The decision states, “[b]ecause the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”
For what it’s worth, I disagree (and I won’t repeat arguments I’ve previously made in this blog support of my position).
As a reminder, twenty-six states are suing the federal government over President Obama’s executive actions on immigration, and Judge Hanen issued an injunction on February 16, 2015 to enjoin DAPA and expanded DACA from taking effect while the lawsuit works its way through the courts. Pending the government’s appeal, the DOJ sought a stay of the injunction, arguing, among other things, that the nation’s immigration policy is the domain of the federal government, not the states. Judge Stephen A. Higginson, in dissent, wrote, “I would not affirm intervention and judicial fiat ordering what Congress has never mandated.”
It is my understanding that 5th Circuit will now hear oral arguments on July 10, 2015 in the Obama Administration’s attempt to lift (not stay) Judge Hanen’s preliminary injunction which blocked expanded DACA and DAPA from taking effect. In the meantime, the underlying case of Texas v. United States is still pending in the district court in Brownsville, Texas before Judge Hanen. The case is still in the early stages of discovery.
I find it interesting that a similar suit challenging President Obama’s actions filed by Maricopa County, Arizona Sheriff Joe Arpaio, Arpaio v. Obama, was dismissed by a Washington, D.C. federal court at the end of 2014. That case is currently on appeal before the D.C. Circuit Court of Appeals.
Speaking in dissent, Judge Higginson spoke to the “political nature of this dispute” and noted that the courts have no role in this dispute. The federal court in Washington, D.C. must have understood this when it quickly dismissed Sheriff Arpaio’s similar suit challenging DACA and DAPA.
I have previously argued in this blog and elsewhere that not implementing expanded DACA and DAPA means that our country will not derive substantial economic benefits that the overwhelming weight of the evidence clearly shows would result from their implementation. More importantly, though, the delay or failure to implement expanded DACA and DAPA means millions of families will continue to be forced to live apart, in uncertainty, and under the threat of possible deportation. Please, can we just get past all the politics and implement some meaningful immigration reform? Stay tuned.
“Crimmigration” and the Repeal of Silva Trevino
So I’m going to take a moment to move away from politics and instead discuss some positive developments in the world of “crimmigration.”
On April 10, 2015, former Attorney General Eric Holder vacated in its entirety the November 7, 2008 opinion of Matter of Silva-Trevino,[1] finding that because the Circuit Courts were split and at least two Supreme Court decisions cast doubt on its continued validity, the opinion was no longer useful in determining whether a particular criminal offense is a Crime Involving Moral Turpitude (“CIMT”) under the Immigration and Nationality Act (“INA”). What the heck am I talking about?
Back in 2008, then Attorney General Robert Mukasey issued the decision Matter of Silva-Trevino (commonly referred to as Silva-Trevino I), which allowed Immigration Judges to find a foreign national deportable from the United States on the basis of alleged facts never established (i.e., proven) in the foreign national’s criminal case which formed the basis of his or her removal (i.e., deportation) proceedings.
Since this decision, five Circuit Courts of Appeals have rejected Silva-Trevino I. Essentially what was happening was Immigration Judges were re-trying criminal cases in their own courts, and in doing so, they were considering (often unproven) facts that were outside of the foreign national’s Record of Conviction in his or her criminal proceedings.[2]
This was problematic on at least two levels. First, it created great difficulty for criminal defense lawyers to properly advise their clients regarding the potential immigration consequences of taking a plea to certain criminal charges. Second, many of the respondents in removal proceedings were individuals who were detained and without counsel, and who had previously given up their right to trial in their criminal proceeding and agreed to plead guilty with the intent of avoiding the immigration consequences presumably associated with their pleas.
Former Attorney General Holder’s order vacating Silva-Trevino I and its accompanying opinion (commonly referred to now as Silva-Trevino II) cited Supreme Court case law which makes it very clear that any inquiry as to whether a criminal offense is a CIMT for immigration purposes in the future should not go beyond the Record of Conviction.[3]
What does all this mean in practice? Noncitizens can be deported from the United States if they have been convicted of a CIMT (and in some cases, if they’ve been convicted of two CIMT’s).[4] Examples of CIMT’s under various state case law include, without limitation, fraud and theft offenses, offenses in which intentional bodily harm is caused, and various sex-related offenses.
To determine whether a noncitizen has been convicted of a CIMT, immigration officials have generally looked to the “inherent nature” of the offense as opposed to what the defendant actually did in a particular case. Simply stated, the facts of the case are irrelevant. This approach is called the “categorical” approach.”
A few weeks before George W. Bush’s presidency ended, former Attorney General Mukasey issued Silva-Trevino I, which dramatically changed the playing field, and essentially allowed Immigration Judges in certain cases to examine evidence beyond the Record of Conviction to assess whether the defendant’s conduct which formed the basis of his or her conviction involved moral turpitude.
Silva-Trevino I first instructed Immigration Judges to use the traditional “categorical” approach to determine whether a conviction constituted a CIMT. Again, under this analysis, the defendant’s actual conduct was irrelevant. The only question that needed to be answered was whether the elements of the statute of conviction either necessarily fall within the case law definition of a CIMT or never do so. If the Immigration Judge was unable to determine that the prohibited conduct under the statute either always or never involved moral turpitude, then the Immigration Judge was instructed to review the Record of Conviction.[5] Again, the inquiry would end if the court was able to determine whether or not the defendant was necessarily convicted of a CIMT. If the modified categorical approach did not resolve the question one way or the other, then Silva-Trevino I allowed for the Immigration Judge to consider “any additional evidence the adjudicator determines is necessary or appropriate to resolve adequately the moral turpitude question,” whether or not it was contained in the formal Record of Conviction.[6]
As indicated earlier, five federal circuit courts rejected Silva-Trevino I, essentially holding that where immigration consequences are premised on a “conviction,” the immigration statutes are unambiguous in prohibiting an Immigration Judge (or any adjudicator for that matter) from considering simply alleged facts, including evidence outside the Record of Conviction.[7] Indeed, this is what Silva-Trevino II stands for; that is Attorney General Holder’s order prohibits an Immigration Judge from using evidence outside the record of conviction in determining whether an offense involves moral turpitude. Consequently, criminal defense attorneys are now able to assess whether an offense involves moral turpitude and to help their noncitizen client avoid such a designation. This is good news for all.
[1] Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).
[2] Immigration Judges were considering evidence outside of the Record of Conviction (e.g., the charging document, bill of particulars, verdict or judgment, sentence, minute entries, written plea [if there was one], jury instructions [if there was a trial], presentence report, or probation report) in order to determine whether a foreign national was removable from the United States on the basis of a conviction of a CIMT.
[3] Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015).
[4] See 8 U.S.C. §§ 1182(a)(2)(A), 1227(a)(2)(A)(i), (ii).
[5] This part of the inquiry is generally referred to as the “modified” categorical approach.
[6] Silva-Trevino I at 704.
[7] Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); and Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009).
H-1B Filing Season Comes and Goes: Why the Cap Should be Raised
So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again. April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?
A little reminder about the H-1B nonimmigrant worker program. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university. In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.
So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available? They employ a lottery to choose whose petition will be adjudicated and whose will be rejected. Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!
That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)
Which of course begs the question whether the cap makes sense. According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days.[1] In four of those years, the cap was reached in six days or less. This year it was seven (7) days.
I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.). In my opinion, the current regulations implementing the H-1B worker program do that just fine. The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.[2]
For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States.[3] In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.[4]
What about arguments that the H-1B worker program negatively affects employment rates? Bologna. (I haven’t seen, let alone written, that word in 30 years!) The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.
The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas. For example, many STEM occupations have very low unemployment,[5] compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.
Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields? Some even argue that H-1B visas are all taken by Silicon Valley companies. Some even say Microsoft and Google take them all by themselves? Wrong! According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers.[6] And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.[7]
There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them. But the simple fact is, the cap should be raised, significantly, or even eliminated. The evidence is clear that the H-1B visa program enhances our economy in so many important ways.
[1] U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.
[2] See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).
[3] Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).
[4] Id.
[5] Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.
[6] Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.
[7] Id.
Immigration Reform by Executive Action – Were the President’s Actions Lawful?
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Some time has now passed since President Obama announced on November 20, 2014 his intention to go it alone to “fix” of our “broken immigration system.” Since that announcement, lawyers such as myself were hopeful that we could start working with clients on their applications for expanded relief under Deferred Action for Childhood Arrivals (“DACA”), and later this Spring under the President’s new “deferred action” program for the parents of U.S. citizens and lawful permanent residents (“LPR’s), commonly known as “DAPA”.
That all came to a screeching halt on February 16, 2015, when Texas federal district Judge Andrew S. Hanen granted a temporary injunction against the implementation of President Obama’s executive action regarding the DAPA program and the expansion of the President’s June 2012 DACA initiative. The injunction temporarily blocks President Obama’s executive action aimed at providing administrative relief from removal to millions of immigrants. President Obama has vowed to appeal. This, of course, begs the question of whether the President’s actions were lawful. I think they were.
A (Very) Brief History of Previous Exercises of Discretionary Relief
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. So why all the fuss now?
Prosecutorial Discretion, the Immigration Law and Regulations, and the Supreme Court
DACA was established by executive action in June 2012, and was expanded by the President’s announcement in November 2014. DAPA was first announced by the President in November 2014. Prosecutorial discretion generally refers to the authority of the Department of Homeland Security (“DHS”) to decide how the immigration laws should be applied, and it is a legal practice that has existed in law enforcement for quite some time.
For example, the Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as well as decisions to provide a discretionary remedies when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.
The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).
Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.
Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. See INA § 274A(h)(3). It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA (and would do so again under expanded DACA and DAPA).
Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service “INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.
Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.
So What Happens Now?
Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States, and indeed Judge Hanen, in his written decision, affirmed the executive branch’s right to exercise prosecutorial discretion.
Previous lawsuits against similar executive actions have failed in the past. Indeed a similarly politically motivated lawsuit was thrown out in December 2014 when Maricopa County Sheriff Joe Arpaio argued that President Obama’s announcements were unconstitutional. In 2012, the State of Mississippi challenged the legality of DACA in a case similar to the current Texas lawsuit, and that case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative.
As I have previously argued and substantiated in this blog, studies have shown that deferred action initiatives, apart from being the right thing to do, are economically beneficial to our country. In his decision, Judge Hanen cites the government’s “failure to secure the borders” and then goes on to support the plaintiffs’ position of supposed costs to the states without any evidence whatsoever in the record. The American Immigration Lawyers Association (“AILA”) and others have argued that Judge Hanen disregarded information submitted by the government and AILA as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide. They’re right.
Again, the Obama Administration has indicated it will appeal, and at the same time seek a stay to the enforcement of Judge Hanen’s order. I am cautiously optimistic that the government will prevail. In the meantime, it’s noteworthy to point out that those who have previously been granted DACA are not at all affected by Judge Hanen’s ruling. This ruling only delays the start of DAPA and the expansion of DACA.
Immigration Reform by Executive Action – What Else Did the President Do?
OK, to close the proverbial loop on President Obama’s administrative “fix” of our “broken immigration system”, here’s a few other things that the President announced on November 20, 2014. For more details on all aspects of this Executive Action, please see my two previous blog posts.
Provisional Waivers. This was a biggie, and just about the day after the President’s announcement, I had someone walk into my office who will benefit under this provision (once implemented). The President has decided to expand an earlier program his administration put into place which provides for “provisional waivers” of the 3- and 10-year unlawful presence bars on the admission of aliens who have accrued more than 180 days of unlawful presence in the United States. Currently, this program only assists the spouses, sons, or daughters of U.S. citizens. Under the President’s proposed expansion, it will now also benefit qualifying relatives of lawful permanent residents (i.e., Green Card holders).
Miscellaneous. The President also announced several other initiatives, not all of which can be neatly categorized I have done in earlier blogs. First, the President announced some personnel reforms involving immigration and customs officers. He also is trying to promote naturalization for eligible Green Card holders by, for example, directing U.S. Citizenship and Immigration Services (“USCIS”) to start accepting credit cards for paying naturalization fees, to consider partial waivers of naturalization fees in its next biennial fee study, and to launch a comprehensive media campaign to promote naturalization. He also is establishing an interagency task force on “New Americans” so as “increase meaningful engagement” between immigrants and the communities where they settle. Finally, the President is also establishing an interagency working group to address the interplay of immigration and employment law. I personally think it will be interesting to see what develops out of this last one.
As I have previously said, it seems clear to me that what President Obama announced was very necessary and very welcome, even if the manner in which it did it was controversial (along obviously with what he did). Last week, the House of Representatives passed a funding bill for the U.S. Department of Homeland Security that defunded his initiatives. Although the measure passed, interestingly, 26 Republicans voted against Rep. Marsha Blackburn’s amendment which would have defunded the President’s original 2012 Deferred Action Against Childhood Arrivals (“DACA”) initiative. This bill is now on to the Senate, where I doubt it will pass, but it certainly create a forum for debate that may very well impact the 2016 presidential elections. Let’s see what happens.
Obama’s Immigration Executive Action: Some Lawful Immigration Changes
So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers. Here’s a brief overview.
1. Immigrant Visa Issuance. The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system. Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year. Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable. The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.
2. Optional Practical Training. The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas. The President also proposed to expand the degree programs eligible for OPT.
Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study. In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.
3. Aliens Whose Admission to the United States is in the National Interest. The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”
4. Inventors, Researchers, and Founders of Start-up Enterprises. The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.
5. L-1B Specialized Knowledge Aliens. For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program. The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.
6. I-140 Portability under AC21 §106(c). The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.
7. Labor Certification (“PERM”) Modernization. The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers. More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.
8. Human Trafficking and Crime Victims. The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.
The President announced other initiatives too (which I will write about at a later time). As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was). It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).
INSIGHT INTO IMMIGRATION 