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This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.
Readers of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.
A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.
Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.
Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:
In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”
Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)
This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.
So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.
We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.
Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.
I recently sat for an interview with a reporter who is doing a series of articles on changes in immigration policies with a specific focus on our immigration court system. As I was speaking with this person, our conversation veered outside that lane, and we started talking about changes in immigration policy more broadly. We’ve seen a lot over the past year, but since Donald Trump became our president, the changes in U.S. immigration policy, whether planned or otherwise, have been dramatic. It’s probably not surprising when you have someone like Stephen Miller being the puppeteer for the marionettes.
Some have called it the “invisible wall.” The what? Yes, the invisible wall. While the President has been very public about his desire to construct a physical wall on our Southern border, slowly but surely, he and his minions are quietly and deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.” We’ve seen travel bans, extreme vetting directives, the slowing or stopping of the admission of foreign workers and entrepreneurs into the United States, the ending or reduction of programs for vulnerable populations, and, most recently, obstacles to the naturalization of foreign-born soldiers in the U.S. military.
The most significant change has been processing delays at U.S. Citizenship and Immigration Services (“USCIS”). Most readers of this article are familiar with the H-1B nonimmigrant visa program which, for many employers, requires a petition to be filed on or about April 1 each year for a employment start date of October 1 of the same year. Well, I recently had a case for a client where we filed their petition on April 1, 2018, and their petition was “finally” approved in November, 2019. That’s a year and a half. I will grant you that this is an extreme example, but the point remains. Case processing delays and applications backlogs at USCIS are out of control. These unprecedented processing delays affect individuals, families, and American businesses throughout the nation.
Most of my personal practice involves employment and business-related immigration. I work with employers to facilitate their access to talent in what is now a very tight job market. I work with companies that are on the cutting edge of science; colleges and universities who are educating our future entrepreneurs and investors; and health care professionals in rural areas that supply health care to underserved communities. Processing delays and case unpredictability does not help businesses in my community and beyond solve their very real staffing needs and challenges.
In April, 2019, USCIS responded to a February 2019 letter sent by 86 Members of the House of Representatives who had expressed concern (and demanded accountability) about USCIS’s processing delays. In its response, USCIS revealed that in Fiscal Year (“FY”) 2018, the agency’s “gross backlog”, that is, its overall volume of delayed applications and petitions, reached 5,691,839 cases. That number is staggering, and according to USCIS, marks a 29 percent increase since FY2016 and a 69 percent increase since FY2014. What’s more, this backlog rose from FY2017 to FY2018 despite a substantial decline in application rates and an increase in its budget during that period. That’s right, USCIS had more resources with which to process fewer new cases, yet its gross backlog still grew. I’m sorry, what?
According to a recent article in the Washington Post, there an estimated 800,000 foreign nationals who are working legally in the United States who are also waiting for a green card. Most of those in the queue are Indian nationals. According to the article, an Indian national who applies for a green card today could expect to wait up to 50 years to receive it.
What about citizenship applications? Since 2016, the processing time for citizenship applications has almost doubled, increasing from about 5 ½ months to over 10 months as of March 31, 2019.
Lawyers are now more than ever taking matters into their own hands. While it used to be the case that lawyers waited to sue the government until a client’s application or petition was denied, or perhaps waited until a case was “outside normal processing times” to sue, but processing times are so out of whack immigration attorneys have no choice but to sue.
It’s difficult enough explaining the ins and outs of our immigration system and processes to clients. Tack on the substantial costs involved in pursuing some immigration benefits (without the prospect of litigation to simply move the case along), and top it off with significant delays, and you can see why many in Congress and the media have called the delays we’re experiencing as being at crisis levels. These delays and backlogs have real impacts on individuals, families and businesses. It impacts our overall economic growth. We deserve better.
As we usher out 2019 and bring in a new year (and a new decade), let’s resolve to pass meaningful and comprehensive immigration reform, be a lot more compassionate to those of our southern neighbors who are fleeing their home countries in search of a better and safe life, and work a little harder to poke some holes and even knock down that invisible wall that’s been erected over the past three years.
 “Historical National Average Processing Time for All USCIS Offices,” USCIS, March 2019, https://egov.uscis.gov/processing-times/historic-pt.
Some of you will recall my post-New Years Eve rant about the H-2B nonimmigrant visa program, and specifically the mayhem that ensued as the clock struck midnight on New Years Eve when the U.S. Department of Labor’s (“USDOL”) servers had a meltdown. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL and, because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down. There was, according to the USDOL, over thirty times the user demand this past New Years Even compared to the previous year. Doesn’t that tell you something about the need for the H-2B visa program.
One week later – on a Monday – in the middle of the afternoon during a normal workday – the USDOL finally got its act together and most of the H-2B filings that were supposed to be filed on New Years Eve were filed. So, what happened after that?
Well, for one thing, U.S. Citizenship and Immigration Service (“USCIS”) recently announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019.
This is yet another example of a visa program that is desperately in need of reform and is woefully mismanaged.
In what can only be described as a glimmer of marginal and limited hope for some of our clients, on February 15, 2019, President Trump signed an omnibus spending bill which includes a provision providing limited cap relief to H-2B employers during FY2019. The Secretary of Homeland Security, Kirstjen Nielsen, has yet to announce how many additional H-2B visas will be made available for the remainder of FY2019.
The second thing that happened is the USDOL updated its procedures for processing H-2B applications. That is, the USDOL has proposed a rule that for all H-2B applications filed on or after July 3, 2019, which is the earliest an employer can start the H-2B process for FY2020, applications will be randomly ordered for processing based on the date of filing and the start date of work requested.
Some of you will recall previous rants of mine related to the H-1B program, and specifically USCIS’s use of a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. I counsel my clients who we file H-1B petitions for with USCIS to “keep their fingers crossed.” Imagine that a client hires you, pays you your fee, and you tell them to “keep their fingers crossed” that USCIS simply selects their petition – in a lottery system. The system is ridiculous.
Politics aside, the United States is experiencing a strong economy with record-low unemployment. The H-2B program’s congressionally mandated cap of 66,000 visas is entirely inadequate to meet the seasonal needs of the many businesses that participate in the program. And for all the nay sayers who say “Hire American”, this program requires employers to recruit for available U.S. workers. In most cases, they’re aren’t any for these positions. And quite candidly, if everyone would allow for a moment of truth, U.S. workers simply do not want to do the jobs that are generally utilized in the H-2B program. It’s just that simple.
According to the H-2B Workforce Coalition, if Congress does not take immediate steps to raise or eliminate the H-2B cap, over 70% of seasonal positions for the second half of fiscal 2019 will go unfulfilled due to cap limitations.
Our government must come up with a better and more equitable system within which employers can hire the help that they need. The H-2B program is an absolutely necessary program for many many employers. The process for participating in it, and the ability to participate in it, however, needs to be totally reformed.
Recall that the H-2B visa program requires employers (or their attorneys) to sit by their computer at the stroke of midnight (on the east coast anyway), on New Years Eve, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company.
USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
United States Citizenship and Immigration Services (“USCIS”) recently announced that it’s changing its mission statement to eliminate a passage that describes the United States as “a nation of immigrants.” USCIS’s new mission statement reads as follows:
“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
The previous mission statement read as follows:
“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”
Where do I start? Did you now that the director of USCIS, Lee Francis Cissna, is actually the son of an immigrant? Aren’t most of us if we trace back our lineage far enough?
In a letter to USCIS agency staff, Mr. Cissna said, “We are also responsible for ensuring that those who naturalize are dedicated to this country, share our values, assimilate into our communities, and understand their responsibility to help preserve our freedom and liberty.”
What Mr. Cissna did not mention in his letter to agency staff explaining his reasoning is that the phrase “nation of immigrants” was popularized by a book by President John F. Kennedy (published posthumously), titled “A Nation of Immigrants”, and is frequently used to convey the American ideal of multiculturalism. President Kennedy’s book explored the contribution of immigrants when the United States was in the midst of a debate over the direction of its immigration policy.
People who know me know my politics. I’m socially liberal and fiscally conservative. I am a registered Democrat. (I grew up in Albany after all.) I also used to work for Republican Senator Alfonse D’Amato. Back in those days, Washington was very different. Democrats and Republicans could debate issues during the day and enjoy a meal together in the evening. Senator D’Amato always worked with his colleagues across the aisle, including Senator Edward Kennedy.
In the wake of 9/11, Senator Kennedy, along with his colleague, Senator Sam Brownback, stated, “Immigration is a central part of our heritage and history. It is essential to who we are. Continued immigration is part of our national well-being, our identity, and our strength.” He wasn’t wrong.
In 1981, President Ronald Reagan stated, “Our nation is a nation of immigrants. More than any other country, our strength comes from our own immigrant heritage and our capacity to welcome those from other lands.” He wasn’t wrong either.
That was then, this is now. President Trump has used the phrase “nation of immigrants”, but he did so in a written statement defending his attempt to ban immigrants from seven Muslim nations.
Ensuring “the promise of the United States as a nation of immigrants” is no longer the mission of USCIS, the very agency charged with administering our immigration laws. On the contrary, the new mission statement reflects President Trump’s hardline stance on immigration and immigrants themselves.
On 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, the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim. 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. 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.
 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.
 The question presented here was “[w]hether the Guidance violates the Take Care Clause of the Constitution, Art. II, §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.
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. 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.
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. 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.
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, 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. 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.
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.
 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.
 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).
 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).
 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.
 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.
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.
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.