The plaintiffs may continue their challenge to the DHS’ authority to establish both STEM Optional Practical Training (OPT) and standard post-completion OPT, the District Court in Washington Alliance of Technology Workers v. DHS held on July 1, 2019.

The Washington Alliance of Technology Workers (WashTech) has been fighting for practical training for students on various grounds for a decade.  At first, the challenge came down to a procedural issue over the fact that STEM OPT had been enacted without “proper” notice and comment.  The government conducted a notice and comment period and then reissued the rule, making that case moot.  In 2016, the case was refiled.  By 2018, the case was in U.S. Court of Appeals for the District of Columbia Circuit.  The Circuit Court remanded the case.

In the latest iteration of the case, the judge, over the objection of WashTech and the government, also allowed several groups to intervene, including the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council.  These are groups that support OPT and STEM OPT and believe that they “cannot count on DHS to defend a regulatory program that plans to reconsider.”

The WashTech plaintiffs argue that DHS went beyond the legislative mandate when it extended student status and created training programs — thereby harming U.S. workers.  The Trump Administration has hinted repeatedly that it is interested in reforming these training programs.  That has not yet come to pass.  Instead, the Administration is simply making it more difficult for students to remain in the United States by instituting new requirements for off-site training programs, making it more likely that foreign students will fall out of status and become subject to bars to admission to the United States.

Perhaps the U.S. Supreme Court’s Kisor decision will affect how this case (and others) is ultimately adjudicated. Kisor directed that the courts may no longer give so much deference to agencies.

We will continue to follow this litigation and any regulatory or legislative actions that may affect OPT or STEM OPT. If you have any questions about options for student employees, please reach out to your Jackson Lewis attorney.

The House of Representatives has taken a step in the direction of eliminating green card backlogs by passing the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) introduced by Representatives Zoe Lofgren (D-CA) and Ken Buck. (R-CO). The support was bi-partisan and passed in a 365 to 65 vote.  The bill would:

  • Increase per country quotas from 7% to 15% in the family-based categories;
  • Establish a “first-come first-served” employment-based visa system (including EB-5 investor visas) by eliminating the “per country” caps;
  • Establish a three-year transition period during which 10-15% of the visas would be set aside for countries other than India or China; and
  • Ensure that immigrants who have approved employment-based immigration visa petitions at the time of enactment do not lose their places “in line.”

Representative Lofgren estimates that it would take a decade for the per country lines to equalize.  The expectation is that if there is no increase in the number of visas available the wait time will even out to roughly seven years for everyone.  Others have suggested that eliminating the quotas will only incentivize more immigration from India and China and thus eliminate any benefit.

Senators Mike Lee (R-UT) and Kamala Harris (D-CA) introduced a companion bill in the Senate (S. 386) back in February.  That bill which also has bi-partisan support was referred to committee on July 9, 2019.

Senator Rand Paul, who opposed the “Fairness” Act, introduced the BELIEVE Act (Backlog Elimination, Legal Immigration and Employment Visa Enhancement Act) (S. 2091) on July 11, 2019.  That bill, like the House bill, would establish a “first-come-first-served” employment-based visa system but would also:

  • Quadruple the number of employment-based visas by doubling the number available annually and then exempting dependents from the “count”;
  • Grant green cards to children of temporary workers who would normally “age-out” as long as they have graduated from a U.S. university and have been in the U.S. for at least ten years;
  • Issue employment authorization to spouses and children of temporary workers in E, H and L status;
  • Provide employment and travel authorization to those waiting in line for employment-based green cards as a safeguard; and (importantly for nurses and physical therapists)
  • Exempt all shortage occupations from green card limits.

Any equalization will eliminate long lines for some employers and industries while adding wait times for others.  Proponents of the new bills believe that the equalization would create economic benefits by, among other things, making the United States more competitive with other countries like Canada that have been able to take advantage of prospective immigrants’ frustrations with the long delays in the U.S. immigrant visa process.

Jackson Lewis will continue to follow these legislative developments and provide updates as they become available.

 

President Donald Trump announced that the Administration will not be proceeding with any further census litigation.  The 2020 Decennial Census, which is already being printed, will be sent out without a citizenship question.  Nevertheless, President Trump does want to obtain statistics on the number of residents in the country who are and are not U.S. citizens.  By means of an executive order, he is eliminating “obstacles to data sharing” and asking all government agencies to immediately hand over any and all relevant statistics and numbers to the Commerce Department.  The President said that the Commerce Department will use this data, including data from the Social Security Administration and the Department of Homeland Security, to come up with an even more accurate count of citizens, non-citizens, and undocumented individuals than the citizenship question on the census would have yielded.  The President indicated that this count will affect an “array of policy decisions” possibly including apportionment.

In his statement, the President made his view clear that people should be proud and glad to declare that they are U.S. citizens.  Indeed, USCIS statistics indicate that naturalization applications skyrocketed just prior to the 2016 election – more green card holders want to become U.S. citizens.  There are approximately 740,000 pending naturalization applications.  In the New York area alone the backlog is anywhere from 12 months to 24 months.  Additional evidence of delays is seen in the number of lawsuits that are being filed in federal district courts due to these unreasonable delays.  These lawsuits are at a 10-year high.

In what appear to be further attempts to restrict the processes for obtaining U.S. citizenship, the Administration has suggested that birthright citizenship could be limited, created a task force to “denaturalize” U.S. citizens who may have lied (intentionally or non-intentionally) on the citizenship applications, opposed creating a path to citizenship for DACA and TPS recipients, and been denying passports to individuals by questioning the validity of their birth certificates.

We will continue to follow how the new Commerce Department figures will account for all of the non-citizens who since 2015 have been trying become U.S. citizens and have been blocked by new USCIS policies that have created widespread delays.

Courts’ deference to agency interpretations of their own statutes and regulations has been a mainstay of administrative law. The Chevron Doctrine has since 1984 provided that courts should put a “thumb-on-the-scales in favor of the government’s view of the meaning of [a] statute . . .” as long as the interpretation is reasonable. A similar stance toward agencies’ interpretation of their own regulations dates back to 1945  and is now known as Auer Deference. These doctrines also have a long history of being criticized as violating the separation of powers because they give the agencies much discretion and tend to whittle down legislative and judicial functions.

With Kisor v. Wilkie, No. 18-15, 2019 U.S. LEXIS 4397 (June 26, 2019), the U.S. Supreme Court has dealt a blow to Auer Deference, significantly limiting its scope. In its main opinion, authored by Justice Elena Kagan, the Court made it much more difficult for a court to defer to an agency’s interpretation of its regulations. No longer can a court easily find that the regulation in question is not ambiguous and defer to the agency’s interpretation. Now, courts must go through an exhaustive three-step process to determine whether a regulation is ambiguous enough to be deemed “genuinely ambiguous.”

Although the deference doctrine was not eliminated or overruled, the Kisor Doctrine could be helpful to litigants challenging agency interpretations of immigration regulations. Over the past couple of years, DHS and USCIS have issued new policies, based upon their current interpretation of regulations, that many have found troublesome, especially when it comes to the H-1B visa. Examples that have contributed to a 60-percent RFE rate include:

  • The interpretation of a “bona fide employer-employee” relationship;
  • The definition of an “employer”; and
  • The definition of a “specialty occupation.”

Of course, the Kisor Doctrine could lead to elimination of programs such as OPT and STEM OPT that also come from agency interpretations of their regulations and have been challenged by opponents.

Justices Gorsuch and Kavanaugh have long been proponents of eliminating Chevron Deference. They wrote concurrences in Kisor indicating that they would have wanted to see Auer Deference completely overturned. Justice Roberts noted in a separate concurrence that the distance between the majority and minority view is “not as great as would initially appear.”

We will have to wait and see whether Kisor tips the balance in litigations challenging some recent actions of the immigration agencies. Kisor may be a first stab at restoring more of a balance among the three branches of government, but, because the agencies often rely on statutory interpretation, we may have to wait for a case that challenges Chevron Deference directly to come to the Supreme Court.

 

DACA (Deferred Action for Childhood Arrivals) recipients have been in limbo and at the center of various political debates ever since President Donald Trump attempted to end the program in 2017.  Put in place by the Obama Administration in 2012, DACA protects from deportation individuals who were brought to the United States by their parents as undocumented children.  Individuals who have received DACA protection are granted work authorization, but currently have no pathway to lawful permanent residence in the United States.  The 800,000 DACA recipients are known as “Dreamers,” and are generally considered to be model residents of the United States.

Continue Reading Update: DACA Litigation

The Commerce Department cannot include a citizenship question in the census – at least for now – according to the Supreme Court.  In Department of Commerce et al. v. New York et al., the Court, in a 5-4 decision written by Chief Justice Roberts, said the question could not be in the census because the “sole reason” Commerce Secretary Wilbur Ross gave for his decision to include it – enforcement of the Voting Rights Act – seemed contrived. Justice Roberts wrote: “[a]ltogether, the evidence tells a story that does not match the explanation the secretary gave for his decision.” The Commerce Department will have to provide further information for the District Court to review before a final decision is made.

Continue Reading Supreme Court Blocks Citizenship Question in the Census – For Now

In Mosleh et al. v. Pompeo et al. in the U.S. District Court for the Eastern District of California, Chief Judge Lawrence J. O’Neill ordered the Administration to show that delays in granting travel ban waivers to Yemeni relatives of U.S. citizens are “reasonable.” He opined that the government’s description of the process was “inadequate” and that without more specific information he will have to make a decision on the families’ request for injunctive relief based upon the inferences he draws from the lack of evidence.

Continue Reading Federal Judge Orders Administration to Provide More Specifics on Travel Ban Waivers

In a move that likely will give a boost to the Brazilian tourism industry, the Brazilian government has announced that U.S. citizens can now visit Brazil without a visa. Citizens of Australia, Canada, and Japan also have received this cost-saving and time-saving benefit.

Continue Reading Brazil Lifts Visa Requirement for U.S. Citizens

Critics say new federal restrictions on travel to Cuba may lead to a half million fewer visitors to the island annually and small, private business owners definitely will be hurt by confusion caused by those restrictions.

Continue Reading Travel Restrictions to Cuba Affects Cruise and Other Industries

The Trump Administration has been stepping up the collection of data in general and more specifically from visa applicants and travelers.

Here are a few new policies:

Continue Reading Administration Ups Data Collection and General Surveillance