When Alexander Acosta resigned as Secretary of Labor, his deputy, Patrick Pizzella, took over as Acting Secretary. Rather than keeping Pizzella in place, President Donald Trump announced on July 18, 2019, that he intends to nominate Eugene Scalia, the son of late-Justice Antonin Scalia, as the new Secretary.

President Trump tweeted that Eugene Scalia is “highly respected not only as a lawyer but as a lawyer with great experience working with labor and everyone else.”

Eugene Scalia is well-known, especially in Republican circles. He was Solicitor in the Labor Department during the George W. Bush administration and a special assistant to William Barr when Barr was U.S. Attorney General in that same administration. Scalia also represented Bush in Bush v. Gore before the U.S. Supreme Court.

As a partner at Gibson, Dunn & Crutcher in Washington, D.C., Scalia co-chaired the firm’s labor and employment practice group for 12 years and co-chairs its administrative law and regulatory practice group. He is a management-side attorney and reportedly has a reputation for litigating against federal labor and securities regulations. He faced union opposition in 2002 when he was nominated for the Solicitor position.

Support for the nomination has broken down along party lines. Senator Tom Cotton (R-Ark.) stated, “I’m confident [Scalia will] be a champion for working Americans against red tape and burdensome regulation as Labor Secretary.” Senate Minority Leader Charles Schumer (D-N.Y.) stated that with this nomination President Trump was betraying workers and union members and, instead, “has again chosen someone who has proven to put corporate interests over those of worker rights.”

Scalia is expected to be confirmed by the Senate as Secretary of Labor.

 

The House Judiciary Committee Subcommittee on Immigration and Citizenship called upon Department of Homeland Security (DHS) officials to explain and report on the delays in immigration processing in a hearing on July 16, 2019.

Representative Zoe Lofgren (D-Cal.), who chaired the hearing, wanted an explanation for the 2.4 million application/petition backlog (the largest since the processing delays following the terrorist attacks on the U.S. on September 11, 2001). She specifically noted that she hears from:

  • Victims of domestic violence who cannot receive needed immigration benefits;
  • Start-up companies that have had to abandon vital projects because they cannot bring key employees to the United States; and
  • Families suffering from prolonged separations due to increased vetting.

Lofgren focused on the administration’s new policies and procedures that are creating more red tape, burdens on petitioners and applicants, denials, and delays, and she asked about the intent behind these new policies.

The officials from U.S. Citizenship and Immigration Services (USCIS) reported on some of the factors that may have created the backlog, including fee increases, the 2016 presidential election, and court actions that have continued DACA. USCIS officials posited that these factors have resulted in demand spikes because: (1) individuals try to apply for benefits before fee increases go into effect; (2) the number of lawful permanent residents wishing to naturalize increases prior to presidential elections to enable them to vote; and (3) DACA beneficiaries are (unexpectedly) applying for extensions during the current court-created window. Michael Hoefer, Office of Performance and Quality at USCIS, noted that the reduction in demand anticipated in 2017 following the increased demand in 2016 did not materialize. The elevated levels continued.

USCIS must rely on forecast models on demand to prepare staffing requests in order to appropriate staff and train new employees, the officials explained. Since the models did not account for the continued elevated demand, staffing is currently inadequate.

As noted by both congressmembers and USCIS officials, the backlog had existed prior to the change in administration in 2017. Other factors leading to the current backlog included:

  • New security requirements and policies such as additional interview requirements and security checks;
  • The need for between 18 months and 36 months for delivery of new facilities to accommodate new hires; and
  • The Service’s focus on “quality,” versus “quantity,” of work product.

To address the backlog, officials reported that the following changes are in process or would be helpful to reducing processing times:

  • Increased hiring;
  • Increase in fees to accommodate increased hiring;
  • Transitioning non-adjudicatory work from officers reviewing the cases to non-adjudicatory workers;
  • Centralizing delivery of informational services with the USCIS Contact Center;
  • Reintroducing performance metrics that focus more on quantity;
  • Leveraging technology, including implementing new electronic tools and automation such as eProcessing (although the Service noted that technological upgrades have initial short-term negative effects); and
  • Shifting staffing and workloads to accommodate demand.

Although Lofgren wanted to gain a better understanding of the correlation between the new administration policies and the delays and denials, this was not specifically addressed. USCIS representatives noted that they were well-aware of the current problems and delays, admitting that, despite their best efforts, the backlog has steadily grown due to “an extraordinary and growing demand.” They also explained:

We do not want to leave you thinking that there are quick and easy fixes—there aren’t. Realizing organizational and procedure efficiencies, staffing to appropriate levels, and providing the physical and technological resources needed to eliminate the backlog will take some time . . . . For our part, we are committed to providing [staff] with the tools and resources they need to get the work done.

Jackson Lewis will provide updates regarding processing delays and backlogs as they become available.

A merger or acquisition in the works means not only needing to determine whether any acquired foreign nationals (including key employees) will be able to transfer seamlessly into the new entity, but also what to do about compliance with the Form I-9 Employment Eligibility Verification.  Please read our full story here.

The Department of State (DOS) has announced a significant retrogression from the July 2019 Visa Bulletin to the August 2019 Visa Bulletin of at least 3 years in many of the employment-based categories.

  • EB-1 retrogresses by almost 2 years for most countries to July 1, 2016, except India, which stays at January 1, 2015;
  • EB-2 retrogresses by almost 2 years from being current to January 1, 2017, for all other countries, while China and India advanced a bit to January 1, 2017, and May 2, 2009 respectively; and
  • EB-3 retrogresses by almost 3 years from being current to July 1, 2016, for all other countries, while India retrogressed by more than 3 years to January 1, 2006, and China advanced by 6 months to July 1, 2016.

USCIS has decided to implement the dates in the August bulletin now.

Individuals with pending adjustment of status applications can expect to continue in the process. Interviews will be scheduled, but cases will not be finally adjudicated until the priority dates become current again.

Charles Oppenheim, Chief of Visa Control and Reporting Division for the Department of State, generally predicted these retrogressions due to continuing increased demand. The hope is that the dates will return to the July 2019 level when the new fiscal year begins in October 2019.

Each month, to make its determinations for the Visa Bulletin, USCIS and DOS compare the number of visas available for the remainder of the fiscal year (ending September 30) with:

  • Documentarily qualified visa applicants reported by DOS;
  • Pending adjustment of status application reported by USCIS; and
  • Historical drop off rate (for example, denials, withdrawals, and abandonments).

DOS also publishes a “Date for Filing Applications” chart each month. The dates on these charts are more beneficial, but are used only if DOS and USCIS predict that the annual allocation of visas will not be used by the end of the fiscal year.  DOS announces each month (about a week after the Visa Bulletin is published) whether the Date for Filing chart can be used.  Although the Date for Filing charts have been used occasionally in the past, given the current circumstances, they likely will not be used before the end of this fiscal year.

If you have questions about how this retrogression affects green card strategies, please reach out to your Jackson Lewis attorney.

 

 

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