Tag Archive for: Twitter

Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born,  but the Biden Administration Can Provide Relief

By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, news of layoffs at the likes of Twitter, Meta, and Amazon have contributed to broader fears that the United States is entering a recession. In last week’s blog, we provided suggestions for how terminated workers can maintain their nonimmigrant status and potentially even pursue permanent residency. The layoffs at Twitter have also shown that it was mainly workers whose H-1B visas were tied to Twitter that have stayed on and abided by the unreasonable ultimatums of Elon Musk. This has given credence to the notion that H-1B workers are akin to indentured laborers especially those who are caught in the never ending green card backlogs. We follow up on the previous blog by providing some suggestions that the Biden administration can follow to allow nonimmigrant workers who have been laid off to remain in the U.S, and even if they are not terminated,  they should not be required to cling on to their job at all costs.

First, the Biden administration could extend the 60-day grace period to allow nonimmigrant workers additional time to find alternate employment after being impacted by a layoff. As discussed in prior blogs, 8 CFR § 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN nonimmigrant workers a grace period of 60 days after a cessation of their employment. Workers who are able to find new employment within 60 days will be able to remain in the U.S. and maintain their nonimmigrant status, but this period may not allow sufficient time for job hunting, especially if layoffs and hiring freezes become more widespread. By extending the 60-day grace period, the Biden administration would allow terminated workers more time to find new employment in the U.S. The 60-day grace period is a relatively new concept, having been introduced in a final rule that went into effect on January 17, 2017. Before this rule was enacted, nonimmigrant workers did not benefit from any grace period, and had to immediately leave the U.S. if their employment was terminated to avoid being considered in violation of their nonimmigrant status. Because the 60-day grace period was itself created by a rule, the Biden administration could easily promulgate a new rule extending the grace period to 180 days, for example, or even longer. To avoid Administrative Procedure Act (APA) challenges, though, the administration would likely have to follow the strictures of the notice and comment rulemaking process rather than bypassing them under the good cause exception. Notice and comment rulemaking takes time, however, and the relief of an extended grace period might not arrive quickly enough for workers who have already lost their jobs or are laid off in the near future.

The next suggestion is to make clear when the 60 day grace period starts. Many workers are placed on severance or garden leave. The 60 day grace period should start at the end of the severance period. However, a June 2020 USCIS Policy Memo has muddied the waters somewhat. In this memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would seem that the grace period starts when the H-1B worker is no longer in productive status even though they may be paid their full salary during the severance or nonproductive period. The USCIS should clarify that an H-1B worker continues to maintain status so long as the employer-employee relationship has not terminated.

The USCIS also gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

Instead of all this muddled guidance and mixed messaging, the USCIS should provide straightforward clarification regarding when H-1B status ends, and clearly indicate that H-1B workers who are still maintaining an employer-employee relationship after being given notice ought to be considered in status until the relationship ends.

Another step that the Biden administration can employ to aid laid off nonimmigrant workers is the expeditious issuance of employment authorization documents (EADs) that would allow nonimmigrants to continue working in the United States for a new employer. Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances.

The Biden administration can also utilize a provision at 8 CFR § 214.1(c)(4), which affords USCIS the discretion to accept an untimely filing if “the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; [t]he alien has not otherwise violated his or her nonimmigrant status; [t]he alien remains a bona fide nonimmigrant; and [t]he alien is not the subject of deportation proceedings”. A nonimmigrant worker whose employer was unable to timely file a petition on his behalf due to a layoff could credibly assert that his uncertain employment situation constituted extraordinary circumstances. If the layoff was the result of a recession or general economic difficulties, it should be demonstrable that the resultant delay of filing the H-1B petition beyond the grace period was not the fault of either the petitioner or the beneficiary. By generously applying this discretionary authority, the USCIS can assist nonimmigrants whose ability to seek a timely extension of status is impacted by a termination.

Ideally, a legislative solution would relieve the immense immigrant visa backlog, which would prevent beneficiaries of I-140 petitions from remaining in a nonimmigrant visa status for years until they can file adjustment of status applications. Proposals for legislative solutions include the recapture of wasted visa numbers from previous years and the allocation of additional visas to backlogged categories. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), a case we have discussed in a previous blog, previously struck the idea down, Congress could assert that INA § 203(d) requires the unitary counting of family members. Even the Administration could contradict Wang v. Blinken if it had chutzpah through a rule or policy memo under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit), but this is hard to imagine as it recently successfully contested the plaintiff’s contention of unitary counting in that case. Another legislative proposal is to eliminate the per country limits, but even if that passes, there will still be backlogs although not as terrible right now which could be over a 100 years for Indian born beneficiaries.  Of course, finding a legislative solution is easier said than done in a polarized Congress, which will get even more polarized in 2023 when the Republicans take control of the House and the Democrats take control of the Senate. The GOP is too obsessed about border security before making any deal on immigration reform. There is also an urgency to prioritize on a legislative solution for DACA recipients as it is expected that the Supreme Court will uphold the lower courts that have found that DACA is not authorized by the INA. Unless by some stroke of luck the lame duck Congress can cobble together a deal to bring relief to backlogged beneficiaries based on the many proposals on the table, the Biden administration should focus on administrative solutions to bring relief to terminated nonimmigrant workers, who stand to suffer the most in the face of layoffs and economic woes.

Existing Indian born H-1B workers in the employment based green card backlogs who get terminated are  far worse off than others. But for the backlogs they may have already had their green cards or become US citizens. Indian born beneficiaries whose labor certifications were filed after April 1, 2012 are still caught in the backlogs and have remained in H-1B status while their contemporaries born in other countries have become US citizens.  Making tweaks in existing policies such as extending the 60-day grace period, issuing EADs based on a more generous interpretation of compelling circumstances, and giving more  discretionary authority to accept untimely filings under 8 CFR § 214.1(c)(4)  can provide some small amelioration to terminated nonimmigrant workers, especially those who are caught in the never ending green card backlogs.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

WHEN IS A TWEET AN ATTORNEY ADVERTISEMENT?

Immigration attorneys have naturally adapted to the internet faster than attorneys in other practice areas. They were the among the first to set up their own web sites, and with the advent of social media have also happily adapted to Facebook, Twitter, Linkedin and other social networks. Using social media helps an immigration attorney to reach out to an audience very quickly, without expending huge marketing resources. Moreover, since the client base of an immigration attorney is not bound by a particular area or state (as immigration practice is mostly based on federal law), and can also be located across the globe, social media can help an immigration attorney reach out to them.

Still, an attorney needs to be mindful of the various ethical rules that would be applicable when using social media. This advisory will focus on the ethical rules concerning advertising, and reference will be made to the American Bar Association’s Model Rules of Professional Conduct and the New York Rules of Professional Conduct, although attorneys are advised to also refer to their own state bar rules of professional conduct.

While this advisory is applicable to all social media messaging, Twitter will be its particular focus since it poses unique challenges compared to other social media. Twitter only allows one to communicate within 140 characters, which can be particular problematic if such messaging needs to include the various disclaimers following an attorney advertisement. Twitter is also more open than other social media sites since a follower does not need permission to follow you. Moreover, even non-followers can view your tweets, which can be constant and numerous. The whole essence of Twitter is to effectively fit your message within a limited number of characters while ethics rules constraining attorney advertising require a lot more verbiage.

While lawyers are permitted to advertise their services, they are bound by various ethical constraints.

Model Rule 7.1 states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

 

Also, many jurisdictions require that when a lawyer advertises his or her services, the words “Attorney Advertising” be stated in such a communication.

For example, this is what New York’s Rules of Professional Conduct Rule 7.1(f) requires:

Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”

 

However, not every communication made by a lawyer would constitute an advertisement. If a lawyer wishes to quickly share an article in the New York Times as soon as it appears on comprehensive immigration reform onTwitter, would it constitute advertising? This lawyer may have a completely altruistic motivation, which is to share a timely and interesting article on immigration reform to her community of 3,000 followers on Twitter.On the other hand, the lawyer also hopes that by sharing this article, people would realize that the lawyer is on top of the latest developments and may be more inclined to retain her services. Thus, while such a communication does not overtly invite people to employ this lawyer’s services, it might be the underlying motivation of the lawyer to brand herself as someone who is on the top of her game and hope that people would reach out to her.

When does a tweet constitute an advertisement that will be subject to the various ethical constraints? For instance, New York Rules of Professional Conduct at Rule 1.0 defines advertisement as:

“Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.

 

It is thus unclear whether the sharing of the New York Times article would constitute an advertisement as it does not suggest that its primary purpose is for the retention of the lawyer, and then require the attorney under the New York rules to indicate “ATTORNEY ADVERTISING.” Such a requirement with respect to a tweet, which only allows 140 characters, would also diminish the value of the impromptu and conversational tone of the Twitter message, although one should be cautioned that a disciplinary committee would not be concerned about a lawyer’s desire to preserve the spontaneous character of a tweet if it violated the constraints on attorney advertising.

If every tweet is considered an attorney advertisement, it would be virtually impossible to tweet anything at least under the New York Rules of Professional Responsibility. For instance, under New York Rules of Professional Conduct 7.1(d) and (e), statements that are likely to create an expectation about results the lawyer can achieve have to be accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.” Moreover, under 7.1(h) all advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. Finally, 7.1(k) requires a copy of all advertisements to be retained for a period of 3 years following initial dissemination. This would require an attorney to keep a copy of each of his or her thousands of tweets for 3 years!

Fortunately, the State Bar of California Standing Committee on Professional Responsibility recently issued a helpful ethics opinion clarifying under what circumstances would an attorney’s postings on social media websites be subject to the standards governing attorney advertising. The opinion provides the following examples of an attorney’s postings on her Facebook page, which has about 500 friends.

Example 1
 “Case finally over. Unanimous verdict! Celebrating tonight.”
Example 2

 

“Another great victory in court today! My client is delighted. Who wants to be be next?”
Example 3
 “Won a million dollar verdict. Tell your friends and check out my website.”
 Example 4
 “Won another personal injury case. Call me for a free consultation.”
 Example 5
“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

 

California’s Rule 1-400 defining “communications,” which is similar to the New York rule 7.1(f), provides that “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present or prospective client…”

The key determining factor, therefore, is whether an attorney communicates in such a way so as to make himself available for professional employment or for the purpose of retention of his services. Under this standard, according to the California ethics opinion, the following Facebook messages may or may not be communications:

“Case finally over. Unanimous verdict! Celebrating tonight.”

Example 1 is not a communication as it is not a message or offer “concerning availability of professional employment” regardless of the attorney’s subjective intent in sending it.  The opinion thus makes an important point. The communication must overtly suggest that the lawyer is available for professional employment, regardless of whether this was the attorney’s underlying motive in doing so.

“Another great victory in court today! My client is delighted. Who wants to be be next?”

The verbiage in Example 2 “Another great victory in court today! My client is delighted” standing alone is not a communication, but because of the additional text “Who wants to be next?” makes it a communication as it suggests availability for professional employment. Moreover, the opinion goes on to state that an attorney cannot disseminate communications regarding client testimonials unless there is an express disclaimer. The statement further violated California ethical rules as it included guarantees or predictions regarding the representation, which can be deceptive. The statement regarding “Who wants to be next” can be interpreted as who wants to be the next victorious client.

“Won a million dollar verdict. Tell your friends and check out my website.”
“Won another personal injury case. Call me for a free consultation.”

It is readily obvious that both Example 3 and Example 4 constitute communications and are thus subject to the restraints on attorney advertising.  Directing friends to “check out my website” suggests that people may consider hiring her after looking at her website. Even directing people to call for a free consultation can be viewed as a step towards seeking potential employment, and thus such anoffer also constitutes a communication.

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

According to the opinion, Example 5 did not constitute a communication since the attorney is merely relaying information regarding an article that she has published and is offering a copy. Even communications relating to availability of seminars or educational programs, or mailing bulletins or briefs, do not entail attorney advertising, according to the opinion.

Most immigration attorneys who use social media generally share articles and information, and under this California opinion, may not be constrained by the rules relating to attorney advertising. Still, it is unclear whether other states will follow this logic and important distinction.

Comment 8 to  New York Rules of Professional Responsibility Rule 7.1 is worth noting:

The circulation or distribution to prospective clients by a lawyer of an article or report published about the lawyer by a third party is advertising if the lawyer’s primary purpose is to obtain retentions. In circulating or distributing such materials the lawyer should include information or disclaimers as necessary to dispel any misconceptions to which the article may give rise. For example, if a lawyer circulates an article discussing the lawyer’s successes that is reasonably likely to create an expectation about the results the lawyer will achieve in future cases, a disclaimer is required by paragraph (e)(3). If the article contains misinformation about the lawyer’s qualifications, any circulation of the article by the lawyer should make any necessary corrections or qualifications. This may be necessary even when the article included misinformation through no fault of the lawyer or because the article is out of date, so that material information that was true at the time is no longer true. Some communications by a law firm that may constitute marketing or branding are not necessarily advertisements. For example, pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like with the law firm name, logo, and contact information printed on them do not constitute “advertisements” within the definition of this Rule if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter.

It is advisable that any communication on Twitter, as well as other social media websites, should comport with the last example in the California opinion involving the sharing of information. However, any information written about a lawyer by a third party, which the lawyer then distributes, may constitute advertising. On the other hand, as noted in Comment 8, “[s]ome communications by a law firm that may constitute marketing or branding are not necessarily advertisements.”    A lawyer who chooses to communicate on Twitter in a way that would invite followers to use his services is doing so at his own peril.  It would be impossible to include all the disclaimers required by the ethical constraints in a tweet that can comprise only 140 characters! It is also debatable whether putting a one-time disclaimer in the Twitter header profile would suffice, such as “Tweets = ATTORNEY ADVERTISING.”  Twitter also does not allow you to include more than 160 characters of information in the profile such as the attorney’s address and other disclaimers.Moreover, a disciplinary authority might opine that every tweet ought to have included the required disclaimers since people viewing it in their Twitter feed will not bother to look at the header profile of the attorney. Still, putting a disclaimer in the profile would probably be the best good faith option for an attorney who wishes to use Twitter for attorney advertising. Indeed, New York’s Professional Rules of Professional Conduct Rule 7.1(f) requires the “Attorney Advertising” notation only on the home page of the law firm’s website, and by analogy, it could be argued that putting this notation only in the Twitter profile may comply with the rule. Another option with respect to a tweet that is an advertisement is to provide a link to another site that contains all the additional disclaimers, if applicable.

In conclusion, social media, especially Twitter, provide a valuable tool for an immigration attorney with limited resources to reach out to a global audience. In order not to get snared by the advertising constraints,  it is best for immigration attorneys to use social media to share information for marketing and branding, which in turn will create awareness of the attorney’s expertise and knowledge in the field. Until the ethics rules catch up, it would also be consistent with the spontaneous character of social media sites, especially Twitter, to use it to share information rather than to engage in outright advertising. Using Twitter in this way is likely to attract more followers than if the attorney used it for blatant advertising purposes only. Also, a tweet involving useful information is more likely to be “retweeted” than an advertisement.  There are other sources for attorney advertising, which unlike Twitter, would not constrain an attorney to include all the necessary disclaimers and requirements under the ethical rules.

NIGHTMARE IN ARIZONA: GOVERNOR BREWER’S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS

On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation would be deferred and they would also obtain employment authorization.

It was extremely gratifying to be an immigration attorney that day volunteering at a DACA legal assistance clinic organized by the New York Immigration Coalition, among others. I could see in the twinkle in the eyes of each potential youth applicant when told that he or she could file under DACA. That twinkle revealed a whole new world of opportunity opening up. The sky seemed to be the limit, which before the June 15, 2012 announcement was simply unimaginable.

I could not help broadcast this tweet, @cyrusmehta.com:

To see hope and joy in the faces of 100s lining up at pro bono #DACA clinic of #NYIC+ #AILA NY makes being an #immigration attorney gratifying

As I was basking in the glow of that day and returning home on the New York subway, I saw on my Twitter feed that Governor Brewer of Arizona passed a mean spirited and hateful executive order that evening. According to the executive order, since deferred action does not confer lawful status or lawful presence, the alien granted employment authorization under DACA continues to be unlawfully present, and thus cannot avail of benefits in Arizona, including a driver’s license. I love Twitter because I can instantly express my thoughts, and hopefully there is an audience. These were my new tweets, quite different from the prior exuberant one, in reaction to the horror of Brewer’s executive order:

Brewer’s executive order is unlawful & wicked – there are many who are allowed to remain without lawful status. When is she being sued? #DACA

Brewer’s mean spirited exec order against granting #DACA applicants AZ driver’s licenses will help Obama in elections, http://bit.ly/N4LE8E

I write this blog to expand on my impetuous tweets of last evening.

First, deferred action has existed for several decades. Many have been granted deferred action, including John Lennon. Prior the announcement of DACA, non-citizens who have demonstrated extenuating circumstances, such as medical emergencies or who have lost parents, have been granted deferred action. In recent times, battered spouses, crime victims and widows/ers of US citizens have also been granted deferred action. There are other non-ctiizens who may not have lawful status but are allowed to remain in the US. These include people who are presently in removal proceedings. Even those who have been ordered removed, such as through the grant of withholding of removal (based on persecution in their home countries), can remain in the US and obtain work authorization. Moreover, due to a quirky split in jurisdiction involving arriving aliens between Immigration Court and USCIS, arriving aliens cannot file defensive adjustment applications in Immigration Court, but have to file them with the USCIS while an Immigration Judge can still order them removed. If the adjustment application is approved, they can become lawful permanent residents despite the removal order. How will Brewer’s executive order be able to differentiate between each of these categories of people who have been allowed to remain in the US?

Second, the grant of deferred action stops the accrual of unlawful presence. However, unlawful presence is different from unlawful status. Governor Brewer’s executive order does not seem to understand the difference. Unlawful presence is relevant, according to the USCIS DACA guidance, only with respect to determining whether one is inadmissible under the 3 and 10 year bars. Unlawful presence has nothing to do with status or the ability to remain in the US. There are situations when one may not be in lawful status and yet not be accruing unlawful presence since they are in a “period of stay authorized by the Attorney General.” A classic example is someone who entered lawfully as a tourist, fell in love with a US citizen and married him. She filed an adjustment of status application based on the US citizen spouse’s green card sponsorship. She is allowed to remain in the US while waiting for the green card, although her underlying tourist visa has expired. Such a person may not be in lawful status but is in a “period of stay authorized by the Attorney General” and is also not accruing unlawful presence. Governor Brewer’s executive order does not seem to have grasped any of these distinctions.

Third, in Arizona v. USA, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion. As noted in a prior blog I wrote with Gary Endelman, Justice Kennedy writing for the majority in that decision noted:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Arizona v. USA, supra, Slip Op. at pages 4-5.

Although the Supreme Court struck down all of the other provisions of Arizona’s SB 1070, it narrowly upheld 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” The Supreme Court upheld the provision, for now, since it had not taken effect, but cautioned that a person’s detention under an Arizona provision cannot be prolonged because the state cannot readily determine this person’s immigration status.

Governor Brewer, through her executive order, has perhaps unwittingly opened up another challenge to 2(B). By not recognizing that a grant of deferred action to remain lawfully and work in the US, it will be disregarded by Arizona’s law enforcement personnel, such as by the notorious Sheriff Joe, and his troopers, when he stops a non-citizen for jay walking and suspects that a person is unlawfully present in the US. Even if this DREAMer shows Sherrif Joe an employment authorization that was issued through a DACA filing, it could be disregarded and the person’s detention could be needlessly prolonged even though the federal government has allowed this person to lawfully remain in the US and no longer considers him unlawfully present for purposes of the 3 or 10 year bar.

Finally, it remains to be seen whether Brewer’s executive order will be politically viable. The GOP may see more Latino voters flee by the November elections, and the future of the party without support from Hispanics and minorities looks grim. Moreover, the granting of status to undocumented youth under the proposed DREAM Act, with promise to do well and contribute to the US, has broad support among the American people. Governor Brewer will likely find herself on the wrong side of history, only to be relegated forever in its garbage heap.