Tag Archive for: STEM OPT

Cyrus Mehta

Save Optional Practical Training for Foreign Students

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DHS promulgated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” that became effective on May 10, 2016. See 81 FR 13039. This rule has been the subject of contentious litigation.  The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule in the U.S. District Court for the District of Columbia. A summary of the progress of the litigation is available on this page on NAFSA’s website.

On July 1, 2019, the federal district court in DC in Washington Alliance of Technology Workers v. DHS issued an important decision holding that the 12-month Optional Practical Training program regulation finalized in 1992 had been reopened by the 24-month STEM OPT Rule, which raises the issue of whether DHS has authority to administer a practical training program after an F-1 student completes the underlying degree. The court found that the 24-month STEM OPT rulemaking also had the legal effect of reopening the legacy INS 12-month post-completion OPT regulation that had been finalized in 1992. This means that the court no longer considers a challenge to DHS’s statutory authority to implement standard post-completion OPT to be outside the statute of limitations, and that the WashTech plaintiffs can challenge DHS’s underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. There will be briefing and an ultimate court decision on whether DHS has authority to administer both the 12-month OPT and STEM OPT extension programs.

In the same July 1, 2019 decision, the federal district court further held  that organizations seeking to be intervenors had standing to do so, despite opposition by both plaintiffs WashTech and defendant DHS. This means that the Information Technology Industry Council (ITI), National Association of Manufacturers (NAM), and US Chamber of Commerce will be carrying the important load of making the key arguments defending DHS’s authority, which is made most critical because it is not clear that DHS under the Trump administration, presently beholden to Buy American Hire American,  will zealously argue and defend its own authority.

If WashTech prevails, and OPT is eliminated, the result would be catastrophic.  After foreign students graduate from a US school, they can apply for one year of OPT. Those who graduate in STEM fields can pursue an additional 24 months of OPT.  The lawsuit claims that DHS has no authority under the Immigration and Nationality Act to issue employment authorization to foreign students. The ability to pursue practical training following graduation is one of the main attractions for foreign students seeking to study in the US.

Although the DHS formally opposes WashTech, there are forces in the administration that would probably want the plaintiffs to prevail. Hence, the role of the intervenor organizations is crucial to ensure that OPT remains available for foreign students. Otherwise, foreign students would have to immediately leave the US upon graduation. A victory for the plaintiffs here would virtually eliminate the ability for foreign graduates to easily seek employment, which they can now do during the OPT period, and then apply for H-1B visas and other employment-based immigration options.

The provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is admittedly ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after they have completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i).  DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute.

The court in the WashTech litigation ought to uphold the ability of DHS to grant OPT to foreign students under Step 2 of the Chevron analysis. The DHS’s interpretation of INA 101(a)(15)(F)(i) should be given deference. Even if there is a judicial decision interpreting 101(a)(15)(F)(i) differently, the DHS’s interpretation ought to prevail under Brand X. In addition to Chevron deference, there is yet another doctrine that can uphold OPT. In Lorillard v. Pons, 434 U.S. 575, 580 (1978), the Supreme Court held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has existed even prior to 1952, and since the enactment of the INA in 1952, and during the overhaul in 1990, Congress and has not enacted any provision that would eliminate student practical training. There are old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

There are many good arguments that can be made to preserve OPT in the WashTech litigation. In addition to the legal arguments addressed above, imagine the damage that would befall US schools if they were not able to attract foreign students. US schools would suffer both financially and in terms of reputation to academic institutions in other countries. Those who come to the US to study also understand America more deeply, and would be able to promote American values when they return and assume important positions in their own countries. Hence, every effort should be made to uphold OPT that has been an integral part of the US immigration system for over 50 years. One effective way to do this is for employers, business organizations, foreign student associations, think tanks, bar associations and other interested organizations to file amicus briefs in the court case. Outside the courtroom, there is also need to convince the American people about the benefits that foreign students bring to the US, and that the elimination of OPT will encourage foreign students to pursue their newly acquired skills in other countries that will compete against America. The OPT program ought not to be viewed as a source for cheap labor, as some critics contend, as the program is temporary and allows a foreign student educated in the US to gain meaningful experience, and preventing that would harm the US economy. Another study states that the OPT allows employers to hire STEM graduates who are in short supply, and provides a bridge for students with badly needed skills to ultimately secure a chance under the H-1B visa lottery.    In the unlikely event that the courts agree with the plaintiffs, Congress would need to step in to enact provisions in the INA that uphold the OPT programs for foreign students as presently enshrined in the regulations. There is too much at stake for America to allow OPT to die just like that.

Cora-Ann Pestaina

What One Hand Giveth the Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs to America?

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“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

The above is an extract from the USCIS’ Entrepreneur Pathways Portal which provides guidance on how entrepreneurs can obtain nonimmigrant visa status through a startup entity. The United States Citizenship and Immigration Services (USCIS) launched its Entrepreneurs in Residence initiative in 2012 and later the portal. Prior to that, in an August 2, 2011 press release, the Department of Homeland Security (DHS) stated that “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs.” Through the Entrepreneurs in Residence program, USCIS officers are supposed to be trained to recognize the unique nature of a startup and to understand that a nonimmigrant petition based on a startup will not present the characteristics typical of a petition filed through a more established business entity. Startups often lack a formal office space; they may operate in stealth mode in an effort to hide information from competitors; and the foreign national seeking nonimmigrant status in the US often has a majority interest in the startup. Unfortunately, too often a benefit conferred on one hand is taken away by the other hand. USCIS has created these seemingly great avenues for entrepreneurs but other USCIS initiatives and other agencies such as the Department of Labor (DOL) make it harder for those same entrepreneurs to continue to obtain benefits.

One example is the DHS’ proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which was published in the Federal Register on October 19, 2015 for comment. In sum, the rule proposes to amend the F-1 student visa regulations regarding optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the current rule, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM fields. The new rule proposes to allow F-1 STEM students who have elected to pursue 12 months of OPT to extend the OPT period by 24 months. This new 24-month extension would effectively replace the 17-month STEM OPT extension currently available to these students. This is indeed a positive development, and it encourages talented foreign students to remain in the United States and contribute to the US economy.

A STEM graduate may also utilize the OPT period to work for their own startup. But one aspect of the proposed rule might mean that this STEM graduate may not be able to obtain the 24-month extension to continue working for the startup. One of the things that will be required under the proposed rule is the implementation of formal mentoring and training plans by employers for the STEM OPT employee. The employer must also implement a process for evaluating the OPT employee. The STEM OPT extension could be difficult to establish for the OPT employee who is the majority shareholder in their startup. It appears that here the government will want to see proof of the typical employer-employee relationship which totally goes against everything it tries to do through the USCIS Entrepreneurs Pathway portal and erodes the whole idea of the startup.

Even if the foreign national were to obtain nonimmigrant visa status, that status is temporary. If the foreign national is desirous of obtaining lawful permanent residence in the US through their own company, there s/he may face another roadblock.

Recently, in Step By Step Day Care LLC, 2012-PER-00737 (Sept. 25, 2015), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a PERM labor certification finding that the offered position was not open to U.S. workers because the beneficiary was in a position to control or influence hiring decisions regarding the job. The employer filed a PERM labor certification for the position of “Daycare Center Director” indicating on the application form that the company is a closely-held corporation in which the foreign national has an ownership interest.  The DOL issued an audit request for documentation that included information on the business structure; a statement describing any familial relationships between parties with ownership interests in the company and the foreign national; the name of the employee with the primary responsibility for interviewing and hiring applicants; and the names of the employer’s officials who have control or influence over hiring decisions involving the job opportunity listed on the PERM application. The employer’s audit response showed that the foreign national beneficiary of the PERM application and her husband each held 50% ownership of the company, and they were here on E-2 visas. (The E-2 visa is one such visa that is encouraged for startups in the Entrepreneurs Pathway Portal). The foreign national was the Director and her husband was the Operations Manager. The recruitment was conducted by the company’s Assistant Director.

The Certifying Officer (CO) denied the application on the grounds that the employer had not overcome the presumption that exists that a job opportunity is not bona fide when the employer is a closely-held company where the beneficiary has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees. The CO took issue with the fact that the hiring official, the Assistant Director, was a subordinate of the beneficiary and is not the usual official having authority over hiring decisions.

In its motion for reconsideration, the employer explained that while the beneficiary and her husband typically made the hiring decisions in consultation with the Assistant Director, the hiring process was modified in for purposes under the labor certification recruitment because the beneficiary was also the co-owner. The employer held that neither the beneficiary nor her husband were involved in recruitment. The employer argued that the beneficiary and her husband each held E-2 investor visas as a result of purchasing the company and therefore the beneficiary’s stay in the US was not dependent on her position as Director and provided documentation to show that the position was a requirement for daycare businesses under Florida law and did not exist for the benefit of the foreign national beneficiary. The CO nevertheless upheld the denial.

As background, mere existence of a family relationship, or the fact that the beneficiary is the owner of the sponsoring entity, should not lead to a conclusion that a job opportunity was not bona fide.  When determining whether a bona fide job opportunity exists, the CO must consider the totality of the circumstances, considering, among other factors, whether the alien:

  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Is related to the corporate directors, officers, or employees;
  3. Was an incorporator or founder of the company;
  4. Has an ownership interest in the company;
  5. Is involved in the management of the company;
  6. Is on the board of directors;
  7. Is one of a small number of employees;
  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Good Deal, Inc., 2009-PER-00309 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, (July 16, 1991) (en banc).  The Board should also consider the Employer’s compliance and good faith in the application process. Id.  No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).

Upon review, BALCA held that having recruitment conducted by a subordinate of the foreign national beneficiary is not in the best interests of U.S. worker applicants. BALCA found it difficult to believe that the beneficiary exercised no influence on the hiring process. BALCA cited 20 CFR 656.10(b)(ii) which states:

The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

BALCA held that since the Assistant Director did not normally conduct interviews or consider applications, this regulation was not met. With regard to the employer’s statement that the beneficiary did not need the position since she held E-2 status, BALCA held that the filing of the labor certification indicated the beneficiary’s preference to remain in the position.

The foreign national entrepreneur who successfully obtains nonimmigrant visa status to run a business in the US could later be kicked out when that temporary nonimmigrant visa status expires. In the above discussed BALCA case, the beneficiary held E-2 status which could be extended indefinitely. However, a beneficiary with H-1B status would need to leave the US upon reaching the maximum 6-year limit.  While there may be other options for entrepreneurs on a temporary visa to get permanent residency, such as through the national interest waiver or as a person of extraordinary ability, very few can qualify under these pathways. The majority of skilled foreign nationals get sponsored via an employer through the labor certification process, and the odds of winning labor certification substantially lessen when one is the owner or founder of the sponsoring entity. It is not clear how such conflicting policies could work to “[attract] individuals with great drive and entrepreneurial spirit” and “welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” What one hand giveth the other taketh away.

Cyrus Mehta

Extension of STEM Optional Practical Training for Foreign Students Under President Obama’s Executive Actions?

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Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.

According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

– allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

– authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtech). See Washington Alliance of Technology Workers v. DHS, Civil Action No. 1:14-cv-529.   Plaintiffs have alleged that the OPT STEM extension period is a deliberate circumvention of the H-1B visa cap in violation of Congressional intent, and have also been granted competitor standing, which recognizes that a party suffers injury when a government agency lifts regulatory restrictions on competitors or allows increased competition.

Notwithstanding Senator Grassley’s protest and the lawsuit, this is good news for foreign students, especially those who were not selected in the H-1B visa lottery for FY2016.  While the current lawsuit could potentially thwart the  efforts of the administration to extend STEM OPT especially in the face of mounting law suits,  we can also take comfort in an earlier failed legal challenge against STEM OPT.

Soon after the DHS extended OPT from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand Xinvolved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevronor Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

So, why is Washtech again challenging the STEM OPT extension after another challenger had previously failed? This is because the DC Circuit is a favorable court to get standing, which it has already been granted. Even if plaintiffs ultimately prevail on their competitor standing theory, which requires them to show that they are direct and current competitors to F-1 students, plaintiffs still have an uphill task. The plaintiffs rely on International Bricklayers Union v. Meese (another reason why they have commenced legal action in the DC Circuit),  which struck down an INS Operating Instruction that allowed foreign laborers to come to the US on B-1 visas to install equipment or machinery after it had been purchased from an overseas seller. The court in International Bricklayers agreed with the plaintiffs that the laborers were not properly in the United States on a B-1 business visa, which under INA 101(a)(15)(B) precluded one from “performing skilled or unskilled labor.” In fact, Congress had enacted the H-2B visa for this sort of labor pursuant to INA 101(a)(15)(H)(ii)(b).

On the other hand, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is more ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i) under Chevron and Brand X even if it expanded STEM OPT beyond the maximum available  period of 29 months. From a policy perspective, the Administration should be given room to expand STEM OPT in order to retain skilled talent in the United States. Global competition for STEM students has increased dramatically, and many countries have reformed their immigration systems to attract such students. American innovation will fall behind global competitors  if we cannot find ways to attract foreign talent especially after they have been educated at American universities.

Senator Grassley’s misgivings about extending STEM OPT  are misplaced, and it is fervently hoped that the Administration will not pay heed to his letter and cynically scrap the program after putting up a show that it had tried it’s best. If extended STEM OPT is implemented, it will provide the impetus for the implementation of other key executive actions such as allowing entrepreneurs to be paroled into the United States and permitting beneficiaries of approved I-140 petitions to work and enjoy job mobilityeven if their priority dates have not become current. Each and every action will surely get challenged, but the Administration should fight on and prevail, like it did when the motion to preliminarily enjoin the granting of work authorization to H-4 dependent spouses failed.

Cyrus Mehta

A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION

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You shall neither vex a stranger, nor oppress him: for you were strangers in the land of Egypt.

EXODUS 22:21

By Gary Endelman and Cyrus D. Mehta

November 20, 2014 was a historic night. The President announced a series of executive actions to expand enforcement at the border, prioritize deporting felons not families, and require millions of undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation. The authors welcome this development as they have been advocating for executive actions since 2010 to repair a broken immigration system in the face of Congressional inaction.  In The Tyranny of Priority Dates we first advocated that the President had broad authority under the Immigration and Nationality Act to ameliorate the plight of many who were caught in the crushing immigrant visa backlogs, followed by many widely disseminated blogs thereafter that further fine-tuned and refined the proposals made in our original article. We were there at the very beginning and so the executive actions personally mean a lot to us just as they mean to the millions who will get relief from our harsh immigration laws. As we summarize the executive actions, we point to our blogs that may be helpful to further advance and develop these measures.

The most audacious and bold of these executive actions is to provide deferred action to at least 4 million immigrants who on the date of the announcement are parents of US citizens and lawful permanent residents and who have continuously resided in the United States since before January 1, 2010. They also must have no lawful status on November 20, 2014, and must have also been physically present on that date and at the time of making the request for consideration of deferred action. They must also present no other factors that would make a grant of deferred action inappropriate and are not an enforcement priority.  These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee.  Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy. As bold as this policy seems,  in a larger sense, it stands as a reaffirmation of a well-established tradition that affords the Executive Branch wide discretion in the enforcement of our nation’s immigration laws.

Another bold move is to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. DACA will be expanded to include a broader class of children.  DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered.  DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981.  The entry date will also be adjusted from June 15, 2007 to January 1, 2010.  The relief (including work authorization) will now last for three years rather than two.

Critics have assailed these two executive actions in isolation as being unconstitutional and usurping the power of Congress. These arguments have been made before, especially after DACA was implemented.  In Yes He Can: A Reply to Professors Delahunty and Yoo, we argued that even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. That is precisely why the Obama Administration has focused its removal efforts, which as stated in a letter by the former DHS Secretary Napolitano to Senator Durbin, on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. Critics fail to consider INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007).  It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney,  470 US 821, 835 (1985). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(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…” Furthermore, critics of the executive orders do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  Surely the “body of experience” and the “informed judgment” that DHS brings to INA section103 provide its interpretations with “ the power to persuade.”  Skidmore v. Swift& Co., 323 US 134,140 (1944).

It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the executive actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

While the focus of the criticism is on the two deferred action programs that will potentially cover 5 million people, there are also executive actions that include measures to strengthen Southern  border security and to reorder removal priorities. Under this reordering top priority with respect to removal will be placed on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.  Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.  This policy also provides clear guidance on the exercise of prosecutorial discretion. DHS will also end Secure Communities and replace it with the Priority Enforcement Programthat closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

These measures relating to immigration enforcement can hardly be seen as a power grab by President Obama, and should further insulate him from legal actions such as law suits and even impeachment. Indeed, it would border on the ridicule, as suggested by a leading Yale scholar,  if impeachment proceedings are commenced against President Obama for committing treason, bribery or other high crimes or misdemeanors. The enforcement measures in the executive actions show that they are balanced, and just like deferring the removal of low priority immigrants, the prioritization of removal of others is well within the authority of the President and are part of an overarching enforcement strategy. It is also worth reminding critics that the beneficiaries from these deferred action programs will be barred from the Affordable Care Act and will not be able to purchase health insurance or get any subsidies. These beneficiaries will also face the wrath of certain state governors who will deny them driver’s licenses as Arizona did to DACA recipients in 2012. Fortunately, in Arizona Dream Coalition v. Brewer, the Ninth Circuit struck down Arizona’s spiteful policy as being violative of the Equal Protection Clause. The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an employment authorization document (EAD) based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal. This decision should hopefully persuade other circuit courts to also strike down discriminatory laws that deny such recipients driver’s licenses.

There are other small bore benefits that will ensue from the executive action, but nevertheless make a meaningful and positive impact on people’s lives and endeavor to repair a broken system.  The nation demands and deserves action now; there is no need to wait. These operational adjustments  are well within the President’s  legal authority and are summarized below. Their purpose and effect is not to thwart or frustrate the will of Congress. Rather, the President seeks to make it more effective by leavening the pernicious effects of legislative sclerosis through the injection of administrative flexibility that it so badly needs. In each of the initiatives listed below, the President does not create new law, which only Congress can do, but makes the current law relevant to the unique and emerging challenges of today and tomorrow:

• Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  At the same time, DHS will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

This can hardly be viewed as a power grab. The provisional waiver program allows those who are potentially inadmissible as a result of the 3 and 10 year bars to apply for the waivers in the United States prior to proceeding overseas for consular processing of their immigrant visas.

•  Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit.  DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed.  Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

In Through The Looking Glass: Adventures of Arrabally and Yerrabelly in Immigration Land, we advocated that Matter of Arrabally, 25 I.&N. Dec. 771 (BIA 2012) should be apply to every departure under advance parole, whether it was advance parole in the context of DACA or an adjustment of status application. We are pleased that the DHS has now directed its General Counsel to issue written legal guidance in this regard. We also encourage the DHS to use its parole authority under INA 212(d)(5) to parole entrepreneurs and other immigrants into the US, especially beneficiaries of approved I-130 and I-140 petitions, as we have previously done in Comprehensive Reform Through Executive Fiat. We also point to Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress: Not Counting Family Members and Parole in Place that advocate how parole in place, if applied retroactively, can also cure unlawful presence. 

• Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

To promote access to U.S. citizenship, DHS will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

• Supporting High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training.  For example, because our immigration system suffers from extremely long waits for green cards, DHS will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions. Individuals with an approved employment-based immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment.  This is expected to impact about 410,000 people.

We refer our readers to Waiting for Godot: A Legal Basis for Filing An Early Adjustment Application where we show a way for this to be done. It is well within the power of the Executive Branch to redefine what is meant by visa availability so as to allow those who are caught in the crushing visa backlogs to apply for work authorization and portability.

The “same or similar” definition will be clarified for adjustment applicants who wish to exercise job portability under INA 204(j) when their adjustment applications have been pending for more than 180 days. This is a welcome step as those who are promoted and take on higher levels of responsibilities should also be able to demonstrate that they are still in the “same or similar” occupation and thus keep their underlying green card applications valid.  The length of time in Optional Practical Training for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. The regulation that would authorize H-4 spouses to work will get finalized. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field are under consideration. A full rulemaking will be undertaken to modernize the PERM labor certification program. There will also be greater consistency with the L-1B specialized knowledge program. It is hoped that in providing guidance on specialized knowledge the DHS take into account the holding interesting reinterpretation of specialized knowledge, as discussed in Fogo De Chao v. DHS : A Significant Decision For L-1B Specialized Knowledge Chefs And Beyond.

• Visa Modernization 

A Presidential Memorandum has been issued directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law.  Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.

Although the direction provided by the Presidential Memorandum has been left deliberately vague, it is hoped that the DHS seriously consider not counting derivatives separately in the employment and family-based preferences as that will significantly reduce the backlogs. In The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs and Why We Can’t Wait: How President Obama Can Erase Backlogs With The Stroke Of A Pen,   we advocated that there was no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d), which only states that derivatives shall be entitled to the same status and same order of consideration as the principal beneficiary and says nothing about whether they should be counted as one family unit or separately. Indeed, if the DHS does pay heed to our recommendation, which has gained national acceptance and has also been mentioned in a Congressional Research Report, it will make the executive actions more meaningful. If the family and employment preferences are cleared of their backlogs, and people can apply for green cards rapidly, the lack of H-1B visas should not be as hurtful to businesses as they are today. Indeed, this reinterpretation of the INA, again well within the authority of the President, will be as audacious for legal immigrants as the deferred action programs for the 5 million undocumented immigrants.

Needless to say, all of these executive actions are well within the President’s authority whatever critics may say, and are much needed to repair a broken immigration system. Still, these executive actions are clearly no substitute for reform through Congress, and as indicated in The Fate of Executive Action After The Midterm Elections these actions should spur the Republican controlled Congress to pass better and more meaningful reforms. The President can only do so much through executive actions and cannot create new visa or green card categories, and many are bound to be disappointed. Parents of DACA recipients have also been left out.  A tentative intention to study the possibility of counting derivative family members as an integral unit rather than on an individual basis was announced, but nothing more and certainly not definite.  At the same time, these actions provide a blueprint for Congress to pass meaningful comprehensive immigration reform. They provide the template for legalizing a deserving group of immigrants who are not a priority for enforcement purposes and also seek to account for future flows by endeavoring to attract entrepreneurs, clarifying existing processes such as PERM labor certifications and the L-1B visa,  and providing relief to those who are caught up in the crushing visa backlogs. The spirit of audacious incrementalism that animates the executive orders comes from the finest American tradition of liberal reform. Such an approach sets a problem on the road to solution in the belief and expectation that future progress will follow in a way that minimizes disruption and maximizes acceptance. Once the concepts enshrined in the executive orders are established, there can be little doubt that the scope of future operations and events will grow to bring other and more significant gains.

The problems that plague our immigration system are not beyond our ability to solve them. Their continued existence is testimony to a lack of will, a failure of imagination.  If the President’s critics and his supporters cannot agree on the legality or value of his executive orders, then let them agree on legislation to replace it. As Alfred Lord Tennyson’s Ulysses so famously reminds us : “ Come my friends, tis not too late to seek a newer world.”

(Guest author Gary Endelman is the Senior Counsel of Foster)