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Ask Congress, Not Courts, For Immigration Reform
The presidential race has brought heightened attention to immigration policy. One of the most important immigration issues has been quietly playing out in the courts and few people have noticed. Yet this one issue will have a ripple effect across the U.S. economy.
In approving the Trump administration’s application to lift an injunction in U.S. Department of Homeland Security v. New York last month, the U.S. Supreme Court sent a clear signal that a majority of the justices seriously question the viability of nationwide district court injunctions.
While the court’s ruling had the immediate effect of allowing the Trump administration to begin implementing its new wealth test for immigrants, the unusual written opinion by two of the justices expresses a viewpoint on the impropriety of this remedy that may have long-lasting effects on all jurisprudence, regardless of whether this particular immigration regulation survives legal challenge.
In a written concurrence, Justice Neil Gorsuch, joined by Justice Clarence Thomas, slammed nationwide injunctions for sowing confusion in the courts and foreshadowing that the court will have to deal with them.
This opinion, presaged by an op-ed article written by U.S. Attorney General William Barr in the Wall Street Journal titled, “End Nationwide Injunctions,” is not the first time members of the court have signaled that they are fed up with nationwide injunctions. And it will not be the last.
For several years now, it’s been a race to the courthouse to get a judge to slap an injunction on a disfavored policy. Conservatives seeking to block the Obama administration’s Deferred Action for Childhood Arrivals or Deferred Action for Parental Accountability initiatives, look for sympathetic judicial ears from federal judges in Texas; liberals trying to stop Donald Trump’s executive actions run to Massachusetts or Northern California. As a result, a single federal judge has been able to dictate national policy.
This trend has been particularly glaring in the context of immigration law. Why? Congress — which has plenary power over immigration law— has failed to act. The demise of the bipartisan Gang of Eight’s comprehensive immigration reform bill left a vacuum of leadership on immigration issues.
President Barack Obama used executive orders to initiate much-needed reforms (or sidestep Congress, depending on your viewpoint).
While eschewing Obama’s use of executive orders on the campaign trail, Trump has been even more prolific in exercising executive power, starting with the initial travel ban issued weeks after taking office. His administration has continued to issue executive orders and presidential proclamations on immigration at a breathtaking pace and volume with no apparent input from Congress.
The controversial nature of these developments has meant that immigration advocates have increasingly resorted to what they consider friendly jurisdictions to try and put a hold on these executive actions. And, the fact that the Trump administration too often has issued and sought to implement executive orders immediately, with no warning and no transition period, has created an urgency that many courts have found compelling in placing a temporarily hold on the proposed action while the lawsuit proceeds.
In a few cases, such as the travel ban executive orders, businesses have joined litigation filed to maintain the status quo so they could buy time to figure out the impact on their employees and develop policies necessary to adapt to the proposed changes. An estimated 40 nationwide injunctions have been issued over Trump’s policies in slightly over two years, more than double the number issued during the entire eight years of the Obama administration.
While your view of nationwide injunctions as good or bad may depend on whether you favor or disapprove of the underlying policy that is challenged, the reality is that these injunctive requests often place courts in difficult positions because they essentially are being asked to develop policy that would be a Congressional responsibility in a normal political climate.
This can take pressure off Congress to promptly do its job and take the steam out of efforts to build public consensus to support legislative action.
As Barr pointed out, Congress has been silent on the DACA issue since the court enjoined the Trump administration’s termination of DACA. Now, 800,000 dreamers wait anxiously for the Supreme Court to address the legality of the actions taken by the Trump administration when momentum had been building for a possible legislative fix before the courts got involved.
This pattern of increasing reliance on the judicial system to fix national immigration policy issues is not sustainable. The U.S. business community has a significant interest in this country’s ability to attract and retain the best and the brightest so we can remain competitive.
Global mobility solutions cannot rest on the whim of the judicial process. The issues often are not well-framed for judicial resolution and the process takes far too long. Also, there is a distinct potential for policy advocates to try and expand this injunctive remedy to other areas covered exclusively by federal law.
In this context, businesses should be more active advocates for long-term legislative cures — not just asking courts to treat the symptoms. Companies cannot continue to rely on the possibility of nationwide injunctions whenever the executive branch rolls out an immigration or other policy that runs counter to their economic interests.
Nor can the economy sustain an exodus of U.S. businesses to Canada or other countries that offer more predictable immigration policies to attract high-skilled global talent. U.S. business faces skills shortages and fierce competition for talent (over 2 million jobs in the STEM fields remain unfilled in the U.S.) and restrictive immigration measures that can’t be blocked in court will only create greater unpredictability for the U.S. economy.
The conversation over immigration needs to shift from border walls and travel bans to how the constructive use of immigration is essential for making America more competitive globally.
As Bob Dylan put it, “You don’t need a weatherman to know which way the wind blows.” The court has clearly forecast that injunctions may not be a viable option for much longer.
Businesses should consider getting behind immigration reform and lobbying Congress more vigorously to exercise its plenary power and enact immigration legislation.
Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.
This article was originally published on Law360.com on Feb. 27, 2020.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The H-1B electronic registration period opens Sunday at noon EST and closes on March 20 at noon EDT. The new H-1B electronic registration process requires that all H-1B petitioners submit an electronic registration for each prospective H-1B candidate and pay a $10 government filing fee per registration.
Key points:
BAL Analysis: Companies should create their myUSCIS accounts if they have not already done so, and their authorized signatories who have created the accounts should be prepared to review and electronically sign H-1B registrations and the Form G-28 if a law firm is submitting registrations on behalf of the company. Although the registration period will remain open until March 20, submitting earlier during the registration period is encouraged to allow time to address any glitches or issues in this brand-new process. BAL clients may access all the latest updates, FAQs, news, analysis and podcasts on BAL’s H-1B Electronic Registration Resource Center.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The Department of Homeland Security announced Saturday it will implement the public charge rule nationwide beginning today. The announcement follows a Supreme Court ruling on Friday that stayed an Illinois state-wide injunction. The Court had previously lifted other nationwide injunctions, and the government already announced enforcement of the rule in all other states beginning Feb. 24.
BAL Analysis: Employers and individuals should be aware that the public charge rule now applies nationwide and that Illinois filers are no longer exempt. Employers should anticipate longer timelines and factor in additional time for employees to gather the new information requested on the forms and potential delays in processing as USCIS officers will need to review additional information and supporting documentation. Though the Supreme Court has allowed DHS to implement the rule, it did not rule on the legality of the regulation and multiple lawsuits challenging the rule continue to progress.
Starting today, companies that intend to file H-1B petitions this cap season may create a myUSCIS “registrant” account. Creating this account is a mandatory prerequisite to completing the new H-1B electronic registration process.
BAL Analysis: Companies are encouraged to create their myUSCIS H-1B registrant accounts as soon as possible so that any issues can be resolved and to allow as much time as possible before the registration period opens this Sunday. BAL clients can get all the latest information and analysis by logging onto the BAL H-1B Electronic Registration Resource Center with their Cobalt® credentials.
The State Department has received emergency approval of its public charge visa questionnaire from the Office of Management and Budget, clearing the way for the agency to implement the questionnaire and the public charge rule beginning Monday.
BAL Analysis: Visa applicants at U.S. consulates should anticipate that they will be required to fill out the new visa questionnaire form starting Monday. It is possible that the court could issue a preliminary injunction to stop implementation following the hearing on Thursday, Feb. 28. Meanwhile, applicants in the U.S., except for petitioners and applicants in Illinois, will be subject to the DHS version of the public charge rule starting Monday. BAL is following both rules and the lawsuits challenging them, and will continue to provide updates on developments as information becomes available.
U.S. Citizenship and Immigration Services has announced that in March it will follow the State Department’s Dates for Filing chart employment-based adjustment-of-status applications. The chart was published yesterday in the March Visa Bulletin.
Dates for Filing for Employment-Based Preference Cases:
Additional notes: The State Department’s Charlie Oppenheim had predicted that Final Action Dates would be used at least for EB-3 Worldwide and EB-3 Other Workers Worldwide starting in March. USCIS’s announcement, however, confirmed that the Dates for Filing chart will be used for all categories. Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants; this chart was also published in the March Visa Bulletin.
BAL Analysis: March will mark the sixth straight month that USCIS will use the Dates for Filing chart. This is good news for a number of employment-based immigrants, because Dates for Filing are generally more progressive than Final Action Dates. Because Vietnam is not included on the Dates for Filing chart, adjustment of status applicants from Vietnam should use the dates listed under “All Other Countries.”
The Department of Homeland Security will implement its public charge rule Feb. 24. The rule makes applicants for permanent residence and changes or extensions of status within the U.S. subject to significantly greater scrutiny regarding their use or potential use of public benefits.
Background: DHS published a public charge rule last year that was supposed to take effect in October, but several courts enjoined implementation temporarily while the lawsuits progressed. Last month, the Supreme Court lifted the injunctions, except for a state-wide injunction in Illinois, allowing DHS to implement the rule during litigation. DHS announced earlier this month that the rule will take effect Feb. 24. The Supreme Court did not rule on the legality of the public charge regulation, and the lawsuits challenging it will continue to progress.
The State Department is currently seeking emergency approval of a new questionnaire that will allow it to implement its own version of the public charge rule, which will apply to visa applicants applying at U.S. consulates overseas. That rule would require visa applicants outside the U.S. to complete a lengthy visa questionnaire about their finances and other factors. The State Department is hoping to get approval from the Office of Management and Budget in time to implement the rule in concert with DHS on Feb. 24, but the questionnaire has not yet been approved.
Priority-date cutoffs will retrogress in all EB-3 categories except for India and China, according to the Final Action Dates published Tuesday in the State Department’s March Visa Bulletin. Date cutoffs in other categories will see modest advancement.
Key movements in the March Visa Bulletin:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for March. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once officials confirm whether the chart can be used. The State Department’s Charlie Oppenheim has indicated that Final Action Dates will likely be used on the EB-3 Worldwide and EB-3 Other Workers Worldwide starting in March.
Additional notes: The EB-3 categories retrogressed after the February Visa Bulletin predicted they would unless there was “a sudden and dramatic decrease” in demand. This month’s bulletin says that the Jan. 1, 2017 cutoff date was imposed in order to keep the number of visas within the maximum allowed for the current fiscal year. The bulletin said that, “No forward movement of this date is expected in the foreseeable future.”
The Labor Department has posted processing times current as of Jan. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: The department has announced that it is now adjudicating applications filed in October and earlier, is conducting audit reviews on applications filed in May and earlier, and is reviewing appeals for reconsideration filed in August and earlier.
Average PERM processing times in December:
PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in October and earlier for H-1B cases and September and earlier for PERM cases. Redeterminations were being considered on appeals filed in December and earlier for H-1B cases and for PERM cases. The department reported it had no center-directed reviews pending for H-1B or PERM cases.
Average times for issuance of prevailing wage determinations in December:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in October and earlier, and is seeing PWDs for requests filed in October and earlier for H-1B cases and September and earlier for PERM cases.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The State Department intends to publish a notice in the Federal Register tomorrow, seeking emergency review of its public charge questionnaire (Form DS-5540) for visa applicants applying at U.S. consulates overseas. A prepublication version of the notice was posted today.
Background: The State Department published its own public charge regulation for visa applicants outside the U.S., which was scheduled to take effect Oct. 15, 2019; however, it postponed implementation until the visa questionnaire was finalized. The State Department published a draft of its proposed visa questionnaire at the end of October.
Meanwhile, the DHS public charge rule that applies to applicants in the U.S. was tied up in courts, which prevented DHS from implementing it. Late last month, however, the Supreme Court lifted several nationwide injunctions, clearing the way for DHS to implement the rule while lawsuits challenging the rule proceeded in the courts, except for petitioners and applicants in Illinois where a state-wide injunction on implementation of the rule was kept in place. DHS thereafter announced it will implement its rule on Feb. 24.
The State Department is now seeking emergency approval of the visa questionnaire so its implementation can coincide with enforcement of the DHS rule. After the State Department has requested emergency approval, it is expected to publish another notice that will provide additional information.