Episode 61: USCIS backlog, Schedule A extension, Supreme Court cases

It’s Feb. 15, and this is your BAL Immigration Report.

• USCIS reduces its case backlog.
• The Department of Labor extends a deadline for input on its Schedule A job classification list.
• How a pair of Supreme Court cases about the fishing industry could reshape immigration processes.

“There are some negative unintended consequences of this, in that it could tie up the courts. Things could have to go all the way to the Supreme Court in order to be resolved. And we could end up seeing a lot more litigation around these issues rather than less litigation.”

—Jeff Joseph, BAL Partner

U.S. News

USCIS reduces case backlog

U.S. Citizenship and Immigration Services announced it reduced its overall case backlog by 15% despite receiving a record-breaking number of filings in 2023. The agency received nearly 11 million filings last year and completed more than 10 million cases.

USCIS is set to raise immigration filing fees on April 1. The business community called on the agency to improve processing times and implement other efficiencies before raising fees. USCIS has said the additional revenue will help it further reduce backlogs.

Schedule A revision deadline extended

The Department of Labor has extended the deadline for a request for information on if the agency should revise its Schedule A job classification list, which hasn’t been updated since 2004. The comment period was set to end Feb. 20 but is now extended to May 13.

Schedule A jobs do not require permanent labor certification, or PERM. The request for information is part of the Biden administration’s efforts to streamline immigration processes under an October executive order on use of artificial intelligence.

U.S. news roundup

• The Department of Labor posted updated PERM and prevailing wage determination processing times.
• The State Department published the March Visa Bulletin showing limited movement in key categories. USCIS said it would use Final Action Dates to determine employment-based filing eligibility next month.

Spotlight

Conversation with Jeff Joseph, BAL partner: Why a pair of Supreme Court cases involving the fishing industry have drawn the attention of the immigration law community

BAL Immigration Report: Last month, the Court heard arguments in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. In both cases, fishermen are challenging federal regulations that require them to carry and pay for monitors brought onboard to prevent overfishing. These narrow facts have potentially broad consequences. At issue is not only the maritime regulation in question but also the powers federal agencies have to interpret federal legislation. BAL partner Jeff Joseph joined us to provide his analysis.

Jeff Joseph: At the end of the day, the ultimate issue is to what extent the courts or the judicial system should defer to agency interpretation. As you know, there’s a doctrine in governance called separation of powers where power is separated between Congress that makes the law, the courts that interpret the law and the executive agency that implements the law. What ends up happening is Congress will pass a law, but then the agency will pass regulations or memos or policies that interpret the law. And so the question is, when the agency steps into an interpretive role and is essentially interpreting what Congress has said, should the courts defer to that agency interpretation of the law?

In the past, there was a case called Chevron v. Natural Resources Defense Council. And that case set the framework for how courts approach agency interpretation of law. So basically, what Chevron says is that if a statute is clear on its face, then there’s no ground for the agency to step in and interpret. In cases where the statute is clear, Congress has spoken that the agency shouldn’t interpret and the courts will defer to what the plain language of the statute says. But in those cases where the statute is vague or debatable, then the agency has to step into an interpretive role.

Generally, what the courts have said is, as long as the agency interpretation is a reasonable interpretation of the law, then the courts would defer to the agency. That’s the way that the agency rules of interpretation have existed for years and years and years.

BAL: Joseph says this began to change in 2019 in a case called Kisor v. Wilkie. This case did not overrule Chevron but did create an exception that began to chip away at agency power in some circumstances. Now Relentless and Loper are challenging Chevron more directly.

Joseph: These cases have to do with the fishing industry. Essentially, the issue here is the regulations have always said that, for the fishing industry, the government can force fishing monitors onto your boat. Then the issue in this case was the statute was basically silent as to who has to pay for that, and the agency took the interpretation that fisheries have to pay that fee for those monitors. And they challenged that and said the statute is vague and ambiguous, and the agency is not entitled to deference on this issue.
So now the Supreme Court is deciding whether to abrogate Chevron altogether or to add another exception to Chevron or make it more narrow. And there’s pretty good indications that Chevron may go away altogether.

BAL: At oral argument last month, the Supreme Court’s more conservative justices questioned whether agencies have too much power relative to the courts and Congress. Joseph says this has grabbed the attention of attorneys working in immigration, where most new policies are created through federal rulemaking, not acts of Congress.

Joseph: So part of the reason that I think the people who practice in the immigration space are so interested in this is because, as we know, Congress rarely changes the law with regard to immigration. We’re still dealing with the law that was created in 1952. So the agencies are incredibly active. The Department of Labor, the Department of State, USCIS, the Department of Homeland Security — they always step in and interpret the law. We also see executive action happen a lot where the president will pass DACA without Congress or pass TPS for certain populations without Congress.

This kind of puts a wrinkle in that because those cases now are not going to be subject to the kind of deference that we may have seen before. So depending on where you fall on the political spectrum, you may very much like agency deference in any year or hate agency deference. For example, in the immigration context reference is one thing, but in the environmental context, it’s another thing. You often have political people wanting companies or courts to defer to the interpretations of the EPA when they’re protecting the environment.
But when they’re talking about things like the border, people are less inclined to defer to the agency interpretations of the law. It allows for a lot of political infighting when you have large agency deference and deference to agencies in how they interpret the law.

BAL: In the immigration context, the government has taken the position that Congress has delegated interpretive authority to federal agencies through section 103 of the Immigration and Nationality Act. This could mean that even if Chevron is overruled, courts would continue to give deference to agencies handling immigration matters. The justices may not see it that way, however. The Court is expected to rule by June. We asked Joseph what types of cases might be most affected if Chevron is overturned.

Joseph: It could have an impact on any district court challenge to agency decisions from USCIS, from the DOL, and even from Customs and Border Protection. For example, denials of I-130 petitions, denials of I-129 and I-140 petitions, would now be subject to de novo review by U.S. district court judges, which means that it wouldn’t be, “Let’s look at what the agency was considering, the evidence that was supported” — this would be brand-new review looking at the evidence from the beginning. This could lead to district courts refusing to give deference to long-established agency policies that we’ve come to rely on and could, frankly, result in less predictability in the immigration sphere because you have different district courts around the country that are going different ways on what the law should be. There are some negative unintended consequences of this, in that it could tie up the courts. Things could have to go all the way to the Supreme Court in order to be resolved. And we could end up seeing a lot more litigation around these issues rather than less litigation.

Global news

Illegal migrant fines for employers, landlords

In the United Kingdom, increased fines for employers or landlords who employ or rent to illegal immigrants took effect earlier this week. The fines were announced in August 2023 and represent the largest increase in civil penalties since 2014.

Fines for employers have tripled, while landlords face a much greater increase. Their fines went from 80 pounds to 5,000 pounds per lodger and from 1,000 pounds to 10,000 pounds per occupier on first offense, with amounts doubling on repeat offenses. The fines are intended to identify and reduce illegal immigration into the U.K.

South Africa extends temporary concession

The South African government has extended a temporary concession for long-term visa, waiver and appeal applicants who are awaiting outcomes.

Visa holders who had pending long-term visa, waiver or appeal applications as of Nov. 30, 2023, may now remain in the country until June 30, 2024. These individuals are also permitted to travel out of South Africa, provided they carry certain documentation and obtain a temporary residence permit or port of entry visa before reentry.

The concession was made in an effort to address a backlog of more than 95,000 applications awaiting adjudication.

Global news roundup

• The Netherlands updated residence rules for visa-exempt nationals.
• Spain announced an increase to its minimum wage.
• Singapore will open automated clearance lanes to all nationalities in the second half of 2024.

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