New York Times: “Supreme Court Tie Blocks Obama Immigration Plan”

Today the US Supreme Court issued a 4 to 4 split decision in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program launched in 2012 remains in place. This one-sentence decision is a major blow to the executive actions President Obama proposed in November 2014 as a result of congressional inaction on comprehensive immigration reform. The decision will potentially affect as many as five million undocumented immigrants who would have been shielded from deportation and allowed to legally work in the United States had these programs been allowed to proceed.    

President Obama, speaking at the White House, criticized the 4 to 4 tie. “But for more than two decades now, our immigration system, everybody acknowledges, has been broken. And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.” After Obama announced his executive actions in 2014, Texas and twenty-five other states challenged the plans, which were subsequently blocked in federal district court the next year. “Today’s decision keeps in place what we have maintained from the very start: one person, even a president, cannot unilaterally change the law,” Ken Paxton, the Texas attorney general, says in an issued statement. “This is a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law.”

Steve Vladeck, CNN contributor and professor of law at American University Washington College of Law, says the decision illustrates how handicapped the Supreme Court is when it’s not fully staffed, referring to the death of Justice Antonin Scalia earlier this year. The Supreme Court will not be able to issue an official ruling on the case until a ninth judge is confirmed. Vladeck tells CNN: "Although proponents of President Obama's immigration plan might prefer this result to a 5-4 loss, which would have set a nationwide precedent, rulings like these create uncertainty for the courts and the country going forward—uncertainty that, at the end of the day, puts more pressure on the political branches and dilutes the role of the Supreme Court." 

This decision is a disappointment to many activists who have been campaigning for comprehensive immigration reform for years. Summarizing the frustrations that many feel, Victor Nieblas Pradis, president of the American Immigration Lawyers Association (AILA), says: "In another blow, the Supreme Court has denied the opportunity for parents of United States citizens and students to seek refuge and protection from a dysfunctional immigration system that is broken and apparently unfixable by our elected leaders.” And Benjamin Johnson, AILA Executive Director, adds: “Though today's decision is disappointing, we must remember that this is not the end of the road for these incredibly important programs. The lower courts will continue to consider the case and ultimately, I would not be surprised if it ends up before the Supreme Court once again. In the meantime, Congress must do its job and pass smart immigration laws that will keep families united, benefit the economy, and propel our country forward.”

Inside Sources: “On Tax Day, Remember the Contributions of Unauthorized Immigrants”

Millions of Americans have filed their taxes in advance of the April 18 “Tax Day” deadline. And it’s not only US citizens paying taxes. Undocumented immigrants also make immense federal, state, and local tax contributions, as Tom Jawetz at the Center for American Progress points out. A recent study by the Institute on Taxation and Economic Policy (ITEP) claims that undocumented immigrants pay an estimated yearly $11.64 billion in state and local taxes, adding significant amounts of money to state and local budgets. Tax contributions by undocumented immigrants also help to ensure the solvency of federal programs such as Social Security—the Chief Actuary of the Social Security Administration reported that in 2010 undocumented immigrants paid a net $12 billion in tax revenue into Social Security—even though many undocumented immigrants are unlikely to benefit from the programs themselves.

The study also claims providing a pathway for legal status in the US for undocumented workers would translate into even more tax revenue. ITEP’s analysis claims that combined state and local tax contributions of the nation’s eleven million undocumented immigrants would “increase by more than $800 million under full implementation of the administration’s 2012 and 2014 executive actions and by more than $2.1 billion under comprehensive immigration reform.” Meg Wiehe, ITEP State Tax Policy Director, said in a statement: “Regardless of the politically contentious nature of immigration reform, the data show undocumented immigrants greatly contribute to our nation’s economy, not just in labor but also with tax dollars. With immigration policy playing a key role in state and national debates and President Obama’s 2014 executive action facing review by the Supreme Court, accurate information about the tax contributions of undocumented immigrants is needed now more than ever.”

Texas, which sued the Obama administration over plans to expand the Deferred Action for Child Arrivals (DACA) program, would reportedly see an additional $154 million yearly in new tax revenues each year if Obama’s executive actions were put in place. Moreover, the Joint Committee on Taxation found that blocking the deferred action initiatives would increase the size of the federal deficit by $7.5 billion over ten years. The Supreme Court will issue a ruling for Texas's lawsuit, United States v. Texas, this summer.

New York Times: “Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term”

Justice Antonin Scalia’s recent death will likely complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term as well as possibly change the outcomes of major cases facing the court including the closely-watched and highly-anticipated United States v. Texas. This case stems from Texas and other state’s challenge to President Obama’s plan to defer the deportations of more than four million unauthorized immigrants by expanding Deferred Action for Childhood Arrivals (DACA) with a larger program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would grant “lawful presence” to certain undocumented immigrants who have relatives lawfully in the US.  

Since the court requires at least five votes to accomplish most things, if a case is deadlocked at 4-to-4, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent—which in the case of United States v. Texas would uphold the lower court injunction against DAPA—or, more likely some say, the court can set the case down for re-argument in the fall term starting in October in the hope that the case will be decided by a full court. A full court, however, by the fall term is very unlikely since the Republican-controlled Senate Judiciary Committee has stated that they will oppose any Obama nominee, nor hold any committee meeting on a nominee. “It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term, as the court does here with Justice Scalia’s death,” Justin Driver, a law professor at the University of Chicago, told the New York Times. 

While it cannot be said for sure how Scalia would have ruled in United States v. Texas, his angry dissent in the case over Arizona's harsh immigration law in Arizona v. United States may be an indication. In that dissent, Scalia directly criticized Obama's immigration policy of deferring deportation for potential DREAM Act beneficiaries and described Arizonans as being "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." 

The Center for Immigration Studies, an organization that argues for low-immigration numbers, points out that the Obama administration’s insistence that the Supreme Court hear the case as quickly as possible before the merits have been fully argued in the lower courts may backfire, since a Republican-controlled Senate may be even more unlikely to confirm an Obama appointee this year given the important precedent-setting nature of United States v. Texas. Randal Meyer, a legal associate at the Cato Institute’s Center for Constitutional Studies, believes there is a possibility that even with Scalia gone the Court may vote in favor of Texas since there is “some chance that at least some of the liberal justices will ‘switch sides’ to reign in presidential lawlessness, as executive authority can be wielded by both parties.”

The New York Times points out, however, that it’s possible that Chief Justice Roberts, Justice Kennedy, or both may join the liberals on the bench in rejecting the lawsuit’s challenge, perhaps on the ground that “Texas lacks the direct and concrete injury that gives it standing to sue.” Shikha Dalmia, a senior policy analyst at Reason Foundation, unconventionally argues that Scalia may have been an unexpected immigration ally to court progressives in this case. Despite his heated dissent in Arizona v. United States, she writes, Scalia “had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants. Also, his judicial commitment to apply the text of the Constitution and law as written may well have prompted him to uphold these programs.”

Benjamin N. Cardozo School of Law's Andrea Saenz explains further: "Scalia voted with his liberal colleagues for the noncitizen over the government in nearly every landmark crimmigration case [sentencing of immigrants involved in crimes] in recent history." Saenz argues that Scalia had no “inherent animus against immigrants and could be convinced by good arguments based on proper statutory construction.”

David Leopold, a past president and general counsel of the American Immigration Lawyers Association, told Bloomberg DNA that he believed the court would favor the Obama administration despite Scalia's absence. “I don't think that we're necessarily looking at a 4-4 decision,” he said. “The administration has a very strong case…I do strongly believe that the court is going to reverse the Fifth Circuit[.].” Attorney Beth Werlin agrees:

The fact of the matter is that this case was never about Justice Scalia. The President’s executive actions on immigration are lawful exercises of his discretion, and in adopting these policies, he simply is enforcing existing immigration laws passed by Congress. The Supreme Court precedent on this is clear. The Court has repeatedly held that it is well within the executive’s authority to decide how and when to enforce the law and to exercise prosecutorial discretion. As recently as 2012, in Arizona v. United States, the Supreme affirmed that the federal government has discretion to set immigration enforcement priorities.

The expanded DACA and DAPA programs, she goes on to say, clearly falls within this and consequently she believes there will be a clear majority in favor of the Obama administration.  United States v. Texas is scheduled to be argued in April of this year, and we’ll provide more updates as the case progresses and the Supreme Court issues their decision.

Top 4 Myths about Immigration

Although Paul Ryan, the newly-elected House of Representatives Speaker, ruled out working with President Obama on comprehensive immigration reform, the call for reform continues, this time from Robert Reich, political economist and former labor secretary. Reich along with MoveOn.org released a short video addressing four common myths about immigration.

Myth: Immigrants Take Away American Jobs

Not true, Reich says. “Immigrants add to economic demand, and thereby push firms to create more jobs,” he says. Although Reich doesn’t cite it in the video, a study using US census data backs this claim. The report, by the National Bureau of Economic Research, shows that each immigrant creates 1.2 local jobs for local workers, with most of these created jobs going to native workers. In addition, immigrants appear to raise “local non-tradeables sector wages” as well as attract native-born workers from elsewhere in the country.

Myth: We Don’t Need Any More Immigrants

To counter this claim, Reich ties the importance of immigration to funding for American retirees. Twenty-five years ago each retiree in America was matched by five workers. Now it’s three workers for each retiree. “Without more immigration,” Reich says, “in fifteen years the ratio will fall to two workers for every retiree, which is not nearly enough to sustain our retiring population.” More specifically, it’s estimated that undocumented immigrant workers in particular are paying an estimated $13 billion a year in social security taxes for a total of over $100 billion in the last decade.

Myth: Immigrants Are a Drain on Public Budgets

Not so, Reich says. Immigrants pay taxes. The Institute on Taxation and Economic Policy shows that undocumented immigrants paid over eleven billion in state and local taxes in 2012. If comprehensive immigration reform were passed, their combined nationwide state and local tax contributions would increase by another 2.2 billion. Although a study by anti-immigration group, Center for Immigration Studies, concluded that fifty-one percent of households headed by immigrants—legal or undocumented—receive some kind of welfare, this report was criticized for its research methods, and other reports show that immigrants pay more into public benefits than they receive back.

Myth: Legal and Illegal Immigration Is Increasing

The number of undocumented immigrants living in the US has declined from 12.2 million in 2007 to 11.3 million now, according to the Pew Research Center. Other reports confirm this decrease in immigration as well.

Reich concludes: “Don’t listen to the demagogues who want to blame the economic problems of middle class and poor on new immigrants, whether here legally or illegally.” He concludes: “We need to pass comprehensive immigration reform giving those who are undocumented a path to citizenship. Scapegoating them and other immigrants is shameful. And it’s just plain wrong.”

USCIS Announces Revised Procedures for Determining Visa Availability for Certain Applicants Waiting to File for Adjustment of Status

US Citizenship & Immigration Services (USCIS) along with the Department of State (DOS) is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revision in the process means that certain people will be eligible to file their adjustment of status applications (and the interim benefits that go along with that filing including work cards and travel permission) earlier than the date their Green Card priority date becomes current. USCIS states that the "revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad."
 
Implementing President Obama's November 2014 executive actions on immigration—as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century—the revised process will enable foreign nationals (and their spouses) to obtain work cards and travel permission faster than they might have, and enable DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the monthly Visa Bulletin. All this, according to USCIS, will "help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates."

What Is the Visa Bulletin?

Every month the DOS publishes the current immigrant visa availability in a monthly Visa Bulletin. This Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date for both the family-based and employment-based preference categories. The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS; or, if a labor certification was required to be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor. Availability of an immigrant visa means eligible applicants are able to take the final steps in the process of becoming US permanent residents—namely, applying for an immigrant visa at a US Embassy or Consulate abroad or else applying for an adjustment of status to permanent residency if in the US.

What is Changing in the Visa Bulletin?

Effective in the October Visa Bulletin, there are now two charts per visa preference category:

• Application Final Action Dates (dates when immigrant visas may finally be issued); and
• Dates for Filing Applications (earliest dates when applicants may be able to apply for adjustment of status).

Applicants can use the charts to determine when they are eligible to file their Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS states that to determine whether additional visas are available they will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants;
• Pending adjustment of status applications; and
• Historical drop-off rate, including denials, withdrawals, and abandonments.

Who is Affected?

The October Visa Bulletin introduces the new adjustment filing date chart and allows many people who have been waiting for their Green Card priority date to become current to now file for the adjustment of status. Significantly the "Dates for Filing" for China-born and Indian-born nationals in the EB-2 category is May 1, 2014 and July 1, 2011, respectively, which is years ahead of these Green Card priority dates (January 1, 2012 and May 1, 2005, respectively). The changes also affect family-based visa applicants. Therefore, someone who has been waiting for a priority date for their Green Card may be able to apply for adjustment of status earlier. They will not get their Green Card unless the Green Card priority date becomes current but they will enjoy the benefits of being an adjustment applicant, namely the interim work card and travel permission that they can keep while their adjustment of status application remains pending.

For those eligible to apply, USCIS has more information about filing the adjustment of status. One of the most sought after benefits and advantages to filing adjustment of status is that applicants can concurrently file employment authorization and travel permission applications. An experienced immigration attorney will be able to advise if foreign nationals are eligible to file for adjustment of status and what the next steps would involve.

UPDATE SEPTEMBER 25, 2015: The Department of State (DOS) has today unexpectedly published an updated and revised October 2015 Visa Bulletin. This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and the revised dates affect priority and filing dates for certain nationalities. US Citizenship & Immigration Services explains:

Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections on pages 4 and 6, which have been adjusted, have been identified in bold type and highlighted.

Applicants are advised to use the revised chart when determining eligibility to file adjustment of status applications. Applicants are advised to consult with qualified immigration attorneys for questions about eligibility and the revised visa bulletin. We will post more information as we receive it.

UPDATE SEPTEMBER 8, 2015: Immigrants are protesting the amendments to the October Visa Bulletin by sending flowers to the Department of Homeland Security (DHS). Inspired by the nonviolent protest methods of Mahatma Gandhi, immigrants are sending bouquets and letters of protest decrying the bulletin reversal that affected thousands of excited applicants who were preparing to file their adjustment of status applications. Many applicants spent between $2,000 to $5,000 to prepare for the applications, not to mention countless hours and often days tracking down often difficult to obtain paperwork.
 
"We started making plans," Sridhar Katta, a mechanical engineer and M.B.A. who lives in Seattle with his wife and sixteen-year-old twin boys, said to CNN. "All our hopes were dashed within a matter of days." So far the Department of Homeland Security has only issued vague comments about the sudden turn-around. One DHS spokeswoman told CNN: "Further analysis of a recently published Visa Bulletin, intended to improve the issuance of green cards, showed that some of the new filing dates in that bulletin did not accurately reflect visa availability." Whatever happens, one can only hope that the sweet smell of the flowers will remove the sour taste left in our mouths.

UPDATE SEPTEMBER 22, 2015: In the latest Kafka-esq development in the ongoing saga stemming from the October 2015 Visa Bulletin updates and revisions that have affected thousands of immigrants, USCIS announced that beginning with the November 2015 DOS Visa Bulletin, if USCIS "determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas" they will state on the USCIS website that applicants may use the "Dates for Filing Visa Applications" chart. Otherwise, immigrants will need to use the the "Application Final Action Date" to determine when to file their adjustment of status applications. USCIS states that they anticipate making this determination each month and posting the relevant chart on their website within one week of visa bulletin publication.

The American Bazaar: "F1 visa students may be allowed to work in the US for 6 years after February 12, 2016"

A District of Columbia judge recently ruled that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 science, technology, engineering, and mathematics (STEM) students Optional Practical Training (OPT) extensions for seventeen months beyond the normal twelve months of OPT. Meanwhile, in an unrelated move, as part of President Obama’s executive actions the DHS has proposed regulations that would potentially allow STEM students to stay in the US for a total of six years.

The ruling on the seventeen-month STEM extensions by US District Court Judge Ellen Huvelle was partially in favor of the Washington Alliance of Technology Workers, who had pursed a case against F-1 STEM students to reduce their STEM extension to twelve months from seventeen, arguing that the STEM OPT extensions generated unfair competition by creating a cheaper category of workers. Judge Huvelle ruled that the DHS must vacate the rule since it did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would create a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, Judge Huvelle imposed a six-month stay until February 12, 2016, a move that should allow DHS to correct and implement the necessary public notice and comment.

In the end, this ruling may not have much impact because of the White House and DHS’s plans to expand and extend the OPT program for students in STEM fields. While the White House or DHS have not released further information about their plans, a letter from earlier this summer from Senator Charles Grassley, chair of the Senate Judiciary Committee, expressing concerns about the DHS plans, arguably reveals the proposed STEM changes.

Based on their briefing with Grassley, the DHS may be proposing regulations that would lengthen the OPT STEM extension period from seventeen to twenty-four months and allow students to take advantage of the STEM extension at two different times in their academic careers instead of only once, potentially “for a total of up to six years of postgraduation employment in student status[.]” STEM students could potentially be eligible for three years of OPT after undergraduate studies in a STEM field and three additional years after postgraduate studies in a STEM field.

Grassley, in his June letter to DHS Secretary Jeh Johnson, said that the proposed change to OPT STEM would permit “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).”

"The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the department was not adequately overseeing it,” Grassley writes.

A spokesperson for Homeland Security's Immigration and Customs Enforcement division said in a statement in Inside Higher Ed that it could not elaborate on its OPT plans. “ICE is in the midst of drafting proposed rules for notice and public comment regarding foreign students with degrees in STEM fields from U.S. universities. Due to rule-making requirements, we cannot discuss the content of that proposed rule at this time,” the statement said.

Extending the OPT period for STEM students would be a welcome move within the international student community, the technology and science industry which employs many STEM workers, and among immigration practitioners, as the extended time would allow more opportunity to file H-1B petitions when the cap has been reached. At this point, however, we can only wait and see what if any changes will be enacted.

UPDATE DECEMBER 3, 2015: The US government has received nearly 35,000 comments on its plan to extend the OPT for STEM students from twenty-nine months to thirty-six months. The comments period closed last month. As was true with the initial ones, the majority of comments received support extending the program, which is not surprising given that as of September this year over 34,000 students were in the United States on a STEM OPT extension, many of whom would be forced to leave if the US government doesn't continue to bring the program into compliance with the law.
 

ABC News: "U.S. Appeals Panel Won't Lift Hold on Obama Immigration Action"

Last week, the 5th Circuit Court of Appeals in New Orleans refused to lift the temporary hold placed on parts of President Obama's executive actions on immigration reform. The Justice Department had asked the 5th Circuit to reverse a Texas judge who had agreed to temporarily block the president's plan in February, after twenty-six states filed a lawsuit alleging Obama's actions were unconstitutional. In the two-to-one ruling, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that "the federal government lawyers are unlikely to succeed" in the underlying lawsuit filed by twenty-six states including Texas against the executive actions. Back in February, 2015, US District Judge Andrew Hanen in Texas, in a scathing decision accusing the government of deception in their representations, ruled to place the temporary hold on President Obama's executive action to expand the Deferred Action for Childhood Arrivals (DACA) and to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The expanded DACA had been set to take effect February 18, and the DAPA program was scheduled to begin May 19. These programs would have granted work authorization and certain protections from deportation to millions of undocumented immigrants.

“The separation of powers and checks and balances remain the law of the land, and this decision is a victory for those committed to preserving the rule of law in America,” said Texas Attorney General Ken Paxton in a statement. While the decision is a victory for Texas and the twenty-five other states which supported the lawsuit, another fourteen states and the District of Columbia have appealed the decision, arguing that the Texas lawsuit failed to consider the economic benefits of immigration action.

''Ultimately, this is just a pause button,'' Laura Collins, the director of immigration policy at the American Action Forum, said to PRI. ''Until the court is able to rule fully on the merits of this, this doesn’t really talk about whether this program is appropriate for the executive branch to put forward.'' White House spokeswoman Brandi Hoffine said in a statement that the two-to-one 5th Circuit Court ruling ''chose to misinterpret the facts and the law.''

US Democratic Rep. Luis Gutierrez also said in response to last week’s court decision:

It is disappointing but not unexpected given the make-up of the Fifth Circuit and the panel hearing this preliminary case.  I am confident millions of immigrants will eventually apply for DAPA and DACA, because the law is undeniably on the President's side, as is public opinion. Meanwhile, I continue to work with Democrats and others who are preparing immigrant communities for the application process once the legal maneuvering is resolved and the courts reject the arguments of the Republican Governors and Attorneys General.  The longer the court process takes, the harder it is to imagine a Republican candidate remains competitive in a bid for the White House, because increasingly, this will be the defining and decisive 2016 campaign issue.

This ruling will not affect H-4 dependent spouses who are now eligible to apply for Employment Authorization Documents (EADs) as part of President Obama's executive actions.