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May 27, 2015

Breaking Immigration News: Executive Action, EAD Processing

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Executive Action still in Court Tangle

The Fifth Circuit Court of Appeals has unfortunately denied the government's request for an emergency stay on Judge Hanen's injunction against DAPA and expanded DACA. After the president announced these programs last November, a group of Republican state officials sued the administration over them. In February, a Federal District Judge put an indefinite delay on their implementation. The government appealed this decision to the Circuit Appeals Court, asking to essentially undo the delay. In a 2-1 ruling, the Appeals Court denied this request, putting DAPA and the DACA expansion into a very uncertain situation.

If allowed to carry on, these programs would provide temporary relief from deportation and give work authorization to up to five million undocumented immigrants. This group is still less than half of the undocumented population and is very deserving of protection. These are people that were either brought here before the age of 16 or are parents of lawful permanent residents or citizens. In both cases, recipients would have had to have been continuously present in the U.S. since 2010. We believe that these executive actions are legal and are good for the economy, so we are saddened by this situation and hope for a swift resolution. The ruling was only preliminary: in July the Court will hear arguments for and against the lower court's delay. At the same time, the lower court will review the legality of the program, though those in favor of reform believe that this judge is biased against the administration's efforts on immigration in general.


Lawsuit Underway to Improve EAD Processing

On May 26th, a class action lawsuit was filed to fix USCIS' recent problem with the issuance of Employment Authorization Documents (EAD). When EAD processing takes longer than expected, a temporary "interim" EAD is supposed to be granted. This policy exists because of the essential nature of the right to go to work and earn a paycheck. There is a problem because processing delays are becoming more prevalent. The problem is made serious by the fact that interim EADs are getting hard to find. Indeed, USCIS representatives recently indicated that the agency has stopped issuing them altogether.

This policy is leaving those affected without the legal right to work in this country. The consequences involved are almost too obvious to mention, but the situation becomes alarming when it is added that the problem also applies to EAD renewals. A lapse in work authorization potentially leaves one's employer with the heartbreaking choice between laying off a loyal employee or facing fines (or worse) by ICE. To some immigrants, because of state law, a lapse in work authorization can even lead to loss of driving privileges--according to the American Immigration Council. Needlessly allowing these difficulties to ensue is not only bad for those immigrants (and immigrant families) involved, but it is also bad for the economy. We fully support this lawsuit and will monitor it closely.

May 25, 2015

Material Changes and H-1B Revocation

rejected-865417-m.jpgMany companies are pushing to increase the annual cap on H-1B visas, but this effort has found opposition. Some say the program is riddled with fraud, while others oppose the program altogether. Perhaps because of this, USCIS goes to great lengths to enforce its regulations. A recent case reveals insights into how it does so.

The case, Matter of Simeio Solutions, involves an H-1B beneficiary who was ostensibly (according to the I-129 petition) hired to complete "in-house projects" for clients at the company's home office in Long Beach, CA. The beneficiary would thus not be sent to other worksites and would only work under the petitioner. The Labor Condition Application (LCA) and included Prevailing Wage Determination (PWD) reflected this. However, if USCIS was convinced that these circumstances would not change, it wasn't for very long.

The beneficiary began working for Simeio as an F-1 student during OPT (which is a short-term work authorization that alien college students can take advantage of after graduation). During this time, an H-1B petition was filed on behalf of the immigrant by this same company, which was approved. The beneficiary then went home to undergo a consular interview to receive the visa. As usual, the consular officers wanted to verify some things on the petition. It is not public information what the officer said in the interview, but it is known that as a result, the petitioner was made to submit some additional evidence.

The evidence requested pertained to the specific role the beneficiary would fulfill in relation to the work done for the clients mentioned in the petition. Also requested was a letter from one of these clients, confirming some information. The consular officers seem to have correctly suspected something. When the petitioner came in contact with the State Department, it was not to provide this specific evidence. Instead, it was to indicate that the beneficiary's role was slightly different than what was described on the petition. The beneficiary was in fact working for several other clients in the area, none of which were described on the petition. Though they may have appeared satisfied with the petitioner's response, the consular officers forwarded the petition along with this new information back to USCIS.

USCIS' response was swift. Agents conducted a surprise site visit of the petitioner's home office--only to find that the space was no longer in use. They then contacted the signer of petition, who confirmed that the company instead was using an employee's place of residence as the primary business address. The agents went there and interviewed the employee. They then determined that many employees, including the beneficiary at the heart of the case, were each assigned to several (at that point undisclosed) end-clients--and were working from their homes. The discrepancy between the petition and reality was enough for the agency to send out a Notice of Intent to Revoke (NOIR) the petition.

Simeio had the ability to respond to the NOIR, which it did with the apparent desire to save its case. The information provided cohered well with the results of the investigation. The company revealed that the beneficiary was in fact operating in worksites different from the one originally disclosed, but these sites were in areas very far away from the territory covered by the original LCA. This means that a new LCA and PWD would have been required before the beneficiary could have gone to work at the other locations. These were included in the NOIR response, but USCIS was unmoved and revoked the petition. It was too little too late.

In order to avoid situations like Matter of Simeio Solutions, any time there is a change in an H-1B worker's situation that "may affect eligibility" (which is otherwise known as a "material change"), an amended (or new) petition reflecting it must be submitted. Changes in geographic area affect prevailing wage, so a new PWD was required. In fact, the prevailing wage for the beneficiary's position in the original area was much less than in the areas where the work was actually being done. Because the beneficiary was paid a wage very close to the original prevailing wage, the petitioner was in actual violation of the H-1B program (for paying the beneficiary less than the true prevailing wage). But USCIS holds that even if this were not the case, there would still have been a revocation, because the actions of the company had the possibility of affecting the beneficiary's eligibility.

May 25, 2015

Alternatives to the H-1B

visas.bmpThe H-1B visa program is very successful. Since its launch in 1990, it rose in usage until hitting its statutory cap of 65,000 new temporary workers annually seven years later. At the time, it was raised temporarily to accommodate the tech boom, but this higher cap was allowed to expire. Since 2003, it has sat at the original 65,000 with an additional 20,000 set aside for those with master's degrees.

Congress may raise the cap as part of a comprehensive immigration reform bill, but this does not appear likely to occur for at least another few years. Despite the increased chance of failure due to being capped out, the amount of H-1B petitions received by the government continues to rise each year. It has thus become necessary to seek alternatives. Many employers will likely be unable to take advantage of these alternatives, but it is worth investigating.

Most of these visas are in some way superior to the H-1B (in that those eligible for both would likely be wiser to opt for the alternative). Unsurprisingly though, qualifying is a significant hurdle. But it is likely true that several employers who desire to use the H-1B program could just easily enough convert their foreign hiring for it to make sense to use one of these alternatives.

Cap Exempt H-1B
The most obvious way around the cap issue is to file in one of the "uncapped" fields. However, this workaround is more for aliens who want the visa than employers who are not now eligible to sponsor uncapped petitions. Nonetheless, employment relating either to universities, their affiliates, or certain nonprofit institutions is not subject to the H-1B cap. For more information, click here.

H-2B
Some employers may be in serious need of labor due to their experiencing unusually large work volume. If so, they may be able to bring in several H-2B workers once these facts are established with the government. The hiring of H-2Bs follows the same Labor Department restrictions as H-1Bs: prevailing wage determinations and Labor Certification Applications (LCA). This visa is normally only available to people of certain countries, though those not on this list may apply to be exempt from this fact on grounds of national interest. More information can be found here.

L-1 Visa
International businesses that have subsidiaries or branch offices in the United States can transfer managers, executives, and employees with "specialized knowledge" from abroad to their U.S. locations without a cap, prevailing wage, or LCA considerations to worry about. Aliens can also be sent to the U.S. to create new offices (but with additional restrictions). Either way, the employee must have been employed by the company abroad for at least one out of the last three years. The requirements for this visa are considerable, so further reading may be necessary. L-1 visa holders may stay in the U.S. for up to five or seven years at a time--for specialized knowledge employees and managers/executives, respectively.

B-1 Visa
Also for employees of foreign companies, the B-1 can be a means of importing professionals to do work connected to their foreign employment. However, this must be on a very temporary basis: usually no longer than six months. The tasks to be performed must require special skills in the same vein as an H-1B position. Also, the alien must be compensated by their foreign employer rather than any U.S. affiliate or client. We have a page dedicated to discussing the B-1 in lieu of the H-1B.

TN Visa
If an employer's labor needs can be satisfied by Mexican or Canadian professionals, he or she may want to request TN classification, which allows their nearly unrestricted hiring. (Though, it is only available for certain occupations.) The visa also comes without the need to think about caps, prevailing wages, LCAs, or even duration of stay limits. We have more on this visa here.

J-1 Training Visa
U.S. employers that are able to offer rich experiences of cultural exchange may apply to become J-1 sponsors. If this move is successful, it becomes easy to sponsor aliens for the visa. J-1 visa holders can essentially become paid interns and perform "on the job" training. However, these visas are usually only granted for 18 months at a time and are not meant to be indefinite. More information can be found here.

O Visa

The O visa is an option for those with "extraordinary ability" in their fields. After foreign nationals are considered to have it by the government, there is not much additional difficulty either for them or their prospective employers. Naturally, obtaining this consideration is usually very difficult. We have more on the subject here.

Contact us today if you believe you can take advantage of any of these programs.

May 15, 2015

Asylum for Iraqis and Syrians

children-crossing-2-1209887-m.jpgResidents of Iraq and Syria have a somewhat rare opportunity in their wide ability to receive asylum in the United States. The process by which this may occur could be onerous for some, but it frequently is resulting in total U.S. immigration success. Those granted asylum may apply for permanent residence if the situation that led to their approval does not resolve itself within one year. For many who are asylum eligible, the only true difficulty is finding a way to reach the United States. Once there, the granting or denial of asylum will be based on how potentially dangerous it would be for the foreign national if he or she is sent back (among some other factors).

Since 2011, several locations across North and East Africa and the Middle East have become destabilized. This has paved the way for radical groups with oppressive ideologies to organize and in several cases seize whole territories. Perhaps chief among those is the Islamic State (IS). Not surprising considering its former name; the Islamic State of Iraq and Syria, the group is the dominant force in many sections of those countries. In these sections, national authorities have little to no control, and those with the great misfortune of living in them are trapped with little to no reasonable means of escape.

Foreign Nationals are eligible for U.S. asylum in most cases only if they prove that they have a "reasonable fear" of serious persecution primarily on the grounds of "race, religion, national origin, political opinion, or membership in a social group." The persecution must be shown to either be coming from one's government or from forces that it is unwilling or unable to stop. It is not in serious dispute that IS counts as one of these groups. Thus, anyone who enters the United States with a reasonable fear of falling into IS's hands if sent home is eligible. A "reasonable fear" for the purposes of asylum is an apparent likelihood of at least one to eight that the alien will be persecuted on one of the listed grounds.

Some Iraqis and Syrians are in situations dire enough for their likelihood of asylum success to be very high. Members of religious minority communities, including the Yezidis, the Druze, and even Christians should be able to demonstrate reasonable fear of persecution at the hands of radical Islamists. Some Iraqi Sunni communities have reasonable fear of sectarian persecution. Due to the Kurdish resistance and general demand for an independent Kurdish state, Kurds may be able to demonstrate reasonable fear of ethnic violence from several parties. Those who have identified with the Syrian Opposition may have a reasonable fear of retribution from the government in addition to the fear of being captured by IS or others. And even those who sympathize with the Syrian Regime or those who have stood up to government corruption in Iraq may be able to make similar (retribution based) reasonable fear arguments, albeit on somewhat weaker grounds.

The numbers suggest amply that at least some reasonable fear arguments are working. Over the past two years, less than 5% of asylum cases with people of those nationalities have ended in denial, and over 80% have ended in approval. (The others fall into several categories, but most are likely still in the U.S. pending further action.) It should be kept in mind that each asylum case is somewhat different. One truth that holds across all cases, however, is that the more contact one can have with an experienced immigration attorney before arriving, the better.

Another thing to consider is that Syria and ten other countries are under Temporary Protected Status (TPS). Any Syrian that has held U.S. residence since January 5th and has been continuously present since April 1st is eligible to apply for TPS. Those who receive it may stay at least until September 30th 2016 and receive work authorization. Those who receive TPS are often also those who can put together a strong case for asylum.

For anyone who stands a good chance of receiving asylum--but is not already in the country--the situation is likely dire. The first course of action would be to seek a tourist visa from a U.S. consulate, though this may not work. Simply arriving at a point of entry and asking to seek asylum should be considered a last resort. But for some it is the only way, and it has led to success in the past. However, anyone reading this article should be able to contact us so that we can help find a better strategy.

May 13, 2015

The Child Status Protection Act Protects Children from Aging out While Adjustment Is Pending

1215912_paper_chain_in_the_dark.jpgBefore the Child Status Protection Act was enacted in 2002, children who turned 21 while their permanent residence applications were pending were no longer considered children for immigration purposes and could no longer get a green card as an immediate relative. This circumstance is known as "aging out." Foreign national children of U.S. citizen parents are eligible to obtain permanent residence (or green card) as an immediate relative. A child is defined by the Act as an unmarried person under age 21. Many people were aging out as a result of the huge backlogs and long processing times, and Congress enacted the CSPA in order to remedy this.

Thanks to the CSPA, once a U.S. citizen parent files a visa petition (Form I-130) on behalf of the child, the child's age freezes for immigration purposes. Therefore, if the child becomes 21 while the petition is pending, the person is still considered to be a child and is still eligible for permanent residence. If a permanent resident parent becomes a naturalized U.S. citizen, the child's age freezes on that date. For a child with a pending application for permanent residence based upon a preference classification, the CSPA allows the time the application was pending to be subtracted from the child's biological age.

Continue reading "The Child Status Protection Act Protects Children from Aging out While Adjustment Is Pending" »

April 22, 2015

Chinese EB-5 Retrogression: What Does it Mean?

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Starting May 2015, EB-5 availability will be restricted for Chinese applicants. I-526 petitioners/applicants that receive approval from then on will have to indefinitely postpone their plans to enter the United States (unless, of course, they are able to get some other visa). In this sense, the introduction of a cutoff date is no different for EB-5 than it is for EB-2 or 3. However, further analysis indicates that the difference is significant. Priority date cutoffs result in a fundamental change in the EB-5 program.

On the I-526 petition (which begins the process) immigrant investors must submit a credible business plan along with evidence that the required investment is being made and will be at financial risk. In normal circumstances, once this petition is approved, the immigrant is given a two year period of conditional residence to (help or fully) manage the investment and fulfill economic requirements, which involve the saving or creation of at least ten jobs. After the two years have transpired, an I-829 petition must be used to prove that those requirements were met. The immigrant investor must essentially show that the plans set forth on the I-526 petition were carried out. Approval here translates to unconditional permanent residence. Crucially, it must also be shown that the immigrant never liquidated the investment.

Though EB-5 conditional residence visas are comparable to nonimmigrant investor visas, their distribution is subject to the same annual caps as unconditional green cards. This is where difficulty becomes apparent. In order for a Chinese national to receive I-526 approval for a direct filing (non-regional center), he or she must present a business plan with the strong potential to lead to the employment of at least ten U.S. workers over the next two years. Accompanied must be evidence that he or she will be able to maximize the plan's chance of success. It would thus be apparent that non-regional center EB-5 among Chinese nationals necessitates something that cannot obtain: that their U.S. residence would start immediately following the approval of their I-526 petitions. This issue, while perhaps affecting less than half of Chinese EB-5 filers, appears fatal to their ultimate success.

The two most promising ways out of the dilemma are either if the immigrant can predict when conditional residence will start on the I-526 petition, or if he or she can somehow be allowed to manage the investment from abroad. The first seems possible only if the priority date cutoff is almost redundantly close to the present day, as priority date movements can be very sporadic. Though usually accurate, relevant predictions from the Visa Office don't extend very far into the future. The second does not seem like a business plan that USCIS would approve, and the legalities of such a situation are not clear or well defined. Chinese direct EB-5 thus appears unavailable. If it somehow isn't, there's still the awkward question of how long to wait before submitting an I-829 petition. Should one wait two years plus the unknown amount of time it would take for the priority date cutoff to reach the present--or just two years? The difficulties inherent to potential answers leave this question open.

While direct EB-5 seems out of the question for new Chinese filers, their use of regional centers may still be feasible. There is no apparent reason why immigrant investors need to be in the country for this. However, there are other pitfalls to be considered. The amount of time an investor must keep his or her money at risk has become somewhat indefinite. I-526 approval requires showing that a capital investment has been made, and I-829 approval requires that the investment was sustained. The new waiting periods will occur between these two events, adding extra uncertainty and making the program much less attractive. Lending $500,000 to $1,000,000 to a regional center for an indeterminable amount of time plus two years isn't an ideal investment prospect. Further, because their investors are investing in order to immigrate (rather than the other way around), the centers have been able to focus on things other than maximizing return.

In addition to this, Chinese immigrant investors also must consider whether their children over 16 (if they have any) will reach age 21 before the waiting period ends. If so, the children may lose their chance at gaining permanent residence along with their parents. While these challenges are not insurmountable, they make the program much less attractive. We will be publishing tips on coping with them soon. Nonetheless, we predict that many potential Chinese immigrant investors will decide against the program due to its apparent high uncertainty and limited potential for profit. But because of this, in a few years the waiting period may be removed. We hope that a more permanent solution will be devised by then.

April 10, 2015

Visa Bulletin System under Court Scrutiny

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Each month, the State Department releases the Visa Bulletin, which is how it announces who is eligible to apply for permanent residence. More precisely, it answers the question of "who has waited long enough for it?" This involves a very complex process, so we recently did our best to explain it in [two publications]. Regulations from the most recent comprehensive immigration act (which took effect in the early 1990's) stipulate several immigration categories and a per country cap (among many other things). State's method of compliance with these regulations is the determining factor for who gets visas, but the District of Columbia Circuit Court of Appeals has found that the Department may be going, perhaps illegally, much farther than law dictates.

Chinese EB-3 immigrant Meina Xie has been waiting for the State Department to give the go-ahead on her petition for permanent residence for over eight years. There is some evidence that this kind of delay cannot be helped. First and foremost, no more than 7% of any year's annual visas can go to immigrants of one particular country. Being that she is from the world's most populous country--and is petitioning in a lower preference category, delays were likely inevitable. Although the decision recognizes this, it finds also that State may be abusing its authority in the degree of subjectivity with which it distributes visas.

At the heart of Xie's case is a statute that State is apparently ignoring: § 203(e)(1) of the Immigration and Naturalization Act of 1990. It says "[permanent residence] shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed." Believing that citing this statute in court could finally end her waiting period, Xie sued. The judge in the original case sided with State, however, who argued that Xie's complaint failed to identify a specific and discrete instance of its ignoring a legal responsibility. The appeals court disagreed, finding that asking for application of 203(e)(1) was sufficient grounds for a suit because State failed to show adequately that it was in fact following it.

Instead, the court took note of a practice that may be in violation of this rule. Xie falls in the "Other Worker" sub-category of EB-3, which is arguably the easiest employment based immigration option to qualify for. This translates to longer wait times, as there are only 5,000 visas each year available for Other Workers, out of 40,000 for all EB-3 immigrant workers. The rest of them are for the "Skilled Worker" and "Professional" sub-categories. For some reason, however, only 319 Other Worker visas appear allocated to China. The court noted that this makes it seem that State is applying the 7% rule from the per country limits to the Other Workers sub-category when it need only apply it to the total visas of all types given to people of a particular country.

It may at first seem acceptable that State is subdividing categories to ostensibly comply with a regulation affecting the universe of visas, but the Court said that doing so may be in violation of 203(e)(1). "Other Workers" from China who have been waiting for years could be given visas while other Chinese immigrants are made to wait a little longer. The Court stopped short of mandating this--and far short of saying that the statute mandates a literal one-by-one temporal queue. However, it did say that Xie probably deserved to have had her petition at least examined by now, considering how many immigrants across all categories that petitioned after her but had success long ago.

In the Court's view, State did not provide sufficient evidence of its behavior's being due to statute rather than in spite of it. In its defense/explanation, the Department said it has the ability to justify the visa distribution with its predictions of future demand, among other things. However, the Court held that so long as State appears that it may be in violation of 203(e)(1), the case will not be dismissed, as was done in the lower court. Instead, it reversed this dismissal and gave the case back to the original court with instructions to not rule in State's favor unless it is better able to make its case. In closing, the Court noted with some annoyance that the Department did not share its formula for creating the Visa Bulletin. Without the formula in hand, it may be difficult to determine if statute is being upheld or not. It is therefore likely that State will soon provide the formula--or face an unfriendly ruling.

March 25, 2015

H-1Bs are not displacing American Workers

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Congress is at an impasse on the question of how to fix our often dysfunction--and never ideal--immigration system. There has been debate, and bipartisan solutions have been put forth, but none of this has resulted in any actual reforms. The last time the immigration system was updated was 1990. Since then, the partisan divide--and political distrust--has been on an upward trend. As needed as it is, immigration reform seems to just be too great of a political risk for too little reward. Even comparatively small reforms, such as increasing the H-1B cap (which technically isn't an immigration issue), cannot escape controversy any longer. We have argued in another article that the cap, which demand exceeds threefold, should be raised as soon as possible. However, others are beginning to make it known that they do not share this view.

Some of the biggest supporters of raising the cap are tech industry giants who say that doing so will increase their global competitiveness. At least a plurality of H-1Bs go into the IT field. Nonetheless, there has been an increasing prevalence in the tech community of the view that the current H-1B system harms American workers and is bad for the country. Several technology publications have claimed that the H-1B system's built-in protections for the American worker are simply not working. They are referring to the Labor Certification process, the effect of which is to ensure that no H-1B worker is taking a job that Americans are actively seeking--or working for less than the "prevailing wage" for that job. (The prevailing wage can be thought of as the "going rate" or fair pay for the job, when all things are considered. The U.S. Department of Labor calculates this amount.) The issue is that H-1B workers are increasingly getting IT jobs, while the apparent threat of layoffs among American IT workers is also on the rise.

Technology publications, and recently conservative media, have pointed out that H-1B workers are in some instances replacing American staff, being paid less to do the same work. Critics believe that this is (or at least ought to count as) a violation of Labor Certification requirements. There are several problems with this view. To begin with, nothing in the regulations say that H-1Bs cannot replace American workers. There are only two (major) types of violation. The first is when there is an equally or better qualified candidate seeking a job that is instead given to an H-1B, and the second is when an H-1B works for less than the assigned prevailing wage.

Admittedly, replacing a great deal of American workers in order to hire H-1Bs to cut costs does sound like something the Labor Certification process should prevent. But there is a key fact that the critics are apparently ignoring. It is not necessarily implied that two people are in the same employer or occupation even if they perform some of the same exact tasks. This argument against raising the visa cap fails to consider that the foreign aspect of the replacement workers might not be what caused the layoffs. There may be an appearance of American workers being displaced due to the presence of foreign ones, but this characterization is incomplete at best and misleading at worst.

There is a growing trend in employment that is especially prevalent in the tech industry; a trend towards the use of staffing agencies instead of hiring in-house staff. The amount of companies reporting that they intend to hire temporary workers has jumped over 15% in the past decade, almost reaching 50% of all employers, according to USA Today. Further, the analytics company WANTED Technologies found that 70% of "high volume" positions for staffing agencies are in the IT field. It just so happens that many H-1B workers want to come to the U.S. to fill this demand for temporary work. After all, they are well suited for such work, given the temporary nature of their visas.

Not all companies need permanent IT staff. In fact, with the huge advancements over the past decade, much more can be done with less people. Large projects may come up from time to time, so it is economical to keep only a skeleton staff permanently while importing temp labor when it is needed. This allows companies to maximize efficiency while the temp workers can maximize their employability (by being moved around by the staffing agency that directly employs them). It should be easy to see that it is a mistake to blame the H-1B program for this.

A major case recently highlighted in tech and conservative media as being a prime example of the H-1B harming American workers is based on this very mistake. (We have covered the issue in a separate article.) While it could be true that some companies are able to circumvent Labor Certification protections, our firm's experience is that these fears are not well founded. Even if Congress refuses to raise the H-1B visa cap, we predict that there will still be a process of firing and rehiring in the tech field as companies try to do more with even less. Instead, workers that could be bolstering American tech dominance here would be working to undermine it abroad. This cannot be good for the job security of most American tech workers.

March 23, 2015

Opponents of Raising H-1B Cap Mistakenly Blame H-1Bs for Layoffs

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Technology companies have been pushing Congress to raise the cap on H-1B visas, which provide foreign nationals a three-year stay in the country to work in a specialty occupation. The unified industry support indicates that the major players think they can take advantage of the surge in talent that would accompany the additional visas. Unless these large companies are mistaken, this small reform would give American technology companies an edge over their overseas counterparts. Bipartisan support for this reform had been growing due to the fact that no one was challenging it, until now. Southern California Edison (SCE), a large utility provider in its region, recently laid off a significant amount of tech staff and instead brought in the tech solutions company Infosys for staffing. One of the laid off employees, J. Palmer, recently went before Congress to argue against raising the H-1B cap. Most of the Infosys employees that have been assigned to SCE are apparently H-1B workers.

Palmer argued that not only was SCE mistreating its loyal employees, the situation also constituted an abuse of the H-1B visa program. Specifically, he says tech companies are using it to get cheap labor, and in doing so, are displacing American workers. The program has minimum salary and qualification requirements to prevent a "race to the bottom" in American labor circumstances. Palmer says that these requirements, which are manifest in the H-1B Labor Certification process, are failing American workers--or at least the SCE employees that were laid off. The process' immediate purpose is ensuring that the presence of H-1B workers doesn't lower the average wage paid to Americans--or prevent equally-or-better qualified Americans from getting jobs (that H-1Bs are seeking). By making these claims, Palmer is implying that what happened at SCE goes against what the H-1B program is meant for--and is in general a bad thing for the country.

Being laid off is a sad situation, but it is a fact of life in a free market. SCE came to the opinion that its decision to use Infosys for IT staffing instead of retaining its current staff would allow it to cut costs, increase efficiency, or both. This will allow it to offer lower rates to its customers and/or return dividends to its investors. But, this is precisely the problem, according to Ron Hira, public policy professor at Howard University. "[T]he average [salary] for an H-1B employee at Infosys in FY13 was $70,882" but "the average [salary] of a Computer Systems Analyst in Rosemead, CA (where SCE is located), [was] $91,990 (according to the U.S. Department of Labor)." These numbers, along with the fact that Infosys doesn't sponsor very many of its employees for permanent immigration, led Hira to conclude that "the H-1B workers Infosys [hires] are being used as temporary, cheaper, disposable labor, not as a way to permanently introduce talent and innovation into the American labor market." The tech news site ComputerWorld calls this situation an "injustice."

Hira takes this a step further, saying that because "SCE's IT specialists were earning an average annual base pay of $110,446, Infosys [gets] a 36 to 41 percent savings on labor costs." However, this means the SCE IT specialists' base pay was $18,000 a year more than the average "Computer Systems Analyst" in their own town. Even ignoring this, however, the data provided is nowhere near enough to justify the claim that the H-1B program is to blame for the layoffs. To begin with, one cannot deduce how much the Infosys employees assigned to SCE are making based only on the average salary of Infosys employees in general. But this is somewhat irrelevant, because the Infosys employees are not even in the same occupations as the laid off workers.

The laid off workers were permanent IT staff, whereas Infosys is supplying SCE with IT solutions in the form of a cohesive temporary staff that emphasizes efficiency in order to cut costs. Working at a staffing agency does often result in lower wages, but it also results in more work opportunities, which is why it is an increasingly attractive option for managers and workers alike. The SCE case isn't one about foreign labor resulting in layoffs. It is instead an example of how the rise of tech staffing companies (that H-1Bs want to work for) is leading many to erroneously believe that the H-1B program causes tech layoffs. (We cover this issue as a whole in a separate article.) Thus, this case should not be seen as any reason to not raise the H-1B visa cap.

March 21, 2015

Some bad Bills now being Debated in Congress

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Some bad bills that may adversely affect our clients (and immigrants in general) are being put forth by the House of Representatives. We do not believe that any of these bills stands a good chance of becoming law, but it is important for the public to know what Congress is up to.


The "Legal Workforce Act:" HR 1147

This bill would harm tens of thousands of qualified workers by requiring their prospective employers to put them through the clunky at best and unreliable at worst E-Verify system. The system is a way for U.S. employers to check to see if their potential hires are qualified to work in the country. Though the system has existed for almost 20 years, errors are alarmingly frequent. In 2012, one half of one percent of attempted uses of the system resulted in its erroneously reporting that a foreign national was ineligible to work. This seems small, but because this mandate would affect 30 million new cases each year, around 150,000 people can expect to lose a chance at employment because of it.

The bill would cause these false-denial victims to be promptly dismissed from consideration for the job. Unsurprisingly, the vast majority of the error victims in 2012 were immigrants and foreign nationals of racial minorities. Even for those who managed to avoid denials, the rapidity of this implementation would tax the system, likely leading to widespread delays.


The "Honor of State and Local Law Enforcement Act:" HR 1148

This bill is like Arizona SB 1070--but would apply nationwide. It would authorize local law enforcement to "enforce federal immigration law" by arresting and detaining those who officers deem to be "illegal aliens." It is unclear what system, if any, officers would use to determine who to target. Beyond requiring the Department of Homeland Security to provide the list of people that it believes should be removed, no method of complying with federal enforcement priorities has been posited. What it does do, however, is eliminate officer liability for violating due process rights in pursuit of its enforcement.

If enacted, this bill would thus enable law enforcement to warrantlessly detain undocumented immigrants that have been granted deferred action under the president's executive action plan, if they so choose. The following was found on an official web posting aimed at stirring up support for the bill: "we trust state and local law enforcement officers to enforce every other category of law. So if we trust them to do all that, we should give them a role in enforcing our immigration laws. This just makes sense." The argument in fact does not "just make sense," because it fails to consider that this new authority would lack oversight and circumvent constitutional limitations to which officers are now subject.


"The Asylum Reform and Border Protection Act of 2015:" HR 1153

It is U.S. policy to grant asylum to those who can demonstrate a "well-founded" fear of persecution based on race, religion, political opinion, or membership in some group. This bill would make it harder for asylum seekers to appear before an immigration judge, where this determination is supposed to take place. Before being able to do so, seekers must go through a preliminary screening. If this bill were to become law, these screenings would be transformed from fact-finding opportunities to situations where asylum seekers must prove their case for asylum without the right to legal counsel. This may not seem so harmful until it is considered that asylum seekers have come long distances to escape persecution of all kinds--and could be placed in severe danger if sent back. Many of those who could prove their case before an immigration judge given the right circumstances would be sent into potentially severe danger if this bill became law. Even worse, it would require detaining these people while their fate remains uncertain.


The "Protection of Children Act of 2015:" HR 1149

This bill is a troubling offshoot of the preceding one: it would make obtaining asylum especially difficult for unaccompanied children. It would expedite the process for determining if they are at risk, giving the task to border patrol agents who, in the process of doing their difficult and dangerous jobs, may be unable to accurately determine this risk. There are several protections now in place that give children the right to a thorough determination of their risk of being persecuted or trafficked. The bill would instead treat these children as illegal immigrants found attempting to cross the border, even if no attempt at rogue entry is made.

March 20, 2015

A Small Win for H-1B Filers

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A recent case before a U.S. District Court illustrates the restrictiveness of USCIS regulations and its interpretation of statutes. Nonetheless, the judge reversed an H-1B denial, thereby validating as effective a few methods of supporting H-1B petitions. The judge in Washington State ordered USCIS to reverse its decision in denying an H-1B visa to a South Korean national wishing to work as a healthcare manager at an acupuncture and Eastern Medicine clinic in Lynwood, WA.

Upon review of the plaintiff's petition, the agency denied it on two grounds: that the position did not qualify as an H-1B-worthy "specialty occupation"--and that the foreign national (FN) was not qualified for it, even if it were. Regardless of the evidence for or against this point, the core of this argument appears to trip over itself, because few occupations are both too general for H-1B workers while also excluding most working adults from qualifying. One would think that only one of these claims would be made. Either way, the court examined and rejected the government's position on both of these counts.

It its denial of the petition, USCIS acknowledged that "most" of those who occupy the position of healthcare manager do have a bachelor's degree, but some apparently don't. Specifically, the agency held that a degree "isn't a requirement to enter the field." The response continued by saying that for those employers that do require a degree, it need not be in anything specific. USCIS seemed to be saying that a specialty occupation needs a special degree as a requirement for the job. The plaintiffs had argued that the job has special requirements that are fulfilled by the FN beneficiary's credentials. USCIS instead decided that the job did not have those requirements and that the beneficiary did not have those credentials.

Before getting into the court's analysis, it is worth taking note that the above sheds some light on what the USCIS officer reviewing the case may have been thinking when issuing the denial. It seems that when considering the nature of the occupation, it somehow came to the opinion that it was only considering a petition to fill an entry level position in healthcare management rather than reviewing one to fill the position of "healthcare manager." This is an important distinction.

As is usual when the agency isn't immediately impressed by a petition, a Request for Evidence was sent to the petitioning business. The specific evidence requested included the job description and position requirements, what makes it a "specialty occupation," the nature of the specific duties it entails, and information regarding the foreign national beneficiary's education and qualifications. Looking at the evidence that the government requested (along with their reasons for the denial), it seems likely that it did not take the business seriously. Our view is that the government thought the position was created for the purpose importing a specific person.

This of course would be a clear misuse of the H-1B program. At the time when the case was submitted, the agency had reason to be suspicious of many H-1B petitions. Due to the partial economic recovery, there was a spike in the demand for employment-based immigration. This increased the amount of time many immigrants had to wait until being able to work for their U.S. employers. Because of this, the H-1B visa was increasingly viewed as a way of side-stepping the waiting period. However, the visa exists only to supplement the U.S. work force with foreign specialized skills. USCIS seems to feel that the program is ripe for abuse--and that its mission is to prevent this.

It doesn't matter that there is no direct evidence of such abuse in this case. A healthcare manager at an acupuncture clinic doesn't perfectly fit the prevailing notion of what an H-1B position should look like. So, when the business responded with evidence of the specialty nature of the position and the credentials of the FN, the government appears to have grasped at straws looking for reasons to deny the petition. In issuing his reversal of the denial, the judge said that the agency plainly ignored evidence that a reasonable person would have seen as verifying the FN's credentials. The business had a Duquesne University professor verify that the FN's experience qualified her for the position--and provided certifications of the professor's competency in doing so. These certifications are what the judge found the government to have blatantly ignored.

The judge also found that USCIS' restrictiveness in its reading of regulations, if valid, would have unacceptably limited the amount of qualifying specialty positions. While this is a win for potential H-1B workers, there are two things that limit the intensity of our celebration. The first is that it isn't always economical to challenge USCIS in court like this, so many people may be victims of wrongful denials without means of recourse. The second problem is the H-1B cap. Until the cap is raised, simply filing a qualifying H-1B petition is no guarantee for a visa. It only guarantees entry into the H-1B lottery system that is now in use. Nonetheless, the fact that the plaintiffs won in this case will create a precedent that may save some FNs from experiencing an H-1B denial.

March 12, 2015

Getting Through EB-5 Business Plan Changes

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In this article we discuss the effect that USCIS regulations have on immigrant investors whose operations may need a course correction in order to fulfill the requirements of the EB-5 program--and how best to proceed in light of them. In another article, we detail the difficulty in the program that makes this an issue, and USCIS's reaction to it. The agency has issued guidance that is at best insufficient and dangerous at worst. The potential issues and inadequate government response to them necessitates independent analysis.

An example may prove illustrative: a typical EB-5 investor is running a restaurant. Over a year into the conditional residence period, the business isn't doing very well. A local university has opened a branch campus nearby, drawing in a few major restaurant chains. Students and original customers alike are flocking to these other restaurants. However, no new coffee-houses, where students spend a great deal of time and money, have appeared yet. In this case, converting the restaurant into a coffee-house would seem like the best bet. However, the I-526 business plan specifically envisioned a sit-down restaurant with tipped waiters.

Assuming the investor wishes to avoid the negative consequences of filing a new I-526 (detailed in the other article), the options are few. The most obvious one is to simply record the changes in the I-829 petition to remove residence conditions. However, this will intrigue a USCIS officer and invite serious scrutiny. Even if the evidence of job creation is rock-solid, this could lead to a denial. (Of course, failure to record such changes is even riskier.) The position apparently taken here by the government is "if there were changes, they had better have been worth it, though we reserve the right to deny." This seems unfair--and in fact is not necessitated by law. It is due only to an interpretation of USCIS regulation, which is often much stricter than statute.

The "no changes" requirement is an interpretation the following: "the business plan in the I-526 petition must serve as the basis for determining at the I-829 stage whether the investment has been sustained throughout conditional residency and that at least ten jobs have been created (or will be within a reasonable period of time) as a result." However, statute does not necessitate a job creation test at the I-829 stage. (This could be why the "within a reasonable period of time" standard exists.) While the job requirement itself does not appear subject to challenge, the reasoning above does.

Immigrant investors should therefore not have to fear denial on the grounds that they deviated from the approved business plan. But these denials do happen, and while some immigrant investors could be in a good position to challenge them, there is a better option than waiting for the condition removal stage. USCIS's view of the case could be gauged in the form of an I-526 amendment. If the amendment is sent in the style as a progress report with good news of job creation, the government's bias against business plan changes could be allayed. On the other hand, if the government reacts angrily, the investor would still have time to weigh his or her options. While the agency thinks business plan changes are grounds for I-829 denial, nothing in the regulations say anything about using those changes as grounds for revocation of conditional residence.

The preceding discussion applies (indirectly) to regional center investors. True, the ability to rely on "indirect jobs" (and the significant leeway attached to how and where they spring forth) prevents the job creation requirement from being a reason to deviate from the business plan. However, regional centers still sometimes fail to create enough jobs (or simply go under). In this sort of situation, an immigrant investor could use an I-526 petition amendment to explain what went wrong and show what plans he or she has to fulfill the requirements of the program. This seems sensible because of the "reasonable period of time" standard--and the fact that regional center failure is, at least on paper, someone else's fault. Not allowing the immigrant investor the chance to pick things up after these difficulties is not only unfair, it also goes against the spirit and intent of the EB-5 program. A denial in these circumstances would be ripe for legal challenge.

The advice in this article should not be seen as applicable in all situations. If any of this applies to your case, it is imperative that you seek legal representation. The attorneys at The Law Firm of Shihab and Associates have never lost an EB-5 case.

March 9, 2015

The Problem with Changing Plans (EB-5)

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Starting a business can be difficult. Sometimes an initial investment and a dream aren't enough to create permanent jobs (or even profits for the entrepreneur); success is often the result of trial and error. However, in the case of EB-5 investing, the potential for changes in business plan add an extra dimension of difficulty. The issue originates in filing procedure. A business plan must be submitted as part of the petition to start the process, before the immigrant begins conditional residence. USCIS will then expect that the business plan included in the original petition is followed in order to fulfill the job creation requirement to receive unconditional permanent residence.

The expected timeline for an EB-5 investor (that doesn't use a regional center) appears straightforward. A business plan must be drafted and $1,000,000 (or $500,000 for Target Employment Areas) must be secured. The investor then files the I-526 petition with this information, its approval implying that USCIS thinks the plan is feasible. Once this happens, the immigrant undergoes the normal process for obtaining a green card, though the one received at this stage is only good for two years. During those years, he or she must follow the approved business plan and create at least ten full time W-2 positions. If this has happened by the end of two years, the immigrant investor will receive approval on the I-829 petition to remove conditions on residence.

While many investors have been able to do this, in part thanks to competent legal counsel, the expectation seems somewhat unrealistic. It rests on the apparent assertion that it is possible to successfully predict two years' worth of economic activity (with no chance to course-correct as needed). USCIS holds that in order for the investor to stay eligible for successful immigration, there cannot be any "material changes" made to the approved business plan. (The term "material changes" lacks specific definition; unfortunately giving USCIS the ability to decide what it means on a case-by-case basis.) This makes things much harder for immigrant investors. Of course, one will be in good shape if the business plan can be followed lucratively enough to sustain 10 permanent jobs. Short of abandoning the project, however, this leaves someone whose EB-5 business is in need of improvements to the original plan with two options: either report the deviations in the petition to remove conditions--or don't. USCIS has implied that both of these increase the chance of denial.

The world is rapidly changing, and in order to stay successful, businesses must claim every competitive advantage within reach. The above practice goes completely against this. The difficulty is easy to see, so the government responded by saying that immigrant investors who need to update their business plan may submit a new I-526 petition. However, this does not represent the giving of any ground on the issue. If the agency felt that its policy of expecting that there be no "materially changes" in a business plan for two years might be problematic, one would expect it to define what material changes are in a manner consistent with today's business demands.

USCIS could have taken this opportunity to give the term a definition that prohibits only the biggest changes like moving to a different region or economic sector. Instead, we are left with one that makes all changes "material." This means that something as simple as expanding a gas station to include auto repairs (in order to bolster job creation and customer base) would require a new petition. This may seem like a good idea until the consequences of doing so are considered.

  1. Permanent residence would be delayed by at least two years;

  2. Conditional resident derivative children who are now over 21 would not be eligible to obtain another period of conditional residence;

  3. The five year period of continuous residence required for citizenship would not include the time elapsed under the previous period of conditional residence; and

  4. There is no legal guarantee that the new I-526 will render the immigrant eligible for a new period of conditional residence (giving the immigrant no way to challenge a decision to deny).

It should be abundantly clear that this does not solve the underlying problem. The expectation for an immigrant investor to not adapt or improve his or her business (without starting a new period of conditional residence) does not advance the interests of the country--and instead creates undue difficulty for those whose presence is good for the economy. Our recommendations for affected EB-5 investors in light of this can be found here.

February 24, 2015

H-1B Visa Audit Update: Navigating the Unprecedented World of an Absconded H-1B Employee

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A recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn't unique. The case law in this area seems to muddle the facts without clearly addressing an employer's obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer's obligations is in order.


When does the Employer's Obligation to Pay an H-1B Visa Employee Terminate?

The LCA obligates employers to pay H-1B employees an amount at least equal to the "prevailing wage" for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.


The Facts of Our Case

In our case, an H-1B visa employee filed a complaint against our client, her employer, with the DOL. She alleged that the employer failed to pay her in accordance with the LCA. After a lengthy (and faulty) investigation, the DOL administrator alleged that none of the payment exceptions applied to the employer. In making this claim, the Administrator relied on the holding in Gupta v. Compunnel Software Group, Inc. that the burden of proof (to show that the payment obligation exception applies) rests on the employer. In this view, the employer must show that it had work that the employee was unwilling or unable to complete.

Additionally:

  • The employee had an F-1 Optional Practical Training (OPT) work authorization, and its validity extended eight months into the start of her H-1B status.

  • While her OPT was still valid, she was placed as a consultant at one of the employer's vendor's work sites, but she lost this opportunity, arguably due to her own actions. This opportunity was going to extend into the approval period of her H-1B.

  • After her H-1B became valid, she absconded and was patently unavailable for employment because she was unresponsive to the employer's attempts to market her for a new employment assignment.

  • She moved to stay with her lover in Chicago (which is over 600 miles from her employer's worksite). They later relocated, married, and divorced after four years.

  • Finally, several years after her disappearance, she contacted the employer requesting some documentation. At this point the employer proceeded to effectuating a bona fide termination.

Because no case law provides relevant guidance, this case presents two pertinent legal issues in the H-1B program:

1. Whether the DOL has Jurisdiction over H-1B non-immigrant Employees with Concurrent Immigration Statuses

Generally, immigration statuses fall under the authority of the Department of Homeland Security (DHS). However, the H-1B program carves a separate function for the DOL, pertaining to approving the LCA for H-1B workers. An even more specific framing of the issue demands examining whether the DOL has jurisdiction over non-LCA related cases. The short answer is "no."

OPT is an employment authorization that is approved by the USCIS, an agency under the DHS, for a period of 12 months (or 18 for STEM students). USCIS has the authority to make all procedural and investigative decisions pertaining to OPT authorizations. Because the DOL does not have any authority here like it does in H-1B cases through LCA approvals, it does not have concurrent jurisdiction.

Thus, in our case, the DOL lacked the jurisdiction to assert any back wage liability on the employer because the employee's immigration status when she fled (OPT) fell only under DHS authority.


2. Whether the Obligation to Pay the Prevailing Wage still Rests on an Employer if an H-1B Employee Refuses to Avail Themselves to Employment by Patently Failing to Respond to the Employer

The DOL Administrator relied on the holding in Gupta v. Compunnel to set forth the argument that the employer was obligated to pay the employee. Under this test, the employer must first show that the employee had a job assignment--and then show that the employee did not avail themselves to that assignment. The case at bar presents a separate set of facts.

In our case, the employer placed its employees to work at its clients' worksite on a contractual consulting basis. An employee must interview with the employer's clients before any job placement can occur. This is a common practice. The H-1B employee instead disappeared and was unresponsive to recruitment calls.

The Gupta reasoning and holding should not apply to this case because it is impossible to show that the employee had a job assignment because it was impractical for the employer to compel the employee to pick up recruitment calls, given that she had basically disappeared. Also, to bend the facts of this case to fit around the test set forth in Gupta would be placing an undue burden on employers by forcing them to be responsible for employees' actions (or inaction).


Our View of the Matter

In the absence of applicable precedents, the letter of the law trumps. The text of the exemption statute reads:

If an H-1B nonimmigigrant experiences a period of nonproductive status do to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative)... then the employer shall not be obligated to pay the required wage during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.

In this case, the H-1B employee voluntarily placed herself in non-productive status by leaving her site of employment to be with her lover in another state, relocated (easily characterized as touring), and her actions (following her lover) and inactions (not picking up recruitment calls) were undoubtedly not related to her employment. Thus, we believe a payment exception should apply. A court's ruling on this case would be the first time the general issue is properly addressed.

February 21, 2015

The Errors in the Ruling Against Obama's Plan

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This article contains our discussion of the problems in Judge Hanen's ruling on President Obama's immigration executive action plan. (The judge placed an indefinite injunction on DAPA and the DACA expansion, thereby delaying their start. The DACA expansion was supposed to begin on the 18th of this month.) As we have made clear in another article, we expect this ruling to be reversed. This article contains the bulk of why we are confident that the administration will prevail in the end.

At the center of this case is the whether the administration is acting within its legal authority to expand DACA and create DAPA. But, the issue of standing (which in this case is whether the states the plaintiffs represent have been harmed by the action) must be settled first. A sheriff in Arizona recently tried to sue the administration on similar grounds but the case was thrown out because he couldn't prove that his ability to enforce law was harmed in any way. Judge Hanen, on the other hand, did grant the plaintiffs standing, in part by agreeing with their view that the states will have to pay to educate "illegal alien children" as a result of the administration's actions. This disregards the Supreme Court's ruling in Plyler v. Doe that it is a constitutional requirement to educate all children. Thus, this particular "harm" comes from nothing less than the Constitution. In general, we think that there is no true injury done to the 26 states on account of the executive orders. Further, when Mississippi sued the administration over the original DACA plan in 2012, the courts found that the state could not demonstrate any harm done to it either--and threw the case out.

Even if standing is assumed to be a non-issue, there are still problems with Hanen's ruling. The heart of it deals with an alleged violation of the Administrative Procedure Act. This act holds that some proposed or forthcoming executive rules must be published in the Federal Register, allowing for dialogue with the public before implementation, which can take many months. There is no wide agreement or clear-cut Supreme Court guidance on what needs to be put through the Federal Register, so his ruling isn't absurd. That he gets it wrong, however, isn't difficult to discover.

The publication requirement only applies to binding, new rules, which are called "legislative rules." It does not apply to "interpretative rules," which are just guidelines or clarifications of policy. The administration argued that the initiatives in question fall under "interpretative rules," and we share this view. Judge Hanen instead ruled that they fall under "legislative rules" and that granting work permits to undocumented immigrants under them is new policy. Thus, he concludes, they ought to have been put into the Federal Register. Because they were not, he has put an indefinite hold on them. We disagree with this view.

To begin with, granting DACA or DAPA isn't the same as conferring immigration status. It is an exercise of prosecutorial discretion, which Judge Hanen acknowledges the executive has. Though all undocumented immigrants are eligible for deportation, the executive's right to prosecutorial discretion gives it considerable leeway as to when--or even if--this takes place. For some reason or another, the government may be convinced that it isn't in U.S. interests to deport an undocumented immigrant, and when this happens it may be called "deferred action" (because the action of deportation is being postponed, perhaps indefinitely).

Deferred action programs (such as DACA and DAPA) are nothing more than dialogues between executive and immigrant, where immigrants get the chance to demonstrate that they meet the executive's criteria for not being a deportation priority. It may then respond that it's convinced, promising not to deport. But because this represents no real legal change, it could deport anyway. This is something it cannot do to those with valid status (and no violations). Changes in prosecutorial discretion have nothing to do with new U.S. policy--and everything to do with what the executive interprets is the best way to accomplish its task at promoting U.S. interests. Thus, deferred action programs fall under interpretative rules, and not legislative rules.

Once it is accepted that deferred action programs alone are only interpretative rules, Hanen's further objection concerning work permits for illegal immigrants falls apart. Current law (§274a.12(c)(14)) deems that those who are in a state of deferred action are eligible for work permits. While they may sound similar, referencing an existing law is very different from creating a legislative rule. It is difficult to see how Hanen arrived at his conclusion with all this in mind. Because the immigration plan did not need to go through the Federal Register, we find that Hanen's injunction is groundless.