On October 30, 2023, President Biden issued Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.”

EO 14110 included several directives intended to remove immigration-related impediments that make the U.S. less welcoming to noncitizen talent in the fields of artificial intelligence and other “critical and emerging technologies.”

Among the presidential commands, the Secretary of Labor was ordered to “publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

In reply, the Department of Labor (DOL) on December 15, 2023 published a request for information (RFI), which invited public comment on or before February 20 2024 asking for stakeholder input on ways to expand an exemption from the standard PERM labor certification recruitment process known as “Schedule A.” If Schedule A is expanded, the change could alleviate labor shortages and shave months, if not years, from a tedious and slow PERM recruitment and employment-based green card application process.

Unfortunately, however, at the request of the AFL-CIO, DOL extended the deadline for comment by 90 extra days, that is, until today.

This blogger, together with David Bier of the Cato Institute and Sam Peak of Americans for Prosperity Foundation, have submitted an extensive comment on several ways to expand Schedule A last week.

DOL must act swiftly to amend Schedule A. Navigating a final rule through the OMB typically takes six months or more.

If the election in November restores former president Trump to the White House, the prospect for an expanded Schedule A are in doubt, as I explain in this article, “Elections Have Consequences: Predicting and Preparing for US Immigration Changes,” coauthored by my Vialto Partners colleague, Manish Daftari.

The time for swift DOL action is now.

Waking up today before the alarm sounded and reaching for my smartphone, I realized that it is March 15, 2024.

Students of Roman history and of Shakespeare know March 15 as the “Ides” (or middle) of March – the day in 44 BCE when Brutus, Cassius and several senators assassinated Julius Caesar.

As he lay dying, Caesar recalled the soothsayer’s earlier warning: “Beware the Ides of March.”

Shakespeare describes it this way in Act 3, Scene 1:

CAESAR: The ides of March are come.

SOOTHSAYER: Ay, Caesar; but not gone.

Tradition says that this is also the day in the ancient Roman calendar when debts must be repaid, and slates wiped clean.

For me, March 15 has a poignant meaning for it is the anniversary of my mother’s death. Rose Lopetrone Paparelli (whose mother’s family name, ironically, was Romano) would have been 102 years old today.

My indebtedness to Mom, however, can never be repaid, only paid forward.

Mom instilled in me a love of history and literature. Indeed, she recounted to me that she dropped her then-boyfriend in favor of my father because the rejected beau spoke so poorly, and my dad (though not a history buff) had the gift of gab.

More than these gifts, however, Mom taught me that everyone deserves respect, and that disrespect must be challenged. Although many examples could be cited, one vignette stands out in my memory.

As kids growing up in the inner city of 1950s Detroit, my sister, brother and I only rarely had the chance to witness Michigan’s namesake aquatic feature (derived from the Chippewa word “Michigama,” meaning “great water” or “large lake”). Thus, we were overjoyed when we learned that our parents would drive us to a lakeside cottage “up north” for a week’s family vacation.

Before reaching the cottage, my dad stopped for gas. In the days before self-service, every gas station featured an attendant who filled up the tank. My dad (the one with the gift of gab), sitting in the driver’s seat, struck up a conversation with the attendant, while Mom rode “shotgun” and the three kids sat in the back.

Dad asked the fellow, a muscular white man in his 20s, how he liked living in rural Michigan. The man smiled and replied, “I love it,” but then made a racist remark.

Without a moment’s hesitation, Mom said: “now mister, that’s not nice. We are all God’s children.” The man fell silent; then he apologized.

In just a few words, Mom spoke truth to power, and taught me to stand up for the disenfranchised. In no small part, she is why I became a lawyer, and chose immigration law as my specialty.

Because of her, I will forever be aware of the Ides of March. For me, the Ides of March “are come . . . but [never] gone.”

U.S. businesses sponsoring noncitizen workers for employment-based immigration benefits are facing particularly challenging headwinds stirred up by U.S. Citizenship and Immigration Services (USCIS).

In a recent article I co-authored with David J. Bier of the Cato Institute, we highlight the latest USCIS tempests that are creating significant difficulties for American employers.

Read the full article here.

Mobility leaders in multinational companies face a slew of challenging tasks. Prime among these is working with the corporate procurement department to select the best team of immigration lawyers to handle the complex needs of hundreds or thousands of noncitizen assignees and their families.

The ideal legal-services provider must effectively manage the intricacies of immigration and mobility requirements across multiple destination countries, adapt quickly to changes in government immigration programs, offer a responsive and empathic employee experience facilitated by advanced technology, and provide strategic advice as visa and residency requirements inevitably change, particularly when national elections introduce governments that are either more welcoming or hostile to foreign workers.

The selection process typically involves issuing a request for proposal (RFP) to a limited set of promising candidates, and the eventual winnowing of providers who are invited to in-person or web-based screenings.

Too often, however, not all the right questions are asked in the RFP or the face-to-face encounter, or the queries are phrased in ways that might not flesh out meaningful and distinctive answers.

To spark your own inquisitive probing, check out my article listing the top five questions buyers of high-volume immigration legal services should ask their immigration lawyers.

If you’re curious how Vialto Partners and Vialto Law would answer these questions, we’d welcome your RFP. https://lnkd.in/gRuD6Mt7

On October 23, 2023, U.S. Citizenship and Immigration Services (USCIS), the component within the Department of Homeland Security (DHS) charged with the adjudication of applications for immigration benefits and naturalization, proposed in a 94-page, single-spaced, three-column document to “modernize” the H-1B nonimmigrant visa category for noncitizen workers in specialty occupations. The comment period for this “notice of proposed rulemaking” (NPRM) expired on December 22, 2023.

USCIS in the NPRM rightly acknowledged that H-1B modernization is necessary in order to create “opportunities for innovation and expansion.” This goal corresponds with the legislative history of decades-old statutes that recognized the imperative that the U.S. take affirmative steps to compete with other nations for high-skilled talent. See, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), cited in the NPRM, 88 Fed. Reg. at 72873, text accompanying FN 6). These statutes, and the Congressional motivations behind them, are especially important today as multiple countries are increasingly developing new immigration programs which compete with the U.S. in the search for high-skilled workers.

The media has given comparatively little attention to the NPRM, focusing mostly on the changes USCIS considers necessary to prevent a recurrence of the seeming gaming of the system whereby some noncitizens have enjoyed greater chance of selection under the H-1B lottery.

Behind the scenes, however, numerous immigration stakeholders prepared and submitted comments expressing fleeting thanks for a few provisions, while sounding alarms over several other proposed changes which many fear will result in needless agency delays in adjudication and many more adverse, unwelcome and burdensome impositions from USCIS. The NPRM, if finalized as a regulation without changes, would impose new requirements for initial evidence, and likely generate many more requests for additional evidence, notices of intent to deny H-1B petitions, and notices of intent to revoke previously approved petitions.

For the benefit of concerned readers, this blog post will offer handy links to some of the more comprehensive and concerning of the 1,315 public comments submitted.

The comments linked below often took issue with many of the same concerns (although not necessarily agreeing in unison or expressing objections on all points raised). Included among the more worrisome proposals in the NPRM are:

  • the changes to the proposed definition of an H-1B specialty occupation requiring a direct relationship between the noncitizen’s degree and the employer’s proposed job duties rather than a nexus between the coursework studied and the job requirements;
  • the new H-1B specialty occupation limitations in the NPRM are difficult to square with Biden administration’s October 30, 2023 Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence;”
  • the assertion by USCIS that it will determine H-1B specialty-occupation eligibility not by assessing the employer’s job duties but rather by reviewing the contractual terms prescribed in any agreement between the employer and the end customer (even where the contract might contain no job descriptions);
  • the narrowly described circumstances in which USCIS will give deference to prior agency adjudications involving the same previously approved H-1B job duties and worker qualifications;
  • the requirement to file a new or amended petition whenever a new H-1B Labor Condition Application (LCA) must be certified by the Department of Labor (DOL) because of a job location change;
  • the claim of USCIS that it has authority to review and disagree with DOL-certified LCA determinations in order to confirm that an LCA “supports” and “corresponds with” the H-1B petition;
  • the new obligation imposed on employers to submit evidence that an H-1B beneficiary has maintained nonimmigrant status in the U.S. — apparently even for periods before the employer ever encountered the noncitizen;
  • the dramatic expansion of unannounced USCIS site visits — in violation of the Homeland Security Act — to the business locations of H-1B employers and their customers and to the homes of H-1B workers, coupled with the assertion by USCIS that it will deny extensions or amendments of status or revoke approved petitions if any of these parties refuses to cooperate in the course of a site visit.

Immigration stakeholders are therefore encouraged to review these and other submitted comments:

* * *

No external immigration stakeholders can predict what the final H-1B modernization regulation will say, if and when it is ultimately published and becomes effective. Now is therefore the time to develop contingency plans based on the ominous provisions of the NPRM.

Many respected commissions, organizations and individuals have long assailed our nation’s administrative system for procedural fairness in immigration proceedings (including, the Federal Bar Association, which has proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center,  and Ashley Tabaddor, then President of the National Association of Immigration Judges, and now Chief Counsel of USCIS, in congressional testimony).

In my view, in addition to the need for an Article I immigration court to allow procedural fairness in removal proceedings, impartial justice requires that a single Article I immigration court be established to review administrative rulings and issue binding legal decisions applicable to all federal immigration administrative tribunals. This would include review of decisions of the U.S. Department of Labor‘s Board of Alien Labor Certification Appeals and Administrative Review Board, the U.S. Department of Justice‘s Office of the Chief Administrative Hearing Officer, U.S. Department of State‘s consular officers’ visa refusals, and the U.S. Department of Homeland Security‘s Administrative Appeals Office of USCIS.

The decisions of an Article I immigration court would no longer be subject to reversal by the Attorney General who has authority under Section 103(a)(1) of the Immigration and Nationality Act (INA) to make binding law (“determination and ruling by the Attorney General with respect to all questions of law shall be controlling”). Rather, just like other Article I courts, such as the Bankruptcy Court and the Tax Court, Article I judicial decisions are legally binding and cannot be overturned by an Executive Branch official.

I am prompted to write this article because of two significant developments. 

On October 12, 2023, the Executive Office for Immigration Review published an interim final rule (IFR) with an opportunity for comment which makes review of decisions of the DOJ’s Office of the Chief Administrative Hearing Officer interpreting the antidiscrimination provisions of the INA, Section 274B, reversible by the Attorney General.

To be sure, the purpose of the IFR is to seek to comply with a 2021 Supreme Court decision, United States v. Arthrex, Inc., which held that, under Article II of the Constitution, decisions issued by certain inferior officers exercising adjudicatory authority must be subject to review by a politically accountable official, such as an officer appointed by the President with the advice and consent of the Senate.

On October 18, 2023, the Subcommittee on Immigration, Citizenship, and Border Security of the Senate Judiciary Committee held a hearing (“Preserving Due Process and the Rule of Law: Examining the Status of Our Nation’s Immigration Courts”) where testimony from multiple witnesses confirmed the need for an Article I immigration court.

Our nation’s immigration laws cry out for a single judicial body that can harmonize the many disparate voice of federal immigration agencies by issuing binding rulings that may only be overridden by a higher court.

The citizenry and the immigration stakeholder community deserve no less. Let’s rebalance the scales of justice.

[Blogger’s Note: U.S. Citizenship and Immigration Services (USCIS) has invited public comment on its proposal to allow paralegals under attorney supervision to interact with the agency in limited ways, such as requesting or rescheduling client appointments and communicating by phone with its customer service representatives. The proposal was published as a notice of an intended change to Form G-28 — the form immigration attorneys must use to enter an appearance on behalf of a client in proceedings before USCIS or two other components of the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). I saw this as an opportunity to make other changes to the ways in which immigration lawyers can represent clients before these DHS agencies. Since I’ve blogged on the topic before (Powdered Wig Immigration with the Lawyer as Potted Plant and EB-5 Immigration Lawyers Wear Too Many Hats), I couldn’t resist offering the following (lightly edited) comment.]

September 25, 2023

Samantha L. Deshommes,
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746

Submitted via www.regulations.gov 

Docket ID number USCIS–2008–0037 

Re: Comment to Proposed Revision of a Currently Approved Collection: Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative – OMB Control Number 1615–0105

Dear Chief Deshommes,

I write to offer comments on the proposed revision of USCIS Form G-28.  I write as a private citizen and not on behalf of any person or entity.  By way of introduction, I have practiced U.S. immigration and nationality law since 1978, and am certified as a specialist in the field by the State Bar of California Board of Legal Specialization.  I am admitted to practice law in the states of California, New York and Michigan, and in the District of Columbia. In addition, I have maintained a blog on America’s dysfunctional immigration system (www.nationofimmigrators.com). The purpose of the blog and my advocacy activities is “to offer constructive solutions that will enable the U.S. to maintain and enhance its economic prosperity, political freedoms and cultural and religious heritage as a Nation of Immigrants.”

USCIS is to be commended for the stated purpose of revising Form G-28, namely, to allow for limited interaction with the agency by a paralegal under the direction and control of a licensed attorney.  This interaction would be for the limited purpose of rescheduling client appointments and communicating through the USCIS customer service channels on case status and urgent immigration benefits requests requiring an InfoPass. 

This change is welcome because it will likely result in reduced legal fees for immigration petitioners and applicants given that the fees charged for paralegal support services are typically less than for lawyers, whether billed on a project-based or hourly basis.  The change would also allow the supervising attorney to devote more time to professional services, e.g., preparation of cases that better demonstrate eligibility for the immigration benefit sought, appearances at USCIS interviews, and the imparting of advice and counsel to their clients who are expected to comply with the “significant complexities involved in enforcing federal immigration law.” Arizona v. US, 567 US 387 (2012).

Although I support the proposed change in principle, I offer the following additional observations, comments and recommendations:

  • Substitute the more generic term “paraprofessional” in place of “paralegal.”  The word “paralegal” is a statutorily defined term in some states, e.g., California.  It is also the subject of credentialing by educational institutions that typically provide instruction in a wide array of legal disciplines within their course material, but whose course offerings often include scant instruction on the duties of a paraprofessional who supports the delivery of U.S. immigration legal services.  Moreover, in modern legal practice there are often a wide array of personnel with position titles other than paralegal that nevertheless facilitate the delivery of U.S. immigration legal services acting under the direction of licensed attorneys. USCIS should therefore allow attorneys to designate paraprofessionals under supervision who may undertake limited interaction with the agency.
  • Allow for multiple paraprofessionals to be designated by a supervising attorney on Form G-28.  The proposed form would allow only a single paralegal to be designated.  This creates unnecessary work for the attorneys and your agency because it does not account for the everyday fact of life that people are absent from work, whether on vacation, sick or maternity/paternity leaves, or other proper reasons for absence.  USCIS should not create a system where the happenstance of a paraprofessional’s absence requires the preparation and submission of a new G-28 and the updating of the agency’s records to account for this substitution.
  • Allow for multiple attorneys in the same firm to be designated on the same G-28 in Part 2, Item 3 as associated with the primary attorney named on the form. USCIS allows other attorneys to file the G-28 and declare an association with the attorney of record who previously filed the form, and to declare that the attorney’s appearance is for “a limited purpose [that] is at his or her request.”  For the sake of efficiency, and in recognition that teams of lawyers at the same firm may work on the same client’s immigration matters, USCIS should allow a single G-28 submission to designate the primary attorney of record and multiple associated attorneys who may make a limited appearance in that client’s immigration matter.
  • Delete the proposed inclusion of the attorney’s date of birth as a required data field on Form G-28.    USCIS hasnever required an attorney to list one’s date of birth (DOB) on Form G-28, and the agency has offered no rationale whatsoever (let alone a convincing argument) for this radical new requirement.  In the current era, where nation states and federal and state governments take great pains through legislation to protect the sanctity of an individual’s personally identifiable information (PII), this USCIS required-DOB data field serves as an invitation for any disgruntled or malevolently inclined client to “dox” (“publish the private personal information of (another person) or reveal the identity of (an online poster) without the consent of that individual”)[1] the lawyer or engage in identity theft by the unauthorized use of a lawyer’s PII.
  • Create a centralized online repository for USCIS to associate lawyers and paraprofessionals as “of record” in a particular immigration benefits request. USCIS has edited the instructions to Form G-28 to require notice of withdrawal of legal representation at the address listed on the latest receipt notice issued by the agency.  This proposed change is wholly unworkable because USCIS often issues “transfer notices” to inform a petitioner or applicant that a particular benefits request has been relocated to a different USCIS office; yet these notices often do not timely arrive or they are contradicted by online USCIS.gov case notifications.  Instead, USCIS should establish a “single source of truth,” i.e., a centralized USCIS repository for the online submission of G-28 forms and notices of attorney withdrawal of representation.  This change would benefit both the agency and the stakeholder community.  If adopted, there would no longer be doubt as to the identity of the attorney of record.
  • Add the Department of State as a specific check-the-box option in Part 3 of Form G-28.  USCIS presently allows the selection of three component agencies within the Department of Homeland Security in response to the statement “[t]his appearance relates to immigration matters before (select only one box) [bolding in original].”  The three agencies are USCIS, CBP and ICE.  By adding the Department of State (DOS) as a check-the-box alternative agency, Form G-28, as revised, would allow for appearances before the DOS consulates and embassies worldwide, the Kentucky Consular Center and the National Visa Center (NVC).  See 9 FAM 601.7-3(c)(2)(a)(“Correspondence with Representatives of Record, Attorneys”). USCIS should also change Part 3, Item 4 to indicate “Receipt or Case Number (if any),” so that a DOS case number may be inserted, as for example, in situations where the data is requested and the attorney of record must be noted. See DOS Public Inquiry Form, accessible at:  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html (last visited on September 26, 2023).
  • Modify Form G-28 to allow limited scope representation and limited appearances of counsel in selected immigration benefits requests.  At present, USCIS’s regulations allow only a petitioner or an applicant to file a particular immigration benefits request on an agency-prescribed form.  See instructions and associated regulations governing Forms I-539 and I-485 (allowing only applicants to file these forms; compare Forms I-129 and I-140 (which may only be filed a sponsoring employer, except in the case of an EB-1 personal of extraordinary ability or EB-2 national interest waiver).  Often, however, USCIS adjudicators and forms instructions require the submission of information and documents in the possession or control of a third party, i.e., a person or entity with a clear economic interest in the outcome of an adjudication. 

Examples include (1) an EB-5 regional center, new commercial enterprise, or job creating entity whose investment or job-creation data is sought in support of an I-526 petition or an I-829 petition filed by a noncitizen investor; (2) an employer that sponsored an approved immigrant visa petition on Form I-140 for an adjustment of status (AOS) applicant where the petitioner’s ability to pay the required wage must be established from the inception of the immigrant visa priority date through to the adjudication of the adjustment of status application; (3) an AOS applicant who must submit Form I-485 Supplement J to establish entitlement to job flexibility benefits in the transition to a new employer in the same or a similar occupational classification as that noted in the former sponsoring employer’s approved I-140 petition; and (4) an applicant for change or extension of nonimmigrant status submitted on Form I-529 by the dependent spouse or children of a noncitizen with work-visa status whose employer must assure that the family members are allowed to remain living in the U.S. with the noncitizen employee (who otherwise might be required to resign from the U.S. job and depart from America with the family).

USCIS should therefore modify Form G-28 to allow parties with a tangible economic interest in the outcome of an agency adjudication to submit information and documents under their possession or control to the agency as long as (A) the petitioner or applicant consents on Form G-28 to the submission of such third-party data or documents, and (B) authorizes USCIS to communicate with both the attorney of record and the attorney submitting notice of a limited scope representation or a limited appearance.  With such consent, USCIS would then be authorized and required to communicate through legal counsel engaged in a limited scope representation or who has entered a limited appearance.  This change would recognize and formalize USCIS’s existing allowance of limited scope representation (see discussion under Comment 3. above).  It would also allow the non-filing third party with a clear economic interest in the outcome of an adjudication to maintain control over information in its possession or control.  Further, it would provide an assurance to USCIS that the third party owning or controlling the information or documentation requested or required vouches for its accuracy and authenticity.  Thus, the allowance of limited scope representation and limited appearances of counsel would serve to minimize instances of fraud and assure the public and the agency that only deserving noncitizens are granted the requested immigration benefits.

As stated, USCIS should be applauded for its proposed modification of Form G-28; but the agency would better fulfill its stated Mission and Core Values (accessible at:

https://www.uscis.gov/about-us/mission-and-core-values [last visited on September 26, 2023]) by upholding “America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve (emphasis added).”

Sincerely,

[signature]

Angelo A. Paparelli

[1] Source: Definition of “dox,” Dictionary.com, accessible at: https://www.dictionary.com/browse/dox (last visited on 9/26/2023).

[Blogger’s Note: Readers of this blog may know a little of my family background. Recently, however, the College of Labor and Employment Lawyers (CLEL) invited me to “Tell Us Your Story” for publication in the August 2023 edition of its monthly newsletter. So I’m sharing it here. It’s a story of serendipity, of how twists and turns lead to an unforeseen destiny.

By the way, the photo was taken about the time I began practicing immigration law in my hometown, Detroit, Michigan, circa 1979.]

Telling My Story — the Birth of An Immigration Lawyer

I grew up in Detroit’s inner city among immigrants from Poland and Italy, as well as African Americans, many of whom migrated with their families from the South. This gave me a sense of solidarity with society’s underdogs, persons who – against all odds – persevere and achieve their own versions of the American Dream. I attended an inner-city law school, Wayne State University, and thrived on a wide palette of courses, from constitutional law to real property, tax and international business transactions. Unbeknownst to me, my international business transactions professor submitted my paper on the extraterritorial reach of the U.S. securities law into a writing competition. No one was more surprised than I when my name was called as author of the winning article.  

I traveled to Europe during college summers (my uncle, a travel agent who had his own Italian radio hour, graciously saved a seat for me on his summer charter flights to Italy). My international travel bug, and surprising success in the international business transactions seminar, led me to join a small, well-regarded local firm where one of the partners practiced international business and tax law – with the notion that this would be a springboard to see the world. 

It didn’t pan out as I had planned; I found myself figuratively chained to my desk drafting contracts. This partner encouraged me, however, to become the firm’s immigration law resource, and offered me the chance to spend a week in Puerto Rico far from Detroit’s harsh winter to begin to learn the field at an immigration bar conference. The warmth of the Puerto Rican sun was matched only by the immigration lawyers whom I met there. They were largely happy, prosperous and thriving and they welcomed me into their midst. I’ve never looked back.

I moved in 1982 to Los Angeles where the prospect of practicing immigration law for a larger potential population of clients from around the world seemed brighter. Initial struggles and stumbles ultimately led me to join a large firm which wanted my immigration law expertise, followed by another large firm, and yet another (in between the last two firms, I started my own immigration boutique and grew it over 11 years to 15 lawyers).

Immigration law is a subcategory of labor and employment law, but with a twist. Rather than facing off against opposing parties, I help employers, their noncitizen employees and family members apply for and receive life-transforming benefits – a work visa, work permit, permanent residency and citizenship. They too are pursuing their own self-defined version of the American Dream. I get a lift and am still inspired now, as ever, over a career spanning 40+ years helping strivers thrive.

Last June I made another big career move. I joined Vialto Law (US) PLLC, an independently operated start-up firm affiliated with Vialto Partners, a $2.2 billion spinoff of PwC’s immigration, tax and global mobility practice groups. My mission is to grow the U.S. law firm in talent and clients who value the delivery of employee-friendly, technology-enhanced immigration legal services. 

I’m so lucky to have stumbled into immigration practice and am grateful to be the second management-side immigration lawyer elected as a Fellow of CLEL. (The first, desevedly so, is my friend and colleague, Mary Pivec.)

Many happy thoughts and feelings collided in my mind and heart as I read the June 23, 2023 decision of the Supreme Court in U.S. v. Texas.

Pleasant Surprise. Few would have imagined that a coalition of conservative and liberal justices would agree that federal immigration authorities are endowed with largely unreviewable discretion to overlook comparatively minor immigration offenses committed by otherwise law-abiding noncitizens as the authorities choose to focus scarce enforcement resources on bad actors who threaten our security and safety.

Rejecting the pleas of Texas and Louisiana, the majority held that the courts lack authority to intervene in “one discrete aspect of the executive power—namely, the Executive Branch’s traditional discretion over whether to take enforcement actions against violators of federal law.” The opinion cited a string of relevant cases:

The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States, 521 U. S. 898, 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong, 517 U. S. 456, 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo, 424 U. S. 1, 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’” (quoting U. S. Const., Art. II, §3)); see also United States v. Cox, 342 F. 2d 167, 171 (CA5 1965).

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”). (Emphasis added.)

Fond Nostalgia. In the immigration context, the principle of prosecutorial discretion first came to light when immigration authorities tried to deport John Lennon, and separate him from his beloved Yoko. A most clever immigration lawyer, Leon Wildes, discovered through resort to the Freedom of Information Act, the existence of a then-unknown “Nonpriority Program” — which now is understood as “prosecutorial discretion.”

Then a law professor, Shoba Sivaprasad Wadhia (now the Officer for Civil Rights and Civil Liberties within the Department of Homeland Security [DHS]), has recounted that history and the evolution of prosecutorial discretion. (For those who prefer a cinematic experience rather than text, here is a video in which Mr. Wildes describes the case, featuring clips from John and Paul.) So too have several administrative law professors confirmed the legal doctrine of prosecutorial discretion in their amici curiae brief to the Supreme Court in U.S. v. Texas. , as did then Director of U.S. Immigration and Customs Enforcement (ICE), John Morton, in a June 17, 2011 directive which cited numerous earlier agency decisions on point.

Enthusiasm and Excitement. More recent examples of prosecutorial discretion are the September 30, 2021 Memorandum of DHS Secretary Alejandro Mayorkas (the policy Texas and Louisiana unsuccessfully sought to overturn in U.S. v. Texas) which observed:

In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways. Numerous times over the years, and presently, bipartisan groups of leaders have recognized these noncitizens’ contributions to state and local communities and have tried to pass legislation that would provide a path to citizenship or other lawful status for the approximately 11 million undocumented noncitizens. The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.

We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it. (Emphasis added.)

Wonderment and Timidity. Will U.S. v. Texas prompt the Supreme Court ultimately to sustain the program for Dreamers known as Deferred Action for Childhood Arrivals (DACA) on substantive grounds? Will the case embolden the Biden Administration to ask Justice Department lawyers to reconsider the DOJ legal opinion suggesting that President Obama lacked the legal authority to create a new executive program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This blogger is not so courageous as to predict these things will happen; but, my fingers are crossed.

Curiosity. Another now-resurrected memorandum urging the thoughtful exercise of prosecutorial discretion followed the instruction of Secretary Mayorkas — an April 3, 2022 Memorandum of Kerry Doyle authorizing ICE trial attorneys to stipulate to the dismissal of removal proceedings where mitigating factors suggest that certain noncitizens are not enforcement priorities. The Doyle memorandum noted:

[Mitigating] factors may include, but are not limited to, whether the noncitizen is pregnant, postpartum, or nursing; whether the noncitizen is a lawful permanent resident (LPR) (particularly where LPR status was obtained many years ago and/or at a young age); whether the circumstances of a noncitizen’s arrest indicate an underlying discriminatory motive or retaliation for asserting their legal rights; whether the type of criminal conduct committed by a noncitizen has since been decriminalized; and the noncitizen’s status as a cooperating witness or confidential informant or other assistance sought from the noncitizen by, or provided by the noncitizen to, federal, state, local or tribal law enforcement, including labor and civil rights law enforcement agencies.

One strategy not yet widely discussed is for noncitizens whose removal proceedings have been terminated to apply for employment authorization under under 8 CFR § 274a.12(c)(14) which authorizes the issuance of a work permit to a noncitizen “who has been granted deferred action, an act of administrative convenience to the government that gives some cases lower priority, if the alien establishes an economic necessity for employment.” This may not be met with immediate approval but a denial would be considered final agency action and litigation brought under the Administrative Procedure Act could overturn the decision as arbitrary, capricious or otherwise unlawful. Perhaps, U.S. v. Texas may prompt such an outcome for the successfully litigious immigration lawyer. Fingers crossed.

Hope. Among the most interesting prospects to immigration lawyers outside of the deportation context is “adjudicative discretion,” a close cousin of prosecutorial discretion. Adjudicative discretion allows immigration officers to refrain from imposing penalties (such as by denying otherwise-approvable requests for immigration benefits), when extraordinary circumstances arise and a fault-free noncitizen falls out of legal status. This can happen when a work-authorized nonimmigrant is terminated for employment and cannot find a job during the 60-day grace period allowed by regulations, or when an applicant for admission to the U.S. is given a shortened period of admission, i.e., one that is shorter than the customarily authorized period of authorized stay, and unknowingly falls into a condition of unlawful presence and becomes subject to a 3- to 10- year bar on visa issuance and admission to the country.

These provisions are found in agency regulations, such as 8 CFR §§ 214.1(c)(4) and 248.1(b), which allow the restoration of lawful status the discretion of U. Citizenship and Immigration Services (USCIS) if a “failure to file before the period of previously authorized status expired . . . [where] the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and [USCIS] finds the delay commensurate with the circumstances.”

I co-authored an article on it long ago (“Imagining The Improbable: Extraordinary Immigration Solutions For The Hapless And Hopeless“) and blogged about it here (“Rendering unto the Immigration Caesars“) and here (“Immigration Good Behavior — a Riddle Riddled with Riddles“). Will USCIS officers infer from U.S. v. Texas that refraining from needlessly subjecting hapless out-of-status noncitizens to removal proceedings (where ICE trial attorneys may very well stipulate to dismissals of the cases) is an unwise use of scarce government resources and therefore increasingly exercise adjudicative discretion favorably? One can only hope.

* * *

Again, fingers crossed.

I came to this [position as U.S. Secretary of State] with two very basic propositions, and I’ve seen those propositions, I think, validated by the experience we’ve had over the last three years. One is that if the United States is not engaged, if we’re not leading, then one of two things [will happen]: either someone else is, and probably not in a way that advances our own interests and values; or no one is, and then you can have a vacuum that’s probably going to be filled by bad things before it’s filled by good things.

Secretary of State Anthony J. Blinken — July 28, 2023 — in a Conversation With Council on Foreign Relations President Richard Haass

Secretary Blinken’s words struck me as hollow and sadly ironic when considered in the light of a decision announced yesterday by Canada to lure noncitizen tech talent from the U.S. to Canada in order “to help businesses in Canada thrive in a competitive landscape.”

Canada has decided that it will establish “an open work permit stream for H-1B specialty occupation visa holders in the US to apply for a Canadian work permit, and study or work permit options for their accompanying family members . . .” The new immigration policy will also include “open work permits for up to five years for highly skilled workers in select in-demand occupations,” and establish a 14-day processing time. It seems laughable, were it not so sad, that the new Canadian strategy was launched at “Collision 2023!”

What does this say about America’s antiquated and beleaguered immigration system?

  • U.S. legislators and the several federal immigration agencies should blush with embarrassment. Our leaders have forgotten the timeless message of John F. Kennedy that they must be Profiles in Courage: that they must put the interests of the nation first and resist the pressure to be popular, get re-elected, or be distracted by the pressures of their constituency, party and interest groups.
  • If this is what a friendly nation with which we share a border does to our country, what will countries that are less friendly, indeed adversarial, do to eat our lunch? The outcome is foreseeable and grim, as Secretary Blinken observed, “probably not in a way that advances our own interests and values . . .”
  • How dystopian is the status quo, given that our nation and economy benefit tremendously from noncitizen students attending America’s colleges and universities, yet after we educate them we shoo them away to other nations with more welcoming immigration policies. According to NAFSA, the Association of International Educators, almost a “million international students at U.S. colleges and universities contributed $33.8 billion to the U.S. economy during the 2021-2022 academic year—up more than $5.5 billion (or 19%) compared to the prior academic year—and supported more than 335,000 jobs.”
  • What’s worse, there is no predicting how badly the U.S.’s broken immigration system will harm future generations of Americans in falling behind in the development of advanced technologies, such as AI. The National Foundation for American Policy paints a bleak picture if we lose this “brain-gain” population: “Immigrants have founded or cofounded nearly two-thirds (65% or 28 of 43) of the top AI companies in the United States, and 70% of full-time graduate students in fields related to artificial intelligence are international students . . . Seventy-seven percent of the leading U.S.-based AI companies were founded or cofounded by immigrants or the children of immigrants. Forty-two percent (18 of 43) of the top U.S.-based AI companies had a founder who came to America as an international student.”

It’s all too sad.