Predicting How the Supreme Court Will Rule in United States v. Texas

By: Gordie Rosoklija

United States v. Texas is a pending case before the Supreme Court on the constitutionality of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. It is widely regarded as one of the most significant immigration cases to ever come before the Supreme Court.

On November 20, 2014, President Barack Obama announced the DAPA program which grants deferred action to undocumented immigrants who are the parents of U.S. citizens or lawful permanent residents. DAPA’s validity was immediately challenged by Texas and 25 other states and on February 16, 2015, United States District Judge Andrew S. Hanen of the District Court for the Southern District of Texas, issued a preliminary injunction against DAPA’s implementation. On November 9, 2015, the Court of Appeals for the 5^th Circuit, in a 2-1 vote, affirmed the District Court’s injunction. On January 19, 2016, the Supreme Court agreed to review the case.

There are two overarching questions that the Supreme Court will now decide: (1) Does the State of Texas have standing to legally sue the federal government over DAPA’s implementation and (2) Is the DAPA program within the President’s authority or does it encroach into an area where Congress should determine immigration policy.

For the first question, standing is a judicial doctrine requiring that the Plaintiff (the State of Texas in this case) demonstrate actual harm by the proposed regulation – meaning Texas has to demonstrate that it will suffer direct and concrete injury as a result of DAPA’s implementation. Texas has argued that it would cost the state money to issue driver’s licenses to DAPA recipients because Texas partially covers the cost of producing a license. For the second question, both sides agree that the President has the power to defer immigrant deportations. Texas, however, has argued that DAPA goes beyond this point by granting work permits for DAPA recipients and thereby granting lawful presence to DAPA recipients.

Following oral argument on April 18, 2016, it is expected that the court will be predictably split on the above issues with the more liberal justices(Ginsburg, Breyer, Sotomayor, and Kagan) siding with the Obama Administration, and the more conservative justices(Alito and Thomas) siding with Texas. The two remaining justices, Kennedy and Roberts, typically side with the more conservative wing of the court, but they have certainly broken rank in the past, including their decision to side with the Obama Administration in striking down Arizona’s SB 1070 law, which largely focused on identifying and punishing unauthorized immigrants. Justice Scalia, a predictably conservative vote, passed away on February 13, 2016, which leaves 8 justices to decide the current case.

One potential outcome is for Justice Roberts to side with the more liberal wing of the court on the first question of Texas’ standing, thereby issuing a 5-3 decision in favor of the Obama Administration and allowing DAPA implementation to proceed. Justice Roberts’ past decisions have indicated a narrow view of the standing doctrine. In Massachusetts v. EPA, for example, he opposed Massachusetts’ standing to sue the federal government by arguing in part: “The constitutional role of the courts, however, is to decide concrete cases – not to serve as a convenient forum for policy debates.” He has also previously been quoted publically as stating that “It’s a high priority to keep any kind of partisan divide out of the judiciary.” It is therefore entirely possible that Texas’ case will be dismissed based on a lack of standing to challenge the constitutionality of the DAPA program. Justice Kennedy siding with the moral liberal wing of the court on this issue would lead to a similar outcome – a 5-3 or even 6-2 decision against granting standing and in favor of the Obama Administration.

If the court were to instead split 4-4 or rule in favor of Texas’s standing argument, the case would then proceed to the second question – does granting work authorization under DAPA go beyond the President’s authority on immigration policy. This is a more novel question before the court, but it does again seem to strongly favor the Obama Administration. Present day federal regulations under 8 CFR 274a.12 explicitly state that an “an alien who has been granted deferred action” is permitted to apply for employment authorization. One potential counterargument is that there is effectively no limit to the class of aliens who could be granted deferred action.

A 4-4 split by the Supreme Court on both of the above issues would mean that the decision that was issued by the lower court, in this case the Court of Appeals for the 5^th Circuit upholding the District Court’s injunction, would remain intact. The 5^th Circuit decision, however, would not be binding on other jurisdictions, meaning states that are not part of the 5^th Circuit would have the freedom to seek implementation of the DAPA program. The only three states that are part of the 5^th Circuit are Louisiana, Mississippi, and Texas. The State of California, for example, in an amicus brief submitted to the Supreme Court cited the widespread benefits of implementing the program: “California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker. Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.”

A 4-4 split would therefore mean that the injunction against DAPA would stand, but it would only apply to the three states that are part of the 5^th Circuit(Louisiana, Mississippi, and Texas). A different Circuit Court could rule that DAPA can move forward, meaning DAPA would be permissible in some parts of the country and impermissible in other parts. This, of course, would create a chaotic set of circumstances, which is why the prevailing belief is that Justice Roberts or Justice Kennedy is likely to vote in favor of dismissing the case based on a lack of standing for Texas to sue the federal government, thereby allowing DAPA implementation to proceed.

The Supreme Court is expected to render a decision in United States v. Texas by the end of June 2016. GIA Firm will continue to provide novel analysis on the Supreme Court’s decision and the future of DAPA implementation.

#SCOTUS #Immigration #DAPAConstitutionality #Standing

On Friday, March 11, 2016, the Department of Homeland Security published its final rule relating to the STEM extension of OPT in the Federal Register. With this new regulation, DHS has revamped the rules for STEM OPT, and in doing so, solves the problem of regulating in this area without the “notice and comment” procedure that a federal judge found objectionable in her decision vacating the former STEM OPT regulation last year.

The current 17-month STEM OPT regulation is still in effect through May 9, 2016. The new STEM OPT rules becomes effective on May 10, 2016.

The new rule has some important changes and additions to STEM OPT and “Cap-Gap,” in which F-1 students who are participating in OPT can have their F-1 status and work authorization extended with the timely filing of an H-1B cap petition:

– STEM OPT is lengthened from 17 months to 24 months starting on May 10, 2016. Employers must still be enrolled in E-Verify. STEM OPT will only be granted to students whose qualifying degrees come from currently accredited schools. STEM OPT students are allowed to be unemployed for a max of 60 days (in addition to 90 days during first 12-month period of OPT).

– The rule expands the range of possible fields in which degrees could support a STEM extension by clarifying it it includes a field included specific Department of Education Classification of Instructional Programs categories.

– Cap-Gap is reinstituted. F-1 students’ duration of status and any current OPT employment authorization will be extended if the student is the beneficiary of a timely-filed H-1B petition and change of status request that is pending or approved by USCIS. Under this provision, OPT is extended until the beginning of the new fiscal year, i.e. until October 1 of the fiscal year for which H-1B status is being requested.

– For F-1 students who subsequently enroll in a new degree program and earn another qualifying STEM degree at a higher educational level, they are eligible for one additional 24-month STEM OPT extension.

– Employers are required to implement formal training programs for STEM OPT students. This new training plan will be described on a new Form I-983, Training Plan for STEM OPT Students, which a university’s Designated School Official must approve before issuing a Form I-20 endorsed for a STEM OPT extension. As part of the training plan, the employer and the student must also do mid-point and final evaluations. Employers may use existing training programs to satisfy some of the evaluation requirements for STEM OPT students.

– Employers must attest that terms and conditions of STEM OPT will be “commensurate” with those applicable to similarly situated US workers, and that STEM OPT students will not be replacing full- or part-time, temporary or permanent US workers.

– If someone is in their regular 12-month post-completion OPT period from a non-STEM degree, but received a STEM degree in the past, they can apply for a STEM extension of OPT of 24 months provided both degrees come from currently accredited schools. The practical training opportunity that will take place during the STEM extension must be directly related to the previously obtained STEM degree.

– DHS is allowed to do site visits at STEM OPT employers, with 48 hours’ notice.

– STEM OPT students must report to their DSOs any changes in their name or address, as well as any changes in their employer’s name and address.

While the regulation resolves the regulatory uncertainty regarding STEM OPT overall, this new rule brings up a number of questions:

What happens to a F-1 STEM OPT student’s 17-month STEM OPT EAD if it is approved before May 9, 2016?

Answer: Nothing. No action is immediately required, and the EAD will be valid until it is expired. DHS has advised that the employer and the student’s DSO must continue to adhere to all the terms and conditions of employment that were in effect when the EAD was issued.

What happens if an F-1 student on OPT requested a STEM extension for 24 months and it is approved on or before May 9, 2016?

Answer: DHS has advised that in this scenario the student’s Form I-765, Application for Employment Authorization will be treated as a 17-month extension request and will be approved as such in accordance with the prior regulation.

Can an F-1 student with a 17-month STEM OPT EAD apply to have their EAD extended for seven months so that s/he receives the 24 total months of STEM OPT envisioned in the new rule?

Answer: Yes. Starting on May 10, 2016, and until August 8, 2016, some F-1 students can apply for seven more months of STEM OPT provided they meet the following criteria:

– They have 150 calendar days left of validity on their current 17-month STEM OPT EAD at the time their new Form I-765, Application for Employment Authorization is filed;

– They must have timely filed their Form I-765 with the USCIS, meaning it is filed on or before August 8, 2016 and within 60 days of the date the student’s DSO enters the recommendation for the 25-month STEM OPT extension to the F-1 student’s SEVIS record;

– They must meet all other requirements for the 24-month STEM OPT extension.

When the Form I-765 is approved, the USCIS will issue the student an EAD with a validity period that starts the day after the expiration date of their 17th-month STEM OPT EAD.

What if an F-1 student’s Form I-765 for a STEM extension of OPT is still pending on May 10, 2016? How will the USCIS handle this?

Answer: If an F-1 student’s Form I-765 requesting a STEM extension of OPT is still pending on May 10, 2106, the USCIS will issue a Request for Evidence to the student; the RFE will allow students to essentially amend their I-765 to request a 24-month STEM OPT EAD without having to file a new application and without having to pay an additional fee.

The RFE will generally request that F-1 students submit a new Form I-20 that has been endorsed by their university DSO for a 24-month STEM extension of OPT. In order to obtain this Form I-20, the student will have to provide a complete, signed Form I-983, Training Plan for STEM OPT Students, to the DSO (which has also been signed by the prospective STEM OPT employer).

DHS has cautioned students that withdrawing a pending STEM extension of OPT request and refiling for a 24-month extension may not necessarily be a wise course of action, as if the student’s original period of 12 months of post-completion OPT has expired that student is no longer eligible to file for a STEM OPT extension. If an F-1 student’s post-completion OPT expires while a STEM extension of OPT application is still pending, the old rule that the student receives an automatic extension of employment authorization of up to 180 days upon the expiration of their current employment authorization remains in effect.

Can an F-1 student travel while in the Cap-Gap period?

Answer: DHS has clarified in the commentary accompanying the new rule that it will not allow for travel outside the United States for Cap-Gap students while an H-1B change of status petition is pending, consistent with prior USCIS and legacy Immigration and Naturalization service interpretations of the change of status provisions of the Immigration and Nationality Act. Such travel, in the views of DHS, means that an F-1 student would no longer be authorized for F-1 status during the Cap-Gap period and thus cannot rely on the the Cap-Gap provision’s extension of F-1 duration of status for being readmitted as an F-1 student.

However, DHS did clarify in the commentary accompanying the new rule that an F-1 student who is in their Cap-Gap period may travel outside the United States and be readmitted as a F-1 student during a Cap-Gap period if:

– The F-1 student’s H-1B petition and request for an automatic change of status from F-1 to H-1B has been approved;

– the F-1 student seeks readmission before their H-1B employment begins (on the date described in the approved petition, usually October 1); and

– The F-1 student is otherwise admissible to the United States.

What You Need to Know:

• The new proposed regulation on F-1 STEM extension of OPT would lengthen the total STEM OPT period from 17 months to 24 months.
• This new proposed regulation would continue to require STEM OPT employers to be enrolled in E-Verify, and would continue the practice of “Cap-Gap.”
• The current STEM OPT framework remains in effect through May 10, 2016.
• USCIS is expected to implement the new proposed regulation before May 10, 2016.
• Current F-1 students needing a STEM extension of OPT are advised to move forward with applying for one.
• F-1 students currently working under a STEM extension of OPT should not expect that their employment authorization will be invalidated or questioned.

In the summer of 2015, a federal court in Washington, DC held that the manner in which the USCIS implemented the STEM extension process in 2008 was improper. The court said that USCIS was free to issue a new regulation governing the STEM extension process through proper rulemaking procedures, but that the current STEM extension framework would no longer be in effect as of February 12, 2016, so that USCIS had time to issue the new regulation. USCIS issued the proposed new regulation in October 2015; among its provisions are an extension of the STEM OPT period from 17 months to 24 total months, and new requirements for the implementation of formal mentoring and training plans by employers for F-1 students using STEM extensions of OPT. As in the old regulation, the USCIS will continue to require that anyone receiving a STEM extension of OPT work for an employer that is enrolled in E-Verify, and continues the practice known as “Cap-Gap” for F-1 students with timely-filed H-1B petitions.

Because the USCIS received 50,000 public comments in response to the proposed regulation (significantly more comments than for many similar proposed regulations in the past), the USCIS asked the court for an extension of the February 12, 2016 deadline. In late January 2016, the court agreed, extending the date by which the current STEM extension framework would no longer be in effect to May 10, 2016. This extension gives the USCIS time to analyze the public comments, make any changes to the proposed new STEM extension regulation as needed, and publicize the final new regulation, before the May 10, 2016 date. We expect the USCIS to finalize the new rule before this May 10, 2016 date. Current F-1 students are advised, if eligible, to continue to seek and apply for STEM extensions of OPT, and we have no reason to expect that F-1 students currently working on a STEM extension of OPT will have their employment authorization cancelled, invalidated, or questioned.

– Scott A. Kuhagen