Episode 34: Form I-9 rule, a second H-1B lottery, recent Supreme Court rulings

It’s July 27, and this is your BAL Immigration Report.

• The Department of Homeland Security publishes a much anticipated Form I-9 rule.
• USCIS announces it will conduct a second H-1B lottery.
• A closer look at two recent Supreme Court cases and their impact on DACA litigation.

“Might there be a way for at least five justices to find that the red states, spearheaded by Texas, lack standing to challenge DACA? Todo puede pasar.”

—Martin Robles-Avila, BAL Senior Counsel

U.S. news

New Form I-9 rule published

The Department of Homeland Security published an updated Form I-9 regulation this week, which will give qualifying employers alternatives to in-person document review in some cases.

Beginning Aug. 1, employers who are in “good standing” in E-Verify will have the option of completing Form I-9 document review processes through a live video call interaction after an employee transmits copies to the employer. This option will also be available to employers completing follow-up Form I-9 document review for employees hired during the COVID-19 pandemic if they meet certain requirements.

DHS also announced that a new streamlined Form I-9 will become mandatory in November.

Second H-1B lottery announced

U.S. Citizenship and Immigration Services announced Thursday it would conduct a second H-1B lottery for the 2024 fiscal year.

The agency completed its initial selection of cap-subject registrations in March, and the filing period for those selected closed on June 30. USCIS said it recently determined that it would need to select additional registrations to reach the fiscal year 2024 numerical allocations. The agency is expected to announce when it has completed this process and notified petitioners with selected registrations that they are eligible to file petitions. BAL will provide information as it becomes available.

U.S. news roundup

• A federal judge struck down the Biden administration’s restrictions on asylum seekers.
• Passport wait times continued to be delayed amid a surge in applications.
• BAL Partner Maggie Murphy discusses practical alternatives to H-1B visas in a Q&A posted to com/bal-perspectives.

Spotlight

A conversation with BAL Senior Counsel Martin Robles-Avila: how recent Supreme Court rulings affect litigation over the Deferred Action for Childhood Arrivals program — or DACA.

BAL Immigration Report: In a case challenging DACA, Texas and a group of other states argue that the Biden administration exceeded its authority when it implemented a new DACA regulation last fall. The U.S. Justice Department and DACA proponents not only defend the legality of the program but also say the states lack standing to bring the claim.

As we reported last week, the Justice Department and the Mexican American Legal Defense and Educational Fund both filed motions with the district court in Texas this month, saying a recent Supreme Court ruling supports their argument. The DACA case is being heard by Judge Andrew Hanen in a federal district court in Brownsville, Texas. In 2021, Hanen ruled the Obama-era memorandum that created DACA was unlawful. The Fifth Circuit Court of Appeals upheld this ruling in October but also asked Hanen to consider the legality of the Biden administration’s regulation. BAL Senior Counsel Martin Robles-Avila joined us this week to provide his analysis.

Robles-Avila: Standing focuses on whether the right party with real stakes in the game is bringing the lawsuit. A plaintiff has to show that they’ve suffered a direct injury that can be redressed by a favorable decision from the court. So you can’t bring a lawsuit if you haven’t been harmed, and if the court can’t do anything to prevent whatever it is you’re complaining about, you’re not the right party to file the suit.

So in United States v. Texas — which should not be confused with the pending district court case in the Southern District of Texas, which is Texas v. United States — Texas and Louisiana brought what Justice Kavanaugh said and referred to in his decision as an “extraordinarily unusual lawsuit.” In it, the state of Texas challenged a 2021 memorandum from Homeland Security Secretary Mayorkas called “Guidelines for the Enforcement of Civil Immigration Law.” DACA too, of course, was created by an executive memorandum issued by former Homeland Secretary Janet Napolitano.

The Mayorkas memorandum essentially prioritized the arrest and removal of noncitizens who were suspected of being terrorists or dangerous criminals or who had recently entered the United States illegally. According to Texas and Louisiana, these guidelines violated two other federal statutes that required DHS to arrest more criminal noncitizens than the guidelines allowed. And they essentially asked the court to order the Biden administration to make more arrests in part because it imposed costs on the states. They claimed that they were financially injured in part because they would have to pay for healthcare and education to noncitizens who should have been but were not being arrested by the federal government. But the court found that the states of Texas and Louisiana were not the proper parties to bring the suit despite these indirect costs.

There’s a lot of focus on a footnote to Justice Kavanaugh’s opinion in which he explains that when states like Texas claim standing based on indirect effects on state revenues or state spending, their standing becomes more attenuated or diminished. And these are precisely the kinds of costs that District Judge Hanen, as well as the Fifth Circuit, cited to affirm standing for Texas when it initially brought its challenge to DACA in 2018. In addition, in a separate concurring opinion, the court also found another jurisdictional defect in standing, namely that the court could not even redress what the states were complaining about. The guidelines merely advise federal officials about how to exercise their prosecutorial discretion when it comes to deciding whom to prioritize for arrest and removal, but the court said that even if they struck down the memorandum, nothing would change because federal officials would still have the same underlying prosecutorial discretion. So Judge Hanen is really going to have to grapple with his decision, which the DACA defenders are citing in a court filing earlier this month. Opponents of DACA claim that U.S. v. Texas calls into question both the district court’s and the Fifth Circuit’s prior findings on standing in the case.

BAL: The states challenging DACA dispute that U.S. v. Texas applies to their standing argument. They also say another recent Supreme Court case bolsters their claim that DACA is inconsistent with the Immigration and Nationality Act.

Robles-Avila: Earlier this month, led by Texas, the plaintiff states affected their filing in the Southern District of Texas, in which they claim that another Supreme Court decision called Biden v. Nebraska provides support for their arguments for several reasons. All of them stem from the so-called “major questions doctrine,” which — depending upon which Supreme Court justice you ask — was either just made up last year in a case called West Virginia v. EPA or has been around for decades. I tend to agree with the former. Its basic premise is that there are some extraordinary cases where the courts expect Congress to speak more clearly if it wishes to assign [to] an agency, decisions of, quote, “vast economic and political significance,” close quote. The court in Biden v. Nebraska found that the administration’s loan forgiveness program lacked statutory authority despite the apparently broad language in the statute, the HEROES Act, that arguably authorized the program.

DACA itself and prosecutorial discretion generally stem from a couple of very broadly phrased immigration statutes that authorize the Homeland Security Secretary to establish national immigration enforcement policies and priorities. That sounds like a very broad grant of authority, but the major questions doctrine says that certain factors may show that, despite the text, Congress did not intend to allow such a broad exercise of power. Some of those things include whether the matter is politically controversial, whether large numbers of dollars are involved — the loan forgiveness program, for example, involved $430 billion — whether large numbers of people are affected, whether Congress has sought and failed to legislate on the matter, and whether the agency action is unprecedented or departs from settled agency practice.

Several of these factors are present in the DACA debate. Texas claims, for example, that DACA essentially rewrites immigration law, that Congress has failed to pass legislation for DACA recipients for many years, and that granting lawful presence and benefits to DACA recipients is more appropriately suited to Congress rather than the president. Many of the prior DACA holdings from the Southern District of Texas and the Fifth Circuit have either directly or indirectly referenced the major questions doctrine, and it’ll certainly find its way into Hanen’s decision. But in order to resolve this, you have to first decide whether DACA is more about prosecutorial discretion or about the attendant benefits, such as employment authorization and Social Security benefits, which are a function of a Reagan-era regulation rather than the DACA memorandum itself.

BAL: Most observers believe the DACA case will be ultimately decided by the Supreme Court. Robles-Avila says that while DACA recipients and their supporters still face an uphill battle, the recent high court rulings have the potential to alter the trajectory of the litigation and that he thinks the DACA proponents have a better argument.

Robles-Avila: United States v. Texas stands for the proposition that prosecutorial discretion is still alive and well. While the court did not actually say that Biden’s policies were legal — in fact, it took no position at all on the issue because it found that Texas and Louisiana were not the proper parties to bring the case — but at its core, the DACA program is really little more than an intelligent and efficient way of exercising prosecutorial discretion. Rather than going out into the streets and adjudicating prosecutorial discretion requests on a retail case-by-case basis,
DACA allows for the streamlined exercise of discretion on a mass scale — and in that way, it was both innovative and transformational. There’s really no reason why the administration should be forced to undertake only inefficient procedures for exercising discretion, which is in any event inevitable and necessary given budgetary constraints. Congress has never sufficiently funded the agency to be able to arrest and deport everyone here in violation of immigration law, nor should it. The message from the high court’s U.S. v. Texas decision is that direct injury really matters and that some of the prior theories for states’ standing may no longer work.

To be sure, Judge Hanen’s opinion just got a lot longer and a lot more difficult to write, and that’s a plus for those who support DACA because, first of all, it means there’s more opportunities for Judge Hanen to make mistakes in his decision. But also, both of these opinions set up the possibility of the Supreme Court justices forging new alliances or coalitions when the case reaches the high court. Even if the majority of the court believed under the rationale in Biden v. Nebraska that President Obama overstepped statutory authority when he created DACA over 11 years ago, if a majority of the justices find that the states lack standing to challenge it, DACA lives to fight another day. Remember that in United States v. Texas, the court never reached the question of the legality of the enforcement priorities because they shut the case down on standing.

There’s an old adage that sounds a little bit better in Spanish that “Todo puede pasar” — “anything can happen, everything is possible.” The U.S. v. Texas decision was an 8-1 majority, with only Justice Alito dissenting. Might there be a way for at least five justices to find that the red states, spearheaded by Texas, lack standing to challenge DACA? Todo puede pasar.

Global news

New self-assessment tool

Singapore’s Ministry of Manpower will launch an enhanced self-assessment tool for evaluating Employment or S Pass qualifications on Aug. 1. The online tool will allow employers and employment agents to assess if a candidate qualifies for a work pass based on information such as salary, education and work experience. The tool does not guarantee an application’s actual outcome, which depends on additional factors such as quotas and candidate history. An Employment Pass service account is required to use the new self-assessment tool.

China resumes some visa-free travel

In China, the government has resumed its 15-day visa-free travel policy for citizens of Singapore and Brunei. Travelers from these countries may once again visit China for up to 15 days for business tourism, family visits or transit purposes. Visas already issued to Singaporean and Bruneian citizens retain their validity, and previously submitted visa applications will be processed normally. The policy reinstatement is intended to facilitate business and tourism relationships between the two countries and China.

Eased immigration procedures

In Canada, the government is easing immigration procedures for Ukrainians and residents of Hong Kong.

A new pathway offering permanent residence to Ukrainians who have fled the Russian invasion will open on Oct. 23. To qualify, Ukrainian nationals must be in Canada with temporary resident status and have one or more family members who are Canadian citizens or permanent residents.

And beginning Aug. 15, residents of Hong Kong applying for Canadian work experience (Stream B) of the Hong Kong permanent residence pathway will no longer be required to meet education requirements or submit proof of education.

Global news roundup

• Israel took an important step in its path toward joining the U.S. Visa Waiver Program.
• The Portuguese parliament voted to put new limitations on the country’s Golden Visa program.
• In the U.K., the Home Office announced several immigration-related changes, including rescinding visa-free travel status for nationals of five countries.

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