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As predicted in my November 21 post, it has not taken at least one immigration opponent very long to attack the 14th Amendment's guarantee of US citizenship at birth to virually every child born in the United States, regardless of parents' immigration status, as a reaction to President Obama's announcement on immigration executive action.
The Hill reports on November 22 that Senator David Vitter (R-LA), has announced that he still supports a resolution that he introduced in 2011 along with Senator Rand Paul (R-KY) providing that a person born in the US would only be a US citizen by birth if at least one parent was a USC, LPR or member of the armed forces. It is noteworthy that this extreme resolution would not only deprive the US-born children of people who lack legal status in the US of citizenship by birth, but also do the same to children of parents who are in the US with legal visas, if they do not have green cards or US citizenship.
Senator Vitter said:
"This is the only industrialized country where just because an individual is born here physically, he or she is a citizen."
See The Hill: GOP Senator: 'Absolutely crazy' Congress represents non-citizens
The Senator has obviously not read the leading US Supreme Court decision on 14th Amendment birthright citizenship, U.S. vs. Wong Kim Ark, which has a lengthy discussion of the doctrine of birthright citizenship, as recognized in numerous (though admittedly not all) advanced countries. It is not exactly as if this is a new theory. The above case was decided in 1898.
Senator Vitter also said that he is looking for ways to block President Obama's executive action (not executive order, as some people misunderstand it to be) on immigration as announced on November 20. Evidently, in the view of some immigration opponents, going back to the pre-Civil War, pre-14th Amendment time of Dred Scott v. Sandford (1857) which held that people of color could never become US citizens, is the right way to do that.
I will examine the Wong Kim Ark decision in more detail in an upcoming post. Even though attacking birthright citizenship for children of parents who were not USC's or LPR's at the time of birth may not exactly endear GOP candidates to millions of Hispanic and other minority voters who would have been deprived of their US citizenship if Vitter's proposal had been the law (or might be deprived of citizenship retroactively it were ever to become the law) in the 2016 election, it might actually be one of the few avenues of opposition to the president's latest executive action on immigration that makes even minimal sense from a legal point of view.
To put it differently, broad executive power over immigration rests on more than 120 years of Supreme Court precedents, while birthright citizenship for every child born in the US rests on a single Supreme Court case, decided 116 years ago, that could conceivably risk being overturned by today's reactionary Supreme Court majority.
I continue to predict that we may be seeing a lot more in the way of attacks against birthright citizenship from the anti-immigrant side during the coming two years.
Updated 11-23-2014 at 11:20 AM by ImmigrationLawBlogs
As Greg Siskind points out in his November 21 Immigration Daily summary of President Obama's November 20 announcement of broad executive action in many other areas of both legal and illegal immigration. changes in the H-1B program did not make it onto the list. As Greg also points out, this is not because there is any lack of changes that could be made in order to make the H-1B program fairer and friendlier to the skilled workers who make such important contributions to our economy.
Nor is there any serious controversy over the power of the executive to impose almost any rules it pleases relating to both substantive and procedural requirements to be eligible for this critically important visa, which for many people has been and still is the gateway to our entire employment-base immigration system. Short of actually increasing the number of annual H-1B visas, which is desperately needed but clearly cannot be done without Congressional action, no one challenges the power of the executive to make almost any rules that it wishes in this area.
A prime example of this, of course, was the notorious Donald Neufeld memo which virtually rewrote the entire law of employer-employee relations for the sole purpose of making H-1B more difficult to be approved. This memo was on Greg's list of H-1B items which urgently needed action from the president. (My suggested action with regard to that memo would involve generous use of White House or DHS shredders.)
However, it is not my purpose here to go through a whole list of things which H-1B employers and candidates might wish that the president had done with regard to H-1B. Nor should one overlook the fact that the president did announce his intent to develop regulations which would without question benefit many people who either already have H-1B, such as the proposal to permit early filing of I-485 adjustment applications for I-140 beneficiaries whose immigrant (green card) visas are not yet current. Certainly, extending the length of OPT for additional categories of students beyond the current STEM occupations, which the president has promised to do, should also help.
My personal view is that I would like to see this extension applied to benefit F-1 students who majored in the humanities, not just technology. But my opinion is no doubt very much in the minority, so I will now move on to my main point, which deals with the thorny issue of what constitutes an H-1B specialty occupation.
As many writers have pointed out, claiming that a given H-1B offered job (which adjudicators like to call a "proffered" position, borrowing a term from the criminal law for some unfathomable reason - do they look on H-1B workers as criminals?) is not a "specialty occupation" for H-1B purposes is now a favorite reason for issuing RFE's or denials of H-1B cases.
Attorney Michelle S. Velasco has written an excellent article about this in the November 18 Immigration Daily called Challenges in Filing H-1B Visa Petitions of Uncommon Specialty Occupations. While this may be over-simplifying, her approach seems to be to provide thorough and extensive documentation of the complexity and specialization of any offered H-1B job that is not clearly identified as requiring a related specialized bachelor degree for an entry-level position in the field in question according to in the DOL's Occupational Outlook Handbook (OOH).
It is hard to argue with that, especially since the OOH often speaks to the question of what the educational requirements are for a given position with all the clarity of the Delphic or Sibylline oracles. However, my experience may have been a little bit different from Ms. Velasco's in dealing with this issue.
Based on the many RFE's I have received in H-1B cases in recent years challenging the specialty occupation nature of a given job (and also some fortunately very few and infrequent denial notices - no lawyer can possibly win every single immigration case), I have become a more than a little skeptical about whether H-1B adjudicators are willing to consider even the strongest and most persuasive outside evidence that a given H-1B job is a specialty occupation unless the OOH clearly indicates that it is.
I have found this to be especially true of the California Service Center (what a surprise!), which, unless the OOH is absolutely clear that a bachelor degree in the field (or a closely related one) is required for entry into the position, has sometimes taken the position that attempts to provide independent evidence through job descriptions, employer position in the industry and expert opinions, etc., are nothing but insidious attempts to undermine the authority of the OOH (as, in some cases, distorted or egregiously misread by the adjudicators).
It sometimes reminds me of trying to convince someone to agree on a point of Biblical interpretation by using statements from sources outside the Bible as authority. This is not always a successful strategy in matters of faith.
Nor have I always found going outside the OOH to provide evidence, no matter how strong, as helpful as it should be in dealing with Service Center adjudicators who, despite clear regulations providing four different ways of showing that a given position is a specialty occupation, three of which have no connection with the OOH, simply may not want to be convinced that a particular position is an H-1B specialty occupation unless they think that the OOH says it is.
I also believe that it is important to take these preconceptions into account in choosing the title of a given H-1B position and preparing the job description. I have not found this to be an area in which USCIS adjudicators are particularly open to being led down new and different paths, no matter how justified by the reality of a given H-1B offered position.
I have previously written in detail about an example of this in a Market Research Analyst case, which, again fortunately, was finally approved by the CSC. In that case, when responding to the RFE, my main approach was to convince the adjudicator that he/she had misread the relevant OOH entry for the job (which was certainly the case).
Without challenging the adjudicator's reading of the OOH, I am not sure if all the independent evidence in the world would have been able to overcome the aggressive tone of the RFE, which insisted that there was no way on earth that the offered job (doing extremely complex market research for one of the biggest US companies in its field) could qualify as a specialty occupation.
One would have hoped that President Obama's executive action announcement might have included something about ensuring fairer H-1B adjudications concerning this and other H-1B issues.
However, relying on less than clear OOH descriptions is far from the only strategy that USCIS Service Center adjudicators, and the AAO, are using to try to deny meritorious H-1B cases on the grounds of alleged failure to show that the offered position is a specialty occupation. Increasingly, the LCA's (Labor Condition Applications) which are required in order to support H-1B petitions are also being used as a means of attack, something they were clearly never intended for. I will discuss this further in an upcoming post.
To be continued.
Updated 11-23-2014 at 09:04 AM by ImmigrationLawBlogs
Update, 12:45 pm, November 22:
POLITICO reports on November 22 that former President Bill Clinton has called President Obama's November 20 announcement of executive action on immigration "necessary" and "historic".
How appropriate that the Democratic president who signed IIRIRA, one of the harshest anti-immigrant laws in recent American history, should (with justification) praise another Democratic president, who has arguably engaged in mass expulsion of immigrants (2 million and counting) at the fastest rate in U.S. history, for finally taking courageous (and long overdue) action in support of immigrant rights.
Update, 2:17 pm November 21:
According to The Hill, the House Republicans' lawsuit against the president was filed on the morning of November 21, and deals only with the Affordable Health Care Act (ACA). It may be amended at some point to add claims based on executive action over immigration, but that has not yet happened, to the best of my knowledge.
Update, 1:01 pm November 21:
There is a late breaking report that House Speaker Boehner has filed a lawsuit against the president for allegedly abusing his executive authority. How much of this relates to immigration, or how it relates, if at all, is not yet clear. I will update further as more details become available.
Original post follows:
In view of President Obama's historic November 20 decision to expand the scope of Deferred Action in order to provide temporary relief from deportation to an estimated 4 million parents of USC or LPR children, the focus on whether the administration has a legal basis for doing so on his own, when Congress has not only failed to provide express authority for doing so, but has arguably indicated its strong opposition, at least according to Republican leaders, is bound to increase in the coming weeks and months. This of course, will be especially true after the Republicans take over the Senate in January and as the 2016 election comes ever closer.
In addition to the question of the president's legal authority to expand Deferred Action to an additional 4 million people, which is very much in the news, there may be reason to believe that the president's action will revive focus on an issue which some Republicans had tried to keep alive before the 2012 election, but has not been in the news very much recently. This is the issue of the Constitutional basis for granting automatic birthright US citizenship to all children born in the US, regardless of their parents' immigration status or lack of it.
Since the president's new action will enable millions of unauthorized immigrants to obtain temporary relief from deportation, including work permits, based their having US born children, we should not be surprised if the epithet "anchor babies", a favorite insult used by immigration opponents against Hispanic, Asian and black American children of immigrant parents, comes back into vogue with renewed force.
The reason for this is obvious: before this latest presidential initiative, it was difficult to see what kind of "anchor" US citizen children under the age of 21 would be able to provide for their parents in terms of immigration status. Put differently, the term "anchor baby" was in fact an oxymoron. A baby was too young to be an "anchor" for a parent without lawful immigration status, and by the time the child reached 21 and was old enough to be an "anchor" by petitioning for a parent or parents, he or she was no longer a baby.
This has now all changed. According to President Obama's November 20 announcement, having a USC child of any age will now offer at least temporary protection against deportation to the parent or parents. We should not be surprised, therefore, if the entire legal basis for upholding birthright citizenship for all US born children, namely the US Supreme Court's decision in U.S. v. Wong Kim Ark (1898), yet another seminal decision, arguably the most important one of all in terms of its effect on today's law, which came about as a result of the notorious Chinese exclusion laws, comes under greater scrutiny, as enraged immigration opponents look for ways to block or frustrate President Obama's latest use of the powers of executive action.
Fortunately, in Wong Kim Ark, the Supreme Court majority overcame the narrow exclusionism and bigotry of that period and took an expansive view of the 14th Amendment's guarantee of birthright citizenship which is still at the heart of our citizenship law today.
I will, however, leave a detailed discussion of that issue for a later time. I will also leave discussion of the president's proposed changes in the legal immigration system for later, not because they are unimportant, which is certainly not the case, but because there is less dispute about executive power to make regulations affecting eligibility for legal visas.
I will therefore begin with a look at the legal justification which the administration has offered for expanding the scope of relief from deportation to millions of parents of USC and LPR children. This justification comes in the form of a 33-page memo from the Secretary of Homeland Security and the Counsel to the President dated November 19 and entitled:
The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.
The memo begins with three conclusions:
1) Prioritizing the removal of certain unauthorized immigrants is permitted under DHS's discretion to enforce the immigration laws.
2) Deferring removal of unauthorized immigrant parents of US citizens and LPR's is also permitted under DHS's same discretion to enforce the immigration laws.
3) Deferring removal of unauthorized immigrant parents of children who are eligible for relief under DACA is not permitted within the limits of DHS's discretion over immigration enforcement.
To begin with the last conclusion, while this will no doubt disappoint immigration advocates who do not want to break up DACA families, the legal basis for distinguishing the case of DACA parents from the parents of children with legal status such as USC or LPR also appears to be weak.
If the executive branch has the broad discretion over immigration enforcement which the Supreme Court decisions and other authorities discussed in the November 19 DHS Memo clearly provide, why does this discretionary authority suddenly stop at the line between parents of children who have actual legal status, and parents of children who have no formal immigration status, but are still protected from deportation by valid exercise of executive power, i.e. DACA? Certainly, humanitarian considerations, which the Supreme Court listed as an important factor that can be considered a part of executive discretion over immigration enforcement according to the Supreme Court's decision in Arizona v. U.S. (2012), discussed at length in the DHS Memo, would not be any different in terms of keeping parents and children together, regardless of whether the children had formal legal status such as USC or LPR, or merely an administrative reprieve from deportation, as in the case of DACA beneficiaries.
It would seem that the argument for making this distinction would be stronger if it were based on exercise of discretion, rather than lack of authority. In other words, with regard to the parents of DACA children, it would have made more sense of the administration were to say:
"We have the legal discretion to defer parents of DACA children from deportation too, but we are not going to exercise that discretion in favor of the parents, because even though the children were brought to the US illegally without choice and through no fault of their own, the parents were the ones who made the decision to bring the children here illegally, so why should we give the parents a break too?"
Whether one agrees with the above rationale or not, it at least has more support in the law than denying outright that the executive has any authority to "low-prioritize" this particular group of people, while at the same time asserting that it has the power to prioritize virtually everyone else who is in the US without status for deportation, up or down, depending on the circumstances.
To be continued.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been conducting legal research and developing effective legal arguments in order to help business, employment and family-based immigrants obtain successful results in their work visa and green card applications for more than 30 years. His email address is firstname.lastname@example.org
Updated 11-22-2014 at 12:45 PM by ImmigrationLawBlogs
I am anxiously awaiting the details of the President's immigration executive action expected to be unveiled on Thursday evening. The President just announced he will address the nation on November 20, 2014 at 8pm laying out the details of his plan to fix the “broken” immigration system. President Obama is also scheduled to visit Las Vegas’ Del Sol High School on Friday and talk more about his plan. Press Secretary Josh Earnest briefed the press Wednesday afternoon and noted the Administration’s desire to continue conversations with stakeholders. He also announced the President will be hosting a dinner, Wednesday night, for eighteen Democratic lawmakers where I suspect he will lay out the legal basis and historical precedent for his actions.
Many remain hopeful that the action will address what has been characterized as an untenable situation for millions of undocumented immigrants. In fact, all of Washington is getting ready for this announcement, including the Republicans who are already threatening to impede any Presidential action by imposing funding restrictions in the spending bill.
After spending twenty–four years defending employers facing worksite enforcement actions and immigration compliance investigations, criminal and administrative, I remain hopeful that the President will do what Congress has not been able to. I have seen what it takes to pick the veggies that end up on our kitchen tables, experienced the heat the pallet workers and roofers endure, been in the middle of more union production shutdowns during a Form I-9 audit than I care to remember and can’t forget the work the cleaners do on the night shift at the meat packing plants. I have also witnessed technology and other types of companies lose the best and brightest U.S. educated students to foreign competitors because the U.S. did not “have enough visas” to allow them to work in the U.S. I have glimpsed into the shadows the President refers to. Simply put, our system is broken, that is a fact, regardless of what side of the aisle you sit on.
Work permits could be granted to an excess of five million people but NO health benefits or government subsidiaries will be available under the Affordable Care Act according to the NY Times. If accurate, this will be one of the many topics employers will need to grapple with as the realities of this executive action play out. Other issues for employers include how to deal with existing employees coming forward with new identities or questions about use of the program before work authorization is actually issued.
It remains to be seen exactly how far this reform action will go and if it will truly be "big and bold" as FWD.us Todd Schulte requested. It is possible the order could provide relief to the parents of Dreamers who benefited from DACA - Deferred Action for Childhood Arrivals in 2012 and further relief to those with DACA benefits. In fact, it could go even further and include the parents of U.S. citizens and permanent residents (together an estimated 4 million people). White House officials have stated the expected criteria will include the length of time individuals have been in the U.S. as well as family ties. It should be noted whether or not to include the parents of the DACA population is somewhat of a hot button and understood to be an issue by senior administration officials.
It also remains to be seen if the President will address any other immigration problems. For example we have a very long wait to immigrate legally to the United States in many visa categories. While the President cannot increase the number of family and employment-based immigrant visas without legislation, he can change the way the number of visas are counted for dependents against the worldwide visa quota. He could count only one number per family instead of counting each member of the family against the quota. This would alleviate the expected delays in the EB-5 program as well as others in different visa categories. The action could also recapture visa immigrant visa numbers that have been lost over the years, providing the opportunity for more people waiting in line to immigrate faster. According to Julia Preston’s NY Times article the action will also “provide new guidance for the nation’s immigration enforcement agents and revamp the legal immigration system to provide more opportunities for high-tech workers from other countries”. Finally the NYT has a Infographic worth viewing that lays out the numbers that could be affected President Obama’s immigration plan.
Addressing this issue as broadly as possible will allow law enforcement, including Immigration and Customs Enforcement (ICE), to focus on deporting convicted criminals, those that pose national security risks and targeting egregious employers who mistreat workers, or are involved in trafficking, harboring visa and/or identification document fraud, money laundering, etc. While President Obama is clearly willing to do this alone, it is still possible Congress could work together to pass a comprehensive bill in 2015. Wishful thinking?
Join the discussion as Dawn Lurie and Julie Myers Wood host a Town Hall Meeting on the Immigration Executive Action: What Does This Mean for Employers? on Friday November 21, 2014 at 9am. Contact Kristin Jones at email@example.com for details.
The comments and opinions expressed on this site are of the individual author and may not reflect the opinions of her firm or any individual attorney.
Dawn M. Lurie is recognized in the legal community as a sophisticated and forward thinking immigration compliance authority and EB-5 investment strategist. She focuses on visa, workforce, and global mobility issues. Dawn is proud to be considered a trusted partner to corporate clients and is relied on for her ability to spot impending government enforcement trends. Her deftness in balancing business necessity with regulatory reality is also highly valued. When advising clients, Dawn presents creative, yet compliant, solutions and identifies issues long before they become problematic.
On what may be the most important day in Barack Obama's presidency, and one of the most important in America's entire immigration history, President Obama is expected this evening (November 20) to announce a significant extension of the Deferred Action program to grant temporary protection from deportation to additional millions unauthorized immigrants Not unexpectedly, this is increasing the threats by immigration opponents to sue the president for allegedly exceeding his Constitutional powers to fever pitch.
See: Huffington Post: GOP Governors Want To Sue Obama Over Immigration Executive Action, November 19 and 20.
Ironically, but not surprisingly, in other news of the day, the same Republicans who are threatening to sue the president for exceeding his powers over immigration, are at the same time helping him maintain broad powers to conceal the full extent of the federal government's complicity in the use of torture during the Bush administration.
See Huffington Post: Senate Torture Report Talks Break Down As Administration Pushes For Redactions, November 19.
If the president has the power to engage in torture (or at least cover up its prior use by the government), something which is repugnant to every civilized society on earth and strictly forbidden by both US and international law, why does he not have the power to grant temporary humanitarian relief from the harsh penalties of deportation to immigrants who may have been living in the US for many years with the de facto, though not the legal, permission of the government, and who have parents, spouses, children or other close family members who may be US citizens, and who are neither criminals nor present any other danger to society?
Former Bush administration official John Yoo, author of the Texas Law Review article cited in my November 18 post, argued in his notorious "torture memos" that there were few, if any restrictions on the president's power to use torture, because of his broad powers over foreign affairs. However, in his law review article, he argues that immigration is primarily a domestic matter, and that the president is therefore bound by enactments of Congress and required to carry them out to the fullest extent possible, without using any discretion over the manner or extent of enforcement. Yoo states:
"Any [presidential] prerogative would not extend to the immigration decision because the President's constitutional authority should only extend to national security and foreign affairs." (91 Texas Law 781, at 812)
Putting aside the question of foreign affairs, which even he admits elsewhere in his article that immigration is closely connected with, it is curious that John Yoo, of all people, seems to argue that immigration has nothing to do with national security. Is not immigration mainly under the jurisdiction of the Department of Homeland Security (as Yoo also mentions elsewhere in his article)?
On the other hand, maybe it is better not to pursue this point too far, lest we one day see an article by Professor Yoo upholding the right to torture immigrants on national security grounds!
Having established, in his view, that immigration is primarily just one more area of domestic policy in which Congress rules supreme and in which the president is merely its servant under the Constitution, Yoo attempts to shoot down some of the justifications for broad presidential power over immigration that were put forth in Justice Kennedy's majority opinion in Arizona v. U.S. 567 U.S.___(2012).
In opposing one of the reasons given by Justice Kennedy in support of presidential power to grant relief from deportation, namely "equities", or humanitarian concerns, Yoo goes all the way back to Aristotle to find a reason for arguing that "equity" is not an excuse for what Yoo (not the Greek philosopher) calls "non-enforcement " of the immigration laws. According to Yoo, Aristotle interprets "equity" as something which by definition applies only in isolated or individual cases, not in general situations that might affect large numbers of people.
I am not an Aristotle scholar, but I do know that Aristotle supported slavery for certain "inferior" (mainly non-Athenian, as I understand it) ethnic groups. I am not aware that he ever supported mass expulsion. With all due respect, Professor Yoo might have done better to look elsewhere for a more relevant authority (and less tortured argument) in support of his contention that "equities" have no place in executive power over immigration enforcement.
To be continued in an upcoming post.
Updated 11-20-2014 at 06:29 PM by ImmigrationLawBlogs