U.S. Supreme Court Impasse in United States v. Texas a Disaster for Immigrants and the Whole Nation

On June 23, 2016, the U.S. Supreme Court issued a short order in the United States v.Texas case, affirming the judgment in the Fifth Circuit by a vote of four to four. Because the eight justices of the Supreme Court were equally split, the undocumented parents of U.S citizens and permanent residents, as well as the expanded group of people who arrived in the U.S. as children, are blocked from getting the relief of deferred action and work authorization. The Supreme Court deadlock is a terrible blow to as many as five million immigrants and to the entire nation. It is truly heartbreaking, as President Obama said. Millions of hard-working parents are unable to get work authorization or have relief from deportation. Others who came to the U.S. as youngsters are also unable to get permission to work and are subject to exploitation by unscrupulous employers. Most have lived in the U.S. for many years, and have strong ties to their communities. While the Supreme Court decision did not create any legal precedent, it has stopped President Obama’s executive action from going forward.

President Obama’s proposed program, DAPA (Deferred Action for Parents of Americans and Permanent Residents) would have spared from deportation and provided work authorization for the undocumented parents of U.S. citizens and permanent residents.   Additionally, it would have expanded the group of people eligible for DACA (Deferred Action for Childhood Arrivals), who had entered the U.S. prior to reaching the age of 16. The expanded DACA would have included applicants over 31 years of age, and changed the date of entry requirement from June 15, 2007 to January 1, 2010.

The legal basis for President Obama’s executive action can be found in the the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, federal regulations, and Supreme Court case law.

Congress has delegated to DHS the authority to set national immigration enforcement policies and priorities, 6 U.S.C. 202(5) and to issue regulations to carry out their responsibilities, 8 USC 1103(a)(3). Congress has also made clear that DHS is to prioritize removing those who have committed serious crimes, Department of Homeland Security Appropriations Act, Pub.L.No. 114-4, 129 Stat. 39, 43 (2015). Through the DACA and DAPA programs, those with clean records and who are not an enforcement priority, could come out of the shadows, submit to background checks, pay fees, apply for work authorization and be counted. Thus, they would be working on the books and paying taxes on the income they earn. Additionally, President Obama’s proposed measures would keep families together, as one of the main purposes of the Immigration and Nationality Act (INA) is to keep families united.

Deferred action is a form of prosecutorial discretion, which is granted on a case-by-base basis. Deferred action only means that the government has agreed not to deport you, for a certain period of time. It is not permanent residency, and does not create a path to permanent residency or to citizenship. The federal government’s decision not to prosecute or enforce the immigration laws, is generally considered to be within DHS’s absolute discretion. Previously the Attorney General, and now DHS, has broad discretion to decide whether to commence removal or deportation proceedings, adjudicate cases, and execute removal orders, and individuals have no private right to challenge these decisions in court. Reno v. American Arab Anti-Discrimination Committee, et al., 119 S.Ct. 936 (1999).

The Fifth Circuit decision, which stands because of the Supreme Court’s impasse, allows individual states to block federal immigration policy. The Executive branch’s authority over immigration, as over foreign relations, and a uniform rule of naturalization, has long been considered to preempt individual state action. Of course, each individual state cannot have its own immigration policy, which is why immigration has always been considered a federal matter. See, Arizona v. U.S., 132 S.Ct. 2492 (2012).

Plight of businesses and professionals seeking H-1Bs unlikely to be resolved any time soon

There are only 65,000 H-1B visa numbers for temporary professionals available each year, plus an additional 20,000 visa numbers for US masters degree holders. Because there is a set-aside of an additional 6,800 visa numbers for citizens of Singapore and Chile, there are actually only 58,200 visa numbers available for foreign nationals with a four-year bachelor’s degree or equivalent.

Demand for H-1B visa numbers has increased greatly since 2013. Because demand for H-1Bs is much higher than the visa numbers available, USCIS has used a lottery system to award visa numbers to H-1B petitions filed during the first five business days of April each year. In 2013, USCIS received 124,000 H-1B petitions during the first five business days in April. In 2014, USCIS received 172,000 H-1B petitions, in 2015 USCIS received 233,000 and this April 2016 USCIS received more than 236,000 H-1B petitions.

Thus, a person with a bachelor’s degree had only a one in four chance of getting a visa number this year, and a person with a US masters degree had about a one in three chance of getting an H-1B visa number.

This May 2016, the American Immigration Lawyers Association (AILA) filed a lawsuit against USCIS alleging that USCIS has kept secret the lottery selection process by which some H-1B petitions receive visa numbers and others do not. “When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.”

However, no matter the outcome of the lawsuit, the only real solution is for Congress to pass a law increasing the number of H-1B visa numbers that can be issued each fiscal year. Because of anti-immigrant sentiment and complaints about the H-1B visa program, including critical articles in the New York Times and other media, this is unlikely to happen any time soon.