IN PURSUIT OF "SPECIALIZED KNOWLEDGE"

By Rachel Weissman

When one examines the many visa categories through which a foreign national may lawfully enter or remain in our country, certain values are immediately evident. Categories which allow foreign nationals entry through U.S. Citizen or Lawful Permanent Resident relatives bespeak the value our nation places on family unity. Categories which allow foreign nationals to stay due to persecution in their home country or domestic abuse in our own country, speak to our nation’s humanitarian values. And, of course, categories that allow foreign nationals to enter through employer sponsorship speaks to the value our nation places on capitalism within its own borders, and on its competitiveness in the global marketplace.

As a nation of immigrants, we recognize that foreign nationals have much to contribute to our marketplace. It is this recognition of foreign talent that lent itself to the creation of the L-1B “specialized knowledge” visa, a visa designed so that multinational business owners—business people with offices abroad and in the United States (or those who wish to open an office in the United States)—can bring foreign workers with “specialized knowledge” of the business’s product or process into the U.S. temporarily, so that its workers can perform the necessary specialized services in the U.S.

Unfortunately, however, for many businesses petitioning for the L-1B “specialized knowledge” visa, procuring the benefit has become a tedious battle. Petitioners are often required to provide evidence of facts that are irrelevant for the purposes of demonstrating specialized knowledge, or worse, denied visas for failing to demonstrate that specialized knowledge is required in cases where overwhelming evidence has demonstrated that such knowledge is necessary for the job.

For example, take one case where a petitioner was denied an L-1B “specialized knowledge” visa for its employee because it failed to demonstrate that working on its product required “specialized knowledge”. In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.  

One cannot entirely fault USCIS officers, however, for their sometimes absurd interpretations of “specialized knowledge”. The definition of “specialized knowledge” has long been the subject of contention in court cases due to its ambiguity in the regulations at 8 C.F.R. §214.2(l)(1)(ii)(D), which define specialized knowledge as “[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures”.

Legacy INS attempted, multiple times, to provide guidance to the term “specialized knowledge” identifying knowledge of a proprietary product as an indicator that specialized knowledge exists (See Matter of Sandoz Crop Protection Corp, 19 I&N Dec. 666 [Comm. 1988], and Matter of Penner, 18 I&N Dec. 49 [Comm. 1982]), especially where the employee’s duties relating to the proprietary product are “necessary in order for the company to remain competitive.” (Matter of Colley, 18 I&N Dec. 117 [Comm. 1981]). However, the regulatory definition of “specialized knowledge” (born of the Immigration Act of 1990) did not require proprietary knowledge as a prerequisite for L-1B classification.  In 1994, James A. Puleo issued a memorandum attempting to delineate what it is that makes up “specialized knowledge”, and included such factors as “knowledge that is valuable to an employer’s competitiveness in the marketplace” and “knowledge of a product or process which (could not) be easily transferred or taught to another individual”. (Memorandum on Interpretation of Specialized Knowledge from James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, CO 214L-P [March 9, 1994]). In 2002, a memorandum issued by Fujie Ohata gave a broad interpretation of the term, defining “specialized knowledge” as “a type of specialized or advanced knowledge that is different from that generally found in the particular industry.” (Memorandum on Interpretation of Specialized Knowledge from Fujie O. Ohata, Associate Commissioner, Service Center Operations, Immigration Services Division, HQSCOPS 70.6.1 (Dec. 20, 2002). In 2011, the Department of State again attempted to issue guidance as to how adjudicators of L-1B visa petitions should define specialized knowledge. Referencing the earlier INS cases, it identified proprietary knowledge of a product as an indicator that “specialized knowledge” exists, especially where knowledge “would be difficult to impart to another without significant economic inconvenience.” (U.S. Department of State, Cable, “Guidance on L Visas and Specialized Knowledge, Reference Document: STATE: 002106, 01/11” January 2011.)

Most recently, as this blog elaborated, in October 2014 the United States Court of Appeals for the District of Columbia Circuit came down hard on USCIS for its “wooden” application of the law in denying a chef an L-1B specialized knowledge visa. (See Fogo De Chao (Holdings) Inc. v. U.S. Dept. of Homeland Security, et al. No. 1:10-cv-01024 [Court of Appeals for the District of Columbia, Filed on 10/21/2014]). The Fogo court declined to give the USCIS decision “Chevron” deference as the regulations circularly parrot the statute, rather than provide a definition of “specialized knowledge”. It held that specialized knowledge could be obtained through deep immersion in a culture and also identified “economic hardship” as key in identifying where “specialized knowledge” exists. The Fogo decision, while helpful to practitioners seeking legislative support for a broader definition of specialized knowledge, also serves to highlight the desperate need for a more concrete definition of “specialized knowledge”.

United States Secretary of Homeland Security Jeh Johnson recognized the need for guidance in his November 20, 2014 Memo to USCIS Director Leon Rodriquez and USCIS Acting Director Thomas S. Winkowski, Policies Supporting U.S. High-Skilled Business and Workers. Specifically, Section D, “Bringing Greater Consistency to the L-1B Visa Program”, directs USCIS to “issue a policy memorandum that provides clear, consolidated guidance on the meaning of ‘specialized knowledge’,” and acknowledges the critical importance of the L-1B Visa Program for multinational companies as an “essential tool for managing a global workforce as companies choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy.” (emphasis added).

As USCIS drafts its guidance it should take care to note the capitalist values that inspired the creation of this visa category. This category was created, as noted by Secretary Johnson, “to benefit the U.S. economy”. To woodenly interpret this category so as to rule out many qualified workers, to create unnecessary limitations, all of this would only serve to hurt our own economy and to limit our own country’s competitiveness in the global marketplace. The Fogo de Chao decision, which allows for a broader interpretation of specialized knowledge, provides a good reference point as to how to interpret “specialized knowledge”. The guidance should be clear so that there can be no more ambiguity for USCIS officers attempting to interpret “specialized knowledge”.

“Specialized knowledge” should be found to exist where an employer would incur significant economic loss in training another individual to do the work required of an employee. “Specialized knowledge” should be found where the work requires knowledge of a proprietary product. Even if a company does not have a proprietary product, specialized knowledge should be found where an employee’s knowledge may be uncommon or advanced, and need not be narrowly drawn within the company and reserved for a select few. Specialized knowledge should also be found where a company may not have a product, but has developed a unique methodology for delivering services to customers.  The guidance should state unambiguously the long-standing USCIS rule that was reiterated in the aforementioned Ohata memo, that “there is no test of the U.S. Labor Market in determining whether an alien possesses specialized knowledge. Only an examination of knowledge possessed by the alien is necessary”. USCIS should be reminded that our country desires the services of qualified L-1B individuals and it should be encouraged to interpret “specialized knowledge” broadly, so as not to preclude workers who qualify to benefit our country under this category. Essentially, a foreign national should be found eligible for the L-1B visa where it can be shown that the person’s set of skills or knowledge is complex, and has contributed to the success of the foreign entity, and will be replicated in the United States on this person’s transfer.

The United States of America takes great pride in its capitalist ideals, and strives to be the most competitive nation on earth. The L-1B visa allows the United States to do just that.  USCIS should ensure that its guidance with relation to the L-1B “specialized knowledge” visa category comports with our nation’s values.

(Rachel Weissman is a Contract Associate at Cyrus D. Mehta & Associates, and is pending admission to the N.Y. State Bar after passing the bar examination. She graduated with a J.D. from Brooklyn Law School in 2014, where she focused her studies on Immigration Law and served as Treasurer of the Brooklyn Law Immigration Society. She looks forward to a day when the definition of “specialized knowledge” is interpreted to allow multinational business owners to easily transfer their “specialized knowledge” employees to the United States.)

SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM

By Gary Endelman and Cyrus D. Mehta

The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. Soon employers will be scrambling again on April 1, 2015 to file their H-1B petitions in the hope that they will be selected in the cap lottery. H-1B numbers will get exhausted six months before the start of the new fiscal year on October 1, 2015. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

• Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
• Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
• Authorizes employment for dependent spouses of H-1B visa holders.
• Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
• Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
• Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
• Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
• Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies.

Until now, the ever-increasing fees and hyper-regulation imposed by Congress and the USCIS on H-1B employers have been justified by the simple but stubbornly held, if unstated, conviction that the hiring of foreign workers is contrary to the national interest and should be punished. Beyond that, the USCIS and DOL, not to mention the legacy INS, have always and continue to believe that the infliction of such punishment was the best, perhaps the only way, to shield US workers from such "illicit" activity. No government should have to apologize for trying to protect its own citizens. The true objection to what the USCIS and DOL have done is that their efforts, however well intentioned, have done precious little to help, but much to hurt, the very objects of their stated concern.

What is also remarkable about the I-Squared Act is that it raises the H-1B cap without undermining the H-1B visa program the way we know it. Unlike what S. 744 tried to do to muddy the H-1B visa, there are no provisions that would force employers to pay higher than market wages, or subject dependent employers to artificial and onerous recruitment requirements. The bill also incorporates ideas that have been floated in the context of bringing about administrative reform. Most notable is that I Squared exempts dependents from being counted in the employment-based preferences, which is something that we have advocated for several years. It is always preferable if Congress is able to bring about this change than to have the Administration find a justification for not counting family members under the current INA, and possibly even being sued for doing so. The bill also seeks to recapture unused visa numbers, and these have been estimated to be at least 200,000.

The bill would also allow for early adjustment filing by deeming an immigrant visa to be immediately available if the visa has not been used up during the fiscal year. This is precisely what we have also been advocating for facilitating early adjustment filings administratively. So long as there is even one visa that has gone unused, there should be a deeming of visa availability, thus allowing a foreign national to  be able to file an early adjustment of status application before the State Department’s Visa Bulletin announces them current. Of course, if Congress can bring about the innovation through the I Squared Act, so much the better. This redefinition of visa availability would also inject new and badly needed relevancy into the age-freezing formula of the Child Status Protection Act which, despite petition approval, does not operate where there are visa backlogs. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the visa availability is redefined, then the danger of aging out is removed. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. Interestingly enough, the I-Squared Bill will be the one and only definition of visa availability that Congress has ever authored. 

The bill will also bring some respite to H-1B workers whose jobs get suddenly terminated. At present, there is no respite and an H-1B worker is in violation of his or her status upon termination. The bill will grant a 60 day grace period if the H-1B is terminated before the I-94 expires during which time a new employer can file a petition to extend or change status. This is the first step. We also urge that Congress passed a startup visa for entrepreneurs who wish to set up innovative businesses in the US. The H-1B visa is ill-suited for startups due to the need for the employer to establish control over the H-1B worker’s employment, which is difficult to demonstrate if the foreign national is the founder and owner of the entity.

The bill will also prohibit USCIS and DOS from denying subsequent petitions, visa or applications involving the same petitioner and beneficiary unless there was a material error relating to the approval of the prior petition, a material change in circumstances has occurred or new material has been discovered which adversely affects the eligibility of the employer or the worker. Although this bill has bipartisan support, it remains to be seen whether it will pass Congress. Republicans will want to introduce an amendment to abolish the Deferred Action for Parents Accountability (DAPA) program and Democrats may want to include provisions to make it more comprehensive such as legalizing undocumented persons. If both parties want to be able to demonstrate and can get something done, it would behoove them to pass this bill so as to avoid another H-1B cap quagmire looming ahead of us. Additionally, this bill will also help to further strengthen the American economy.

Section 102 of the I-Squared Bill would allow both H-4 and L-2 spouses to work, providing them with an “employment authorized endorsement of other appropriate work permit.” Does this mean a need to get an Employment Authorization Document? Who knows?  We welcome this development even though there is nothing in the INA right now that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. While the USCIS has proposed to allow H-4 employment in select instances, the I-Squared version of H-4 employment authorization is a distinct improvement. I-Squared improves the USCIS proposed rule as it would allow H-4s to obtain EADs without preconditions. The proposed USCIS rule imposes preconditions where the principal must either have to have an approved I-140 or be filing for an H-1B extension beyond the 6^th year under the American Competitiveness in the 21^st Century Act. Both versions unnecessarily limit H-4 employment to spouses rather than extending it to teen age children.

Much as with the notion of a flexible H-1B cap, this reframing of visa availability is not so much an attempt to create a new immigration law as to bring new depth and definition to the existing INA, thus indicating yet again that the value of incremental change is to function as an improvement upon existing legislation. While I-Squared does not overly challenge the tyranny of priority dates, it does so indirectly by updating our understanding of visa availability and exempting  EB-1 extraordinary ability and  outstanding researchers from being subject to the crushing weight of the numerical employment based  caps, as well as advanced degree holders with STEM degrees .  The concept of family unit is advanced by not counting family members against the employment-based immigrant visa caps but it would be even better if family members were similarly exempt as a factor in the family-based quota limits.

While I-Squared does not explicitly link H-1B allotments to domestic economic conditions, it does so on a de facto basis by allowing the H-1B cap to rise or fall in connection with increases or decreases in H-1B sponsorship which themselves are a direct function of business profitability. While I-Squared does not make the H-1B truly portable, it does grant a temporary 60 day basis for the H-1B worker to find a new job without falling out of status. While I-Squared does not explicitly sanction consular reviewability, it makes it unnecessary for E, H, L, O or P visa holders to go to a consulate in the first place in order to renew their existing visas by restoring the pre-9/11 practice of visa revalidation. While I-Squared retains the INA 214(b) presumption of intending residence or immigrant intent, it exempts F-1 students from the obligation to maintain an unabandoned foreign residence abroad. Dual intent is not eliminated but students now come within the protection of its sheltering arms. The concept of the per country cap is partially retained but only on the family based side of the ledger. Let’s take the next step and extend this reductive methodology to FB quotas. The priority date system remains in place but the INA now will define visa availability so long as any visa number allocated to employment-based preference immigrants has not yet been issued for that fiscal year.  Beyond that, US advanced degree STEM holders are no longer counted against the overall EB limits. In sum, I-Squared is a classic example of legislative remediation that retains the frame of what was not working while infusing it with new meaning and greater adaptability to meet and answer the challenges of the 21^st century.

This is pre-eminently a time for innovation. Try something, if that does not work, well then, try something else. True and lasting change is what America needs. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The USCIS and DOL care about American workers but do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world's creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. For those who think a new way is too complex, do we not have complexity now and towards what end? For those who shrink from the demands of change, or doubt what they can do to chart a new course, let them listen to the wise words of Robert Frost in his immortal poem The Road Not Taken that can, if we have the will and wisdom to hear it, still speak to us today: " Two roads diverged in a wood, and I - I took the one less traveled by, And that has made all the difference." 

THE LABORATORIES OF DEMOCRACY: STATE INITIATIVE AND PROMOTION OF IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

Although states have been experimenting with their own initiatives on immigration, they have been related to mainly punitive enforcement laws, the most notorious being Arizona’s SB 1070. Section 2(B) of the Arizona law, which was upheld by the Supreme Court in Arizona v. USA, requires police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States.” While such punitive laws have received the most media attention, other states have been experimenting with initiatives that attract immigrants. 

But state laws need not always be punitive. If we have the eyes to see them, examples of positive state actions on immigration are all around us, such as the issuance of driver’s licenses to undocumented immigrants in California and Connecticut.  Many of the progressive achievements in modern American history, such as progressive income taxation, women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently health care and same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. State action on immigration harkens back to salad days of our national existence. It is certainly true that, for the first century of American independence, there were no illegal aliens in a national sense for the simple reason that Congress had not yet placed any limits on immigration and would not do so until 1875. This incorrectly assumes that, prior to the Civil War, the states had no proper constitutional role to play in regulating immigration. A leading scholar has called this period of our history “ the lost century of American immigration law.” See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993). The federalization of US immigration policy is a relatively recent historical development, dating as it does from the late 19th century, largely in response to inadequate and ineffective state and local efforts. Not until the early years of the last century would the states cease to play an active role in shaping American immigration policy. What is happening now, therefore, is not a new approach but is a selective incorporation of what what is the original American approach on immigration. Long ago, Justice Brandeis recognized in that federalism offered a constitutional framework for experimentation and creativity: 

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…

New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J. dissent)

A case in point is Massachusetts’s launch of the Global Entrepreneur in Residence program. The GEIR is part of the 2014 Economic Development Bill, which facilitates partnerships with institutions of higher education such as universities to provide valuable, relevant part-time work opportunities to foreign graduates who are entrepreneurs and want to grow their companies, but cannot remain in the United States due to the H-1B visa annual cap. The university, as a cap exempt employer under INA section 214(g)(5)(A), can sponsor a foreign national who will not be counted towards the numerical limitations in INA section 214(g)(1).  Non-profit affiliates to institutions of higher education can also qualify as cap-exempt employers. 

So far so good, but there is a golden nugget by way of INA section 214(g)(6) that allows one who has been sponsored by a cap exempt  university employer to accept concurrent employment with an employer who is subject to the H-1B numerical limitation. INA section 214(g)(6) reads as follows:

Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). 

The magic word in section 214(g)(6) is “ceases.” In other words, so long as the foreign national has not ceased to be employed with an H-1B cap-exempt employer, he or she can be approved for an H-1B visa through a cap-subject employer without regard to the H-1B annual numerical limitation. Once the H-1B visa petition through the cap-subject employer is approved, according to a May 30, 2008 USCIS Policy Memo, even if the foreign national ceases employment at the cap exempt employer, he or she may continue to remain in H-1B status through the cap-subject employer, although a subsequent extension request will get denied unless there are new H-1B cap numbers available at the time of the new filing.  

Vivek Gupta is one such recipient of the GEIR program. The University of Massachusetts, according to the CNN news story, sponsored him in the university’s Venture Development Center as an “entrepreneur in residence,” where he will advise other founders of startup companies. This would allow Gupta’s own startup WealthVine, a cap subject employer, to sponsor him.  While we do not know whether Gupta’s H-1B visa petition through his company got approved, the GEIR would allow entrepreneurs like Gupta to work for their companies in H-1B visa status, which otherwise may not have been available to them due to the annual H-1B limitation. The USCIS Entrepreneurs Pathways portal provides a guide to how founders can use their startups to apply for H-1B visas. 

Michigan is another state that is actively innovating to attract top foreign talent. GOP Governor Snyder of Michigan will support those applying for the green card through the National Interest Waiver. While the specifics of Michigan’s plan have not yet been spelt out, it appears that Michigan will support applicants for the National Interest Waiver who reside in Michigan and who contribute to Detroit’s economic growth. There is ample scope for states to further develop the standards under the National Interest Waiver pursuant to President Obama’s November 20, 2014 Executive Action. Indeed, one of the Executive Action memos entitled Policies Supporting U.S. High Skilled Businesses and Workers acknowledges the under-utilization of the National Interest Waiver, and states can assist the DHS in establishing criteria for supporting applications from entrepreneurs and others that promote economic growth in the state. The same memo also indicates that DHS will use its “significant public benefit” parole authority under INA 212(d)(5) to develop criteria to bring in promising entrepreneurs who do not yet meet the National Interest Waiver cut. Here too states can provide input regarding developing criteria, and supporting entrepreneurs’ applications to the federal government when applying for parole to come to the United States. 

In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification  pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. In fact, increased involvement by the states in identifying labor market shortages in their jurisdictions is precisely what Congress had in mind when in created the modern system of labor certification in 1965. Rather than a hyper-technical system of individualized recruitment, Congress thought it was setting up a structure in which the states would funnel information on job vacancies to their federal unemployment insurance colleagues that would then guide the Secretary of Labor:

The system set up by the DOL after 1965 was exactly what Sen. Edward M. Kennedy (D-Mass.) had promised Congress when he served as the floor leader for this legislation: a system based not on individual recruitment but on statistical calculation. That is also precisely why the DOL lost case after case in the federal courts: the willing requirement cannot be satisfied by statistics. Badly wanting an immigration bill that would abolish the national origin quotas and admit more immigrants, Sen. Kennedy agreed to the price set by organized labor-namely, a more stringent form of labor market control. Congress went along with Sen. Kennedy but did so in the belief that the Secretary of Labor would have access to the names of individual U.S. job seekers already on file with the state employment services, who were the human faces behind all these numbers..That is why the DOL placed the Foreign Labor Certification Program squarely within the Unemployment Insurance (UI) Division, now known as the Workforce Security Division. This was done so that the statistics would be readily available to the labor certification administrators at the DOL from the UI folks. Ultimately, the thought went, statistics represent people, and the states could funnel the names and addresses of such people to the Secretary of Labor who, in turn, would provide them to an employer so that labor certification would not be necessary.[footnotes omitted]. 

See Endelman, The Lawyer’s Guide to INA 212(a)(5)(A): Labor Certification from 1952 to PERM,  www.ilw.com/articles/2004,1102-endelman.shtm

Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of significant crimes and is say an essential farm worker, is deserving of prosecutorial discretion by the federal government under its new enforcement  priorities pursuant to President Obama’s executive actions to remain in the state and  prevent its farm produce from otherwise rotting away. There may already be such authority under INA section 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation,” rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.

The Tenth Amendment of the United States Constitution provides that “all powers not delegated to the United States by the Constitution, nor prohibited by it to [from] the States, are reserved to the States respectively, or to the people.” This is the constitutional foundation for the "laboratories of democracy" concept and is integral to the American federalist tradition.  Under the general rubric of the state police power, the idea was that different policies could be road tested on the state level without directly influencing anyone else. If any one or more of those policies worked in any one statehouse laboratory, they could then be expanded to the national level by act of Congress. For example, Massachusetts established a health care reform law in 2006 that became the model for the subsequent Affordable Care Act at the national level in 2010. As the Supreme Court has allowed a seemingly limitless expansion of the federal power to regulate interstate commerce since the  late 1930’s,  the relevance of the “laboratory of democracy” model has significantly faded. However, now that we know that the federal government cannot use the Commerce Clause to compel consumers to purchase health insurance, perhaps the Progressive-era invocation of the states as laboratories of democracy will witness a modest revival.

There are, however, undeniable limits that properly circumscribe what experiments the state laboratories can conduct when it comes to immigration . Only the Congress can determine who comes to the United States and under what terms or conditions. Any state-attempt to cross that line and set immigration policy on its own will find a less than friendly judicial reception. That is why after upholding Section 2B of SB 1070 the Supreme Court did not allow Arizona to criminalize unauthorized employment ( Section 5(c) of SB 1070) or failure to carry an alien registration document ( Section 3 of SB 1070). That is why Arizona was not allowed to sanction warrantless arrest of aliens concerning whom a police officer had probable cause to believe had committed a removable offense (Section 6 of SB 1070). That is why Utah has not implemented its guest worker law 3 years after enactment. That is why a federal district court in 2009 held the Illinois ban on employer enrollment in E-Verify to be violative of the Supremacy Clause. 

What then distinguishes what Michigan and Massachusetts have done from the constitutionally infirm policies attempted in other states? Does not encouragement of state immigration laws implicitly encourage infringement of the plenary federal power over immigration policy? The key difference is that Michigan and Massachusetts rely exclusively on what Congress has already done. They seek only new and improved ways to take advantage of existing law, to adapt national standards to state and local needs.  There is no attempt to create new visas or enforce new restrictions above and beyond what Congress felt was necessary and proper.  A state immigration law linked to the existing INA has nothing to fear. A state immigration law that substitutes its own judgment for that of Congress cannot be allowed to stand. That is the difference between what we advocate and what the federal courts will not accept. 

The Massachusetts and Michigan experiments are useful and relevant for another reason. It seems sadly obvious that Congress will not, in the absence of a national consensus, enact comprehensive immigration reform, though we devoutly wish this was not so.  In response, the President has and doubtless will continue to exercise his inherent discretionary power to partially remediate our dysfunctional immigration system.  The objections to such actions are grounded on a claimed violation of separation of powers. For those who hold such views, and we do not, the resort to constitututionally compatible state immigration laws, should be a more palpable alternative. Some states will be more hospitable while others will not be, although at the local level, immigrants will be able to bring about changes for themselves as has been witnessed in California from the inhospitable Proposition 187 in 1994 to the issuance of driver's licenses to the undocumented today.  For those who endorse what the President has done, and we proudly count ourselves among them, such state immigration laws should be embraced as welcome companions in the campaign for a more just system.  That it seems a bit odd should be no reason to pull back from such a step.  As that noted American political philosopher Lawrence Peter Berra so aptly noted: "When you come to a fork in the road, take it!"

(Guest author Gary Endelman is the Senior Counsel at Foster)

A QUICK KNOCKOUT: SHERIFF JOE ARPAIO'S LAWSUIT AGAINST PRESIDENT OBAMA'S EXECUTIVE ACTION DISMISSED FOR LACK OF STANDING

By  David A. Isaacson

On November 20, 2013, the very same day that President Obama announced a series of executive actions aimed at “Fixing Our Broken Immigration System”, a lawsuit against the newly announced executive actions and against the existing Deferred Action for Childhood Arrivals program (DACA) was filed by Maricopa County Sheriff Joe Arpaio.  Sheriff Arpaio’s name may be familiar to readers of this blog: among other lowlights of a long and controversial career, he has been found by the Justice Department to have engaged in “unconstitutional policing” targeting Latinos, and was similarly found by a federal judge in the private class-action lawsuit Ortega Melendres v. Arpaio to have engaged in unconstitutional racial profiling.  Barely a month after Sheriff Arpaio’s lawsuit was filed, on December 23, 2013, the Arpaio v. Obama lawsuit was dismissed by a Memorandum Opinion and Order issued by Judge Beryl A. Howell of the U.S. District Court for the District of Columbia.  

In his lawsuit, Sheriff Arpaio sought to challenge DACA as originally implemented, DACA as revised by the November 20 announcement, and the new Deferred Action for Parental Accountability program that will provide deferred action similar to DACA to some parents of U.S. citizens and Lawful Permanent Residents.  Judge Howell’s Memorandum Opinion found that Sheriff Arpaio lacked standing to sue regarding any of these programs, for a number of reasons. 

As Judge Howell explained in her Memorandum Opinion, the Supreme Court has held that the power of federal courts under Article III of the U.S. Constitution to hear “Cases” and “Controversies” is restricted to instances in which the plaintiff meets certain requirements of standing to sue.  

The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” [Lujan v.] Defenders of Wildlife, 504 U.S. [555,] 560 [(1992)]. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014).

Arpaio v. Obama, No. 14-01966 (D.D.C. Dec. 23, 2014), slip op. at 15-16.  

Sheriff Arpaio, Judge Howell found, failed to satisfy all three of these requirements.  First of all, he had not properly alleged any injury in fact to him resulting from the challenged deferred action programs.  To the extent that he sued in his personal capacity, and claimed only the interest of every citizen in governmental compliance with the law, Sheriff Arpaio was asserting a generalized grievance of the sort that the Supreme Court has consistently held not to confer standing.  His assertion of past threats against him by undocumented immigrants was not a basis for standing because those threats, besides being in the past, were not traceable to the challenged deferred action programs and would not be redressed by any action the court might take against those programs. As for Sheriff Arpaio’s claims in his official capacity as Sheriff of Maricopa County, the injuries he asserted there as well, having to do with alleged increases in workload, were generalized to the point of not being cognizable, and extremely speculative to boot: he alleged that the deferred action programs would attract new undocumented immigrants into Maricopa County, and yet the programs by their own terms applied only to those who had already been present in the United States prior to January 1, 2010.

Nor did Sheriff Arpaio’s complaint demonstrate causation and redressability, the other key requirements of standing.  As Judge Howell’s Memorandum Opinion explained, “it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury.”  Arpaio v. Obama slip op. at 22.  But those actions would not be authorized by the challenged government programs.  Indeed, by enabling federal authorities to focus their resources on actual criminals, the challenged deferred action programs might help rather than harm Maricopa County:  

In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.

Arpaio v. Obama slip op. at 24.  Sheriff Arpaio, the court found, had “submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.””  Id. at 25.

Moreover, given the limited resources available to the executive branch for removal of noncitizens from the United States, Sheriff Arpaio also could not establish that his alleged injuries would be redressed by the relief he requested, an injunction against the challenged deferred action programs.  Such an injunction, after all, 

w[ould] not grant additional resources to the executive branch allowing it to remove additional undocumented immigrants or to prevent undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large number of undocumented immigrants and the limited number of removals w[ould] not change as a result of any order by the Court in this litigation. 

Arpaio v. Obama slip op. at 28.

Given Sheriff Arpaio’s lack of standing to bring the suit, Judge Howell found herself compelled to dismiss the suit for lack of jurisdiction.  She did, however, go on to detail, in the course of addressing Sheriff Arpaio’s request for a preliminary injunction, some of the other obstacles that his lawsuit faced as well.  Among those obstacles were the fact that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws,” that they “still retain provisions for meaningful case-by-case review,” and that they “merely provide guidance to immigration officials in the exercise of their official duties.”  Arpaio v. Obama slip op. at 31-32.  For all of these reasons, and given the absence of irreparable harm to Sheriff Arpaio and the public interest weighing against a preliminary injunction Judge, Judge Howell denied the motion for a preliminary injunction and dismissed the suit.
For any readers who may be disturbed that a case of this nature would be dismissed before entirely reaching the merits, it is worth noting that the requirements of standing have played an important role in other controversial areas of law as well.  It was these requirements that led the Supreme Court to rule in Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), that proponents of a California initiative prohibiting the marriage of same-sex couples did not have standing to appeal a decision striking down the statute enacted by that initiative where the governor and Attorney General of California did not appeal.  It was also those same standing requirements that led the Supreme Court to order dismissal of a lawsuit by environmentalists seeking to overturn an administrative rule that limited application of the Endangered Species Act in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Whatever one thinks of modern standing doctrine, it has clearly gored the proverbial oxen of plaintiffs of all ideological persuasions, immunizing government actions across the political spectrum from judicial review at the behest of bystanders without a sufficient concrete stake in a particular matter.

Sheriff Arpaio’s lawsuit against the President’s executive actions may not be the last to founder for lack of standing.  As explained in a recent post on this blog by Gary Endelman and Cyrus D. Mehta, even the lawsuit filed in December 2013 by a group of states led by Texas to challenge President Obama’s immigration initiatives is likely to fail for lack of standing.  The United States’ Memorandum in Opposition to the states’ request for a preliminary injunction in that litigation also sets out in great detail why standing is lacking there.  The states’ lawsuit, like Sheriff Arpaio’s, is also deeply problematic on the merits, for the reasons explained in that same blog post and in the United States’ Memorandum in Opposition.  For both reasons, the Texas lawsuit may soon meet the same fate as Sheriff Arpaio’s.