Immigration Roundup: Could Litigation Derail Obama’s Executive Action?


Despite the hoopla in Congress over President Barack Obama’s executive action on immigration, including a standoff that almost shut down the Homeland Security Department, lawmakers have yet to halt the various programs. But in the meantime, the courts appear to be chipping away at them.

The hallmark of the executive action, the deferred action for parents of Americans and lawful permanent residents (DAPA) program, was stopped dead in its tracks before it even began because of a lawsuit brought by Texas and 25 other states. In February, a federal judge in Texas issued a preliminary injunction against that program as well as the planned expansion of the deferred action for childhood arrivals (DACA) program.

The administration’s request for a stay of the injunction is pending before the U.S. Court of Appeals for the Fifth Circuit, which heard oral arguments (audio file) April 17. But whether a stay is issued doesn’t determine whether the courts will uphold the injunction, or even who will win on the merits. And the administration is further hampered by wrangling in the lower court over the grant, to some 100,000 original DACA program applicants, deferred action and work permits for three years instead of two—allegedly without telling the court or the plaintiff states.

Then there’s the planned expansion of optional practical training (OPT), an administrative program that allows foreign graduates of U.S. colleges and universities to work for a year—or up to 29 months for science, technology, engineering or math degrees—in their fields of study.

Although Obama’s expansion of the program hasn’t yet been challenged—nor could it be, considering that the details haven’t yet been released—a federal judge in Washington, D.C., recently found that a union representing STEM workers has standing to sue over the 29-month STEM OPT extension, which was promulgated in 2008. Standing was based on U.S.-born STEM workers’ claims that they faced increased job competition from foreign workers on OPT.

That leads to the most recent lawsuit, filed last week in the U.S. District Court for the District of Columbia, challenging a February final rule providing work authorization to the H-4 dependent spouses of certain H-1B highly skilled guestworkers. The complaint was filed by former employees of Southern California Edison who claimed they were laid off and replaced by H-1B workers.

As have the workers in the OPT case, the ex-SCE employees are arguing that the rule, effective May 26, will create additional competition for computer-related jobs, not only by providing an incentive for more H-1B workers to remain in the U.S., but also by adding hundreds of thousands of H-4 workers to the labor market, many of whom are highly skilled themselves.

The administration also is facing challenges to regulations governing the H-2B low-skilled, nonagricultural guestworker program, although that isn’t part of the executive action. The Department of Labor appeared to be caught off-guard by a federal judge in Florida permanently enjoining 2008 H-2B regulations in March after enjoining the DOL’s 2012 regulations in December.

The two injunctions caused a complete shutdown of the H-2B program until the judge issued a temporary stay of the March injunction. Meanwhile, the DOL and DHS are working on replacement regulations, due April 30, responding to the court’s finding that the DHS, but not the DOL, has authority to issue H-2B regulations.

And the DOL recently issued an H-2A agricultural guestworker proposed rule governing wages and other requirements for sheep and goat herders’ employers and employers of workers involved in the open range production of livestock. The proposal responded to another lawsuit by U.S.-born workers in those professions who claimed that previous DOL guidance was negatively affecting their ability to find jobs.

The U.S. Court of Appeals for the District of Columbia Circuit in June 2014 held that the DOL had to go through notice-and-comment rulemaking rather than issuing informal guidance, after finding that the U.S. workers had standing. The court’s reasoning on the standing issue served as the basis for standing in the OPT case.

Granted, the administration has had some legal victories. The Fifth Circuit April 7 ruled that a group of Immigration and Customs Enforcement agents and the state of Mississippi lacked standing to challenge the original DACA program. And in December 2014, a federal district court in Washington, D.C., ruled that Maricopa County, Ariz., Sheriff Joe Arpaio also doesn’t have standing to challenge DACA and DAPA.

But the various lawsuits do mean that the executive action isn’t all smooth sailing. And if Obama doesn’t play his cards right, the suits may run out the clock on his administration before he can accomplish what he intended.

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