On Jun 17 2015 by Michele G. Madera

Lawsuits Challenging Executive Action on Immigration

Several months ago, President Obama utilized his power to direct various U.S. agencies that are involved in the immigration process to implement improvements to the immigration system. One such directive was to introduce a program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, also referred to as DAPA. DAPA would allow for a deferment of a removal order and the opportunity to apply for employment authorization to certain unlawfully present immigrants who had citizen children in the United States.

More recently, U.S. Citizenship and Immigration Services finalized a new regulation allowing certain spouses of foreign professionals on temporary visas to obtain work authorization, so long as the foreign professional was being sponsored for a green card by his or her employer.

Both programs were challenged in federal district courts. The DAPA program was challenged by Texas, along with 25 other states. The spousal work authorization program was challenged by a group of currently unemployed information-technology workers. In each lawsuit, the courts had to decide whether these plaintiffs had standing to challenge these broad federal programs, before reaching the merits of those challenges.

In the challenge brought by Texas, the judge ruled that the state had standing. Texas argued that it would suffer financially by having to provide specific services to undocumented immigrants residing in Texas who benefit from DAPA. Texas specifically relied on the costs it would incur in providing driver’s licenses to all the newly eligible recipients of DAPA. The state of Texas alleged it would have to spend $174.43 for each driver’s license of a DAPA recipient. Although several states brought the suit, U.S. District Judge Andrew Hanen of the Southern District of Texas noted that only Texas had standing to bring the suit based on increased spending on driver’s licenses.

Texas also moved for a preliminary injunction, which was granted. The district court found that Texas would suffer “irreparable harm” if undocumented immigrants residing in Texas were granted legal status through DAPA. The court held that it would be virtually impossible to then undo the harm, since the driver’s licenses would already have been issued. Hanen also decided that the balance of equities favored Texas, since it was his opinion that potential DAPA beneficiaries would not be harmed by continuing to live as they are presently. At present, a U.S. Court of Appeals for the Fifth Circuit motions panel refused to stay the injunction pending appeal, but a panel of the Fifth Circuit is set to hear arguments on the propriety of the injunction itself on July 6.

Recently, the USCIS finalized a regulation making certain spouses of foreign professionals on temporary visas to be eligible for work authorization. The foreign professionals hold H-1B visas, and their spouses hold H-4 visas. H-4 dependent spouses are eligible for this benefit if their professional spouse has been sponsored for permanent residence by their employer, but the process is delayed. By allowing spouses to work in this scenario, the administration hopes to encourage companies to sponsor their temporary visa holders for permanent residence, and hopes to encourage foreign professionals to remain in the United States for the relatively long wait times (five to seven years minimum, and more than 10 years in many cases) that it takes for professionals to be eligible to complete the green card process.

H-4 visa holders may apply for work authorization if they are the spouse of an H-1B non-immigrant who: (1) is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker (normally the second step of an employer-sponsored green card); or (2) has been in H-1B status for more than six years, but their employer-sponsored green card has been pending for at least one year.

This new regulation has been challenged by three workers in the information technology industry on behalf of an unincorporated association, Save Jobs USA. They have sued the U.S. Department of Homeland Security in the U.S. District Court for the District of Columbia. This group of IT workers was employed by Southern California Edison, an electricity service provider. The group claims to have been replaced by foreign workers on H-1B visas. Save Jobs has taken the stance that the H-4 rule’s harm is so far-reaching that almost all U.S. citizens will have standing to challenge it. The specific harm they allege is that they will be forced to compete with a larger pool of IT workers, who currently cannot work in the United States as H-4 visa holders.

The Department of Homeland Security argued that the suit should be dismissed, as Save Jobs failed to show that its members are direct competitors with any potential beneficiaries of this new policy, and has therefore been unable to prove the injury for purposes of standing. The agency went as far to state that Save Jobs “fail[ed] to submit a scintilla of documentary evidence supporting their claim that they have been ‘injured’ for purposes of Article III standing … let alone that their speculative, future injuries have been caused by DHS rather than third parties, or that this court can redress those injuries.” DHS also argued that Save Jobs did not have standing because employment authorization had not yet been bestowed upon any H-4 beneficiaries, since the rule had not yet taken effect at the time of the action.

U.S. District Judge Tanya S. Chutkan of the District of Columbia denied a preliminary injunction request, thereby allowing the rule to take effect. The decision denying the injunction indicated that Save Jobs had not shown likelihood of success on the merits, in that the workers did not support the claim that they would suffer irreparable harm, the standard for which is particularly high in the D.C. Circuit. Chutkan held that the plaintiffs were required to show that the injury they would suffer was “certain, great, actual, imminent, and beyond remediation.” She held that any possibility of injury to the Save Jobs workers is speculative, as the H-4 beneficiaries were not necessarily IT workers, and could get jobs in any field.

Both of these cases are stemming from Obama’s executive action, but regarding different actions under his policy. One of the key issues in both of these cases is standing. While Save Jobs made a general standing argument that all U.S. workers will suffer due to the availability of employment authorization to a group of people who were ineligible for this benefit previously, they were unable to articulate any specific harm or show that any U.S. citizen worker had been displaced. At the time of the lawsuit, no H-4 beneficiary had even been granted employment authorization yet. This speculative harm was deemed as not enough to warrant an injunction.

Meanwhile, the action against DAPA clearly shows that Texas will have an increased cost because of the likely increase in driver’s license applications, but did not consider that those costs would be offset by other revenues and positive economic impacts as newly work-authorized workers were able to demand better pay, begin to pay taxes, and support the economy. Under the standard applied in the D.C. case, it is difficult to say that the imposition of one particular cost on the state would meet the standard of “certain, great, actual, imminent and beyond remediation.”

The treatment of standing in these two cases has resulted in very different outcomes. Since the D.C. case viewed the standard on standing as a very high and difficult standard, it resulted in the ability of H-4 beneficiaries to obtain employment authorization. However, the Texas court viewed standing differently based on the named consequence of the cost of driver’s licenses, and did not consider the totality of the factors that may outweigh the cost of driver’s licenses, based on granting legal status and employment authorization to millions of people. These two treatments have allowed parts of the executive action to proceed, while other parts are halted, leaving millions of people in a continuous limbo until the ongoing litigation is resolved.

This article was published in The Legal Intelligencer on June 17, 2015.