CRS Reports & Analysis
Legal Sidebar
The Obama Administration’s November 20, 2014,
Actions as to Immigration: Pending Legal Challenges
One Year Later
11/20/2015
On November 20, 2014, the Obama Administration announced that it was taking a number of actions to “fix” what the
President has repeatedly described as a “broken” immigration system. These actions addressed various issues, from
border security to legal immigration to enforcement priorities and policies, as well as providing certain relief from
removal to some of the approximately 11 million aliens who are present in the United States without a legal
immigration status.
One year later, many of these actions have been implemented, or are being implemented, without any legal challenge to
the Executive’s authority to take such actions. However, several legal challenges are currently pending to actions
directly or indirectly called for on November 20, 2014. This Sidebar provides a brief overview of the status of these
challenges.
Texas v. United States and the Challenge to the Proposed Deferred Action Programs
The best known of the legal challenges to the November 20, 2014, actions is likely Texas v. United States, which
concerns the permissibility of the Administration’s proposal to grant deferred action (one type of relief from removal)
to certain aliens who entered or remained in the United States in violation of federal immigration law. Specifically, the
Administration proposed expanding its earlier Deferred Action for Childhood Arrivals (DACA) program to encompass
aliens who were older or who entered the United States at later dates than the initial DACA beneficiaries, as well as to
grant DACA beneficiaries work authorization for three years, instead of two years. It also proposed creating a new
deferred action program—widely known as DAPA—for aliens present in the United States without legal status who are
the parents of U.S. citizens and lawful permanent residents (LPRs).
As discussed in earlier Sidebar postings, on February 16, 2015, a federal district court enjoined implementation of
DAPA and the DACA expansion after finding that Texas and the other plaintiff states were likely to prevail on the
merits of their argument that DAPA, in particular, constitutes a substantive rule, but was issued without the notice-and-
comment rulemaking generally required for substantive rules under the Administrative Procedure Act (APA). Motions
to stay the injunction pending appeal were rejected first by the district court, on April 7, 2015, as noted in this Sidebar;
and then by a majority of the U.S. Court of Appeals for the Fifth Circuit on May 26, 2015, as noted in this Sidebar.
Subsequently, on November 9, 2015, the Fifth Circuit upheld the injunction on appeal after finding that DAPA violates
the APA substantively, as well as procedurally. In so doing, the Fifth Circuit went beyond the lower court’s analysis to
find that DAPA is impermissible because it conflicts with certain provisions of the Immigration and Nationality Act
(INA) or, alternatively, represents an unreasonable interpretation of the INA, as explained in this Sidebar posting. The
federal government reportedly plans to appeal this decision to the Supreme Court.
A separate legal challenge to DAPA and the DACA expansion, Arpaio v. Obama, was dismissed by the lower courts
because the plaintiff was found to lack standing, as discussed in this Sidebar posting. The plaintiff in this case has
reportedly petitioned the Supreme Court for review.
Mehta v. Department of State and the Challenge to the Revised October 2015 Visa Bulletin
Another challenge, Mehta v. Department of State, arises from certain changes that the Department of State (DOS) made
to the October 2015 Visa Bulletin. As discussed in earlier Sidebar postings, DOS rescinded the initial version of the
October Bulletin and replaced it with a revised version that permits fewer aliens currently present in the United States
on nonimmigrant visas to apply for adjustment to LPR status than would have been permitted to do so under the initial
version. The initial version of the October Bulletin, in particular, could be seen as an outgrowth of President Obama’s
November 20, 2014, call for the Secretaries of State and Homeland Security to “streamline and improve the legal
immigration system,” and the plaintiffs in Mehta noted this in seeking to require DOS to abide by the initial version.
On October 6, 2015, a federal district court denied a request by the Mehta plaintiffs for a temporary restraining order,
but the litigation continues.
Save Jobs USA v. U.S. Department of Homeland Security and the Challenge to the Granting of Work
Authorization to Certain Aliens with H-4 Nonimmigrant Visas
The third challenge, Save Jobs USA v. U.S. Department of Homeland Security, involves Department of Homeland
Security (DHS) regulations that provide for work authorization for the spouses of certain aliens currently in the United
States on H-1B nonimmigrant visas. The INA does not expressly authorize the issuance of work authorization to these
spouses, who are present in the United States pursuant to H-4 visas, although it does include language in INA §274A(h)
(3) that the Executive has historically relied upon in granting work authorization to aliens not expressly granted work
authorization by the INA.
DHS had proposed extending work authorization to certain H-4 visa holders prior to November 2014. However, the
November 20, 2014, actions included a call for these regulations to be finalized, which occurred on February 25, 2015.
DHS asserts that the regulations make it more likely that “talented H-1B nonimmigrants” will remain permanently in
the United States, rather than returning to their home countries because their spouses cannot work in the United States.
The Save Jobs plaintiffs, though, argue that the regulations are beyond DHS’s authority, and adversely affect U.S.
workers.
On May 24, 2015, a federal district court denied the plaintiffs’ request for a preliminary injunction. Later, on July 1,
2015, it rejected the government’s assertion that the case should be dismissed because the plaintiffs lack standing. Since
then, each party has requested summary judgment in its favor.
Washington Alliance of Technology Workers v. U.S. Department of Homeland Security and the Challenge to the
Extension of Optional Practical Training for Certain Student Visa Holders
The fourth—and final—challenge, Washington Alliance of Technology Workers v. U.S. Department of Homeland
Security, concerns the permissibility of DHS regulations that extend the period that certain student visa holders can
work in the United States pursuant to their student visas after graduating from their degree programs. The regulations at
issue in this case were promulgated in 2008, and provide for 29 months of work authorization (as opposed to the 12
months previously provided) for F-1 student visa holders who have completed science, technology, engineering, or
mathematics (STEM) degrees. However, the November 20, 2014, actions called for further expansion of this so-called
optional practical training (OPT) program to encompass additional degree programs, as well as lengthen the period of
work authorization, and the outcome of the litigation in Washington Alliance could have implications for the
permissibility of this further expansion.
As discussed in an earlier Sidebar posting, a federal district court vacated the 2008 regulations on August 12, 2015, after
finding that DHS had failed to comply with the requisite notice-and-comment procedures when promulgating them.
However, because the court found the substance of the regulations was within DHS’s authority, it stayed the vacatur for
six months so that DHS could conduct the necessary rulemaking. DHS subsequently issued a notice of proposed
rulemaking on October 19, 2015, that both responds to the court’s decision and effectuates the November 20, 2014,
expansion.
Posted at 11/20/2015 09:14 AM