Supreme Court Splits in U.S. v. Texas: What Happens When Nothing Happens?

June 24th, 2016 by W. Scott Railton


“The judgment is affirmed by an equally divided Court.”

So said the Supreme Court in the closely watched immigration decision of United States v. Texas et al., issued today. And that is all they said, no less, no more.

The final vote is no surprise—I thought a 4-4 outcome was the most likely one, as did many.  However, the complete absence of any opinion surprises me a bit. The Court was presented with four separate issues, and there clearly were divided opinions on each of these, based on the questions asked in oral argument. Where is the split decision on the issues?  The indignant Alito opinion? The fiery Ginsburg response? Apparently, silence prevails, until this Court is full.

So then: what happens, when nothing happens?

Deferred Action for Childhood Arrivals, aka DACA, lives on. Deferred Action for Parents of Americans, aka DAPA, does not go forward.  Also, DACA is not expanded, as proposed in the Executive Action.

The good news is DACA as currently constituted continues. We need a DREAM Act, to help all those kids, who are now adults in many cases. It is graduation season, and once again we are hearing stories of undocumented valedictorians, sports stars, and aspiring soldiers, all who grew up here. There is cruelty in leaving major social issues like immigration unaddressed, over the course of generations. Dreams do crash. It is also dangerous for society to have large groups living in the shadows. DACA helps at least some in this regard. DAPA would’ve helped more.

Many see the Supreme Court decision as a loss for immigrants, and it is, insofar as the Court did not approve the White House’s programs. However, let’s be realistic here. It is highly unlikely that Justice Scalia, a leading conservative on the bench, would’ve voted for the United States on this one. Further, the stalemate suggests that Justice Roberts and Justice Kennedy, two possible swing votes, were unpersuaded by the Administration’s arguments. We can deduce this since we can be pretty sure that Justices Sotomayor, Kagan, Ginsburg, and Breyer voted for the U.S. With no decision, the door is wide open for a future appeal, if circumstances dictate.

Another point:  the stalemate leaves open a bit the question of whether the Court found standing in the matter. Standing was a big argument raised by the U.S., and Justice Breyer in oral argument actually made some hay, saying that giving standing here would open the door for all sorts of lawsuits by states against the federal government, whenever states are unhappy with a federal action. The stalemate is probably not a comment on the standing question, but rather just a statement that the Justices are evenly split, and so by the rules of the Court, the lower Court decision is affirmed. Another way to see this is four justices found standing. Interesting.

The Court also expressly asked the litigants to address the issue of whether the President was violating the “Take Care” clause of the Constitution, which requires the President to faithfully execute the laws of the land. The no-decision in this case fails to address this issue, despite the Court’s apparent pro-active interest, leaving the scope of the Executive Branch’s power in immigration matters no further defined. This may be a good thing, particularly in case of a Trump election, given his comments about how he’d exercise authority in the White House.

Of course, the biggest thing that happens when nothing happens is the U.S. continues to need immigration reform, and need it bad. This effort rightfully falls principally upon Congress, though President Obama may have won some political capital for the Democrats by at least trying.

Onward.  The 2016 election race just got another issue. Trump will use the decision to highlight the importance of the next Supreme Court nominee. So will Clinton. And they will both be right.

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Visa Bulletin Trends for the End of the Fiscal Year

June 20th, 2016 by W. Scott Railton

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, manages the monthly Visa Bulletin posted by the Department of State. The Visa Bulletin regulates the priority dates available for immigrants, and it is closely watched each month.

Mr. Oppenheim’s communications with the American Immigration Lawyers Association are published to the membership, and provide some insight into upcoming trends. Of special note, he recently said:

-A final action date of January 1, 2010 will be set for EB-1 India and EB-1 China on August’s Visa Bulletin. In October, the categories will become current again.

-A cutoff date for EB-4 India will likely be listed on the August Visa Bulletin.

-EB-2 Worldwide will likely have a cut-off date with the September Visa Bulletin.

-EB-2 India’s final action date shall likely stay one week ahead of EB-3 for the rest of the fiscal year.

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Applied for the Diversity Lottery? Don’t forget to check your status!

June 17th, 2016 by Heather Fathali

DV-2017 Entrants are able to check their entry status as of May 3, 2016. Entrants may only check their status by entering their confirmation information at; the U.S. government will not mail out a notice regarding an Entrant’s status, and embassies and consulates will not provide a list of selectees. DV-2017 Entrants should keep their confirmation number until at least September 30, 2017.


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9th Circuit Finds Affidavit of Support Enforceable Against Ex-Spouse, Despite Pre-Nuptial Agreement and Divorce Decree

June 10th, 2016 by W. Scott Railton

The 9th Circuit recently issued an interesting decision concerning an immigrant sponsor’s continuing obligations to support a sponsored immigrant, based on the I-864 Affidavit of Support that is submitted in the immigration process. The decision is called Erler v. Erler (No. 14-15362). Basically, the Court ruled that the Affidavit of Support obligation is enforceable, regardless of pre-nuptial agreements and divorce decrees. The decision also limited the sponsor’s obligation based on the originally sponsored household size.

As a condition of family based immigration, immigrant sponsors must complete an affidavit of support which basically ensures that the immigrant will not become a public charge. The sponsors agrees to provide “any support necessary to maintain [the immigrant] at an income that is at least 125 percent of Federal Poverty Guidelines for [their] household size.” Once executed, the affidavit becomes a contract between the sponsor and the U.S. Government, for the benefit of the sponsored immigrant, and of any Federal, State or local governmental agency or private entity that administers any “means-tested public program.” 8 C.F.R. § 213a.2(d).

The Affidavit binds a sponsor until: a.) the immigrant become a U.S. citizen; b.) has worked 40 quarters under the SSA; c.) no longer is a permanent resident and has departed the U.S.; d.) becomes subject to removal, but then adjusts status in removal; or e.) death. The affidavit clearly says divorce does not terminate the obligation.

In Erler, a prenuptial agreement existed, which said neither party would be entitled to alimony or support in the event of divorce. The Erlers divorced, and the judgment was based on the pre-nuptial agreement. Subsequently, Ms. Erler, the immigrant, went to District Court to enforce the Affidavit of Support.

The 9th Circuit acknowledged that the Affidavit of Support is enforceable, despite the pre-nuptial agreement and divorce decree. The decision is largely based on a 2012 decision in the 7th Circuit, Liu v. Mund, which is cited multiple times. The rest of the decision discusses how to calculate the obligation, and focuses on household size.  The larger the household size, the greater the sponsor’s obligation, and so this is an important determination.  The calculation of the actual obligation is a question several courts have wrestled with, and the Erler decision leaves open a number of questions, while answer a couple key ones. Most importantly, the 9th with this decision confirms that the Affidavit of Support is enforceable.

The Affidavit of Support obligation should therefore be addressed in divorce proceedings, if applicable.  One pro-active solution may be to make a naturalization application a condition of any settlement. Most immigrants can naturalize five years after becoming a permanent resident, if they’ve been living in the U.S. and have no criminality. Another may be to assess how many quarters have been worked at the time of the divorce.

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Doing Business in the USA – June 9th Seminar – Register Now!

May 12th, 2016 by Heather Fathali



Join us on June 9th for a fast paced guide to expanding your sales into the U.S. Whether opening a store front with a U.S. address or partnering with a distribution centre for your ecommerce activity, our seasoned cross-border lawyers, accountants, customs brokers and logistics professionals will present options that will help you determine your export strategy  and understand your responsibilities with government departments such as U.S. Customs and Border Protection and immigration.

Small and medium sized businesses in the export development planning stage who attend this event will:


  • Optimal structure for your U.S. business presence
  • Cost effective distribution channels fit for your goods
  • Responsibility for Federal and State tax
  • What is considered ‘working’ in the U.S.


  • Purchasing behaviour of U.S. consumers
  • Canadian export requirements
  • U.S. import compliance
  • Resources available to you


Event Type: In-class seminar

Date: June 9th, 2016

Time: 8:00 – 12:00 pm

Place:  Signature Sandman Hotel 8828 201 Street Langley, BC (Note:Access from 88th Ave.)

Fee: $75.00

Register here! 




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USCIS Proposed Filing Fee Increases – Open for Public Comment

May 4th, 2016 by Heather Fathali

Some very significant filing fee increases have been proposed by USCIS, now open for public comment in the Federal Register.

USCIS News Release:

“On May 4, 2016, USCIS published a notice of proposed rulemaking in the Federal Register inviting public comment, for 60 days, on the proposed U.S. Citizenship and Immigration Services Fee Schedule.

Title of Notice Type of Notice  Comment Period Expiration Date  FR Number 
U.S. Citizenship and Immigration Services Fee Schedule 60-Day Notice  



81 FR 26903

The Chief Financial Officers Act of 1990 requires USCIS to conduct fee reviews for the Immigration Examinations Fee Account (IEFA) on a biennial basis. The FY 2016/2017 biennial fee review indicates a 21 percent weighted average fee increase is necessary to ensure full cost recovery.

The IEFA represents approximately 94 percent of USCIS’ FY 2015 funding. The remaining funding comes from other fee accounts and a small discretionary appropriation.

USCIS has authority to set its IEFA fees at a level that recovers the full cost of providing adjudication and naturalization services. This includes the cost of providing similar services to asylum applicants or other immigrants without charge and any additional costs associated with the administration of the fees collected.

USCIS last adjusted its fees in November 2010, based on the FY 2010/2011 Fee Review.

To submit a comment, follow the instructions in the notice.

After the 60-day period, we will address the comments received and publish a final rule in the Federal Register.”


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New Rules for STEM Optional Practical Training Work Authorizations Effective May 10th

May 2nd, 2016 by W. Scott Railton

A new rule was published by DHS last month concerning changes to the “STEM” (science, technology, engineering, and mathematics) extension program for F-1 students in Optional Practical Training.  The new rule is effective May 10th.

Under the old rule, students with degrees in STEM programs who obtained employment with an E-Verify employer could extend their standard 12 month period of work authorization by an additional 17 months.

The new rule extends this period to 24 months for qualifying persons with qualifying employers.  A person can have two of these 24 month extensions in a lifetime (e.g. if they go back and get a Master’s in a STEM field, they can get another period of work authorization).

The new rule comes with several caveats:

-A student’s OPT must be directly related to their field of study.

-Students have to prepare and execute a formal training plan with their employer, which identifies learning objectives and a means for achieving these objectives. There are reporting requirements for the student, with their designated school official.  These include (a) a six month validation requirement (fulfilled by the student with their school); (b) an annual self-evaluation requirement for the student, which must be signed by the student’s employer; (c) student and employer must report changes in employment status, including termination or departure from the employer; and (d)both the student and the employer are obligated to report to the school official material changes to, or material deviations from, the student’s formal training plan.

-Employers must be enrolled and remain in good standing with E-Verify.  They must assist with the reporting and training plan requirements.  They will have to attest that a) they have sufficient resources and trained personnel available to provide training in connection with the opportunity; that the STEM OPT extension will not replace a full or part-time U.S. workers; and the opportunity helps attain the training objectives. These attestations will be made on a Form I-983 which covers the training plan.

USCIS has tables posted at their website about the rule, which may be helpful for anyone who this rule change may apply to:

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Save the Date – Doing Business in the USA Seminar – June 9th

April 25th, 2016 by Heather Fathali


Save the date!

The next Doing Business in the USA trade seminar will be held June 9th at the Signature Sandman Hotel, in Langley, B.C. Co-sponsored by Cascadia Cross-Border Law, Pacific Customs Brokers and UCanTrade, Inc.; the half-day event will provide small to medium-sized businesses with advice on expanding sales in the U.S. Seasoned attorneys, accountants, customs brokers, and logistics professionals will explain your options and responsibilities when engaging in cross-border trade. Our presentation will of course focus on U.S. immigration and work authorization options.

Stay tuned- more details to come!


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The Supreme Court Hears Oral Argument in U.S. v. Texas

April 19th, 2016 by W. Scott Railton

The U.S. Supreme Court heard oral arguments in U.S. v. Texas on Monday. This is one of the most anticipated cases on this year’s calendar, and it centers on President Obama’s program to allow certain undocumented persons come out of the shadows, be listed as a low priority for removal, obtain work authorization, and consequently gain a social security number and/or perhaps a driver’s license. Some say the President’s program could impact over 4.5 million persons. Texas and 25 other states sued to enjoin the program, as an overreach of the Executive branch. Certain harms were alleged, including the costs of issuing driver’s licenses. Texas et al. prevailed in the lower courts.  A 4-4 ruling, based on the current composition of the court, would mean the lower court rulings stand.

I think the Supreme Court should rule in favor of the United States in this case, but based on the questions, a 4-4 partisan split seems likely. Congress has empowered the Executive Branch to enforce the nation’s immigration laws.  If Congress wants to change the scope of that power, Congress can legislate accordingly. That’s my take, but Justice Kennedy wears the robe, and he seemed to take a different view on Monday. See his comment below in the transcripts excerpts (p. 24).

The U.S. Solicitor General really pushed the argument that Texas et al. do not have standing.  Justice Breyer seems to be in agreement, and he was ready with case cites. Justice Roberts and Justice Alito seemed very skeptical of the U.S.’s position, but they also had questions about who else might be impacted by an adverse decision.  (p. 27-28, p. 90, below.)  The Solicitor General said 4.5 million adjustment of status applicants have received work authorization since 2008.

As Justice Breyer put it, this is a case with “tremendous political valence.” Four disparate issues are presented, involving judicial standing, constitutional authority of the Executive, the Administrative Procedures Act, and the Take Care clause. Both sides presented slippery slope type arguments, saying an adverse verdict will open the floodgates of litigation. There’s a good chance that’s where this is headed, unless someone (I’m looking at you, Justice Kennedy) is moved by the greater implications of standing and getting unnecessarily involved in what is fundamentally a political dispute.

Here are some excerpts from the 100+ pages of transcripts which I found interesting:

P. 24

JUSTICE KENNEDY: What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.

P. 27-28

GENERAL VERRILLI: The reason I had no problem writing it is because that phrase, “lawful presence,” has caused a terrible amount of confusion in this case; I realize it. But the reality is it means it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. That you have any defense to removal. It doesn’t mean any of those things, and it never has. And – and so it doesn’t – and so at that fundamental level, we are not trying to change anybody’s legal status on the immigration- –

CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.

GENERAL VERRILLI: Right. Tolerated

CHIEF JUSTICE ROBERTS: I’m sorry, that just so I get that right.


CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.


JUSTICE ALITO: But they are –the DAPA beneficiaries are –may lawfully work in the United States; isn’t that correct?


JUSTICE ALITO: And how is it possible to lawfully work in the United States without lawfully being in the United States?

GENERAL VERRILLI: There are millions of people, millions of people other than the DAPA recipients about whom this is true right now. And this gets to the point of why their reading of Section 1324 is completely wrong.

JUSTICE ALITO: I’m just talking about the English language. I just don’t understand it. How can you be–


JUSTICE ALITO: How can you – how can it be lawful to work here but not lawful to be here?

P. 46

JUSTICE SOTOMAYOR: You know, you keep saying that, “deep economic significance.” Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would – it would allot the amount of money necessary to deport them, but it hasn’t.

P. 55

JUSTICE KAGAN: But then it seems to me, General Keller, that your –that what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that the DHS, or before that the INA, has had for years. Or you should be attacking other connections that DHS is making with respect to these people, but not DAPA itself.

MR. KELLER: But Justice Kagan, I think it is DAPA itself that we’re challenging. And the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct.

JUSTICE GINSBURG: Where does it say that in DAPA? We have the DAPA directive. I didn’t see anything in it about work authorization or about Social Security.

P. 60

JUSTICE BREYER: I would like to ask a question. The only thing I found here is about money, really. If there’s something else that’s worrying you, it’s – -it’s sort of hidden. But money is money; I understand that. And my question is about standing.

And this is technical, but it’s important to me.

Looking at the briefs, awful lot of briefs, senators, both sides. Awful lot of briefs from States, both sides. Members of Congress. Why? Because this has tremendous political valence. Keep that in mind.

Now, keeping that in mind, let’s go back to two old cases which are scarcely mentioned. But old Supreme Court cases never die.


JUSTICE BREYER: –unless, luckily, they’re overruled. And a few have been. They’re submerged like icebergs.


JUSTICE BREYER: The one I’m thinking of is Frothingham v. Mellon, Massachusetts v. Mellon. And there, in those cases, the Federal government had given something to some people. There were beneficiaries. Other people wanted to sue because they said that means we’re going to have to pay more money. And the Court said, you other people from Massachusetts, I’m sorry Massachusetts lost, but lo and behold, it did. That’s just because I’m
from Massachusetts.


JUSTICE BREYER: But the point is they lost, because, says the Court, we can’t let you just sue on the basis that you, as a taxpayer, will have to spend more money. Because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds.

P. 90

GENERAL VERRILLI: Exactly. And there are all kinds of statuses that don’t qualify as lawful status that people have always been allowed to get work authorization during the period in which – time where their presence is tolerated.

CHIEF JUSTICE ROBERTS: How – how many people are we talking about with those?

GENERAL VERRILLI: Millions. Millions. There are

CHIEF JUSTICE ROBERTS: The asylum applications?

GENERAL VERRILLI: No, but the adjustment of status, 4.5 million since 2008, and cancellation removal, 325,000 since 2008. Huge numbers.

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USCIS Completes H-1B Lottery Selection Process

April 13th, 2016 by W. Scott Railton

U.S. Citizenship and Immigration Services announced that it has completed the H-1B lottery process for non-cap exempt employers.  The agency received over 236,000 applications for approximately 85,000 slots.

The system is flawed. The annual H-1B lottery process highlights the failure of Congress to meet the needs of employers nationally, as well as the administrative shortfalls of an agency stuck in the 20th century. The severe shortage of available slots, in an already expensive and highly regulated process, shows how unconnected the rhetoric on H-1Bs in Congress is to the business realities American employers face.

As an immigration attorney, I find the administrative dysfunction of USCIS on H-1B handling appalling.  The agency could very reasonably hold an electronic lottery for those who wish to apply, and then issue tickets or permissions-to-file for those selected.  If they did, employers could save substantially in time and money invested in preparing full applications.  After weeks of discussion and preparation, I do not enjoy telling clients that their application was not selected. Further, with a pre-lottery system, the Department of Labor would not need to field 236,00 applications for labor condition applications, and USCIS would save on all the costs related to handling the petitions it receives. Reports are the agency receives truckloads of petitions on April 1st each year. Welcome to bureaucracy, I suppose.

Enough with my rant. Here is USCIS’s announcement today on completing the selection process:

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

For more information on USCIS and its programs, please visit or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon

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