If you are a fan of the rule of law, the last year has been rough. In fact, its been more painful than being a Washington Redskins fan. Unlike the spark of hope created by each year’s NFL draft, news about our nation’s immigration policy has all but killed thoughts of sane administration of the law.
The latest is the news that the administration plans to take regulatory action to invalidate terms of a statute… That is not a typo.
The administration is targeting a crystal clear, non discretionary duty, created by Congress, forcing USCIS to extend H1B visas for employees waiting for permanent residence. The actual wording of the law is:
(b) EXTENSION OF H-1B WORKER STATUS- [USCIS] shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.
Prior to creating mandatory extensions for H1B employees who were waiting for adjustment of status, highly skilled employees were forced to return to their home countries and wait, sometimes many years, for green cards to be approved. Congress determined that the brain drain was damaging the US economy, and created this authority whereby the employees could continue to work until they received a green card.
The administration apparently likes the prior version of the law, and wants to invalidate Section 106(b) of AC21. But, you see, that is not how this works.
The president and his agencies can make regulations that support the laws created by Congress. If the president makes a rule that violates the statute, the courts are required to strike it down.
There are regulations that fall into statutory grey areas. But this proposal is a clear violation of the law. So, the actually wording of the law prohibits the administrations plan. Nor can the administration point to legislative history to support this position.
Lets just be clear and discuss why Congress created the law.
This is not even a close call. If the current administration makes moves in this direction, even the most conservative courts would be compelled to strike the regulation down. The president's lawyers have to know this is a losing issue.
This forces the question: why then did the administration leak this "plan?" The only reasonable answer is that the administration is bound and determine to deter immigration through any means possible.