CONRAD 30 in Limbo

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CONRAD 30

The Conrad 30 program is set to expire in September 30, 2015, unless Congress reauthorizes the program. It has been functioning as a “pilot program” meaning that its continued existence has been dependent upon periodic reauthorization. Conrad 30 allows state healthcare agencies to hire 30 international medical graduate (IMG) physicians to practice in medically underserved areas. Those areas are often rural and are in need of both general physicians and specialists. By serving for three years in medically underserved areas, the physicians can waive their 2-year residence requirement, which is often a condition of the J-1 exchange visitor program.

 

The program has existed since 1994 and has been reauthorized by Congress multiple times, with the most recent reauthorization occurring in September 2012. The program is important for many reasons. A primary reason is that the areas that the IMGs are placed are most in need of healthcare. Another reason is that the current and predicted shortage of physicians that the US is facing and will continue to face. An additional reason is the trend of American physicians to opt for specialties over general practice, leading to a dearth of primary care physicians.

 

Senators Amy Klobuchar of Minnesota and Heidi Heitkamp of North Dakota have proposed Conrad 30 and Physician Access Act (S.1189).  The bill is cosponsored by Senator Moran of Kansas and Senator Collins of Maine. The bill’s purpose is to reauthorize the program and to do so permanently, “to provide incentives to physicians to practice in rural and medically underserved communities and for other purposes.” The bill’s purpose is to reauthorize the program and to do so permanently. Even though Conrad 30 expires on September 30, 2015, there has been little movement on this bill to make it a law. If the program is not reauthorized, either temporarily or permanently, IMGs who acquire J-1 status after September 30, 2015 will not be able to receive waivers. Congress is currently on summer recess until September 8.

STEM Extension Temporarily Invalidated

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This month, a federal district court in the District of Columbia invalidated a Department of Homeland Security rule that allowed F-1 visa STEM students to extend their 12 month OPT (optional practical training) periods to 29 months. In 2008, DHS announced that students with degrees and employment in the science, technology, engineering, and mathematics fields would have the opportunity to work for their employers for up to 29 months instead of 12 months. The employer had to be registered with a system called E-Verify. Many foreign student who study at United States colleges and universities are in the F-1 visa designation, which allows for 12 months of job training in addition to degree completion.

 

The district court struck down the rule on the ground that DHS did not allow for the mandatory notice and comment period. When a federal agency promulgates a regulation, it must have a period of notice and comment, where it allows the general public and interested parties to post comments on positive or negative aspects of the proposed rule. The agency is then supposed to take those comments into account in improving the rule before it is made official. The court ruled that because DHS did not take this step, the rule permitting the 17 months extension for STEM OPT students is temporarily invalid. The court has given DHS until February 12, 2016 to rectify its mistake by actually having the rule subject to proper notice and comment. The administrative record did not demonstrate a good cause for skipping the notice and comment period.

 

Washtech brought the suit against the Department of Homeland Security, and it argued various points to prevent foreign students from acquiring job experience on their F-1 visa. The court concluded that a “student” can still be someone who has completed an academic degree program., that post-graduate OPT experience is permissible, and that DHS has broadly delegated authority from Congress to establish the necessary rules for F-1 student employment.

No DACA / DAPA Appeal

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No Appeal for Now

Earlier this week, we covered the United States Court of Appeals for the Fifth Circuit decision on the expanded DACA and DAPA programs. The court denied the Department of Justice’s request for a stay on the expanded DACA and DAPA programs, which it requested following a federal court’s decision to issue a preliminary injunction. That means that the programs remain unavailable.

The Fifth Circuit will hear arguments on the merits of the actual preliminary injunction in July. The court’s decision this week could be an augur of the decision on the merits. The decision was 2-1 against the executive action programs. The Department of Justice will not appeal that decision to the Supreme Court. Instead, it will wait for the hearing in July to make its case against the preliminary injunction and make the programs available to millions of individuals who are designated as low priorities for removal.

Expanded DACA was set to go into effect in February and it would have provided temporary relief to millions of undocumented migrants. DAPA was planned for May, and it has not been in effect. The original DACA program from 2012 remains in effect, but the class of individuals that qualifies is limited in comparison to the new executive programs.

Expanded DACA and DAPA are not pathways to citizenship. They do not grant permanent residency. They do not even confer real status. They are supposed to serve as temporary measures so that millions of individuals can obtain work authorization. The benefits that DACA recipients and undocumented migrants are eligible for are contested. The DACA and DAPA programs are supposed to provide relief temporarily while Congress passes comprehensive immigration reform. This has been a legislative priority at points over the past ten years, but it has not come to fruition.

Immigration in Courts

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Immigration Litigation – Employment Authorization in the Courts

 

H4 Work Authorization Complaint Dismissed

The United States District Court for the District of Columba this week ruled against a group seeking a preliminary injunction against the Department of Homeland Security’s Employment Authorization program for certain H-4 dependent spouses. H-4 spouses have H-1B principal visa holders who are employed in a specialty occupation. Until this past Tuesday, all H-4 spouses were barred from employment. A limited class of H-4 visa holders can apply for work authorization: 1) if they have an approved I-140 petition and are waiting for their date to become current or 2) they are in a period of extended H-1B stay as a result of 106(a) and (b) of AC21 (American Competitiveness in the 21st Century Act).

The District Court denied the preliminary injunction because the group failed to show “irreparable harm.” In order to succeed, the group had to show their employment was directly threatened by the availability of these nonimmigrants, who were previously barred from employment. The group is composed of IT workers, so they had to show that their employment in the IT field would be threatened. The court determined that their claim was speculative and purported injuries did not merit relief.

USCIS is adjudicating employment authorization for those certain H-4 dependents who apply.

 

Faster Employment Authorization Decisions

On the topic of employment authorization, a class action lawsuit has been filed against USCIS (May 22). The Northwest Immigrant Rights Project is seeking declaratory and injunctive relief because there have been delays in adjudicating applications for employment authorization. By law, USCIS is required to render decisions within 30 days for certain employment authorization applications and 90 days for others. The complaint demands that USCIS render their decisions within those timeframes.

Employment authorization is important for nonresidents of various statuses. Some visas are employment-based and some prohibit employment. There is often a “limbo” period for some people in changing their status and employment authorization is crucial for having legal employment.

Fifth Circuit – DAPA, DACA

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Fifth Circuit Blocks Request to Stay DAPA and Expanded DACA

 

This was expected, but that does not mean it does not hurt for millions of hopeful immigrants.

The Fifth Circuit for the US Court of Appeals issued a decision yesterday, blocking the emergency request for a stay that the Department of Justice requested. The Department of Justice requested that the court allow the DAPA and expanded DACA programs to go into effect. A federal judge in Texas blocked from going into effect. These were heavily publicized executive action orders from November that had years of anticipation. After Congress did not pass comprehensive immigration reform, President Obama took it within his executive authority to pass limited relief for certain individuals without status. The court’s decision was 2-1, with the one dissenting judge finding this case to be outside the judicial purview. The Fifth Circuit heard oral arguments on April 17 and this decision was expected.

This was only the decision on whether the stay of the federal judge’s preliminary injunction should be granted. This means that the programs will continue to be unavailable. The Fifth Circuit will hear the appeal of the preliminary injunction in July.

Expanded DACA is intended to be an improvement of the existing DACA program, which is still in effect. DAPA is supposed to provide protections to parents of US citizens and permanent residents, much in line with the US’s underlining goal of immigration policy – family togetherness. Somewhere between 4 -5 million individuals would benefit from these programs, which would allow for work authorization and authorized stay. The eligible individuals need to be low removal priorities, meaning they have a clean criminal record or close to clean record. These people continue to wait in limbo, as we wait for oral arguments in July and a subsequent decision.