Quoted in "Immigration Proponents Get Boost From End to Chevron Doctrine," Bloomberg Law

The US Supreme Court’s decision curtailing federal agencies’ leeway to interpret ambiguous laws will benefit many immigrants and businesses stymied in efforts to obtain employment-based visas and green cards, immigration lawyers said.

The justices’ elimination of the Chevron doctrine has been a long-term goal of conservatives aiming to undermine the power of the federal bureaucracy. The full implications of the June 28 decision—which says courts don’t have to defer to an agency’s stance on unclear laws—will become more apparent as advocates and opponents file new litigation challenging regulations amid the altered legal regime.

While scholars have said the ruling could hamstring efforts to address large-scale problems like pollution or consumer fraud, the dismantling of Chevron was welcomed by many in the immigration bar who see it as a win for immigrants and a potential hurdle for immigration restrictions. That’s because agencies like US Citizenship and Immigration Services have typically been given the benefit of the doubt by courts in defending challenges to visa denials, they said.

“It’s going to be great for litigators in our space,” said Marty Robles-Avila, senior counsel at BAL Immigration Law. “It’s a net gain for non-citizens and those in the immigration community.”

Still, others predict that there could be immigration “winners and losers” in a post-Chevron world, said Cyrus Mehta, managing partner of Cyrus D. Mehta & Partners PLLC. The decision could weaken the standing of large programs that are based on an agency interpretation of the Immigration and Nationality Act—like Deferred Action for Childhood Arrivals—when explicit authorization doesn’t exist in a federal statute, he said.

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New Challenges to Visa Denials

USCIS in recent years has applied tough scrutiny to applicants for high-skill visa categories like first-preference employment-based green cards, said Brian Green, an immigration attorney who represents researchers, scientists, and other high-skilled immigrants. Removing Chevron deference would open the door to more successful challenges of those green card denials, he said.

“Agencies are going to be held to the strict language of the statute,” Green said. “It’s a major power shift taking power away from agencies and giving it to the courts.”

Unlike agencies such as the Environmental Protection Agency, which uses scientific expertise in developing pollution standards, immigration adjudicators have no such expert knowledge in employer hiring needs, Green and other immigration attorneys argue.

“It really puts some teeth back in to the Administrative Procedure Act,” said Diane Butler, an immigration attorney at Davis Wright Tremaine LLP. “It’s going to allow employers in particular who have been suffering under the weight of what feels like arbitrary denials to challenge USCIS.”

Reopening Established Programs

Green cautioned that there will be new litigation filed to both “help and hurt the immigration system—or take away benefits or add benefits.”

Regulations offering employment eligibility to spouses of H-1B specialty occupation visa holders and extending work authorization for international graduates in science, technology, engineering, and mathematics fields have survived separate legal attacks in recent years. Those programs could again come into the legal crosshairs of immigration opponents following Chevron’s demise in Loper Bright Enterprises v. Raimondo.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit in 2022 ruled that three-year employment authorization for Optional Practical Training participants in STEM fields was a reasonable interpretation of the INA provision authorizing the F-1 student visa program.

The reasoning in that ruling also applied to a dispute over the legality of employment authorization for H-1B spouses on H-4 dependent visas, a district court judge found last year in an opinion that only acknowledged Chevron in a footnote. That decision is still under appeal.

The demolition of Chevron deference was sandwiched by Supreme Court rulings curbing the powers of in-house judges at some agencies and extending the statute of limitations for challenging regulations under the APA—the latter potentially magnifying the legal fallout of the Loper Bright decision.

But Paul Hughes, a partner at McDermott Will & Emery LLP, said the legal standing for employment authorization programs for foreign graduates and visa holders’ spouses should be unaffected in a post-Chevron world because of clear authorization in the INA for the Homeland Security secretary to determine which classes of immigrants are eligible for employment authorization.

“Under Loper Bright, the first question you ask is what authority Congress has provided the agency and, second, whether the decision the agency makes is a reasonable one under the circumstances,” he said.

Narrowed Enforcement Powers

Further litigation will likely also test the legal basis of programs like DACA or for interpretations of the Child Status Protection Act, which governs when dependent children of visa holders age out of that status, attorneys say.

The ruling will also have implications for legal fights over Department of Labor regulations governing employment-based visa programs.

The DOL has argued it’s entitled to deference under Chevron in defending regulations revising minimum wage standards for foreign farmworkers hired through the H-2A temporary visa program. That’s because the INA is silent on how those wage standards should be calculated, attorneys for the DOL have argued in a lawsuit defending the rule.

Conservative critics have also identified deportation relief programs like parole and Temporary Protected Status as ripe for rollbacks under a Republican administration.

But having Chevron off the table actually could help pro-immigrant plaintiffs suing over a regulatory rescission of those programs because the executive wouldn’t be entitled to deference without a reasoned analysis of those decisions, Mehta said.

“That would give a better legal basis to challenges to regulations that are restrictive,” he said.