Articles Posted in Senate

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This morning, President Obama announced his nominee to fill the vacant seat of Antonin Scalia on the Supreme Court. Contrary to what was believed, President Obama chose the most experienced and respected nominee among his top contenders, as opposed to the most progressive choice. The final decision came down to Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick B. Garland. The President’s choice reflects political concerns to seat a Justice in time for oral arguments to begin in the case, United States v. Texas, a case that challenges the President’s modified Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In the coming weeks, Judge Garland will need to face the Republicans in the Senate, who have vowed to block him from sitting on the Supreme Court. In order to be confirmed, he must receive votes from Republicans in the Senate.  It is expected that Republicans will vote in Garland’s favor since he is not inclined to take leading positions on ideological questions such as DACA/DAPA. If appointed, Garland is unlikely to take a progressive approach on the bench. Throughout his career, Garland has taken a centrist or neutral view of the law. The Supreme Court is expected to hear oral arguments for United States v. Texas in April. For more on DACA/DAPA please click here.

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In this photo taken May 1, 2008, Judge Merrick B. Garland is seen at the federal courthouse in Washington, Thursday, May 1, 2008. Garland has been in this position before. The last time a seat opened up on the U.S. Supreme Court, in 2010, he was widely considered a top candidate for the job and interviewed with President Barack Obama. But the slot ultimately went to Justice Elena Kagan. (AP Photo/Charles Dharapak)
Chief Judge Garland was appointed to the United States Court of Appeals in April 1997 and became Chief Judge on February 12, 2013. He graduated summa cum laude from Harvard College in 1974 and magna cum laude from Harvard Law School in 1977. Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. From 1979 to 1981, he was Special Assistant to the Attorney General of the United States. He then joined the law firm of Arnold & Porter, where he was a partner from 1985 to 1989 and from 1992 to 1993. He served as an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992, and as Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993 to 1994. From 1994 until his appointment as U.S. Circuit Judge, he served as Principal Associate Deputy Attorney General, where his responsibilities included supervising the Oklahoma City bombing and UNABOM prosecutions.

The Obama administration may announce its choice for the Supreme Court nomination as early as this week. We have learned that there are three contenders being considered for the Supreme Court nomination. All three candidates serve as judges for the United States Court of Appeals for the District of Columbia, and are well respected by both parties. They include Sri Srinivasan, Merrick Garland, and Paul Watford, who is rumored to be at the top of the President’s list. The Supreme Court nominee will be required to face a Republican Senate, in order to be formally appointed to the Supreme Court. Senate Republicans have already warned the White House that they will not hold hearings for any Supreme Court nominee suggested by President Barack Obama. As soon as Republicans heard of the passing of Justice Antonin Scalia, they urged caution from the White House. Senate Republicans anticipate that the next President of the United States will be the party’s Presidential nominee. It is for this reason that they claim that the Supreme Court nomination should be made by the next President of the United States, and not by Barack Obama. In a televised announcement, following the death of Antonin Scalia, President Obama made it very clear that his intentions were to choose the Supreme Court nomination, despite warnings from Republicans. Senate Republicans responded by stating that they would block any of the President’s advancements.

President Obama will need to choose a Justice that will have a tendency to vote liberally in order for his expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program to survive. The expanded DACA and new DAPA program were introduced in November 2014 as part of President Obama’s executive actions on immigration. These programs have been temporarily suspended following a federal court order filed by Texas and other states. The Supreme Court is expected to hear oral arguments in the case, United States v. Texas, this April with a final ruling made by summer time.

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Last week, the Senate held a hearing scrutinizing the temporary H-1B skilled worker program, the second hearing of its kind within just one year. At issue was the protection of American jobs and dissatisfaction with the program among conservatives in the Senate, who believe the program has caused job displacement at the expense of thousands of Americans. Beyond their own political convictions, Republican Senators eyeing the White House, have also scrutinized the H-1B visa program, in order to appease voters who, maintain a hard line stance on immigration.

During the hearing, the Senate Judiciary panel considered testimony questioning the integrity of the H-1B visa program. Many witnesses accused their employers of violating the conditions of the program, alleging that their employers sought to replace American workers with foreign workers by utilizing the H-1B visa program to pay those workers lower wages. This accusation is troublesome for various reasons. Firstly, it is well known that the H-1B visa program requires an employer to hire a foreign worker in a specialty occupation only when the employer cannot obtain the necessary skills and abilities to perform the specialty occupation within the American workforce. H-1B workers must possess distinguished merit and ability, and demonstrate their qualifications through the attainment of a bachelor’s degree or its equivalent, in the intended field of employment. Secondly, the H-1B visa program contains provisions which are specifically designed to protect similarly employed American workers from any adverse affects suffered from the employment of temporary foreign workers. Consequently, there are also provisions which aim to protect H-1B nonimmigrant workers from H-1B violations. One of those provisions includes the requirement that American employers pay temporary H-1B workers at least the ‘prevailing wage,’ the average wage paid to similarly employed workers (experience and qualifications) in a specific occupation in the area of intended employment. This would mean that any employer seeking to use the H-1B visa program for the purposes of obtaining ‘cheap foreign labor’ or to replace American workers would be violating the conditions of the H-1B visa program altogether.

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“He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp” -Ruth Bader Ginsburg

When news broke of the passing of the longest serving Justice on the Supreme Court, Antonin Scalia, a cloud of uncertainty lifted above the heads of Republican frontrunners vying for the Republican nomination for President of the United States. Indeed, the topic of conversation during the February 13th Republican Presidential Debate, which occurred on the day of Justice Scalia’s passing, focused on whether or not the current President should nominate the next Supreme Court Justice. Justice Antonin Scalia, nominated to the Supreme Court by President Ronald Reagan in 1986, was the most outspoken conservative on the bench, and not very well liked by liberal politicians and intellectuals, primarily due to the philosophy behind his jurisprudence. Scalia’s jurisprudence during his 29 years on the bench belonged to the Originalist school of thought. An Originalist’s interpretation of the Constitution denies the contention that the Constitution should be interpreted by the Court as a living, breathing document, a view that is typically shared by liberal Constructivist Justices like Ruth Bader Ginsburg. Instead, Originalists believe that the Constitution should be interpreted according to the original intent or meaning shared by the founders as it was written. This would require an Originalist to adhere to the spirit of the law as it was intended by the founders of our country, as well as an understanding of what was meant when the Constitution was originally drafted.

During his time on the bench, Scalia tenaciously criticized the liberal Constructivist view, calling this interpretation of the Constitution, judicial activism, which he viewed as inappropriate. In his view the Supreme Court must be insulated and not be swayed by the social concerns of the public. Throughout his trajectory, Scalia has gone down in history for handing down the most controversial dissents in the history of the Supreme Court, avidly supporting the right to bear arms, challenging the right to abortion, affirmative action, gay rights, and was ultimately instrumental in securing the Presidential nomination of George W. Bush in the 2000 case Bush V. Gore. Up until his untimely death, the Supreme Court held a conservative majority. The conservatives on the bench include Chief Justice, John G. Roberts Jr. nominated by President George W. Bush in 2005, Justice Clarence Thomas nominated by President George W. Bush in 1991, Justice Samuel Anthony Alito Jr nominated by President George W. Bush in 2006, Justice Anthony Kennedy, a moderate conservative swing vote nominated by President Ronald Reagan in 1988, and up until recently Antonin Scalia nominated by Ronald Reagan in 1986. Together, these conservative Justices established a 5-4 majority against liberal Justices: Ruth Bader Ginsburg, Stephen G. Breyer, and recently appointed Justices Elena Kagan and Sonia Sotomayor. Justice Antonin Scalia’s sudden death has now upset the conservative majority, creating a balance of power between conservative and liberal minds on the bench. With the death of Scalia, the bench is now evenly split ideologically 4-4 with a vacant seat ready to be filled by a liberal Justice, thereby creating a Liberal majority. This of course will not be easy, since the Senate is dominated by the Republican party, and the Senate will be in charge of vetting the President’s nominee.

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Earlier this week, in a 407-19 vote the House of Representatives successfully passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, a bill that seeks to increase restrictions for travelers coming to the United States under the Visa Waiver Program, a program which currently allows citizens from 38 designated countries to travel to the United States without a visa. In order to become law the bill must also pass through the Senate. The bill was introduced following President Barack Obama’s address to the nation, in which he confronted the threat of the Islamic State of Iraq and the Levant (ISIL) and the recent terrorist attacks in Paris and San Bernardino.

In his address, President Obama pledged to work closely with the Department of State and Homeland Security to revise the visa waiver program, under which one of the San Bernardino assailants traveled to the United States. The Problem? The President misspoke—the assailant traveled to the United States with a K-1 fiancé visa and not through the visa waiver program. Instead Obama meant to say that he would work with the DOS and DHS to revise the visa program in general. In light of this innocent mistake, the House continued its support to tighten the visa waiver program, despite the fact that no evidence has been presented suggesting that terrorists and/or their radicalized accomplices have traveled to the United States using this program. This would mean that the government is concerned that terrorists, disguised as refugees, may travel from Syria and surrounding countries, into Europe and in the process acquire European citizenship making it easy for them to travel to the United States through the visa waiver program. The government may also be concerned that ISIL is radicalizing and recruiting European citizens of middle eastern descent to their cause.

As it stands there are no middle eastern countries participating in the visa waiver program. The majority of the countries eligible to participate are from Western Europe with few exceptions including Chile, Taiwan, Australia etc. Individuals who have applied for a United States visa but have been denied, are not eligible to travel to the United States under the visa waiver program, even if their country participates in the program. Such individuals must apply for the appropriate visa at a US embassy or consulate abroad in order to travel to the United States. Critics allege that as a result of such legislation, consular officials and CBP agents will inevitably profile visa waiver travelers.

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Last week, in a 289-137 vote the House of Representatives overwhelmingly voted in favor of a bill that would require a comprehensive background check to be conducted for every Syrian and Iraqi seeking refugee admission to the United States. Among its provisions, the bill, better known as the American Security Against Foreign Enemies Act of 2015 (American SAFE Act of 2015) will require supplemental certifications and background investigations to be conducted before a Syrian or Iraqi refugee can be admitted to the United States. These additional security protocols will require multiple federal government agencies to work together in order to determine whether 1) such an alien poses a threat to the national security of the United States and 2) whether it is in the public interest of the United States to admit the alien based on the findings of the security checks conducted. The bill received overwhelming support from Democrats and Republicans alike amid the recent terrorist attacks claimed by ISIS leaving 129 dead and 353 wounded in the city of Paris. Though the bill will need to pass through the Senate before it can become law, the House’s overwhelming support for the bill has blocked the President from using his veto power.

Specifically, the bill will apply only to Syrian and Iraqi nationals referred to in the bill as ‘covered aliens.’ A covered alien means any alien applying for admission to the United States who is either a) a national or resident of Iraq or Syria b) has no nationality but whose country of last habitual residence is Iraq or Syria c) has been present in Iraq or Syria at anytime on or after March 1, 2011.

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Senate

On October 20, 2015 Democrats in the Senate successfully blocked the Republican backed bill S. 2146: Stop Sanctuary Policies and Protect Americans Act from moving forward with a vote of 54-45. At its core, the bill aimed to hold sanctuary jurisdictions accountable for noncompliance of federal orders including detainment of undocumented immigrants, increasing penalties for individuals caught re-entering the United States after their removal, and providing protection to state and local law enforcement officials cooperating with federal law enforcement officials. The bill was introduced by Republicans after an act of violence took the life of a San Franciscan woman at the hands of an alleged undocumented immigrant with a felony record, who had also been the subject of multiple removals. Public outcry ensued after the city sheriff released the perpetrator despite a federal immigration detainment order. According to Republicans, San Francisco is one of hundreds of sanctuary cities that refuse to comply with federal immigration orders to facilitate the detainment and removal of undocumented immigrants.

Among its provisions, the bill aimed to crackdown on so called ‘sanctuary cities’ notorious for their noncompliance by limiting government funding. By cutting necessary funding, Republicans hoped that this would force cooperation between local law enforcement officials and federal law enforcement officials including ICE officers. Republican Senator Vitter who introduced the bill, argued that the violent crime that occurred in San Francisco was just one example highlighting the magnitude of compliance concerns. According to Vitter, ‘sanctuary cities’ like San Francisco have repeatedly refused to comply with orders of detainment issued by the Department of Homeland Security. Prior to the vote, the White House had warned Senate Republicans that if the bill did pass with the 60 necessary votes, they could expect the President to veto the bill. Although the bill was criticized by Democrats for stereotyping undocumented immigrants and making sweeping allegations against the undocumented immigrant community, the bill raises serious competence and compliance concerns.

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On Monday the Senate will be voting on a short-term spending bill introduced by Senate Appropriations Committee Chairman Thad Cochran. If passed, the bill will temporarily fund the government through December 11th of this year. If the bill is not passed, the country will face a government shutdown beginning on October 1, 2015. The temporary funding bill called a continuing appropriations resolution will be required to keep government agencies afloat for the remainder of the year. Congressional Republicans and Democrats have been at odds with one another since the Planned Parenthood scandal was brought to light. The non-profit organization’s involvement in the practice of procuring tissues from aborted fetuses for the purpose of medical research has been deeply contested by Republicans, who believe Planned Parenthood should no longer receive federal funding. Due to this impasse, no resolution bill has yet been agreed upon.

Repercussions on Immigration: LCA’s and PERM applications

A government shutdown would mean that various government agencies may not be operating at full capacity. Due to this we urge our clients to file urgent Labor Condition Applications or PERM applications prior to October 1, 2015. While the shutdown will have an effect on the economy, families, and business throughout the country, entities not affected by the government shutdown include USCIS, the military, airport security, FBI, Border Patrol, Social Security, Medicare, Medicaid, Food Stamps, among others.

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