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This summer SCOTUS published three major decisions impacting workplace immigration decisions. Two of the decisions may require employers to shift their strategies for managing foreign-national talent, and the third essentially preserves the status quo.

Below we outline the impact of the decisions on US-based employers:

1. SCOTUS strengthens the doctrine of consular nonreviewability limiting options for employers and visa applicants who receive unfavorable denial

      In Department of State v. Munoz (July 21, 2024), SCOTUS ruled that US citizens do not have a fundamental liberty interest in their noncitizen spouses’ ability to come to the US.

      In Munoz, the spouse of a US citizen was denied an immigrant visa by a US consulate on ground that the consulate had “reason to believe” the spouse would participate in illicit activity if admitted to the US. The consular denial provided limited explanation for the decision – simply citing the “reason to believe” statute (a legal standard under which foreign nationals can be barred from entering the country if USCIS has a “reason to believe” the individual has been involved in illicit or illegal conduct) – and was extremely slow in providing this basis for its decision. The US citizen petitioning spouse sought judicial review and argued that she had a liberty interest in the matter given her US citizenship and that the impact of the consular decision deprived her of the fundamental right to marriage. But after receiving a favorable decision by the Ninth Circuit Court of Appeals, the Supreme Court reversed and held that no such liberty interest exists in this context.

      While the facts of Munoz did not involve a US employer, the underlying doctrine at issue – the ability to challenge a consulate’s decision on a visa – has direct implications to US employers who seek employment-based visas for employees. In reversing the Ninth Circuit’s decision, the Court upheld and arguably expanded the doctrine of “consular nonreviewability” – i.e. the inability to challenge the decision of a consular officer in US federal court.

      Takeaway:

      Munoz leaves employers and visa applicants with limited, if any, means for judicial redress in the event of an incorrect or unjust consular decision. Other avenues for challenging an unfavorable decision exist – including requesting supervisory review, review from the State Department’s Legal Net, or re-filing the application – but these fall short of and lack the teeth of formal judicial review.

      2. Elimination of Chevron deference likely to improve the success rate of appeals of USCIS decisions

        On June 28, 2024, SCOTUS issued its decision in Loper Bright Enterprises v. Raimondo, overturning the so-called Chevron doctrine, which previously required courts to defer to government agencies offering a reasonable interpretation of an unclear statute.

        In the immigration context, Chevron meant that federal courts were obligated to defer to USCIS decisions unless the appellant could show that the decision was arbitrary and capricious – a very high standard in this context.

        Now, with Chevron deference eliminated, an unfavorable decision can be appealed at the agency level and subsequently filed in federal district court, where the judge will not be required to rely on what may be an unfavorable agency interpretation.

        Takeaway:

        The upside is that employers may have more tools to challenge agency denials in federal district court and it’s possible that agencies will now take more modest positions in the regulations they issue.

        3. Limiting a potential defense for employers in an enforcement action

        On June 27, 2024, SCOTUS issued its ruling in SEC v. Jarkesy, which we told you about in our prior blog here.

        Legal pundits expected the arguments that could potentially weaken the authority of ALJs in the Jarkesy case–i.e., that defendants are unconstitutionally deprived of a jury trial when administrative judges address infractions–could also be extended to ALJs sitting within the Office of the Chief Administrative Hearing Officer (OCAHO), potentially depriving them of their ability to adjudicate cases involving I-9 violations and citizenship-based discrimination.

        However, SCOTUS held that the Seventh Amendment guarantees a defendant a jury trial when the SEC seeks civil penalties against the defendant for committing securities fraud, finding that the Seventh Amendment generally applies to all claims that resemble traditional common law claims (e.g., fraud) seeking traditional legal remedies (e.g., monetary penalties).

        Takeaway:

        Critically, the narrow scope of the decision is unlikely to impact the validity of ALJ hearings or decisions in the immigration context given that these types of actions were not found in the common law. It is likely that the DOJ and DHS will continue to investigate, charge, and litigate alleged I-9 and citizenship-based discrimination violations under existing regulations and under the existing administrative judicial system. A number of cases remain on appeal and challenge this issue, so we expect more to come in the next year.