Written by Brian Daza, Esq., Associate Attorney.
In late June of 2024 the Supreme Court of the United States overturned the “Chevron deference” doctrine with its decision in Loper Bright Enterprises v. Raimondo.
The elimination of “Chevron deference” could impact every federal agency, including the Department of State (DOS), Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS) as well as the Department of Labor (DOL), all of which manage different areas of immigration administration and enforcement.
The new Chevron ruling is a powerful decision as it has the potential to affect immigration law and policy moving forward, in ways that may impact case adjudications. This White Paper explores the fundamentals and background of “Chevron deference” and analyzes how the new ruling is expected to impact immigration law and policy through multiple agencies and strategies, such as litigation.
What was “Chevron deference?”
“Chevron deference” was first established by the Supreme Court’s ruling in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
In a 6-0 decision, the Court held that “it is entirely appropriate for this political branch of the Government to make … policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute[.]”
“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail,” Justice John Paul Stevens wrote in the unanimous majority decision. “In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.”
Practically, the Chevron ruling established the principle that courts were required to defer to Executive Branch federal agency decisions and interpretations when statutes established by Congress were ambiguous. In effect, this deference granted more power to the federal agencies within the Executive Branch of government.
For example, USCIS, the agency inside of DHS which oversees “lawful immigration” to the U.S., had great latitude under the Chevron decision to interpret and implement policy not specifically addressed by Congress. When USCIS decisions were challenged in federal court, judges were obligated to give a heightened level of deference to the agency’s interpretations of the law. Consequently, this approach has generally had the power to lead to decisions that are reflective of political administrations.
That precedent was in place for almost 40 years until the Supreme Court re-examined its decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. in the most recent term (2023-24).
What did the Supreme Court rule in Loper Bright Enterprises v. Raimondo?
The Supreme Court revisited “Chevron deference” in early 2024, when it heard oral arguments in Loper Bright Enterprises v. Raimondo.
The Court issued its ruling in late June in that case, and in a 6-3 decision completely overturned the “Chevron deference” doctrine.
“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] APA requires,” Chief Justice John Roberts wrote in the court’s decision. “Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
The Court’s holding asserted that the Administrative Procedure Act (APA), passed by Congress in 1946, controlled in cases where agency authority is in dispute, as well as Article III of the Constitution, which granted the power of judicial review to the judiciary. The Court reasoned that more authority should be granted to Congress and the judiciary rather than federal agencies.
The Court’s ruling in Loper Bright Enterprises v. Raimondo made “Chevron deference” null and void, which will likely have wide-ranging implications moving forward.
Deference moving forward
The Supreme Court’s reversal of Chevron does not eliminate agency deference in its entirety. Instead, the standard for challenging agency decisions will revert back to the “Skidmore doctrine.”
The Skidmore standard [from Skidmore v. Swift & Co., (1944)] was previously in place from 1944-1984, prior to the Supreme Court’s Chevron ruling and provides much more latitude for challenging agency policy and decisions in federal court.
Skidmore still requires the court system to weigh an agency’s interpretation of law when making a final ruling. However, according to the American Immigration Lawyers Association, the judge must consider those interpretations “only to the extent” that they “have the power to persuade” in their final ruling, giving less deference to the agency’s interpretation of its authority. Essentially, in using the Skidmore standard, the judge will consider the executive agency’s interpretation based on several factors, including its thoroughness, reasoning, and its consistency with earlier agency assertions or adjudications.
While there has been a law introduced in Congress, the “Stop Corporate Capture Act,” which intends to overturn Loper Bright and reinstitute “Chevron deference,” it is not expected to pass.
Overall, the Skidmore standard is a much lower standard of deference than the one established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and, consequently, has the ability to impact future immigration decisions.
Effect on immigration
The elimination of Chevron deference, and the return of the Skidmore doctrine, could have major impacts on the following aspects of immigration:
Humanitarian immigration and removal defense
The elimination of Chevron deference may end up having the biggest effect on humanitarian immigration policy and the ability of individuals in removal to contest their removal.
The Executive Office of Immigration Review (EOIR) and Board of Immigration Appeals (BIA) are the main bodies in making removal decisions and also have a major role in asylum determinations. Without Chevron, decisions from EOIR and the BIA carry much less weight, and could be vacated in their entirety, which could be a benefit for foreign nationals undergoing those proceedings.
Meanwhile, however, the future of DACA remains unresolved. The Biden administration has been blocked from accepting new applications for the program since 2021 because of multiple court rulings across the last several years.
It is unclear how the DACA program will be affected by the elimination of Chevron deference, but the program is entirely a creation of previous agency decisions and interpretations which has continually been challenged in federal court and struck down. This makes it more likely that the court’s ruling in Loper Bright Enterprises v. Raimondo may actually have a negative result for the program.
Learn more: Federal judge again rules DACA program unlawful
Employment-based immigration
There are certain employment-based visa categories and/or their associated work authorization that could become more vulnerable after the reversal of Chevron.
For example, H-4 spouses are currently eligible to apply for employment authorization when the H-1B principal applicant has an approved I-140. However, that ability to apply for work authorization was established solely through agency discretion, and not by a Congressionally created mandate or program. This work authorization may therefore now be more at risk if it is challenged in the court system after the Supreme Court eliminated Chevron deference. F-1 student visas, and the associated work authorizations (CPT, OPT, STEM OPT) could also be similarly affected. An act of Congress would better protect these programs.
Conversely, applicants whose H or L visa petitions are denied by USCIS may have a clearer pathway to challenge those decisions without Chevron deference in place by filing a lawsuit in federal court. Further, O-1 and EB-1A extraordinary ability petitions are subject to a “final merits determination” analysis framework determined in Kazarian v. USCIS, a Ninth Circuit decision now relied upon by USCIS. This Kazarian standard is much more vulnerable in a post-Chevron landscape, which could ultimately lead to a comparatively relaxed standard for these benefits. More details about the pathway to challenge a denial follow in a later section.
Department of Labor and PERM regulations
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo could also influence the PERM process moving forward.
PERM is often the first step in the green card sponsorship process. PERM is an electronically filed, attestation-based application filed with the DOL following a test of the labor market.
To test the labor market, the employer conducts advertising for the offered position and reviews all applications received during the recruitment period. If an able, willing, available, and qualified U.S. worker is identified, then the PERM application cannot be filed with the DOL.
There are parts of the PERM practice that exist solely based on agency decisions or interpretations by the Board of Alien Labor Certification Appeals (BALCA) or DOL. These are more ripe for legal challenges without Chevron deference in place. For example, the specific recruitment methods required to test the labor market, which are based on agency interpretation, may now be more subject to challenge.
Litigation
Without Chevron deference, foreign nationals and petitioners may be more successful in challenging USCIS denials.
For example, a foreign national or petitioner whose H or L visa petition was denied by USCIS may have a higher likelihood to prevail in a lawsuit in federal court disputing the decision if it was based off precedent established by the agency’s interpretation of the Immigration and Nationality Act (INA). For example, historical denials of H-1B visa petitions based on using a Level 1 wage during the Trump administration were based entirely on agency interpretation rather than existing regulations or statutes. Denials such as these based on agency interpretation are more ripe for challenge in many benefit categories, not just H and L visas.
The federal judge could then substitute their own judgment in the case, if the case proceeds to litigation. Previously, they would have had to defer to the agency in their final decision.
Suing the United States government, for example, for case denials or adjudication delays, can be a daunting prospect for foreign nationals and petitioners. However, it is a powerful strategy with often timely and cost-effective solutions. A decision that is ripe for litigation typically requires no expensive and time-consuming depositions or discovery, as cases are often resolved prior to a final judicial ruling.
A foreign national or petitioner can usually litigate a case that may have been erroneously denied, based on an argument that:
- USCIS either misapplied or unjustly expanded the relevant legal standard to demonstrate eligibility for the visa; or
- USCIS failed to consider crucial evidence and information; or
- USCIS misunderstood or mischaracterized evidence that was presented either in the original petition or in response to a Request for Evidence (RFE).
Further reading: Litigating immigration cases — An effective strategy in certain circumstances
Other potential impacts without “Chevron deference”
Outside of immigration, the elimination of Chevron deference could affect the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), as well as some other federal agencies’ ability to regulate.
The protocols followed by these organizations have mainly been established through the agencies’ interpretations of their authority, as opposed to laws passed by Congress. These agency interpretations were often required due to the inability of Congress to act quickly, in contrast to federal agencies. Because of the lack of Congressionally-approved statutory authority, these protocols are therefore more vulnerable to legal challenges and court decisions without Chevron deference in place.
Further, more cases could also end up being heard by the Supreme Court. Without Chevron deference, lower federal and circuit courts could end up with different rulings on similar matters, depending on specific case type, jurisdiction and individual judge.
This will likely lead to the high court either having to resolve these differences by hearing the case or leaving these split decisions in place in each individual jurisdiction.