Friday, January 31, 2020

A Real-o-thetical Statutory Interpretation Hypo

On August 13, 2010, Congress pass PL 111-230. Section 402(b) of this law reads as follows:

Screen Shot 2020-01-31 at 11.13.49 AM

You can give your students the above segment or give them this version, with the key language highlighted:

Screen Shot 2020-01-31 at 11.15.02 AM

FWIW, the fee is currently 4,000 (since PL 114-113 in 2015) and will be in play through 2027 (per PL 115-123 in 2018).

Here's the question: Does the above language require H1B employers to pay a fee when a future employee is seeking entry into the U.S. via a port of entry for the first time? Or does it extend to employees who hire individuals who are changing their status in the U.S., say from an F-1 to an H1B.

It's a great opportunity to talk about INA 101(a)(13), everyone's favorite statutory provision!

Indeed, this would be a good hypo to utilize after discussion of Rosenberg v. Fleuti.

This question of statutory interpretation is currently being litigated in ITServe Alliance, Inc. et al. v. Cuccinelli. Forbes has excellent coverage of the suit. How much is at stake? Something like $350 MILLION dollars.

That's a lot of dough.


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