In yesterday’s discussion of federal law clerk hiring, a process that is currently in full swing, we flagged an interesting issue regarding clerks who are not U.S. citizens. A recent change in the law appears to bar paying federal government salaries to non-U.S. citizens (subject to some narrow exceptions, such as holders of refugee or asylum status). This legal change would appear to create problems for (1) non-citizens already hired for clerkships that have not yet started and (2) non-citizens applying for clerkships at the current time.

When asked about this issue earlier this month, the Administrative Office of the U.S. Courts declined comment to the Blog of the Legal Times. But we now have an idea of what the Administrative Office thinks about this subject, based on a guidance memorandum that James Duff, the director of the AO, issued to federal judges last month.

So what does the AO have to say about this issue?

Here’s the bottom line, from the first paragraph of the memo (emphasis in original):

Although the law took effect on December 16,2009, we are not advising you at this time to take any action regarding current or incoming employees who are noncitizens -in part because in response to our inquiries to the relevant Congressional offices about the provision, they have admitted to confusion about their intent.

Congress? Confused about its intent? No, that can’t be….

The AO apparently is trying to address the situation, “working with Congress and various federal agencies to define better the details and to explore options for clarifying legislation.”

The memorandum then discusses the prior state of the law, the recent change, and the exceptions to the policy (in terms of those non-citizens who still can get paid, even after the change). It clarifies that the law by its terms does not apply to the following groups:

any individuals who were serving as an officer or employee of the United States on December 16, 2009, the date of enactment. Only those employees who were appointed after December 16 may be impacted. All others are grandfathered.

So at least some foreign nationals who are currently clerking don’t have to worry about their paychecks vanishing.

employees in Hawaii, the Virgin Islands, Puerto Rico, Guam, or the Northern Mariana Islands. The new law applies only to employees whose duty stations are in the continental United States.

Nice. Foreigners who clerk in these districts don’t just enjoy great tropical weather; they also get salaries.

unpaid volunteers. The restrictions apply only to the payment of compensation. As with all volunteers, however, employing offices should still require verification of employment eligibility under U.S. immigration law.

The federal government isn’t in the best fiscal shape right now. Maybe we should save some money and staff our entire judiciary with unpaid volunteer law clerks. (This is already something that California courts are experimenting with.)

The memo then turns to the subject of the law clerk hiring process specifically:

Because of the timing, this new law likely will have its greatest immediate impact on judicial law clerks, both those who are about to start their service this month or next, and those who will be interviewed for clerkships commencing in the fall of 20 11. Because we are still determining how the law has to be implemented, we are not advising that any employee has to be terminated, that offers of employment be revoked, or interviews cancelled at this time.

After our post from yesterday, we heard from sources who feared that our coverage was too alarmist and might deter some non-citizens from seeking clerkships. The AO memo might give some incoming clerks and/or current clerkship applicants who aren’t U.S. citizens a bit of reassurance on this front: “we are not advising that any employee has to be terminated, that offers of employment be revoked, or interviews cancelled at this time.” In other words, don’t panic.

Because, at least for now, it’s business as usual in the U.S. courts:

We do, however, offer the following interim advice:

• Noncitizens who are about to commence employment may be placed on the payroll. We urge that the employees be advised of the ehange in the law and be warned that it is very possible that, unless they qualify under the “seeking citizenship” exception or one of the other more narrow exceptions, they may be subject to termination. They will be entitled to retain salary previously earned on a quantum meruit basis.

Article III pwns Article I. What are you going to do, Congress? Sue us?

• Noncitizens who are candidates for employment to start next year or later may be interviewed and considered, but as above, they should be advised of the change in law and warned of the strong possibility that any offer will have to be withdrawn if the law is not changed or if they do not qualify under the law’s exceptions.

Seems fair enough. It’s a yellow light, but not a red light: proceed with caution. While it might be annoying for a judge to have to fill a spot in the event that an offer to a non-citizen ultimately must be withdrawn, federal judges should have no trouble filling clerkships on short notice, especially in this economy.

The memo closes with some mild digs at Congress:

I fully understand that this new law may cause disruption in some chambers and court offices. If the law had been considered in the ordinary course of legislation we would have opposed it or sought exceptions to it because of our practices of hiring a year in advance of clerkships. But the provision was inserted in a voluminous bill unbeknownst to other government branches or agencies. There is some indication that the plain language of the provision was not what Congress intended to do, and we are working with Congress to try to determine its impact. We will have no choice, of course, but to comply with the law when the review is finalized, but in the meantime we will try to obtain a reasonable result. We will keep you apprised of developments and will issue more detailed guidance as soon as it is available.

Good luck to everyone affected by this change in the law. It might not affect a huge number of clerks, perhaps just a few dozen each year, but it’s obviously very important to those who are affected — as well as to the judges and courts that employ them, who benefit from the superb contributions of these non-citizen clerks. (One of my co-clerks from back in the day, Professor William Birdthistle, would have been hit by this law had it existed at the time.)

The complete memo from the Administrative Office is reprinted below.

Earlier: Clerkship Application Season: Open Thread (And a tricky issue re: non-citizen law clerks.)


ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS — JAMES DUFF — EMPLOYMENT OF NONCITIZENS

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