By Laura D. Francis, Bloomberg Law
President Donald Trump has made overhauling the immigration system a priority, and his steps in that direction have kept immigration lawyers on their toes for the bulk of the past year.
The rapid pace of immigration developments in 2017 “have rocked our world,” Laura Foote Reiff of Greenberg Traurig in McLean, Va., told Bloomberg Law Dec. 12.
Issues are popping up that “I typically don’t have to think about,” Tahmina Watson of Watson Immigration Law in Seattle said Dec. 14. For example, employees on work visas were able to travel freely—until the first travel ban came out, she said. Trump three times this year issued executive orders and proclamations limiting immigration from certain countries. The first two were largely blocked by the courts, but the U.S. Supreme Court recently allowed the third version to go into full effect while the litigation proceeds.
Advising clients on international travel has been “challenging” for much of the year as the legal challenges have left it “up in the air” whether the travel bans would actually be implemented, Watson told Bloomberg Law.
Already considering herself to be conservative in her approach and advice to clients, Watson said she’s “even more cautious and conservative than before.”
“If you can smell a risk, if you can feel a risk, don’t even think it,” she said.
Receipt of Requests Present New Challenge
One of the most acute changes pointed out by immigration attorneys has been an increase this year in receipt of requests for evidence related to H-1B visa petitions. The temporary visas are reserved for “specialty occupations"—generally those that require a bachelor’s degree—and are prevalent in the tech industry.
U.S. Citizenship and Immigration Services Director L. Francis Cissna denies that there’s been a dramatic shift.
“Our RFE rate has not markedly increased and in fact has remained consistent over the last few years at around 20%,” he said in a statement provided to Bloomberg Law Dec. 19. “At the same time, our approval rate has remained above 90%.”
“It is true that we’ve issued more RFEs recently. This increase reflects our commitment to protecting the integrity of the immigration system,” Cissna said. “We understand that RFEs can cause delays, but the added review and additional information gives us the assurance we are approving petitions correctly,” he said.
According to USCIS data, 20.5 percent of H-1B petitions received RFEs in fiscal year 2015 and 95.3 percent were approved. In FY 2017, 21.2 percent of H-1B petitions received RFEs and 92.5 percent were approved.
Even if the number of RFEs hasn’t gone up significantly, the nature of the requests is changing how attorneys approach H-1B petitions.
The petitions receiving RFEs are “cases that clearly qualify for H-1B status,” Kevin Miner of Fragomen, Del Rey, Bernsen & Loewy in Atlanta told Bloomberg Law Dec. 12. Yet the USCIS is questioning whether the position qualifies as a “specialty occupation,” he said.
“A lot of them are pretty complicated jobs,” and the USCIS adjudicator is asking for additional proof that at least a bachelor’s degree is required to perform them, he said.
Be More Creative
“We now need to be even more creative as lawyers in our approach to responding to these RFEs,” Watson said.
The “challenge” for immigration attorneys is “to determine what more we should be doing upfront"—how much information to submit with the initial petition for an H-1B visa, Miner said.
Too much information makes it difficult for USCIS adjudicators to “wade through the paper,” he said. But not including enough information upfront almost certainly will result in an RFE, he said.
Then there’s the concern that an employer has sent in all its information with the initial petition—and still gets an RFE, Miner said. “What else are you going to say?” he asked.
“I wouldn’t say that we’ve done anything too terribly different on H-1Bs,” Jerry Erickson of the Erickson Immigration Group in Arlington, Va., told Bloomberg Law Dec. 14. But the firm does try to get as much information as possible into the initial petition to ward off an RFE, he said.
Erickson said his firm also has seen an increase in RFEs but that it’s not “unmanageable.”
‘Feeding Information’ to Clients
We’re “being more proactive about where we think we’re going to see changes,” Reiff said. Since the 2016 presidential election, her firm has been “feeding information” to its clients about “where we can be of assistance,” especially in the area of immigration compliance, she said.
“There is definitely a clear change in compliance across the board” as agencies implement the president’s Buy American and Hire American executive order, Reiff said. There have been more Labor Department audits of employers that use temporary visa programs as well as more Immigration and Customs Enforcement audits of companies’ I-9 employment verification forms, she said.
“We have to be exceptional at communication,” Erickson said. “We have become a communications law firm,” he said.
The rapid pace of change in immigration law “requires us to be super clear with our clients” and to “set expectations” from the very beginning, Erickson said.
In addition, “we pay attention now, so much more closely, with what’s happening on Capitol Hill” in terms of immigration so that clients “can be prepared for it,” he said.
“Our clients are looking to us to be on top of the issues” and communicate “as soon as possible as to any input and guidance we can give them,” Erickson said.
Many companies tend to forgo training on things like responding to government audits if business is proceeding “without any hiccups,” Reiff said. But when they do get a notice about an upcoming audit, they realize “I guess we do need to worry about this,” she said.
And now that more and more companies are getting those audit notices, there’s been “more of a demand for training,” she said.
‘It’s More Work’
“It’s more work” for both immigration attorneys and their corporate clients to respond to the immigration changes, Miner said. And “it’s having a very real effect in terms of processing times and delays,” he said.
“We’re certainly advising clients that they have to have more flexibility in terms of their planning” because of the delays, Miner said. “The timeline that we’ve normally been able to predict in the past is just not as predictable any more,” he said.
But it’s not just the extra work involved in preparing petitions and responding to RFEs, Miner said. As visa denials have started to trickle in, his firm has started filing more administrative appeals than in the past, he said.
With some types of visas, a company can simply file another petition if the first one was denied, Miner said. That isn’t the case with visas subject to an annual cap, such as the H-1B, he said. So if a company really wants to hire that worker, an appeal is really the only option, he said.
An appeal to the USCIS’s Administrative Appeals Office typically adds about six months to the visa process, provided it’s successful, Miner said. But as more and more appeals are filed, the AAO is likely to develop a backlog, making that wait time even longer, he said.
Watson said she is appealing denials as well, but “I don’t know that the results will be any different.” The AAO is still an arm of the USCIS and will likely reflect the same policy positions, she said.
Litigation in federal court over visa denials also is likely, but Miner said his clients haven’t yet reached that point. “Our clients have been comfortable with proceeding” with an administrative appeal so far, but it remains to be seen how they will react to the outcome of those appeals, he said.
Watson agreed. “Lawyers like me who have not typically done a lot of litigation will now be considering it,” she said. But it’s another matter whether clients will be willing to stick their necks out, she said.