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Attorneys Decry ‘Invisible Wall’ Blocking Legal Immigration

March 26, 2018, 3:05 PM

The Trump administration is building an “invisible wall” despite Congress’s failure thus far to shell out for the president’s physical wall along the Mexican border, the American Immigration Lawyers Association says.

Big-news items like the travel ban and the end of the Deferred Action for Childhood Arrivals program have gotten a lot of attention, but many actions have been “quietly happening,” yet “having a large impact on our immigration system,” Betsy Lawrence, AILA’s director of government relations told Bloomberg Law March 22. “Employers are feeling the pinch, for sure,” she said.

The various less-known measures the administration has taken to curtail legal immigration have gone “largely unnoticed by the public,” but “collectively they’re a really big deal,” Lawrence said March 21 during a separate press call. “Building awareness” of the actions’ cumulative impact is the “first step” in taking down that invisible wall.

The 15,000-member association held the call to highlight a report detailing the various immigration-related measures the administration has taken since Donald Trump took office in January 2017.

“I hope that by building awareness around this we’ll be generating interest in the topic,” Lawrence told Bloomberg Law.

Others, however, view the administration’s actions in a much different light.

“The Trump administration is merely applying the relevant laws as written by Congress,” Matthew O’Brien, director of research for the Federation for American Immigration Reform, said in a March 23 email. His organization advocates for lower immigration levels.

These are all actions “that are long overdue,” and “for once there’s some attention being paid to it,” New Jersey attorney John Miano told Bloomberg Law March 23.

A representative for the White House didn’t respond to Bloomberg Law’s request for comment.

Focus on Employment Visas

A chunk of the more under-the-radar actions relate to high-skill, employment-based immigration, likely a response to the president’s Buy American and Hire American executive order. They include a series of policy memorandums on, and increased scrutiny of, the H-1B temporary visa program for high-skilled workers, as well as in-person interviews of all employment-based green card seekers.

But each action “doesn’t exist in a vacuum,” and they work together to create “a sense of fear and uncertainty,” Robert Cohen of Porter Wright Morris & Arthur in Columbus, Ohio, said during the March 21 press call.

“I’ve had more than one HR professional tell me that sometimes they’re concerned that productivity has begun to suffer among their workforce,” said Cohen, who heads AILA’s U.S. Citizenship and Immigration Services Benefits Liaison Committee. When foreign workers are consumed with anxiety, “that also affects the rest of the workforce,” he said.

“It’s not like we’ve not had frustrating requests for additional evidence and unjust denials in the past,” Sandra Feist of Grell Feist in Minneapolis said during the call. But it appears that the Trump administration is using requests for evidence, or RFEs, “on a massive scale” to implement policy decisions, rather than simply to make a more informed decision, she said.

Enforcing the Law

That suggestion is “patently false,” O’Brien said. “Past administrations regularly ignored those portions of the Immigration and Nationality Act that they didn’t like,” he said in an email.

“It is true that USCIS issued more RFEs recently,” agency officials said March 23. “This increase reflects our commitment to protecting the integrity of the immigration system,” they said in an email to Bloomberg Law.

“USCIS is focused on ensuring the integrity of the immigration system through deliberative and fair adjudications all while protecting the interest of U.S. workers,” the officials said. “We are committed to reforming employment-based immigration programs so they benefit the American people to the extent possible,” they said.

More to Come?

These actions aren’t the outer limit of what an administration can do to employment-based immigration programs.

The president could require the departments of Homeland Security and Labor to perform a joint audit of employers using the H-1B program, O’Brien told Bloomberg Law. And while legislation “will be necessary to address specific immigration issues like chain-migration and the visa lottery, simply enforcing the immigration laws that are already on the books would go a long way toward eliminating many of our immigration problems,” he said.

Miano also suggested the administration issue regulations that shorten the duration of H-1Bs from the current total of six years—a three-year term with an option to extend for another three years. The INA sets the maximum for H-1B status at six years but doesn’t require the DHS to use that maximum, he said.

And the president could use his authority under Section 1184 of the INA—which covers the temporary admission of foreign nationals—to condition the admission of H-1B workers on proof that they won’t displace U.S. workers, Miano said.

Still Seeking Foreign Talent

Regardless of intent, the administration’s policies don’t appear to be discouraging employers much.

Seventy percent of employers say sourcing foreign nationals is very or extremely important to their talent acquisition strategies, according to a recent survey of more than 400 human resources professionals. About one-fifth of employers (21 percent) proactively seek out foreign talent, according to the survey conducted by the Harris Poll for the Chicago immigration services provider Envoy.

In fact, it appears Trump administration policies are making employers more likely to seek international workers: 45 percent of hiring managers say they are more likely to hire foreign nationals, while 20 percent said those policies have made them less likely to do so.

“It’s all about the lawyers’ frustration,” said Miano, who is representing displaced U.S. workers in two high-profile cases against work programs for foreign nationals. “Trump’s actions are cutting into fees for immigration lawyers,” and that’s what’s making them upset, he said.

But Cohen expressed frustration at USCIS’s unwillingness to meet with AILA, which used to have regular discussions with the agency.

“We like to think of ourselves as the canary in the coal mine,” alerting USCIS to issues it may not be aware of and helping to make things more efficient, he said during the AILA press call. That lack of communication has hindered AILA’s ability to help USCIS better serve the public, Cohen said.

USCIS is still reaching out to the stakeholder community, agency officials told Bloomberg Law. The agency held more than 3,000 stakeholder engagements in the past year, “reaching an audience of over 100,000 people,” they said.