The Trump administration’s scrutiny of employment-based visas isn’t just making immigration attorneys find new ways to respond to the government; it’s also requiring new approaches to managing client expectations.
“We’re doing a lot more work now making sure our agreements are reflecting the additional work” required to represent a business seeking employment visas for its workers, said Anastasia Tonello, the immediate past president of the American Immigration Lawyers Association.
That work ranges from including additional client fees to explaining agency processing delays to taking a case to federal court when the government issues a denial, an increasingly common occurrence especially with H-1B specialty occupation visas.
“Immigration law practice is harder than it’s ever been,” said Lisa Krueger Khan, an Orlando, Fla.-based immigration attorney. “It’s important to be up front” and to manage expectations in light of the administration’s policies and adjudication trends, she said at AILA’s annual conference in Orlando.
“The key to any relationship is having a mutual expectation” of what’s going to happen, William Stock of Klasko Immigration Law Partners in Philadelphia said. That also means including the expectation in the fee agreement, he said.
For example, receiving a request for additional evidence proving that a job qualifies as an H-1B specialty occupation—which can add extra time and expense to a case—“is the new environment,” said Stock, a past president of AILA.
Since fiscal year 2015, requests for evidence, or RFEs, issued in response to H-1B petitions have been going up while the chance of getting approved after receiving an RFE has been going down, said Tonello, who practices with Laura Devine Attorneys in New York.
The percentage of H-1B petitions that receive an RFE is going up, from a low of 20.8% in FY 2016 to 38% in FY 2018 and 48% so far in FY 2019. The highest monthly rate was in November 2018, when 66.1% of completed H-1B petitions had an RFE.
So far in FY 2019, the agency has approved only 60.5% of H-1B petitions that received an RFE. That includes a 56.2% approval rate in February 2019, the lowest monthly rate so far.
Approval rates for H-1B petitions that had received an RFE declined to 62.3% in FY 2018, from a high of 83.2% in FY 2015.
Attorneys should “have that go-to publication that shows those statistics” so that clients won’t be surprised when there’s an RFE, Khan said.
Along with the increased denial rates, immigration attorneys are now encouraging their corporate clients to sue when they can’t access visas.
“All of us need to be prepared to take that final step” of going to court, said Ian Wagreich of Hughes Socol Piers Resnick & Dym in Chicago. “A lot of what I’m doing these days” is “strategizing for litigation,” he said.
Litigation was a major theme of the conference, with newly installed AILA President Marketa Lindt, an attorney with Sidley Austin in Chicago, announcing new initiatives to take on “impact litigation” as well as individual lawsuits forcing the U.S. Citizenship and Immigration Services to make decisions in long-pending visa cases.
AILA first formed its administrative litigation task force last year.
Its members have since taken on cases challenging Trump administration business immigration policies such as one requiring additional evidence from employers placing H-1B workers at third-party sites and another changing the way student visa holders may be penalized for visa violations.
Employers have historically been reluctant to sue the government out of concern that it would set off a “red flag,” Stock said.
But “I’m hearing more and more” that going to federal court means the government will be more likely to grant a company’s visa petition because it wants to avoid litigation, said Michael Nowlan of Clark Hill in Detroit.