Business immigration attorneys seeking to challenge Trump administration immigration policies believe their efforts could be bolstered by two new executive orders designed to force federal agencies to cut red tape and help businesses run more smoothly.
The pair of executive orders, which President Donald Trump signed in October, appear to undercut some of his hard-line immigration-related actions, such as increased scrutiny of visa petitions, increased fraud investigations, and workplace raids.
“These orders seem to work at cross-purposes with the immigration-specific executive orders,” said Carl Hampe, an immigration attorney with Fragomen, Del Rey, Bernsen & Loewy in Washington.
But business immigration lawyers and professors interviewed by Bloomberg Law were split on whether the orders will actually lead to major changes in how the administration approaches immigration policy. They said they’re watching to see how things play out, considering that orders can always be changed and because there’s a lack of clarity about whether the new directives will even apply to immigration enforcement.
One of the new executive orders (E.O. 13891) requires agencies to consolidate and index their guidance, and run economically significant guidance through the White House Office of Management and Budget, along with subjecting it to a public comment process. The second (E.O. 13892) requires publication of procedures for conducting administrative investigations.
Immigration guidance, even within the same agency, has been scattered in different locations for years, and there’s a dearth of published procedures for administrative actions. That could mean federal immigration agencies will have their work cut out for them—if the White House enforces the orders against them.
‘Licking My Chops’
Angelo Paparelli, an attorney with Seyfarth Shaw in Los Angeles, called the orders “nothing short of music to an immigration lawyer’s ears,” in a blog post.
“I was licking my chops,” Paparelli told Bloomberg Law. The orders should, at a minimum, require guidance consolidation and development of official procedures for site visits and audits of businesses’ I-9 employment verification forms, he said in his blog.
But he said it’s too soon to tell whether immigration agencies, primarily U.S. Citizenship and Immigration Services, will respond to the mandates. It’s also too soon to tell whether the orders will bolster a court challenge to a visa denial based on the Administrative Procedure Act, he said.
USCIS appears to be in the process of trying to sort things out.
“USCIS is conducting a thorough review of the executive orders issued on Oct. 9 to determine the appropriate impact,” an agency spokesman said, declining to comment further.
A representative for the White House didn’t respond to a request for comment.
The questions for the USCIS and other immigration agencies to consider are complicated by the seemingly conflicting aspects of the Trump administration’s approach to policymaking.
Jill Family, director of the Law and Government Institute at Widener University Commonwealth Law School, said there are “two threads” to the administration’s views.
“One is you have this feeling of we don’t like the power of administrative agencies, we’re a deregulatory administration,” she said. “But on the other hand, the administration believes in a very strong version of executive power,” especially when it comes to immigration, she said.
The orders say they don’t apply to any “homeland security function of the United States,” a broad exemption considering the size of the Department of Homeland Security, Family said. It’s “intriguing” as to why the administration views immigration regulations differently, she said.
Hampe said the orders appear, in particular, to undermine Trump’s April 2017 “Buy American and Hire American” order, which cracked down on H-1B specialty occupation visa usage. Although businesses can’t sue the government for violating the October orders, the contrast “still kind of makes the government look bad if it’s clearly violating those principles,” he said.
But there’s also an exception to the exception: The orders do, in fact, apply to “actions involving the import or export of nondefense articles and services.”
Paparelli said this language squarely covers certain temporary visas—such as the H-1B visa—because the Immigration and Nationality Act refers to employers that “import” such workers.
Change at Any Time
If attorneys “think that there’s some aspect of an executive order that they can use to their advantage, I would hope that we would try to point it out to the government,” said Andrew Greenfield, also of Fragomen in Washington.
But the problem with executive orders is that “they can be changed at any time with very little process,” he said. “They’re not subject to the kind of rigor that’s required for regulations.”
“I like the principles that are articulated,” Hampe said, but “they aren’t the legal authority I would use to try to make my point to a federal judge.”
Hampe said the bigger boon for immigration attorneys challenging visa decisions is a recent U.S. Supreme Court decision that limits the amount of deference courts should give to agency interpretations of their own regulations. “We’ve already started to use it in some of our litigation,” he said.
The order requiring the development of procedures for administrative investigations could make the bigger splash, the attorneys said.
The USCIS has expanded its existing site-visit program, under which officers from the agency’s Fraud Detection and National Security Directorate visit the buildings of employers sponsoring foreign workers for visas. Site visits can be random, targeted at industries where fraud is more prevalent, or based on complaints about a specific employer.
Those visits are “run with very, very few rules,” Hampe said. “There’s barely guidance, let alone a rule specific to FDNS.”
The USCIS conducted 9,718 random site visits in fiscal year 2018, mostly focused on the H-1B visa program.
“I’m wondering if it could be used as a ground to delay or question some of these investigations,” Greenfield said. On the other hand, he said, businesses aren’t likely to challenge the way a site visit is conducted unless something adverse happened as a result, such as a visa getting revoked, he said.
A government action based on an executive order generally can be subject to an Administrative Procedure Act challenge because the order doesn’t have the force of law, Greenfield said. But could one argue that the government shouldn’t do something because it goes against an executive order?
“I don’t know the answer to that question,” he said.