The Current Minefield for Immigration Practitioners: Protecting the Rights of Clients in the Trump Era.

• Author: Scott, Lisa

Introduction The Impact of "Buy American and Hire American" Radicalized Enforcement and Attacks on Judicial Independence Conclusion Introduction

Immigration reform has been a consistent campaign promise of presidential candidates for decades, in part, because the U.S. immigration system has always been a regulatory minefield for anyone attempting to navigate its bureaucracy. (1) President Trump's "America First," "Buy American and Hire American," and other anti-immigration policies enacted since his inauguration have rendered the U.S. immigration system nearly impossible to navigate without an experienced, highly-skilled attorney. In addition to the disturbing rollback on basic human rights as seen through family separations, the cancellation of the Deferred Action for Childhood Arrivals (DACA) program, the Muslim ban and the fabricated war on "chain migration," there have also been substantial limitations and newfound scrutinies placed on existing employment-based immigration programs. (2) Our practice, as with virtually the entire U.S. immigration bar worldwide, has seen significant pushback on once-routine visa applications in the form of unannounced, unofficial changes in regulations and standards, as well as open intimidation tactics towards visa--and naturalization--hopefuls.

The Impact of "Buy American and Hire American"

As is with the majority of Trump's dubious claims about the U.S. immigration system, the narrative of foreign workers taking jobs from U.S. workers (3) is baseless. Irrespective of the current administration's position, preserving the job market for U.S. workers has always been an integral part of the U.S. immigration structure. Prior to applying for visa status with the U.S. Department of Homeland Security (DHS), employment-based visa petitions require extensive review (4) and certification from the U.S. Department of Labor to ensure that U.S. jobs remain unthreatened. (5) Accordingly, rather than fulfill its intended purpose of protecting the U.S. economy, the consequences of "Buy American and Hire American" have only complicated taxpaying U.S. companies' ability to both conduct business and employ qualified talent. (6)

As part of the Trump Administration's crackdown on immigration enforcement, U.S. Immigration and Customs Enforcement (ICE) has significantly increased the number of worksite enforcement investigations. Between January 2018 and the end of July 2018, I-9 audit notices (7) were served to over 5,200 businesses nationwide, with an alarming 2,738 audit notices served just between July 16 and 20, 2018. (8) This compares to a total of approximately 1,400 I-9 audit notices issued in 2017.

Additionally, visa petitions, once assumed to be approved, are now being challenged--something all immigration law practitioners have felt through the overall increase of Requests for Evidence (RFEs) (9) and denials that are being issued for H-1Bs (Specialty Occupations) (10), L-1s (Managerial, Executive, or Specialized Knowledge) (11), O-1s (Extraordinary Ability) (12), and other employment immigration filings. (13) According to data published by the National Foundation for American Policy (NFAP), the RFE rate for H-1B visa petitions for skilled foreign-born professionals increased from about 22.5% to an alarming 68.9% between the 3rd and 4th quarters of fiscal year (FY) 2017, just a few months following President Trump's "Buy American and Hire American" executive order; in fact, NFAP data shows that in quarter 4 of FY 2017 alone, U.S. Citizenship and Immigration Services (USCIS) issued a total of 63,184 RFEs for H-1B petitions, compared to 63,599 issued in quarters 1, 2, and 3 of FY 2017 combined. (14) Moreover, a significant increase in denial rates for both L-1A and L-1B visa petitions has also been observed. (15) The denial rate for L-1A visa petitions increased from 12.8% in the 1st quarter to 21.4% in the 4th quarter of FY 2017. (16) Similarly, L-1B visa petitions also faced increased scrutiny; data shows the L1-B denial rate increasing from 21.7% to 28.7% between the 1st and 4th quarters of FY 2017. (17) This increase has continued into FY 2018, with a 30.5% denial rate in the 1st quarter and a 29.4% denial rate in the 2nd quarter. (18) For comparison, denial rates were at 24.8% and 24.2% in FY 2015 and 2016 respectively. (19)

Moreover, a recent analysis of USCIS data shows that processing delays have reached "crisis" levels as the agency subjects all cases to a process of extreme vetting, "harming families, vulnerable populations, and U.S. businesses that depend on timely adjudications." (20) The American Immigration Lawyers Association (AILA) analyzed USCIS data for FY 2014 through FY 2017, revealing that average case processing times have increased by 46% over FY 2017 and 2018. (21) These drastic increases in processing times for all immigration-related filings are in part due to the new, aggressive USCIS policies enacted during the Trump Administration. AILA has cited at least three of these policies, which constitute what AILA calls an "invisible wall" of anti-immigration policies. These include, but are not limited to:

* Rescinding "longstanding guidance that directed USCIS personnel to give deference to prior determinations when adjudicating nonimmigrant employment-based extension petitions involving the same position and the same employer."

* Overhauling refugee case adjudications, thereby bringing the processing of many of these applications "to a virtual standstill."

* Implementing a new in-person interview requirement for employment-based green card applications and Forms I-730, Refugee/Asylee Relative Petition, without providing meaningful justification. (22)

Whereas there used to be somewhat predictable outcomes within immigration law, these policy and practice shifts now constitute a minefield for practitioners advising clients in an ever-changing landscape with now unknown consequences. Practitioners are often left having to answer...