Changes to U.S. immigration law are generally thought to come at the congressional level after public debate about the role of immigration in our country and economy. Yet, government agencies, like U.S. Citizenship and Immigration Services (“USCIS”) within the U.S. Department of Homeland Security (“DHS”) and U.S. Department of State (“DOS”), have power to alter policies without any legislative action in accordance with the delegation of authority provided by Congress. President Trump has directed that USCIS and DOS use this power to transform how they adjudicate U.S. immigration benefits. The U.S. Attorney General has even attacked “dirty immigration lawyers” who assist asylum seekers in navigating the complex immigration system. Furthermore, President Trump has appointed individuals who previously worked for the Federation for American Immigration Reform (“FAIR”), a nonprofit regarded as a restrictionist advocacy group, as top officials at USCIS. Here are five things to know about this new era of immigration:
- No Deference to Prior Immigration Approvals. USCIS announced on October 23, 2017 that it would no longer defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and underlying facts as the initial petition. Employers should be ready to provide the same level of documentation for an amendment or extension as they did for an initial application.
- In-Person Interviews for Employment-Based Adjustment of Status Applicants. USCIS announced that it would expand in-person interviews for adjustment of status applications based on employment starting October 1, 2017. Previously, applicants did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Adjustment of status applicants should be prepared for longer processing times.
- Wholesale Use of Requests for Evidence (RFEs). USCIS is now issuing lengthy detailed requests for evidence contesting every issue and requiring unreasonable quantities of proof in regard to any application for an immigrant or non-immigrant visa or adjustment of status. Notably, USCIS has been issuing massive amounts of RFEs for H-1B applications as Congress has stalled reforms to the project, causing a tremendous headache for U.S. companies relying on foreign workers with specialized knowledge.
- Buy American, Hire American. USCIS has been working on a combination of rulemaking, policy memoranda, and operational changes to implement the Buy American and Hire American Executive Order by President Trump. DOS is adjudicating nonimmigrant visa applications with the goal to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” Immigration petitions should include an argument on how the issuance of a visa or other immigration benefit promotes these policy goals.
- A Culture of “No” to a Culture of “Gotcha”. Obtaining U.S. immigration benefits has never been simple, but USCIS and DOS have moved away from merely denying applications to trying to catch applicants for misrepresentations and fraud. DOS now closely reviews prior visa applications (DS-160s) to check for consistency with current applications (for example, prior employment). USCIS is checking prior Form I-9s completed by foreign nationals decades ago to see if any false claims to U.S. citizenship exist. This is also a troublesome area for U.S. companies that use foreign workers; for example, the U.S. Department of Justice (“DOJ”) and U.S. Immigration and Customs Enforcement (“ICE”) announced in September 2017 that a U.S. company would pay $95 million to settle both criminal and civil immigration charges stemming from the company’s hiring and rehiring of undocumented workers over a six-year period.
Of course, there are many other immigration policies that have changed since the Trump Presidency began, including, but not limited to, the “Travel Bans”, the border wall, the rescission of Deferred Action for Childhood Arrivals (“DACA”), the restriction of due process to asylum seekers, and limiting protections for unaccompanied minors who come to the US illegally. In this new era of immigration, foreign nationals and U.S. companies seeking qualified foreign labor need top counsel to navigate these troubling areas.