Immigration As Usual? Moving Forward in Times of Uncertainty

by Anthony Mance, Esq. and Jennifer Grady, Esq.

Recent announcements by the Trump Administration declaring enhanced vetting of current immigration cases; talks in Congress about major proposed changes to the immigration laws; and constant media discourse regarding the future of DACA, the Travel Ban, employment-based visas, and increased waiting times, may have the effect of chilling immigration applications.  However, with the right information, and a plan that takes these changes into account, it is still possible to submit a successful immigration application.  We discuss the latest updates, and our recommended responses, below.

I. “Enhanced Vetting”

One of the major elements of President Trump’s Presidential Campaign was the promise that he would take a hard line on immigration.  Since he has become President of the United States, this promise has materialized into a policy that enforces existing immigration laws by applying stricter review of immigration applications. Commonly referred to as “enhanced” or “extreme” vetting, the practice requires that the United States Citizenship and Immigration Services (USCIS) spend more time reviewing immigration applications, conducting additional background security checks, adding in-person interviews.

While the Administration has called for enhanced vetting across all immigration categories, certain status-types have come under the microscope. For instance, USCIS recently issued a memorandum stating that it was stopping its practice of giving deference to earlier USCIS decisions when adjudicating H-1B renewal applications.  This means that if a person received a prior H-1B approval and is now applying for a renewal, the reviewing officer will scrutinize the application as though it was received for the first time, rather that merely taking the prior approval into account.  Moving forward, extension applications will be treated as if they are new requests for status, and thus will receive the same level of scrutiny as a new application.

Another example of this increased scrutiny is the implementation of in-person interviews for employment-based Permanent Resident applications, when such interviews were not required in the past.

The practice of enhanced vetting does not appear to be limited only to USCIS adjudications. We have been seeing an increase in the level of scrutiny that Canadian applicants for NAFTA benefits have been experiencing at the border. Specifically, applicants for TN status (which permits Canadian citizens to enter the United States to work in specific professional fields without a visa) have reported increased questioning and demands for evidence by Customs and Border Protection (CBP) officers. It is likely that this level of scrutiny will also continue to be experienced by applicants for NAFTA-based benefits from Mexico, and even applicants applying for visas at US embassies and consulates around the world.

For Canadian applicants, they may have more success applying for TN status in advance by submitting a paper application to USCIS, rather than taking their chances of having it approved by an agent at the border.  Because we have seen the additional scrutiny at the border cause applicants to miss their flight, it may be worth the peace of mind to apply in advance and pay the $1,440 premium processing fee that would guarantee a maximum 15-day review period before a decision is made.  This way, you would have the decision in-hand before heading to the airport for your international flight.

What You Can Do

While the United States government may be taking a stricter view when adjudicating cases, it is important to remember they must still adhere to the applicable laws and regulations. When all required evidence is provided and each element of a case is met, legally, the application should be approved. However, nothing stops the government from being extremely strict when interpreting when an element is met. As long as the government is acting within the bounds of the law, its agents have the power to reject a case or require additional evidence.

Accordingly, we have seen a dramatic increase in the number of “Requests For Evidence” (RFEs) issued by USCIS in situations where such scrutiny had not occurred in the past. Therefore, it is imperative to ensure that the case is as “air-tight” as possible, and that all possible relevant documents are provided at the outset. Nothing should be taken for granted, and each element of a case should be analyzed and addressed. Even if certain evidence was sufficient in the past to secure an immigration benefit, it should not be assumed that the same level of success will occur this time around. The more evidence that is presented to support a requested benefit, the higher the likelihood of a favorable outcome. In addition, recognizing any potential trouble spots and preparing a strong defense will go a long way to preventing unexpected delays or rejections.

II. Long Wait Times

As the government increases the time it spends on adjudicating immigration cases through increased scrutiny, additional background checks, and additional in-person interviews, the time people have to wait to get a decision in their cases has also increased. These delays can be substantial, with some applicants waiting almost a year to get a decision that they would have previously received in four to six months.

While the cause of these delays is not completely known (USCIS does not provide information on its internal processes), it is likely that the culprit is a stretched workforce tasked with responding to new rules and regulations in a short period of time. Ideally, as USCIS adjudicating officers become more familiar with the new rules and as the agency adapts to the increase in scrutiny, the system will become more efficient and wait times will once again decrease, but how this will play out depends heavily on whether the Trump Administration issues new directives moving forward.

How to Respond to Increased Wait Times

Unfortunately, there is little that an applicant or  attorney can do to speed up the processing of a case. Certain nonimmigrant (temporary) and immigrant (permanent) classifications permit an applicant to file an expedited processing request known as “Premium Processing”. When this is permitted, such as cases for the L-1A visa and TN,  the government promises to make a decision on a case within fifteen (15) calendar days. There is an additional fee of $1,225 associated with the request, but most applicants feel that the peace of mind in getting a prompt decision in days, as opposed to months, merits the additional cost.

When premium processing is not an option, we suggest that people plan for worst-case scenarios. Expect that significant delays will likely occur and plan accordingly. This means ensuring that all necessary evidence is collected well in advance of filing, adjusting living, employment and travel plans to extended wait times, and ensuring that all applications are filed as early as possible. This is especially true for applications that provide an immediately needed benefit, such as employment authorization. Long wait times are most likely the new reality for the foreseeable future. Planning and organizing ahead of time will go a long way to reducing the stresses and challenges associated with the delays.  We recommend contacting an attorney a year before your current status expires so that you can review all the options available to you and have more chances at securing a visa or Green Card.

III. Increased Enforcement

Department of Homeland Security | DHS.gov

Similar to the “enhanced vetting” process by USCIS, there has also been an increase in the enforcement of immigration laws. This enforcement is most often carried out by Immigration and Custom’s Enforcement (ICE) personnel, and often comes in the form of detaining and deporting individuals that violate immigration laws.  Additionally, where prior administrations have prioritized enforcement towards individuals with criminal records or who otherwise were deemed a danger to society, under the Trump Administration, no such prioritizing appears to exist. Reports have suggested that even law-abiding undocumented immigrants are at risk of arrest and deportation. Indeed, ICE has stated as much, recently declaring that anyone violating immigration law is a potential target of ICE enforcement.

The government’s focus on enforcing immigration laws also means an increase in work-site visits and audits of employers who employ foreign workers. In its most mild form, such a visit will often consist of a USCIS agent showing up at a workplace and requesting to view the I-9 forms for foreign employees to ensure they have proper permission to work in the United States. In its most extreme form, ICE agents will raid a place of business when they have credible information that the employer is employing individuals who do not have lawful permission to work in the United States. For more information, read, “What to Do When DHS or ICE Comes Knocking at Your Door.“

What You Can Do

It is likely that under the Trump Administration, enforcement by ICE and USCIS will only increase. The Administration has declared it a priority to enforce immigration laws as strictly as possible. If you are currently an undocumented immigrant, or otherwise in violation of immigration law, it is highly advisable that you speak with a qualified immigration attorney. In some cases, there may be options available that will allow you to obtain legal status or minimize potential punishments.

Employers with employees on nonimmigrant visas and employers in industries where unlawful employment is prevalent need to be extra vigilant. Ensuring that proper records are maintained and all relevant and permissible background checks are completed will prevent possible problems down the line. In addition, having an established plan of action for your workplace in the event of an ICE or USCIS visit will help ensure that such a visit goes smoothly with as little disruption to your business activities as possible.  As an employer, you may want to use E-Verify as a second method to ensure that your workforce is legally authorized to work in the United States.

IV.  Major Changes to Immigration Laws