Immigration As Usual? Moving Forward in Times of Uncertainty
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
There have been several far-reaching proposals from Congress to change the immigration laws of the United States. These proposals aim to tackle everything from illegal immigration to whom a citizen/permanent resident may bring into the country. With the often dramatic coverage these proposals receive in the media, it can be challenging to separate likely scenarios from mere political posturing. While there are many proposals that have been brought before Congress, two that could potentially have far-reaching effects if they were passed into law are a legislative fix for DACA and the RAISE Act.
The first and perhaps most discussed proposal is a permanent solution for undocumented immigrants brought to the United State as children. Until President Trump rescinded an executive action implemented by President Obama, these so called “Dreamers” were protected from deportation and permitted to seek employment under a program called Deferred Action for Childhood Arrivals (DACA). After rescinding the DACA program, President Trump put the responsibility on Congress to come up with a legislative fix. While there is broad bipartisan support within Congress (and within the United States population as whole) to create a solution that would permit Dreamers to remain in the United States (and potentially obtain Permanent Residence), political challenges have currently delayed a solution.
Another proposed piece of legislation is the Reforming American Immigration for Strong Employment (RAISE Act). This Republican-crafted legislation would dramatically reduce the number of immigrants permitted to enter the United States each year. This reduction would be accomplished by reducing the family-based classifications in which US citizens and Permanent Residents could utilize to bring family members to the United States, and would create a strict merit-based system for employment-based nonimmigrant and immigrant classifications. It is unlikely that the RAISE Act will become law in its present form, as it faces a great deal of bipartisan and industry opposition.
What You Can Do
A legislative fix for DACA and the RAISE Act offer a broad and contrasting glimpse into the current immigration political landscape in the United States. The DACA fix enjoys broad bipartisan support and will likely lead to some enacted legislation in the near future. In contrast, the RAISE Act is a partisan proposal that fulfills the goals of one segment of the political spectrum while being unacceptable to many individuals and groups.
The two contrasting pieces of legislation discussed above highlight an important point about the immigration landscape in America: politics is an integral part of the process and understanding how the political system works is necessary to understand the future of immigration law in the United States.
Sometimes people are under the impression that a proposed piece of legislation will become the law just because it’s mentioned in the media. The reality is this is often never the case. Proposed pieces of legislation, even those with bipartisan support, must go through multiple committees and procedural votes. They are often broken up, parts are added, other parts are taken out, and in the end, the final product is often dramatically different than the original proposal. Even after this process, which can take months or even years, the final proposed legislation must then go before both houses of Congress for a vote before it could become law. President Trump can only unilaterally undo another Executive Action by a previous president.
Regardless of the realities of a particular piece of legislation becoming law, each should be taken seriously as each presents a unique perspective into the current views and goals of American immigration policy. While the sweeping changes proposed by the RAISE Act may never become reality, it does indicate that there is political appetite for reducing or changing immigration in this country. Therefore, it is likely that elements of this act could make their way into legislation that does one day become law.
Equally, just because a proposal enjoys broad bipartisan and popular support does not mean it will become law. While we believe a legislative fix will be forthcoming for those subject to DACA, it is likely that the conservative contingent of the government and electorate will demand concessions within the law that will be aimed at reducing immigration or making existing laws stricter. We only act on what is currently the law. Never provide an attorney or “notario”/”notary” with a deposit to perform work for proposed legislation that has not yet become law.
In the present political climate, it is easy to become discouraged, especially with a subject like immigration. While we at The Grady Firm anticipate many challenges ahead when it comes to legislation, we believe that the system will continue to work. The best practice is to stay educated about current legislation, and not jump to conclusions regarding a recently proposed law. If you have questions or concerns regarding proposed or enacted immigration laws, it is worthwhile to speak to an experienced immigration attorney.
V. Travel Bans
President Trump’s travel bans are Executive Actions, (two of which have been enacted, challenged, and modified so far), which seek to limit or altogether stop the inward immigration of nationals from specific countries. The first of these so-called travel bans halted almost all immigration from seven predominantly Muslim-majority countries. This action was almost immediately challenged in federal court. After multiple appeals, the Supreme Court ultimately permitted the action to go into effect, but limited the ban only to people who could not demonstrate a bona-fide connection to a person or group in the United States.
Soon after the Supreme Court permitted the first travel ban to go into partial effect, the Trump Administration announced a new Executive Action that restricted immigration into the United States and replaced the first travel ban. That ban had an expiration date of 90 days, and thus effectively expired soon after the Supreme Court decision. The new Executive Action again restricted or completely prohibited immigration from countries with predominantly Muslim populations, while also including a complete ban on immigration from North Korea and a selective ban on certain individuals from Venezuela.
Unlike the first executive action which had an expiration date, the second ban is indefinite (countries can be taken off the list if they meet certain stated security criteria). As with the first travel ban, the second ban has come under intense legal scrutiny by multiple lawsuits challenging the ban currently making their way through the courts. As of publication of this article, a federal court has permitted the second ban to take partial effect (foreign nationals from the targeted countries that can show a bona-fide relationship with a US individual or entity are not subject to the ban).
What You Can Do
President Trump’s travel bans have created a great deal of disruption and uncertainty. To many, the actions appear to be targeted at people because of their faith. While the actions can feel intimidating and have certainly caused many real-world hardships, it is important to remember that there is a legal system in the United States that allows for challenges. This system has already been utilized on multiple occasions to successfully overturn aspects of both travel bans that have been deemed unconstitutional or against public policy. While it is ultimately uncertain as to whether the Administration will prevail in establishing a lasting prohibition on immigration, it is certain that legal challenges will continue to check the power of the Administration.
The best advice we can give when faced with the prospect of being subject to a travel ban is to stay educated. As often occurs with “hot” immigration issues, there will be a lot of incorrect information floating around, especially on the Internet. The subject is complex and due to the many legal challenges, existing rules and regulations can change dramatically very quickly. If you feel you or someone close to you may be subject to the ban, we advise you to speak to a qualified immigration attorney who can help you navigate the current rules and regulations.
While it is true that obtaining a nonimmigrant or immigrant benefit is becoming increasingly more difficult and time consuming, the prospect of a successful outcome is by no means a lost cause. The key to successfully navigating the current immigration landscape is proper preparedness and often, the assistance of a qualified immigration attorney who is well-versed and up-to-date on the complex changes facing the immigration landscape. Ultimately, it is up to the Applicant to provide as much evidence as as quickly and thoroughly as possible to his or her attorney and USCIS so that the case may be adjudicated promptly in light of increasing wait times. Cases are still being processed and approved in great numbers (we are still receiving the same number of approvals), so it is worth continuing to pursue immigration relief.
About The Grady Firm. P.C.
The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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