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”
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.
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
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
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
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.
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
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.
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
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, P.C. attorneys help individuals, families, employees, business owners, and investors open a business in the US, and obtain obtain non-immigrant and immigrant visas, as well and Green Cards and citizenship based on family relationships, investment, or employment. In addition, The Grady Firm attorneys help foreign entrepreneurs establish a U.S. presence, form a corporate entity, and obtain the appropriate visas for their owners and employees. We also assist with US business entity formation, trademark/copyright registry, and California employment law advising.
Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; or to book Ms. Grady for a speaking engagement, call +1 (323) 450-9010; or fill out a Contact Request Form.
*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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