Immigration Lawyers to Trump: See You in Court

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By Laura D. Francis

They’re used to filling out forms, giving advice, and making phone calls to government employees. Now, business immigration attorneys may need to bone up on their litigation skills.

“I’ve been preaching the gospel” of litigation, said Thomas Ragland of Clark Hill in Washington, who encourages his corporate clients to sue the federal government over its business immigration policy decisions. “Employers should consider litigation in cases where they think the agency got it wrong.”

Businesses historically have been more litigation-shy than individuals, Ragland said. As a result, case law on employment-based visas tends to be sparse.

But with mounting frustration over Trump administration policies, the judiciary may be on the cusp of a rise in lawsuits over U.S. Citizenship and Immigration Services’ business immigration policies.

Many recent immigration policies will soon be the target of a new litigation task force formed in April by the 15,000-member American Immigration Lawyers Association, Chairman H. Ronald Klasko told Bloomberg Law. They range from policies on how international students and exchange visitors earn “unlawful presence” to the USCIS’s handling of H-1B high-skill visa petitions to an anticipated regulation revoking work permits for the spouses of H-1B workers waiting for their green cards.

The task force was formed as a resource for immigration attorneys who are more fluent in completing immigration forms than filing briefs. It has a twofold goal: “initiate impact litigation on key issues” and educate AILA members on how to litigate visa denials where they believe the USCIS is interpreting the law incorrectly, Klasko said.

Reduce Legal Immigration

“The administration has a pretty transparent desire to very substantially reduce legal immigration,” he said. It has “systematically” been evaluating areas where it can interpret existing law to achieve that aim, said Klasko of Klasko Immigration Law Partners in Philadelphia.

The efforts follow President Donald Trump’s April 2017 Buy American and Hire American executive order.

In the past, USCIS policies and interpretations would be the subject of discussions with businesses, attorneys, universities, and other stakeholders, Klasko said. Now, there are “no lines of communication” with the agency, he said.

“USCIS is committed to adjudicating all petitions, applications and requestors fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations,” agency spokesman Michael Bars told Bloomberg Law.

There’s a “sense of urgency” that “didn’t exist before,” Ragland said. Case in point: AILA at the last minute threw together a business immigration litigation session at its annual conference in June. It was “standing room only,” he said.

More Information Sought

It’s not just opponents of the administration’s more restrictive immigration policies that are taking to the courts. Groups that advocate for lower immigration levels also have been filing lawsuits.

The immigration issue “is more prominent and salient than it has been in years past,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies. It’s also become more “polarized” and “politicized,” and “people are frustrated,” she told Bloomberg Law.

The Federation for American Immigration Reform, which advocates for lower immigration levels, has filed two Freedom of Information Act lawsuits to get more data on workers in high- and low-skill temporary visa programs.

Vaughan also recently filed a FOIA lawsuit on behalf of CIS for more information on immigrants in the Deferred Action for Childhood Arrivals program. The administration wants to end DACA, which provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children.

“There is so little that is known about this particular population,” Vaughan said. “With an issue as high-profile as the DACA program,” the USCIS “should be proactively releasing at least some of this,” she said.

Vaughan also may file a lawsuit against Immigration and Customs Enforcement over its response to a separate FOIA request for the agency’s weekly report on deportations and detentions. “It’s basic information on ICE’s operations,” so “it should be on their website every week,” she said.

Tackling Policies

For the AILA task force, it’s less about getting information and more about challenging the administration’s policies head-on.

The first “impact” lawsuit, Klasko said, will be a challenge to a policy that changes how international students and exchange visa holders earn what’s called “unlawful presence.”

The total amount of unlawful presence an immigrant has racked up determines whether and when he or she can apply for a visa in the future. The new policy, scheduled to go into effect in August, changes what had been a USCIS interpretation of the law and regulations for more than 20 years, Klasko said.

Three universities already are confirmed plaintiffs in the lawsuit, and the task force is hoping to have more on board by mid-August, he said.

Also planned is a “coordinated effort” with a more “nationwide impact” to challenge the USCIS’s interpretation of the law on H-1B skilled guestworker visas, Klasko said. There are already several pending lawsuits over the agency’s determination that certain jobs don’t count as a “specialty occupation,” the definition of a job covered by the visa.

Lawsuits Already Pending

Two policy changes aimed at information technology staffing companies—many of which rely on the H-1B program—already are facing lawsuits.

The first challenges a February policy memorandum that requires staffing companies seeking H-1B workers to provide additional information to the USCIS. The lawsuit says the new policy effectively blocks staffing companies from the visa program because it asks for information that’s impossible to provide.

There’s also a lawsuit pending against a new USCIS policy blocking staffing companies from the optional practical training program for international students with science, technology, engineering, and mathematics degrees.

The program, often used as a springboard for H-1B visas, allows companies to hire international students right out of college as long as they set up a training plan and enroll in the E-Verify employment verification system.

More to Come

More lawsuits are on the horizon as more and more Trump administration immigration policies come out, Ragland and Klasko said.

Among the policies likely to face litigation:

  • a policy allowing the USCIS to place a visa applicant into removal proceedings if a visa denial renders that person without lawful immigration status;
  • a policy allowing USCIS officers to deny visa petitions without first requesting additional evidence or providing a notice of intent to deny;
  • the USCIS’s interpretation of who counts as a “manager” for purposes of the L-1A intracompany transferee visa;
  • USCIS decisions challenging H-1B petitions on wage-and-hour grounds;
  • an anticipated rule to revoke a 2015 Obama administration regulation that provided work permits to the H-4 spouses of H-1B workers who are waiting for their green cards to become available; and
  • an anticipated regulation ending a 2017 Obama administration program providing a special avenue into the U.S. for foreign entrepreneurs who raise a certain amount of venture capital and create U.S. jobs.

If policy can’t be challenged by influencing legislation, commenting on proposed regulations, or just talking with the agency, “there is only one choice": litigation, Klasko said.

“We’re developing all the tools necessary” to “let our members know that they’re not in this alone” and that “it’s not brain surgery,” he said.

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