It is H-1B season and I have been busy so I am unable to write as frequently as I would like to. Below are some somewhat random thoughts about immigration that I feel are worth sharing yet don’t fall into a clear category. The following is for informational purposes only and none of it should be construed as legal advice.
Imagine if the IRS viewed each and every tax return with a presumption that all filings were fraudulent. They would conduct at least a desk audit of almost all but the most clear-cut returns. If there were any discrepencies, mistakes or inconsistencies, the consequence would be jail or being thrown out of the US. Imagine that there was no right to be represented by a lawyer at the hearing. Scary scenario, especially for those who try to do things correctly but may make a simple error or wrongly claim a deduction. Well this is in essence the state of our immigration system at the moment.
Leaving aside the issue of undocumented workers, green cards are taking years to process. In fact, if someone is in the Employment-Based Third Category, the USCIS is currently accepting for processing I-485 applications for those with a priority date of March 1, 2003 (or November 1, 2001 for Indian Nationals). This is an outrageous delay and those who are waiting in the US in H-1B status for instance, must have their employers continue to renew their H-1Bs at least until the I-485 application has been filed. Moreover, the law requires that employers be able to demonstrate the ability to pay the offered wage from the time the labor certification is filed to the time the I-485 application has been adjudicated. Given the long delays and the economic turmoil this country is facing, many employers will be lucky to be around in six or seven years, much less show net income or net current assets that exceed the offered wage. This issue will be especially acute for smaller companies and could lead to a high number of I-485 application denials.
The current environment can best be described anti-immigration when it comes to the agencies in charge of adjudicating and enforcing US immigration laws (USCIS. ICE, CBP and DOL). Perhaps a protectionist instinct is kicking in due to the economy, maybe the poisonous anti-immigrant rhetoric that dominated the final couple of years of the previous administration lingers, or perhaps it’s some combination thereof. The philosophy of the USCIS seems to have become, when in doubt, deny. There are now times when we advise clients with borderline cases not to file given the anti-immigration environment whereas as recently as a year ago, our approach would have been more aggressive.
The effect of this difficult period for immigrants keeps the demand for immigration lawyers high, especially those of us who consult with individual clients. Granted, attorneys who relied on H-1Bs from financial institutions for their bread and butter are certainly feeling the pinch. However, lawyers who practice removal, family immigration and counsel individuals and corporations on how to deal with layoffs or other options that may be available are quite busy. Moreover, despite the new denial kick the government has been on – it is still wiser to retain an experienced immigration lawyer to file and if necessary, appeal a decision to obtain the benefit sought.
Inconsistencies in adjudications have become a recurring problem. Dozens of almost identical cases may have been approved over the past decade and are now suddenly being questioned or denied. Lawyers are reporting that Specialty Occupations for H-1B extensions for positions that are clearly H-1B caliber are being heavily questioned.
If an H-B petition for someone who is already in the US is denied, withdrawn by an employer or revolked, they are immediately considered to be out of status and, in theory removable/deportable. There is no grace period. What if the denial was in error? The options are to file a motion to reconsider or an appeal. An appeal will probably take at least a year and one does not preserve his or her status by filing an appeal.
For now, we just have to keep at it and hope that the US does not lose too many talented people because of the backwards, foolish decisions that have been and continue to be made on both the macro (policies, laws and regulations) and micro (individual denials) levels.
Canada welcomes highly skilled workers and we find ourselves referring prospective clients to our Canadian colleagues more often these days. Immigration reform along with a more thorough training of adjudicators, sensible policies, and consistency in decisions are key to achieving any level of success with our immigration system.