When I chose to practice family and business-based immigration law almost a decade ago, it was an area of the law where lawyers counseled clients. There was a high level of predictability with how cases would be adjudicated and the benefit of the doubt in legitimately questionable cases often went to the applicant or the beneficiary. If a case was wrongly denied, a simple Motion to Reopen with an explanation usually resulted in a fairly fast reversal of the decision. Unless a lawyer was practicing in the Immigration Courts or suing the Federal Government, the role of the immigration lawyer was to make arguments pursuant to the applicable law and wait for the expected result.
How times have changed. Most agencies involved with immigration have made it much more difficult for lawyers to accurately predct the outcomes for their clients cases. From the DOL to US ICE to the USCIS, there are issues that urgently need to be addressed by the Obama Administration.
The focus has shifted from a welcoming policy of giving immigrants and their employers the benefit of the doubt, to one where those asking for immigration benefits are faced with technical, often incorrect denials or in the case of ICE, removal from the country arguably without Due Process.
When issues occur, the beneficiary’s options are limited. For instance, a denial of a nonimmigrant petition can result in a beneficiary accruing unlawful presence even if the denial was in error. It can be appealed or reconsidered, but that could take years. By the time the time the decision comes down, the employer may no longer want to hire the beneficiary and the worker has understandably moved on with her life.
In the current climate, immigration lawyers have an important role to play however it now has more to do with: (1) taking an aggressive stance and citing applicable laws, regs and precedent – even in initial petitions or applications, and (2) appealing incorrect decisions and making precedent than it does with preparing a petition or application and expecting a predictable (yet never guaranteed) result.
The shift from counselor to warrior is a frustrating one for many immigration lawyers but is a necessary reaction to the decision-makers’ actions. The only better option would be for the government to effect a change in policy, provide better training to new officers and adjudicators, or pass immigration reforms that makes the laws clearer so that employers, foreign-nationals, and their lawyers know what to expect.
