It Must be Interesting to be an Immigration Lawyer These Days?
July 9, 2019 | Written by Kirsten Schlenger
Robert F. Kennedy had it right when he referenced a Chinese curse which says “May he live in interesting times.” When asked about my chosen profession at a social gathering in today’s immigration hostile world, I quote a colleague who likens our situation to being an eye doctor when there is a maniac running around stabbing people in the eye—not exactly the way you want to make your living.
So, frankly speaking it is very challenging to be an immigration attorney here and now. I love what I do generally -- counsel employer and employee clients on work related immigration issues, petitions, policies and strategies. I have been doing this happily for over 28 years. I have expertise and like to think my firm and I are good at what we do.
Why then am I frequently on edge and stressed? Let me count the ways in which our business immigration world has seismically shifted without one change in the immigration laws passed by Congress.
- We face vague threats or reports in the press that the Administration will soon take away business immigration programs such as employment authorization for spouses of H-1B professional temporary workers, or employment authorization of students with US degrees in Science, Technology, Engineering or Mathematics. This requires us to do additional planning and strategizing on what our clients will do if they or their employees cannot continue working. We feel an urgency to act fast on these petitions or extensions because the ability to secure work authorization is in perpetual jeopardy.
- We must contend with on again, off again availability of premium processing for petitions. Much of an immigration case strategy involves when can you get someone working and what is the risk to working before having an approval in hand. Premium Processing, in which the government will expedite processing of some cases when extra (substantial) application fees are paid, allows for some predictability and minimizes the risk of changing employers. Premium Processing, if available, provides an answer within 15 days instead of the typical 4 to 8 months. Without knowing whether premium processing will be available tomorrow or next week, it is hard to counsel clients on the options and risks with any certainty.
- Without any change in law or regulation, the most commonly used work visa -- the H-1B, whether for an extension or a transfer from one employer to another or a brand new H following student status -- is substantially riskier and more expensive for employers and their counsel. For example, what used to be considered a slam dunk H for a software engineer earning a Level 3 out of 4 salary with a Master’s degree in Computer Science may now be subject to a 12 page Request for Evidence (RFE) that will take our firm and the company client/employee approximately 16 to 25 hours to prepare a response. Even then, with an impeccable response of 500+ pages, there is an alarming increase in the rate of denials even where three or four previous H petitions have been approved for the same person. Make sense to you? Me neither. The trickier cases where a degree is not an exact fit or the position is a new one not accounted for in outdated government handbooks cause a pit in my stomach when a client says “We really need to hire this Data Scientist” or “Business Analyst.” As immigration counsel on the front lines, we see clearly the path of pain before us and our client. Preparing a response to try to avoid a denial is very time consuming and expensive for us and the client. Explaining this to clients is challenging.
- Explaining: Why is it taking so long to get the petition filed? To prepare a standard employment based petition these days requires at least twice as much time and judgment as it did before this administration. Before we can file anything with the government we need to analyze and decide: 1) what is the classification under the salary survey that not only fits this role but is not one of the kiss of death “analyst” positions almost certain to get an RFE; 2) can you persuade the client to pay a slightly higher salary to use a higher wage survey level to try to avoid the RFE (see the chorus here); 3) how much information and documentation should we submit up front to avoid the RFE without having to alter our entire fee and staffing structure for the base petition; 4) is it less risky to use for example the Mechanical Engineering BS degree as the degree related to the Software Engineer role, or to prepare and finalize several previous employer verification letters, send them out to an expert education evaluator for an opinion that the individual has a degree in Management Information Systems which is a close fit with this Software Engineer role; 5) what previous RFE submission documents for this client or others could be repurposed to use in the initial filing for another petition; 6) which corporate documents best support the petition without undermining the strength of the petition -- are there inconsistencies such as job ads not listing the specific and actual degrees that this employer has required; 7) how can we get our employee and employer and manager to send us the explanations and technical documents we have requested for more detailed descriptions of the projects and work the employee will engage in: no, unfortunately, the previous H petition position description will no longer suffice; 8) based on outreach to colleagues countrywide what are the current trends -- such as is it better to file a tricky TN case with the U.S. Citizenship and Immigration Services (USCIS) or at the border, and at which border crossing or pre-flight inspection location is the likelihood of success for this particular petition the greatest; 9) who will assemble, copy, and scan petitions that used to be a total of 20-25 pages and now run more like 75-200+ pages depending in part on whether you judge it is a good idea to include a tax return or financial statement of the client even though this is not a requirement for this type of petition; and 10) does the individual’s 12+ years of US immigration history and documents reveal any gaps, unauthorized employment, overstays and could these previous status violations impact the case in the short or long run, and how best to advise the employer client of related risks in hiring this person. Those are the first 10 reasons. I will spare you the rest.
- While the challenges in filing a winning petition without an RFE have ramped up, some of our corporate clients may still be placing higher value on turnaround time metrics rather than evaluating success rates of their petitions. We strive for quality over speed where the repercussions from any material mistake can be severe. We believe that minimizing the stress and disruption to an employee facing an RFE/denial is more significant than hitting a 2 week turnaround or even a typo-free petition where the typo is not material. We would like to be perfect, but we are in a very imperfect situation and market.
- This would not be a full accounting if I did not mention the challenges of operating a business in San Francisco. Our commercial and home rental rates are insane and coupled with a tight job market that is tough on employers. In the tech fueled job market our day-to-day HR contacts frequently move on to a new opportunity just as they become trained and comfortable in their immigration role. Hiring and training up quickly our own support paralegal and paralegal staff is harder because there is so much more to learn and do, and do without mistakes. Attorney review of a draft petition can feel like walking through a field of land mines, valiantly trying to save the petition from RFE or denial.
- The level of anxiety among our employee clients is high because they and we don’t know what will happen next. With my expertise and experience I should know and be able to advise on what might happen next, but with this President and his immigration-hostile administration, I don’t. I could not imagine two years ago how impactful the changes in practice led by the Executive branch would be for our clients. Anything can happen. The sense of comfort in our constitution, due process and fairness is gone. Anxiety and lack of predictability leads to more questions, second guessing, lack of confidence on the part of our HR partners to respond to their employee questions so that we, their attorneys, can focus on what we do best -- solve legal problems and file successful petitions.
- At the same time, in the world of asylum seekers and family petitions the changes are even more severe and depressing than in our world. A cloud of doom looms over us daily. Each day I triage my emotions for seriously bad immigration developments. Can I even read about one more child dying in a detention center without finding myself depleted and unable to weather the client challenges that escalate to me? Some days I just can’t.
I remind myself that my firm is filled with smart, dedicated professionals doing our best to survive this extreme immigration climate change. We are proud to have the legal skills combined with compassion to sensitively and smartly tackle what our clients are facing. We have built and will benefit from our strong partnerships with our clients’ HR professionals. We will educate our allies about what has changed and what we are doing about it to help them through. We are stubborn and skilled. We plan to not just survive but thrive. And that’s what keeps us going.