How to Manage Your Practice in the Shifting Employment-Based Landscape
I think about Yeats a lot these days, and his immortal words:
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
This is how I feel about the state of immigration law at the moment. At best, the U.S. Citizenship and Immigration Services (USCIS) Officers review the applications I submit with dispassionate eyes, constrained by an ever-increasing number of interpretive memoranda designed to complicate processes and increase denial rates. At worst, there are active steps being taken with passionate intensity to contort the law out of all recognition, making me feel as if the regulations and statutes and legal guidance that I’ve spent the least nearly 20 years of my life steeped in have no bearing on whether my clients will achieve their goals.
As an immigration attorney, I must continue to achieve my clients’ goals and stay sane, in spite of the uphill battle that we face. I offer this perspective as an employment-based practitioner, but there are larger lessons that can be drawn for all types of immigration practices.
When I submitted my cap-subject H-1B Petitions in April, I knew that by the time many of them were reviewed, the landscape would be altered by new agency memos, training materials for USCIS officers, and new adjudication trends. While it would have been helpful to have known last year that Computer Systems Analysts were going the way of Computer Programmers as a death-knell for an H-1B case, I do not have the privilege of foresight. Instead, I have the following tools in my toolbox: I set expectations with my clients, firmly, compassionately, and with a resolve that if USCIS throws us a curveball, we’ll modify our swing and still hit it out of the park. It just may be at our second at-bat, instead of our first. (Practice Pointer: Baseball metaphors aren’t for everyone. Use sparingly). When setting expectations, the resolve is a critical feature of my approach. It ensures my clients feel confident in the process and in my services. If we achieve approval, but my clients are nervous wrecks by the end of the process, that also reflects on me and the service I provided. I want my clients to feel satisfied that they were in good hands all the way, in spite of the rocky terrain. The measured tones and steady confidence that I project also helps me to feel that confidence.
In addition to changing adjudicative trends, we have faced new timing hurdles that seemingly pop up out of nowhere. These have been the cumulative result of unprecedented Visa Bulletin backlogs that created sudden rushes in July and August, the abrupt extended suspension of Premium Processing shortly before it was set to be reinstated, an increase in the Premium Processing fee at the end of September, and the “NTA memo,” which suddenly made it critical to gain approval of an H-1B extension prior to the current H-1B expiration. These types of developments make it hard to take the “slow and steady” approach to immigration law, with deadlines scheduled out for months, and timelines within our control. In this environment, it is especially important to have systems in place to monitor deadlines, as well as staff who are equally attuned to the changes in the law and ready to shift priorities at a moment’s notice and to refocus their efforts as necessary. I really can’t say enough about having a team that is up to the new challenges we all face. Treat your staff well, consider bonuses when they go the extra mile, and let them know how much you appreciate them! They have never been more important to practicing immigration law and simultaneously maintaining A) your sanity, and B) work-life balance.
Another trend in my practice is “RFE Season,” as I call the autumn these days. Without the option of Premium Processing cap-subject H-1B cases, I have received Requests for Evidence (RFEs) in bulk, beginning in July and ongoing. The result is a series of RFEs, all due within a small window of time. This is particularly tricky for smaller firms such as mine. My approach has been to expand my team accordingly to bring in outside professionals to focus exclusively on the RFEs. In addition, I have attempted to structure my fees to anticipate these additional efforts, overhead, and pressure associated with a large percentage of H-1B cases. I have personally made the decision that profits are secondary to my mental and emotional wellbeing, and my goal in handling these cases is to bring on the support I need. I worry less about the financials, and more about not drowning in a sea of RFEs and constructing a quality RFE response.
It is more important now than it has ever been to lean on your support network. Professionally, this means that immigration lawyers should be collaborative and helpful to one another. We are all in the same boat, and joining forces allows us to capitalize on our diverse strengths and knowledge-bases. I know that without the feedback of my wonderful immigration attorney friends (and AILA’s presenters and committees), I would be lost. Second, at home and in our personal lives, we need supporters and cheerleaders to step up for us during these very emotionally, intellectually, and professionally trying times. This support can help us be more present—a difficult yet worthwhile pursuit, particularly at the office, where we need to hold the line until cooler heads prevail.
Otherwise, in Yeats’ immortal words: Things fall apart; the centre cannot hold