The New Front in the War on Immigrants: Administrative Action

A few weeks ago, I read an article proclaiming that the president is winning his “war” on immigration. The conclusion of this opinion piece was that President Trump figured he could take a hard line on immigration that would placate his radical base because the vast majority of Americans – who polls indicate have more moderate views on immigration – would remain passive and do nothing to stop the administration’s deportation machine.  So far, the article argues, the president’s strategy seems to be working. We’re deporting mothers with small children, and asylum seekers, and even DACA recipients are now facing a ticking time bomb with no Congressional action yet. And there has been only a limited response from the public.

Meanwhile it appears that the administration is beginning to implement the anti-business immigration portion of its agenda as well. The President announced his support for the RAISE Act a few weeks ago, a Senate bill that would prevent U.S. employers from determining which workers they need to grow their businesses, instead requiring all would-be immigrants to pass a one-size-fits-all “points test” as a condition for obtaining permanent residence in the United States.  This bill would severely harm the economy. In an op-ed about the bill, AILA Immediate Past President Bill Stock highlights three client examples that showcase exactly how the United States would lose out under that system. Meanwhile, the Department of Homeland Security (DHS) has already announced the delay of a rule that would have allowed international entrepreneurs to start companies in the U.S. that would help create jobs and grow the economy. The administration has also hinted at a possible rescission of the rule that allows certain H-4 visa holders (spouses of H-1B visa holders) to apply for employment authorization, so that people like Anuj Dhamija and Sudarshana Sengupta will also be refused permission to build businesses that employ Americans. On top of all of that, there has been a fair amount of saber rattling in the form of Executive Orders and agency announcements that vow to put “America first” presumably by putting immigrants last, notwithstanding that immigrants – their labor, their creativity, their drive, their ingenuity – are what built this country in the first place.

But, in reality, legislation is often difficult to pass.  Regulations are subject to all of those pesky procedural safeguards.  But maybe the administration can find an easier way to disrupt our current system and create havoc for all those foreigners who are here legally, playing by the rules of the current dysfunctional system.

Bingo! It has become apparent that the administration is making great strides at concocting new and creative ways of frustrating, delaying, and denying as many applications and petitions for immigration benefits as possible. As immigration attorney Sandra Feist describes in her recent blog post, it certainly seems that H-1B petitions are running into nonsensical administrative hurdles at a far higher rate than before. This is happening with H-1B petitions filed on behalf of accountants who have just graduated from college. It’s happening with physicians who have just completed residency training.  It is impacting rural hospitals, universities, and U.S. businesses across the United States. Whether or not you know it, it is impacting you.

It certainly looks like USCIS is trying to alter the H-1B visa category to require employers to pay non-entry level wages to H-1B workers employed in entry-level positions.   That idea may find friendly ears in Congress and become the law, if people remain complacent. But it is not the law now.

The last time I checked, federal agencies don’t get to make new law; they are tasked with implementing existing law. USCIS’s actions are blatantly extra-statutory. The flood of RFEs that immigration attorneys have been experiencing represents a departure from prior practice that is being applied to petitioners who filed their H-1B petitions in compliance with existing standards. How does the Trump administration think they are going to get away with this? The same way the administration is getting away with deporting Dreamers, mothers, and asylum seekers. They think they will get away with it because the fringe base wants it, and the rest of us will be too passive to stop it.

Well, my friends and colleagues – I’m not feeling too passive right now.  Prepare your clients for what is to come and encourage them to take action through the administrative appeal process, or litigation if necessary, if and when their petitions are denied. Share your concerns with your networks and urge people to take action – contact Congress, write letters to the editor, or reach out to reporters to explain why this is not ok and how immigrants are vital to our local communities and to our national economy.

This is just the beginning of a very long fight whose victory depends on not giving a single, solitary inch in the face of fundamental unfairness and illegality.  Let us stand up for what is right.  And remind the President – again – about the limits of executive authority.


*** Looking for more information about what’s happening in business immigration? Watch AILA’s most recent Sidebar video featuring Ben Johnson and Betsy Lawrence. ***

by Jennifer Minear