Seyfarth Synopsis: Employers take note. The April 18, 2017 "Presidential Executive Order on Buy American and Hire American," has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.
"It became necessary to destroy the town to save it."
~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.
Reading BAHA's scant immigration provisions last April, I viewed it then as much a brouhaha about nothing. It merely called for inter-departmental proposals outlining potential administrative and legislative changes to the H-1B visa category that would "help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries," and, "[consistently] with applicable law . . . [would] protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse." Since none of these proposals could come into existence without new legislation or new rulemaking under the Administrative Procedure Act (requiring a lengthy period of notice and an opportunity for stakeholder comment), I surmised that nothing much would change in the short-term.I'll admit I foolishly allowed myself to be misled. Despite almost 40 years of practicing immigration law, I didn't anticipate the robustly revanchist re-grabbing of lost immigration territory and status, or the truly audacious intent and breadth of the April 18, 2017 "Presidential Executive Order on Buy American and Hire American (BAHA)." As interpreted by officers adjudicating requests for immigration benefits at U.S. Citizenship and Immigration Services (USCIS), BAHA would "Make America Great Again" by taking us back to the pre-1965 days of racial and national origin discrimination, xenophobia, and jingoism, as was then embodied in America's immigration laws.
To be sure, I noted BAHA's ominous enforcement-minded tone ("it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad"). But it seemed to me that, given the long-standing "culture of no" and gamesmanship at USCIS, BAHA was merely a ritualistic shot against the bow signaling more of the same. Boy oh boy was I wrong. BAHA has apparently awakened USCIS immigration officers as if it were a dog whistle, a silent reveille alerting them loud and clear – just like their recently "unshackled" colleagues charged with immigration enforcement – that the cuffs are off. Since BAHA was issued, USCIS immigration officers seem to view themselves as henceforth free to apply even more "innovative" and superficially plausible, if extralegal and disingenuous, reasoning to deny work visa status and employment-based green cards at whimsy and will.
Many have reported on this trend. Miriam Jordan, New York Times immigration reporter, in a recent article, "Without New Laws or Walls, Trump Presses the Brake on Legal Immigration," offers several examples of seemingly worthy cases delayed or denied since BAHA's release. Reuters immigration columnist, Yeganeh Torbati, offers additional examples in "Trump administration red tape tangles up visas for skilled foreigners, data shows." Distinguished immigration lawyer and scholar, Cyrus Mehta, offers a point-by-point technical takedown of the multi-flavored yet flawed USCIS reasoning now on display in "Stopping H-1B Carnage," and "H-1B Entry Level Wage Blues," as do Mareza Estevez, Justin Storch, and this blogger in "H-1B Visas: Trends, Troubles & The Look Ahead," a webinar presented by the Council for Global immigration and (linked with permission). Not surprisingly, the pain is spreading, a trend which Stephanie Saul describes in her New York Times article, "As Flow of Foreign Students Wanes, U.S. Universities Feel the Sting."
Even more up close and personal, Stanford MBA graduate and lawyer, Frida Yu, offers her own disheartening perspective in "Is Anyone Good Enough for an H-1B Visa?":
Six months ago I won the lottery — the H-1B visa processing lottery for skilled foreign workers. I called my thrilled parents and celebrated with friends. I'm from northeastern China and have an M.B.A. from Stanford, and was planning to stay in Silicon Valley to help start a company based on a promising new technology to improve the use of data. I was overjoyed because, historically, being selected in the lottery was a near guarantee that an applicant could remain in this country at least three more years.
But at the end of July, I received the dreaded Request for Further Evidence from immigration authorities. I provided the extra information that United States Citizenship and Immigration Services asked for. In September, I got another request. I complied again. Finally, on Oct. 11, half a year after my celebration, I learned I had been denied a visa.
After earning law degrees in China and at Oxford, after having worked in Hong Kong as a lawyer at a top international firm, after coming to United States three years ago for an M.B.A. and graduating and joining a start-up, I was given just 60 days to leave the country. I have 17 days left.
But who'd a thunk that adjudicators would target for denial foreign workers currently in lawful visa status applying to continue working in the same job with the same employer? After all, doesn't BAHA's § 1(e) define "workers in the United States" and "United States workers" as described in 8 U.S.C. § 1182(n)(4)(E), to include not only green card holders, refugees, and asylees, but also authorized immigrants? And doesn't BAHA's § 1(c) define "petition beneficiaries" in a future-focused way as "aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program"? (Emphasis added.)
Well I was both naïve and unimaginative, given that a new, post-BAHA USCIS policy memo has apparently stripped all currently authorized nonimmigrant workers of their status as protected "U.S. workers" under § 1(e). See, USCIS Policy Memorandum PM-602-0151, October 23, 2017 ("Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status"). In this policy memo, USCIS floated the spurious claim that its earlier 2004 and 2015 guidance (requiring that officers defer and approve, except in limited circumstances, all prior approvals of work-visa status as long as the job duties and employer remain the same) somehow shifted the burden of proof away from the individual and imposed it on the agency. This burden-of-proof argument rests on shaky terrain. Apparently, the effort is simply too much for USCIS, despite ever-escalating user fees "to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same."
In other words, USCIS now asserts that merely doing its job, i.e., by reviewing a nonimmigrant's entire case history, somehow shifts the burden of proving eligibility to the agency. Not so. The statutory burden on the petitioner or applicant to establish visa eligibility remains the same. Rather the minimal duty imposed on USCIS is to retrieve the prior file and read it. If that is administratively burdensome, then a reasonable new policy would instead suggest to stakeholders that, if deference to a prior approval is desired, then the petitioning employer must include a copy of the prior submission and approval notice with each request for extension of status. Problem solved.
To tighten the screws even more, USCIS has released its 2018 regulatory agenda, which, if promulgated in final form, would apparently take steps to establish a point system to favor the most-skilled or highest-paid foreign workers, and raise the standard for eligibility as an H-1B worker in a specialty occupation – moves in step with BAHA, but entirely at odds with the H-1B provisions of the Immigration and Nationality Act and its legislative history. More draconian still are the changes to the H-1B visa category reportedly in the planning stage, possibly including restrictions on extensions of H-1B visa status beyond the standard maxout period of six years. Take a gander at "Trump considers big change to H-1B foreign tech worker visas," as reported by the McClatchy Washington Bureau. This policy change, if true, would be the height of chutzpah because Congress enacted new exceptions to the usual six-year period of H-1B stay in the American Competitiveness in the 21st Century Act because of "lengthy adjudications" by the very same agency, USCIS, which had been unable to process its growing caseload in a timely manner (only in part due to visa-quota backlogs).
Notwithstanding these worrisome developments, and despite having been gulled before, I choose to toss cynicism to the wind, and hereby republish a few New Year resolutions for immigration officials to consider adopting:
- I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
- I will not issue requests for evidence merely as a means of pushing a case off my desk.
- I will decide cases promptly and remember that justice delayed is justice denied.
- I will not judge the case by the size of the company or the nationality of the applicant.
- I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
- When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.
As immigration officials ponder my tender offer, I urge each of them to recall the oath of office as a federal employee. In the oath each of them did "solemnly swear (or affirm) [to] support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . bear true faith and allegiance to the same; . . . take this obligation freely, without any mental reservation or purpose of evasion; and . . . well and faithfully discharge the duties of the office on which [s/he is] about to enter."
I thus implore immigration officials not to destroy America to save it. I ask them to recall that our cherished American heritage stems both from the rule of law, first embodied some 800-plus years ago in the Magna Carta, and from our cherished exceptionalism as a nation of immigrants. If immigration officials nevertheless persist in savaging decades of immigration law and policy, then I urge them to consider my intentionally nonviolent reference to the Urban Dictionary's definition of the Latin phrase, sic semper tyrannis, perhaps wrongly attributed to Brutus (but also uttered very unjustly by John Wilkes Booth):
sic semper tyrannis
Latin, translation: "Thus always to tyrants", purportedly (but unlikely) uttered by Brutus at the assassination of Julius Caesar.
The phrase is meant to signify that tyrants will always be overthrown and removed from power.
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