(Originally published at Lextalk)
While President Trump’s rhetoric on stopping illegal immigration and his administration’s discontinuation of the DACA program and Temporary Protective Status for various Central American countries has dominated discussions of immigration law, a little-known fact is that this administration has been slowing, and in some cases, stopping even the legal immigration pathway in the absence of Congressional action. What began as a travel ban and deportation of illegal immigrants who commit crimes while in our country has spread to a full blown anti-immigration policy that has led to an extraordinarily high number of visa application denials and extended or re-examination of already approved immigration petitions with no accountability of a reasonable period for adjudication.
With respect to employment-based immigration, the business community has been hit with unprecedented USCIS scrutiny of nonimmigrant petitions for skilled workers, managers, executives, and others; a dramatic increase in Requests for Evidence (RFEs) on ability to pay issue and/or a demand for the full Audit documents that Department of Labor (DOL) requests in the PERM LC process; new interview requirements; and proposals to eliminate work authorization for spouses of certain H-1B workers; among other things.
In addition to the more public heightened screening of designated groups of foreign nationals, many other visa applicants are quietly subjected to additional vetting of the “Administrative Processing” (AP) queue. Previously, AP was a general term previously used by Department of State (DOS) to refer to cases that appear to meet the basic visa eligibility requirements but require additional background or security checks or further review. However, since last year, most of these cases are marked as 212g denial after months of AP status. Visa applicants generally are not given a reason why their cases have been placed in administrative processing or later denial after months under AP. While AP was certainly not rare prior to 2017, reports from American Immigration Lawyers Association (AILA) suggest an increase in the number of cases that are being referred for administrative processing, as well as the length of time that such cases are held under the administrative processing.
Among Immigrant visa applications–particularly with approved I-140s for EB-3 and EB-3 Other categories–the Visa Consuls at various embassy posts have been denying cases on a wholesale basis and transferring the cases back to USCIS for re-adjudication of the I-140s without any explanation for their action. Even though DOS’s own Cable instruction state that Consular officers should provide in writing “full explanation … of the legal and factual basis for visa denial and petition return.” Cable, DOS, 04-State-41682 (Feb. 25, 2004) at 6-10, published on AILA InfoNet at DOC. No 04030364, many applications receive a mere check mark noting 212g denial. While DOS’ Visa office claims this is enough to satisfy the Cable instruction, a check mark and the denial is a conclusion, not a “full explanation of the legal and factual basis for visa denial.”
Making matters worse, the Posts sometimes will cancel scheduled visa interviews and send the cases back to USCIS for possible revocation without taking time to interview the applicants. During a visa interview, if the consular officer discovers that the underlying petition should not have been approved, or should be revoked, consulate retains the right to return a petition to USCIS. However, how could the consulate officer make such findings in the absence of an interview? In these circumstances, there is a clear indication that the consulate officers are operating with bias to deny visa applications without providing Due Process to many, if not most, of the EB-3 visa applicants.
“[DOS] should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation or ineligibility for status is only suspected but cannot be clearly established.” Cable, DOS, 01-State-121801 (July 13, 2001), reprinted in 78 No. 30 Interpreter Releases 1276-78 (August 6, 2001). By making USCIS re-review I-140 petitions that already have been adjudicated, USCIS resources will be further taxed with unnecessary work. As Former USCIS Director, Leon Rodriguez stated, “We always have to ask ourselves whether it’s good government for one agency to routinely re-open the determinations of a sister agency with clearly assigned jurisdiction over that determination.”
Visa applicants seeking to come to the United States are not the only ones that have been impacted by new screening and vetting procedures. Beginning October 1, 2017, all employment-based green card (I-485) applicants must attend an in-person interview at a USCIS Field Office, and often these applicants are given needless RFEs on documents that were previously submitted or forced to wait a year or more after the interview without a decision while USCIS conducts an “extended review”. The chilling effect of these delays is compounded as the applicants put their lives on hold and the sponsoring employers suffer through a scarcity of sponsored workers.
Thus, a dramatic increase in the uncertainty and unpredictability of the legal immigration process is discouraging U.S. employers from recruiting foreign workers and dissuading foreign workers from seeking opportunities in the United States.
These policies, coupled with the administration’s antagonism towards immigrants, have already had a measurable impact. In 2017, the number of H-1B petitions received by U.S. Citizenship and Immigration Services (USCIS) for fiscal year (FY) 2018 declined for the first time in five years: 199,000, down from 236,000 in FY 2017. Between 2016 and 2017, international student enrollments in U.S. colleges and universities fell 4 percent overall, and enrollments at the graduate level in science and engineering fell 6 percent. According to data released by the U.S. National Travel and Tourism Office, for the first three quarters of 2017, 2.3 million fewer visitors came to the U.S. as compared to the same period in 2016, a 3.8 percent drop. As noted by the Visit U.S. Coalition, a decline in tourism translates into billions in lost revenues, and thousands of lost American jobs.
Meanwhile, USCIS has shifted away from its customer-focused philosophy and continues to struggle with crippling backlogs and slow processing times, while raising filing fees. Inquiries on cases of extraordinarily long processing times (more than 1+ years beyond normal processing times) are met with useless, boilerplate language of “the case is on an extended review…we understand your [clients] may be frustrated by the progress of their cases. However, USCIS must balance individual inconvenience against broader issues of public safety and national security.”
While President Trump continues his very public fight for the construction of a physical wall, little by little, he and his administration are quietly and very deliberately restricting and slowing the pace of legal immigration by building an “Invisible wall” that is harming U.S. businesses and stopping potential immigrants from embracing legal means to come to the U.S. These actions that work to frustrate legal immigration will not stop or reduce illegal immigration, and if allowed to persist as undeclared policy, it will only work to increase it.
Prioritizing Employment-based immigration to help U.S. companies with needed workers and encouraging more investment immigration will help our economy and the financial security of our country’s finite resources. The outline of a commonsense immigration policy exists. We need a workable system that balances the needs of new and old Americans.
About the Author:
Jinhee Wilde, Esq.
Jinhee Wilde is the principal and managing partner of Wilde & Associates LLC, a boutique law firm focusing on business and investment immigration. Her 32 years of legal experience began first as a prosecutor for Chicago and then as the Inspector General designee, special counsel and attorney advisor for the U.S. Department of Agriculture. This extensive government experience still gives her a government lawyer’s perspective to help her clients, which may explain her stellar track record in both I-526 and I-829 filings with only 3 RFEs on Source of Fund on numerous cases since 2007. Jinhee only represents the investor side of EB-5 and stays independent from any regional centers. She is on the President’s Advisory Council of IIUSA and active in AILA and is a frequent speaker at EB-5 conferences. Jinhee received her BA from the University of Chicago and JD from Loyola University of Chicago School of Law.