As business immigration attorneys, we have lots of tools to help our clients: our ability to understand the law (often better than the government); our creative and nuanced use of language to translate the real world into “immigration speak”; our facility in networking to find the best way through the labyrinth of administrative agencies.
Lately, even these powerful tools can be inadequate to win the approval our clients need and deserve. We need to turn to a little-used tool for the job: federal court litigation.
Please don’t stop reading! I know you are swamped with work. I know employers are hesitant to sue. I know you don’t know the federal rules of civil procedure and aren’t excited about learning them. The good news: someone else has the tools you need to litigate, and you can use the tools you already have to make it happen.
To convince your clients that suing is an option, first you must understand the law – specifically, how Administrative Procedures Act (APA) litigation works. You don’t have to be an expert, but you need to talk with one. When I did this, I learned that my assumption about how long federal litigation would likely take was incorrect. Although it can be a drawn-out process, a motion for a preliminary injunction can expedite the action. Other practicalities of the U.S. Attorney’s office and the Office of Immigration Litigation can make relatively quick settlement possible in many instances. This, and other legal and strategic information, will help you assess if litigation is the right tool to solve your client’s problem and explain to your clients why litigation makes sense and how it will work.
Many immigration attorneys are in federal court frequently and some have left government service after being on the other side of the table in lawsuits. Use your networking abilities to seek them out, not only to educate you, but to manage the litigation. Don’t worry, you will still be involved and will have plenty of work to do for your client.
Although federal litigators know plenty about litigation, you are the expert in your client’s case. The most efficient use of the litigator’s time is to let you help with brief and motion development and continue to be involved in client communication. Here you can use your rhetorical abilities to make the arguments in partnership with the litigator. Let them figure out how to electronically file and perfect service. You keep your eye on communicating the facts persuasively and holding your client’s hand through the process.
If you like the process and want to learn it yourself, what better way to start? The AILA Litigation Taskforce has resources for you and more are being developed based on members’ experiences; you can submit your example online. The American Immigration Council is also ready to partner with attorneys for litigation.
In my client’s case, filing the lawsuit with a request for preliminary injunction brought a prompt call from the U.S. Attorney’s office wondering what was the “irreparable harm.” After hearing about the business disruption and expense entailed by this L-1A extension denial (and the fortunate fact that the multinational manager I-140 was approved as we were filing the lawsuit), we were not surprised to receive a settlement offer in a few days.
That these were great facts did not diminish the feeling of accomplishment for everyone involved. Even better, we knew we had held the government accountable and proved that we will not stand by in the face of an unjust result.
Litigation is not the right tool for every situation, but it must be in our tool belt. Immigration attorneys are used to getting our clients what they want through the immigration system. But having a sit-down with the employer to talk through litigation options if the immigration system fails could be well worth it. While litigation can be expensive, a business or organization may determine that getting a key employee into place may be worth some additional effort.
Smart businesses (and smart immigration attorneys) are realizing that they must take the degradation of the employment-based immigration system seriously. They know that failing to take action will make the future even worse. The right job right now is insisting that USCIS follow the law. Litigation can be the right tool – and in some situations the only tool – to accomplish it.
Looking for more information about litigating? AILA’s Spring Federal Court Litigation Conference is coming up March 12 in Chicago!