Collateral Damage: The Consequences of Delays in Immigration
“Delays are killing my ability to bring qualified talent. This is unacceptable and you are doing nothing about it,” complained a client over the phone. I was exasperated by the lack of understanding and all too easy strategy of solving the problem by killing the messenger! After having survived four years of an all-out war on immigration, I must deal with this?
From attempting to change the definition of specialty occupation to expanding in-person interviews to all employment based cases and countless other similar restrictive actions, the previous administration sought to restrict the ability for businesses to attract and retain the foreign talent they needed in many ways. Apart from U.S. businesses being adversely impacted, I know many of my AILA member colleagues saw clients lose faith in them when the immigration attorney wasn’t able to overturn inconsistent and capricious USCIS decisions. I believe attorneys suffered the callous consequences of an administration that relentlessly sought to shut down every aspect of immigration.
For four years, the administration tried to dismantle highly evolved and stable policies in the field of business immigration. Take for instance the matter of the 2000 Terry Way Memo issued by the then Director of the Nebraska Service Center. Using the evidentiary standard common to administrative proceedings, the memo had concluded that “we will generally consider the position of programmer to qualify as a specialty occupation”. For two decades, practitioners used this Memo to defend against USCIS challenges to the specialty occupation nature of positions in the IT industry. However, on March 31, 2017, the administration issued a policy memo that summarily rescinded this guidance labeling it “somewhat obsolete”. Instead, USCIS embarked on redefining computer related occupations in the H-1B and H-1B1 context and establishing an erroneous connection between the salary paid and the complexity of the duties performed. Well before this memo was released, USCIS began denying H-1Bs filed for “programmer” and “programmer analyst” positions.
On March 9, 2018, the USCIS Branch Chief of Service Center Operations sent an internal email entitled, “Clearly Inconsistent” Clarifying Guidance. The email sought to set the tone and provide adjudicating officers with guidance and resources for denying applications based on salary. While businesses reeled under a constant barrage of unfavorable decisions, practitioners sought desperately to convince their clients that it was not them, but that USCIS that had abruptly changed its policies causing their cases to be denied.
While the current administration stepped in and immediately rescinded several past administration policies, there is an issue that is contributing to eroding client confidence – delays. It is getting harder and harder to explain the erratic and sometimes baffling way in which cases are prioritized. I believe more needs to be done by way of educating and actively enlisting immigrants and their employers in any attempt to change the status quo.
The latest Policy Brief prepared by the American Immigration Lawyers Association (AILA) highlights several recommendations for alleviating issues created by significant processing delays. AILA members may use a template to contact USCIS and urge action, and share stories about the impact of the processing delays with @USCIS on Twitter, and on other social media platforms.
And, knowing that the Take Action tool is public, I shared the policy brief and the template with my clients, urging them to participate in this joint effort. I believe showing that I care by participating in the AILA effort would be a good way of focusing on the real problem – the intolerable and unacceptable immigration paralysis created by severe processing delays.
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To hear directly from agency officials and learn about current trends, issues in adjudications, and more, there’s no better opportunity than AILA’s April 8, 2022, Spring Conference which you can attend in-person or virtually. Government speakers will include USCIS Director Ur Jaddou and many others. Check out the program and register!