Bloomberg Law: “Immigration Lawyers to Trump: See You in Court”

by Joseph McKeown

As a result of increasingly strict immigration policies and more petition denials under the Trump administration, more attorneys are considering suing the federal government. “I’ve been preaching the gospel” of litigation, attorney Thomas Ragland tells Bloomberg Law. Ragland says that although businesses have in the past been more reluctant than individuals to sue, he is encouraging corporate clients to pursue litigation in certain cases. He says: “Employers should consider litigation in cases where they think the agency got it wrong.”

The 15,000-member American Immigration Lawyers Association (AILA) has developed a litigation task force in response to Trump administration immigration policies and are preparing to file lawsuits. They hope to “initiate impact litigation on key issues” and also educate AILA members on the process to litigate denials when they believe US Citizenship & Immigration Services (USCIS) is incorrectly interpreting the law. The task force plans to pursue litigation in response to the Trump administration policy changing how international students and exchange visitors earn “unlawful presence,” USCIS’s handling of H-1B petitions, and, likely in the future, if work permits for spouses of H-1B workers waiting for their Green Cards are revoked. 

Policy changes have already led to lawsuits. The first lawsuit challenges a policy memorandum issued earlier this year that states that staffing companies filing H-1B petitions must provide USCIS with additional information. The lawsuit claims that the new policy blocks these companies from utilizing the H-1B visa program because it requires additional information that is impossible to provide. The second lawsuit involves the USCIS policy to prevent staffing companies from using the practical training program for international students who have degrees in either science, technology, engineering, or mathematics. Bloomberg Law notes that in general the below policies are likely to face lawsuits:

  • a policy allowing the USCIS to place...applicant[s] into removal proceedings if a visa [petition] denial renders that person without lawful immigration status;
  • a policy allowing USCIS officers to deny visa petitions without first requesting additional evidence or providing a notice of intent to deny;
  • the USCIS’s interpretation of who counts as a “manager” for purposes of the L-1A intracompany transferee visa;
  • USCIS decisions challenging H-1B petitions on wage-and-hour grounds;
  • an anticipated rule to revoke a 2015 Obama administration regulation that provided work permits to the H-4 spouses of H-1B workers who are waiting for their green cards to become available; and
  • an anticipated regulation ending a 2017 Obama administration program providing a special avenue into the U.S. for foreign entrepreneurs who raise a certain amount of venture capital and create U.S. jobs.

Attorney H. Ronald Klasko says that if USCIS doesn’t listen to comments on proposed regulations or communicate with immigration practitioners then litigation is the only choice. AILA, he says, is “developing all the tools necessary” to “let our members know that they’re not in this alone.”