I am sure this post will be controversial, and I welcome comments.
I’ve long believed that the practice of immigration law, which has become dramatically more challenging since 9/11, is not for the dabbler (of course) but also poses a risk for attorneys who choose to specialize only in business immigration. The linked article, “A 3-Point Immigration Manifesto for Chief Legal Officers and Outside Counsel,” published this month by The International WhosWho of Corporate Immigration Lawyers, elaborates on my views.
Ever since 1996 and the passage of the Illegal Immigration Reform and Immigrant Responsibility Act with its unlawful-presence penalties, the notion of a fixed line of demarcation between business or family-based immigration on one hand and litigation and removal defense on the other has been revealed as fiction. Business immigration opponents of IIRAIRA succeeded in persuading Congress to “split the bill” and deal later with a set of harsh restrictions on employment-based immigration. As the ensuing years have demonstrated, that victory was phyrric indeed.
Only now do we see that the government agencies charged with the enforcement and administration of the immigration law, especially the conferral of immigration benefits, have taken an approach to interpretation of the INA that in too many instances is mean-spirited and inconsistent with legislative intent. After all, bureaucrats need to justify their budgets. It’s hard to catch terrorists, especially when the agencies rely on immigration forms that require truthful disclosure of illegal terrorist actions. As 9/11 has taught, anyone willing to commit suicide would not be dissuaded from fibbing on a goverment form.
So instead the agencies have taken to auditing the corporate clients of law firms for the sin of talking to their lawyers (DOL), radically reinterpreting L-1B specialized knowledge by using specious reasoning to jettison 18 years of post-IMMACT90 liberalization of this visa category (USCIS), appointing inexperienced immigration judges and members of the Board of Immigration Appeals for partisan or ideological reasons (EOIR) and eliminating administrative appellate rights of citizens to contest a claimed loss of nationality (State Dept.).
My hero in immigration law, the late Sam Williamson, as quoted in Faith and the Professions (at pp. 184-186), was mostly right when he said: “[The practice of immigration law is] a competent, involved, technical job in which, if you’re successful, you can see the consequences of your actions. Also, I don’t like the government.”
Unlike Sam, I like the government when it honors the Constitution and follows faithfully the statutes that Congress enacts. I don’t like it when it crosses the line. Immigration lawyers cannot be mere paper shufflers and online preparers of immigration forms. They must be lawyers first and foremost. It’s time to resist government encroachments that deprive our individual and business of clients procedural and substantive due process. It’s okay to specialize, but don’t overlook that competent representation requires a broad array of substantive knowledge in the many nooks and crannies of U.S. immigration law and regulations. As was correctly stated, for once, by a legacy INS spokesperson, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” — INS Spokeswoman Karen Kraushaar (quoted in The Washington Post, April 24, 2001, in an article entitled “Md. [Maryland] Family Ensnared in Immigration Maze – After Changes in Law, Couple Faces Deportation”).