By Angelo Paparelli and Manish Daftari

[Blogger’s note: This article, co-authored by Manish Daftari and me, originally appeared on October 1, here. It is republished courtesy of Vialto Partners.]

Recent developments have upended many of our earlier predictions of the likely post-election immigration landscape in the United States.

These include:

  • Former President Donald Trump’s selection of Ohio Senator J.D. Vance as running mate. Mr. Vance has supported restrictions on legal and illegal immigration.
  • Mr. Trump’s announcement that he is not bound by proposals outlined in Project 2025 (apparently including those restricting legal and illegal immigration), and his recent suggestions of new green card options for noncitizens who have graduated from U.S. colleges and universities, and of additional unspecified immigration avenues prompted, in part, by advances in AI.
  • President Biden’s decision in July announcing that he would not seek reelection, his endorsement of Vice President Kamala Harris as the Democratic Party’s nominee, and her choice of Minnesota Governor Tim Walz for Vice President.
  • Vice President Harris’s support for strict border controls coupled with an “earned” pathway for undocumented noncitizens to gain legal status and the right to work.
  • Gov. Walz’s positions on immigration—both as a former Congressman and as Governor— suggest broad support for legal immigration and protections for the undocumented population. 

With the parties’ conventions concluded, both campaigns in full swing, and early voting already underway, several electoral outcomes are possible. Mobility leaders must therefore prepare for all potential scenarios and brace themselves for the new immigration opportunities and daunting challenges that loom on the horizon.

Will there be an election “trifecta?”

The way forward depends greatly on whether either party wins the presidency and enough down-ballot slots in the House and Senate to achieve a trifecta, i.e., control of both houses of Congress and the White House.  

With a trifecta, far-reaching immigration legislation – ranging from highly welcoming to highly restrictive – is attainable, whereas split control likely would perpetuate the current legislative gridlock. This in turn would maintain the continued practice of executive orders that at times become new employment-based immigration programs, but increasingly are struck down by the federal courts.

What role will federal courts play?

Also uncertain is the effect of recent U.S. Supreme Court decisions empowering individual federal judges to interpret and declare immigration law without necessarily deferring to long-standing, or new, immigration agency regulations and policies.  

With more than 600 sitting federal district judges and 12 circuit courts of appeal, it is foreseeable that multiple federal district judges might issue divergent interpretations of immigration statutes and executive policies (with some imposing nationwide injunctions). It is also predictable that various federal circuit courts of appeal may likewise issue conflicting rulings, thus requiring review by the Supreme Court. 

Immigration stakeholders, especially businesses operating nationwide, may therefore be required to monitor differing judicial interpretations based on the jurisdictional geographies of various circuit courts of appeal, and rely even more on legal counsel to help guide their immigration strategic planning. 

Ironically, if immigration law interpretations by the federal courts become a patchwork quilt of conflicting decisions, pressure may grow for Congress to revive and ultimately enact a single Article I Immigration Court (similar to the U.S. Bankruptcy Court) with broad authority to interpret, declare and harmonize immigration laws and agency regulations on a national basis.

Enhanced border enforcement—a given

Though rarely in agreement, Republicans and Democrats are nonetheless aligned on the need for significantly enhanced controls over illegal immigration, particularly at the southern border. Despite the failure of a bipartisan border enforcement bill in the current Congress, both parties have promised to redouble efforts to stanch the flow of unauthorized noncitizens into the U.S., particularly with additional limits on the ability to apply for asylum. 

In June President Biden announced the temporary suspension of entry of noncitizens who enter unlawfully through the southern border, restricted their access to asylum, and ordered the speedier processing of asylum applications.  

Kamala Harris committed in her acceptance speech at the Democratic national convention (DNC) that she would “secure our border,” while pledging to “reform our broken immigration system . . .[and] create an earned pathway to citizenship . . .”  

Donald Trump and running mate Sen. J.D. Vance each appeared recently at the still-unfinished border wall adjoining the Arizona-Mexico boundary and vowed to stop illegal entries. They also renewed pledges to continue the identification and deportation of individuals who have entered the US illegally.

Harris-Walz on immigration 

Besides stricter U.S. border enforcement, Kamala Harris and Tim Walz are likely to support legislation and executive actions that expand employment-based immigration avenues. 

Ms. Harris is an opponent of then-President Trump’s attempt to rescind DACA (Deferred Action for Childhood Arrivals), and a leading co-sponsor in the Senate of the Fairness for High-Skilled Immigrants Act, a bill which would have alleviated visa backlogs for family- and employment-based green cards.  

As Vice President, Ms. Harris supported President Biden’s Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence,” which included several directives intended to remove immigration-related impediments that make the U.S. less open to noncitizen talent in the fields of artificial intelligence and other “critical and emerging technologies.” The Biden-Harris administration also announced additional forms of relief to certain DACA beneficiaries and with U.S. college degrees (as did the State Department).  

These actions, together with her speech at the DNC, suggest that she will promote legislation and executive actions that support comprehensive “reform of our broken immigration system” – especially by creating or expanding access to work visas, employment- and family-based immigrant visa categories and work permits.

As former member of Congress and the sitting governor of Minnesota, Mr. Walz has likewise supported more open and protective immigration policies, including a path to citizenship status for DACA beneficiaries, essential workers and noncitizens granted TPS (Temporary Protected Status), and signed state legislation authorizing the issuance of Minnesota driver’s licenses to undocumented individuals.

Trump-Vance on immigration

Our earlier article extensively discussed Project 2025’s “Mandate for Leadership,” describing it as a possible predictor of immigration policies in a second Trump Administration.  This discussion was premised on the authorship of several chapters of the Mandate by officials in positions of leadership during Mr. Trump’s first four-year term.  

The former president, however, has recently stated that he has “nothing to do” with Project 2025 and disagrees with unspecified parts of it; furthermore, an emailed  press statement from his campaign “greatly welcome[d]” Project 2025’s “demise.” Although many Democrats have challenged that denial, we are unable to reliably predict the post-election impact, if any, of Project 2025 in a second Trump term. 

What remains, however, are the transcripts of Mr. Trump’s two interviews with Time Magazine, in which he proposed to deploy the National Guard to apprehend, detain and remove vast numbers of unauthorized noncitizens encountered in the interior of the country, and the July 8, 2024 Republican Party Platform.  

Chapter Two of the Republican platform makes the overarching promise to “SEAL THE BORDER, AND STOP THE MIGRANT INVASION [all caps in the original].” Included among its planks are “an aggressive plan to stop the open-border policies,” as well as commitments to “bring back the travel ban,” “begin the largest deportation program in American history,” “prioritize merit-based immigration,” and “[ensure that] those admitted to our country contribute positively to our society and economy, and never become a drain on public resources, . . . [while ending] chain migration, and [putting] American Workers first. . . [with capital letters changed to lowercase].”

Concerning legal immigration, Mr. Trump forecasted in a podcast interview (as also reported and welcomed in the Indian press) that during his second term: 

“What I want to do and what I will do is, [that if] you graduate from a college, I think you should get a green card automatically as part of your diploma, a green card to be able to stay in this country.” 

He added that this proposal would also include graduates from two-year junior colleges and doctoral programs, stating:

“I know of stories where people graduated from a top college or from a college, and they desperately want to stay here… and they can’t. They go back to India, they go back to China. They do the same basic company in those places and they become multibillionaires employing thousands and thousands of people.”

Shortly after the podcast aired, however, Mr. Trump’s campaign press secretary, Karoline Leavitt, issued a statement to clarify that his plan would include an “aggressive vetting process,” to exclude “all communists, radical Islamists, Hamas supporters, America haters and public charges.” She added:

“[He] believes [that] only after such vetting has taken place, we ought to keep the most skilled graduates who can make significant contributions to America. This would only apply to the most thoroughly vetted college graduates who would never undercut American wages or workers.”

Mr. Trump spoke more broadly about expanding employment-based legal immigration entries during an August 15, 2024 press conference: 

“’We’re going to let a lot of people come in, because we need more people, especially with AI coming. The farmers need it, everybody needs it but we’re going to make sure they’re not murderers and drug dealers.”

Senator J.D. Vance, Mr. Trump’s running mate, has reportedly espoused largely restrictive views on immigration, including interior roundups and mass deportations, and crackdowns on visa overstays (having sponsored the Timely Departure Act, which would have required applicants for certain visas to post and forfeit a bond of $5,000 to $15,000 if they remained beyond their visa admission period).  

Mr. Vance has also criticized the H-1B visa program, labeling it as “an unholy alliance between government and our biggest corporations.” He acknowledged that as a venture capitalist the companies in which he invested made use of this program, but has maintained that he never encouraged the use of the H-1B.

What should mobility leaders do now to prepare for the post-election aftermath?

While we wait for the November 5th vote and the certification of final election results, there are several measures which companies, in consultation with their legal counsel, should consider, and if appropriate act on, in anticipation that major immigration changes could occur in early 2025:

Visa and entry bans

Under a new Trump administration, there is a strong possibility that prior visa and entry bans will  be reinstated.  Accordingly, there are several steps mobility leaders may wish to consider to prepare for potential reinstatement of these bans:

  • Identify all employees who may be impacted by future visa and entry bans.  Based on the previous bans that were implemented during the first Trump administration, these countries will likely include Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  
  • Once the impacted employees are identified, companies (as advised by their counsel) should consider discussing with their U.S.-based noncitizen employees (irrespective of visa or residency status) the possible need to limit international travel.  Nonimmigrant employees from the identified countries who do not have a work visa stamp in their passport or have a visa that will expire before the end of the year should consider applying for a visa at a U.S. consulate abroad before the end of 2024. 

Temporary Protected Status

For employees who are currently on work permits in the United States under Temporary Protected Status (TPS), there is a risk that a second Trump administration will eliminate existing TPS designations for some  countries.  Mobility leaders should therefore consider the following steps:

  • Identify all employees who are currently working on TPS status.
  • For each employee, determine if there are alternative forms of employment authorization or work visa options available.  Now is an optimal time in the currently favorable adjudicative environment to consider categories exempt from PERM labor certification such as extraordinary ability, national interest waivers and the Schedule A Group II waiver.
  • With the advice of counsel, consider sending employees abroad to work in an executive, managerial or specialized-knowledge role at an affiliate company for at least one year so that they would be eligible to return to the U.S. on an L-1 visa or as an EB1-C immigrant. 
  • If the impacted employees are not in the permanent residency process, consider starting the process before the end of 2024.

Prevailing wage changes

An incoming Trump administration may seek to reinstate a regulation under his first term (later rescinded by President Biden) that would have significantly raised prevailing wages for the H-1B H-1B1, E-3, and PERM programs.   In order to address this potential impact, employers should consider the following measures in consultation with their counsel:

  • Identify all affected noncitizen employees who are paid below an annual wage of $100,000. While it is uncertain what the proposed prevailing wages will be, the $100,000 annual wage works as a starting point.
  • For these impacted employees, determine if there are alternative visa options such as a spousal employment authorization document (EAD), TN, E-3, and categories exempt from PERM labor certification such as extraordinary ability and national interest waivers.
  • For these impacted employees, determine if their salaries could be raised above $100,000 within the next 1-2 years should prevailing wages be increased.
  • If the wages of these potentially impacted employees cannot be raised, consider sending employees abroad to an affiliate company for one year so that they would be eligible to return to the US on an L-1 nonimmigrant visa or EB1-C immigrant visa. In short, consider planning a future foreign assignment in the event of significant prevailing wage increases.

Possible reversal of Biden and Obama executive actions

Employers should anticipate that if Mr. Trump is elected, several executive actions by Democratic presidents may be at risk of elimination or restriction.  These include DACA (Deferred Action for Childhood Arrivals), and special parole authority under the Immigration and Nationality Act benefiting particular nationalities (such as citizens of Ukraine, Afghanistan, Venezuela, Cuba, Nicaragua, and Haiti, the spouses, children, and parents of active duty military members, veterans, or those in the Selected Reserve of the U.S. Armed Forces,  and the June 18, 2024 executive action allowing for parole in place for noncitizen spouses and children of U.S. citizens, who have resided in the U.S. for at least 10 years, and for waivers of visa ineligibility and inadmissibility to certain graduates of U.S. colleges and universities.

In order to prepare for potentially adverse actions affecting these categories of noncitizens by an incoming Trump Administration, or by the federal courts, employers should consult with their attorneys to consider whether the following options may be available:

  • Determine if there are alternative visa options such as an EAD based on spouse’s work authorization, TN, E-3, etc., and categories exempt from PERM labor certification such as extraordinary ability, national interest waivers and the Schedule A Group II waiver.
  • Consider assignments to other countries with more welcoming immigration options, such as Canada or Mexico, to allow for remote work on US projects, or possible one-year abroad options in executive, managerial or specialized-knowledge positions to qualify for L-1 nonimmigrant or EB-1C immigrant visa eligibility after a year abroad. or possible “D3” inadmissibility waivers on an expedited basis for noncitizens with U.S. degrees, as allowed by recent Department of State guidance in the Foreign Affairs Manual. 

Possible expansion of Biden and Obama executive actions

If Vice President Harris is elected but control of Congress remains divided or is held solely by Republicans, comprehensive immigration reforms are much less likely.  In that case, she may well announce additional executive actions to benefit discrete groups of noncitizens, such as the undocumented parents of U.S. citizens and permanent residents, and noncitizens who were age-barred under the DACA program.  Such actions – although subject to possible reversal by the courts – would open new pathways for companies to hire now-ineligible workers and help mitigate ongoing demographic changes that portend a shrinking U.S. workforce.  Companies should therefore consider developing recruitment strategies and channels to attract such workers and enlist their immigration counsel to help apply on their behalf.

Continuing focus on immigration worksite compliance 

Whether Republicans or Democrats prevail in November, employers in the U.S. should anticipate that federal immigration authorities will continue to investigate and enforce existing immigration laws in the coming years.   

These laws still prohibit the knowing employment of unauthorized workers, penalize acts of unlawful discrimination based on citizenship status, national origin or alienage, and impose sanctions on employers that fail to maintain required business records such as Form I-9s, E-Verify records and employment-based requests for immigration benefits.  

U.S.-based businesses should therefore consider taking prompt action to review their immigration compliance policies and practices, and address any identified lapses.  Special focus should be given to employer programs or conduct that DHS or DOJ investigators may view as favoring noncitizens over U.S. citizens and lawfully authorized workers such as asylees and refugees.  

In short, we believe that any new administration will likely perceive that if the U.S. is to stem the flow of illegal immigration, then stricter border controls and enhanced worksite enforcement must go hand in hand.

Conclusion

As can be seen, no matter the outcome of the November election, the immigration landscape is likely to witness monumental changes in 2025. Mobility leaders and their organizations should therefore begin developing suitable strategies now. 

Vindication! In dollars and sense.

I blogged last year about a settlement in which the U.S. Department of Justice had alleged under the False Claims Act that a business owed the federal government a legal obligation to apply for a work visa with a higher filing fee rather than a visitor visa whose filing fee is lower.

I called hogwash on the allegation. See “DOJ faults employer for choosing a visa category with lower filing fees.”

On August 12, 2024 the Ninth Circuit Court of Appeals agreed with me, stating:

“In this case, because the statute requires an established legal obligation, it is not sufficient that defendants applied for the wrong visas or may face liability for violating applicable regulations. They had no ‘established duty’ to pay for visas for which they did not apply. 31 U.S.C. § 3729(b)(3). Indeed, the only specific, legal obligation defendants had at the time they applied for the B-2 visas was to pay the application fees for those visas.”

The Ninth Circuit’s decision also cites similar rulings in other federal circuits.

On October 30, 2023, President Biden issued Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.”

EO 14110 included several directives intended to remove immigration-related impediments that make the U.S. less welcoming to noncitizen talent in the fields of artificial intelligence and other “critical and emerging technologies.”

Among the presidential commands, the Secretary of Labor was ordered to “publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

In reply, the Department of Labor (DOL) on December 15, 2023 published a request for information (RFI), which invited public comment on or before February 20 2024 asking for stakeholder input on ways to expand an exemption from the standard PERM labor certification recruitment process known as “Schedule A.” If Schedule A is expanded, the change could alleviate labor shortages and shave months, if not years, from a tedious and slow PERM recruitment and employment-based green card application process.

Unfortunately, however, at the request of the AFL-CIO, DOL extended the deadline for comment by 90 extra days, that is, until today.

This blogger, together with David Bier of the Cato Institute and Sam Peak of Americans for Prosperity Foundation, have submitted an extensive comment on several ways to expand Schedule A last week.

DOL must act swiftly to amend Schedule A. Navigating a final rule through the OMB typically takes six months or more.

If the election in November restores former president Trump to the White House, the prospect for an expanded Schedule A are in doubt, as I explain in this article, “Elections Have Consequences: Predicting and Preparing for US Immigration Changes,” coauthored by my Vialto Partners colleague, Manish Daftari.

The time for swift DOL action is now.

Waking up today before the alarm sounded and reaching for my smartphone, I realized that it is March 15, 2024.

Students of Roman history and of Shakespeare know March 15 as the “Ides” (or middle) of March – the day in 44 BCE when Brutus, Cassius and several senators assassinated Julius Caesar.

As he lay dying, Caesar recalled the soothsayer’s earlier warning: “Beware the Ides of March.”

Shakespeare describes it this way in Act 3, Scene 1:

CAESAR: The ides of March are come.

SOOTHSAYER: Ay, Caesar; but not gone.

Tradition says that this is also the day in the ancient Roman calendar when debts must be repaid, and slates wiped clean.

For me, March 15 has a poignant meaning for it is the anniversary of my mother’s death. Rose Lopetrone Paparelli (whose mother’s family name, ironically, was Romano) would have been 102 years old today.

My indebtedness to Mom, however, can never be repaid, only paid forward.

Mom instilled in me a love of history and literature. Indeed, she recounted to me that she dropped her then-boyfriend in favor of my father because the rejected beau spoke so poorly, and my dad (though not a history buff) had the gift of gab.

More than these gifts, however, Mom taught me that everyone deserves respect, and that disrespect must be challenged. Although many examples could be cited, one vignette stands out in my memory.

As kids growing up in the inner city of 1950s Detroit, my sister, brother and I only rarely had the chance to witness Michigan’s namesake aquatic feature (derived from the Chippewa word “Michigama,” meaning “great water” or “large lake”). Thus, we were overjoyed when we learned that our parents would drive us to a lakeside cottage “up north” for a week’s family vacation.

Before reaching the cottage, my dad stopped for gas. In the days before self-service, every gas station featured an attendant who filled up the tank. My dad (the one with the gift of gab), sitting in the driver’s seat, struck up a conversation with the attendant, while Mom rode “shotgun” and the three kids sat in the back.

Dad asked the fellow, a muscular white man in his 20s, how he liked living in rural Michigan. The man smiled and replied, “I love it,” but then made a racist remark.

Without a moment’s hesitation, Mom said: “now mister, that’s not nice. We are all God’s children.” The man fell silent; then he apologized.

In just a few words, Mom spoke truth to power, and taught me to stand up for the disenfranchised. In no small part, she is why I became a lawyer, and chose immigration law as my specialty.

Because of her, I will forever be aware of the Ides of March. For me, the Ides of March “are come . . . but [never] gone.”

U.S. businesses sponsoring noncitizen workers for employment-based immigration benefits are facing particularly challenging headwinds stirred up by U.S. Citizenship and Immigration Services (USCIS).

In a recent article I co-authored with David J. Bier of the Cato Institute, we highlight the latest USCIS tempests that are creating significant difficulties for American employers.

Read the full article here.

Mobility leaders in multinational companies face a slew of challenging tasks. Prime among these is working with the corporate procurement department to select the best team of immigration lawyers to handle the complex needs of hundreds or thousands of noncitizen assignees and their families.

The ideal legal-services provider must effectively manage the intricacies of immigration and mobility requirements across multiple destination countries, adapt quickly to changes in government immigration programs, offer a responsive and empathic employee experience facilitated by advanced technology, and provide strategic advice as visa and residency requirements inevitably change, particularly when national elections introduce governments that are either more welcoming or hostile to foreign workers.

The selection process typically involves issuing a request for proposal (RFP) to a limited set of promising candidates, and the eventual winnowing of providers who are invited to in-person or web-based screenings.

Too often, however, not all the right questions are asked in the RFP or the face-to-face encounter, or the queries are phrased in ways that might not flesh out meaningful and distinctive answers.

To spark your own inquisitive probing, check out my article listing the top five questions buyers of high-volume immigration legal services should ask their immigration lawyers.

If you’re curious how Vialto Partners and Vialto Law would answer these questions, we’d welcome your RFP. https://lnkd.in/gRuD6Mt7

On October 23, 2023, U.S. Citizenship and Immigration Services (USCIS), the component within the Department of Homeland Security (DHS) charged with the adjudication of applications for immigration benefits and naturalization, proposed in a 94-page, single-spaced, three-column document to “modernize” the H-1B nonimmigrant visa category for noncitizen workers in specialty occupations. The comment period for this “notice of proposed rulemaking” (NPRM) expired on December 22, 2023.

USCIS in the NPRM rightly acknowledged that H-1B modernization is necessary in order to create “opportunities for innovation and expansion.” This goal corresponds with the legislative history of decades-old statutes that recognized the imperative that the U.S. take affirmative steps to compete with other nations for high-skilled talent. See, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), cited in the NPRM, 88 Fed. Reg. at 72873, text accompanying FN 6). These statutes, and the Congressional motivations behind them, are especially important today as multiple countries are increasingly developing new immigration programs which compete with the U.S. in the search for high-skilled workers.

The media has given comparatively little attention to the NPRM, focusing mostly on the changes USCIS considers necessary to prevent a recurrence of the seeming gaming of the system whereby some noncitizens have enjoyed greater chance of selection under the H-1B lottery.

Behind the scenes, however, numerous immigration stakeholders prepared and submitted comments expressing fleeting thanks for a few provisions, while sounding alarms over several other proposed changes which many fear will result in needless agency delays in adjudication and many more adverse, unwelcome and burdensome impositions from USCIS. The NPRM, if finalized as a regulation without changes, would impose new requirements for initial evidence, and likely generate many more requests for additional evidence, notices of intent to deny H-1B petitions, and notices of intent to revoke previously approved petitions.

For the benefit of concerned readers, this blog post will offer handy links to some of the more comprehensive and concerning of the 1,315 public comments submitted.

The comments linked below often took issue with many of the same concerns (although not necessarily agreeing in unison or expressing objections on all points raised). Included among the more worrisome proposals in the NPRM are:

  • the changes to the proposed definition of an H-1B specialty occupation requiring a direct relationship between the noncitizen’s degree and the employer’s proposed job duties rather than a nexus between the coursework studied and the job requirements;
  • the new H-1B specialty occupation limitations in the NPRM are difficult to square with Biden administration’s October 30, 2023 Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence;”
  • the assertion by USCIS that it will determine H-1B specialty-occupation eligibility not by assessing the employer’s job duties but rather by reviewing the contractual terms prescribed in any agreement between the employer and the end customer (even where the contract might contain no job descriptions);
  • the narrowly described circumstances in which USCIS will give deference to prior agency adjudications involving the same previously approved H-1B job duties and worker qualifications;
  • the requirement to file a new or amended petition whenever a new H-1B Labor Condition Application (LCA) must be certified by the Department of Labor (DOL) because of a job location change;
  • the claim of USCIS that it has authority to review and disagree with DOL-certified LCA determinations in order to confirm that an LCA “supports” and “corresponds with” the H-1B petition;
  • the new obligation imposed on employers to submit evidence that an H-1B beneficiary has maintained nonimmigrant status in the U.S. — apparently even for periods before the employer ever encountered the noncitizen;
  • the dramatic expansion of unannounced USCIS site visits — in violation of the Homeland Security Act — to the business locations of H-1B employers and their customers and to the homes of H-1B workers, coupled with the assertion by USCIS that it will deny extensions or amendments of status or revoke approved petitions if any of these parties refuses to cooperate in the course of a site visit.

Immigration stakeholders are therefore encouraged to review these and other submitted comments:

* * *

No external immigration stakeholders can predict what the final H-1B modernization regulation will say, if and when it is ultimately published and becomes effective. Now is therefore the time to develop contingency plans based on the ominous provisions of the NPRM.

Many respected commissions, organizations and individuals have long assailed our nation’s administrative system for procedural fairness in immigration proceedings (including, the Federal Bar Association, which has proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center,  and Ashley Tabaddor, then President of the National Association of Immigration Judges, and now Chief Counsel of USCIS, in congressional testimony).

In my view, in addition to the need for an Article I immigration court to allow procedural fairness in removal proceedings, impartial justice requires that a single Article I immigration court be established to review administrative rulings and issue binding legal decisions applicable to all federal immigration administrative tribunals. This would include review of decisions of the U.S. Department of Labor‘s Board of Alien Labor Certification Appeals and Administrative Review Board, the U.S. Department of Justice‘s Office of the Chief Administrative Hearing Officer, U.S. Department of State‘s consular officers’ visa refusals, and the U.S. Department of Homeland Security‘s Administrative Appeals Office of USCIS.

The decisions of an Article I immigration court would no longer be subject to reversal by the Attorney General who has authority under Section 103(a)(1) of the Immigration and Nationality Act (INA) to make binding law (“determination and ruling by the Attorney General with respect to all questions of law shall be controlling”). Rather, just like other Article I courts, such as the Bankruptcy Court and the Tax Court, Article I judicial decisions are legally binding and cannot be overturned by an Executive Branch official.

I am prompted to write this article because of two significant developments. 

On October 12, 2023, the Executive Office for Immigration Review published an interim final rule (IFR) with an opportunity for comment which makes review of decisions of the DOJ’s Office of the Chief Administrative Hearing Officer interpreting the antidiscrimination provisions of the INA, Section 274B, reversible by the Attorney General.

To be sure, the purpose of the IFR is to seek to comply with a 2021 Supreme Court decision, United States v. Arthrex, Inc., which held that, under Article II of the Constitution, decisions issued by certain inferior officers exercising adjudicatory authority must be subject to review by a politically accountable official, such as an officer appointed by the President with the advice and consent of the Senate.

On October 18, 2023, the Subcommittee on Immigration, Citizenship, and Border Security of the Senate Judiciary Committee held a hearing (“Preserving Due Process and the Rule of Law: Examining the Status of Our Nation’s Immigration Courts”) where testimony from multiple witnesses confirmed the need for an Article I immigration court.

Our nation’s immigration laws cry out for a single judicial body that can harmonize the many disparate voice of federal immigration agencies by issuing binding rulings that may only be overridden by a higher court.

The citizenry and the immigration stakeholder community deserve no less. Let’s rebalance the scales of justice.

[Blogger’s Note: U.S. Citizenship and Immigration Services (USCIS) has invited public comment on its proposal to allow paralegals under attorney supervision to interact with the agency in limited ways, such as requesting or rescheduling client appointments and communicating by phone with its customer service representatives. The proposal was published as a notice of an intended change to Form G-28 — the form immigration attorneys must use to enter an appearance on behalf of a client in proceedings before USCIS or two other components of the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). I saw this as an opportunity to make other changes to the ways in which immigration lawyers can represent clients before these DHS agencies. Since I’ve blogged on the topic before (Powdered Wig Immigration with the Lawyer as Potted Plant and EB-5 Immigration Lawyers Wear Too Many Hats), I couldn’t resist offering the following (lightly edited) comment.]

September 25, 2023

Samantha L. Deshommes,
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746

Submitted via www.regulations.gov 

Docket ID number USCIS–2008–0037 

Re: Comment to Proposed Revision of a Currently Approved Collection: Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative – OMB Control Number 1615–0105

Dear Chief Deshommes,

I write to offer comments on the proposed revision of USCIS Form G-28.  I write as a private citizen and not on behalf of any person or entity.  By way of introduction, I have practiced U.S. immigration and nationality law since 1978, and am certified as a specialist in the field by the State Bar of California Board of Legal Specialization.  I am admitted to practice law in the states of California, New York and Michigan, and in the District of Columbia. In addition, I have maintained a blog on America’s dysfunctional immigration system (www.nationofimmigrators.com). The purpose of the blog and my advocacy activities is “to offer constructive solutions that will enable the U.S. to maintain and enhance its economic prosperity, political freedoms and cultural and religious heritage as a Nation of Immigrants.”

USCIS is to be commended for the stated purpose of revising Form G-28, namely, to allow for limited interaction with the agency by a paralegal under the direction and control of a licensed attorney.  This interaction would be for the limited purpose of rescheduling client appointments and communicating through the USCIS customer service channels on case status and urgent immigration benefits requests requiring an InfoPass. 

This change is welcome because it will likely result in reduced legal fees for immigration petitioners and applicants given that the fees charged for paralegal support services are typically less than for lawyers, whether billed on a project-based or hourly basis.  The change would also allow the supervising attorney to devote more time to professional services, e.g., preparation of cases that better demonstrate eligibility for the immigration benefit sought, appearances at USCIS interviews, and the imparting of advice and counsel to their clients who are expected to comply with the “significant complexities involved in enforcing federal immigration law.” Arizona v. US, 567 US 387 (2012).

Although I support the proposed change in principle, I offer the following additional observations, comments and recommendations:

  • Substitute the more generic term “paraprofessional” in place of “paralegal.”  The word “paralegal” is a statutorily defined term in some states, e.g., California.  It is also the subject of credentialing by educational institutions that typically provide instruction in a wide array of legal disciplines within their course material, but whose course offerings often include scant instruction on the duties of a paraprofessional who supports the delivery of U.S. immigration legal services.  Moreover, in modern legal practice there are often a wide array of personnel with position titles other than paralegal that nevertheless facilitate the delivery of U.S. immigration legal services acting under the direction of licensed attorneys. USCIS should therefore allow attorneys to designate paraprofessionals under supervision who may undertake limited interaction with the agency.
  • Allow for multiple paraprofessionals to be designated by a supervising attorney on Form G-28.  The proposed form would allow only a single paralegal to be designated.  This creates unnecessary work for the attorneys and your agency because it does not account for the everyday fact of life that people are absent from work, whether on vacation, sick or maternity/paternity leaves, or other proper reasons for absence.  USCIS should not create a system where the happenstance of a paraprofessional’s absence requires the preparation and submission of a new G-28 and the updating of the agency’s records to account for this substitution.
  • Allow for multiple attorneys in the same firm to be designated on the same G-28 in Part 2, Item 3 as associated with the primary attorney named on the form. USCIS allows other attorneys to file the G-28 and declare an association with the attorney of record who previously filed the form, and to declare that the attorney’s appearance is for “a limited purpose [that] is at his or her request.”  For the sake of efficiency, and in recognition that teams of lawyers at the same firm may work on the same client’s immigration matters, USCIS should allow a single G-28 submission to designate the primary attorney of record and multiple associated attorneys who may make a limited appearance in that client’s immigration matter.
  • Delete the proposed inclusion of the attorney’s date of birth as a required data field on Form G-28.    USCIS hasnever required an attorney to list one’s date of birth (DOB) on Form G-28, and the agency has offered no rationale whatsoever (let alone a convincing argument) for this radical new requirement.  In the current era, where nation states and federal and state governments take great pains through legislation to protect the sanctity of an individual’s personally identifiable information (PII), this USCIS required-DOB data field serves as an invitation for any disgruntled or malevolently inclined client to “dox” (“publish the private personal information of (another person) or reveal the identity of (an online poster) without the consent of that individual”)[1] the lawyer or engage in identity theft by the unauthorized use of a lawyer’s PII.
  • Create a centralized online repository for USCIS to associate lawyers and paraprofessionals as “of record” in a particular immigration benefits request. USCIS has edited the instructions to Form G-28 to require notice of withdrawal of legal representation at the address listed on the latest receipt notice issued by the agency.  This proposed change is wholly unworkable because USCIS often issues “transfer notices” to inform a petitioner or applicant that a particular benefits request has been relocated to a different USCIS office; yet these notices often do not timely arrive or they are contradicted by online USCIS.gov case notifications.  Instead, USCIS should establish a “single source of truth,” i.e., a centralized USCIS repository for the online submission of G-28 forms and notices of attorney withdrawal of representation.  This change would benefit both the agency and the stakeholder community.  If adopted, there would no longer be doubt as to the identity of the attorney of record.
  • Add the Department of State as a specific check-the-box option in Part 3 of Form G-28.  USCIS presently allows the selection of three component agencies within the Department of Homeland Security in response to the statement “[t]his appearance relates to immigration matters before (select only one box) [bolding in original].”  The three agencies are USCIS, CBP and ICE.  By adding the Department of State (DOS) as a check-the-box alternative agency, Form G-28, as revised, would allow for appearances before the DOS consulates and embassies worldwide, the Kentucky Consular Center and the National Visa Center (NVC).  See 9 FAM 601.7-3(c)(2)(a)(“Correspondence with Representatives of Record, Attorneys”). USCIS should also change Part 3, Item 4 to indicate “Receipt or Case Number (if any),” so that a DOS case number may be inserted, as for example, in situations where the data is requested and the attorney of record must be noted. See DOS Public Inquiry Form, accessible at:  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html (last visited on September 26, 2023).
  • Modify Form G-28 to allow limited scope representation and limited appearances of counsel in selected immigration benefits requests.  At present, USCIS’s regulations allow only a petitioner or an applicant to file a particular immigration benefits request on an agency-prescribed form.  See instructions and associated regulations governing Forms I-539 and I-485 (allowing only applicants to file these forms; compare Forms I-129 and I-140 (which may only be filed a sponsoring employer, except in the case of an EB-1 personal of extraordinary ability or EB-2 national interest waiver).  Often, however, USCIS adjudicators and forms instructions require the submission of information and documents in the possession or control of a third party, i.e., a person or entity with a clear economic interest in the outcome of an adjudication. 

Examples include (1) an EB-5 regional center, new commercial enterprise, or job creating entity whose investment or job-creation data is sought in support of an I-526 petition or an I-829 petition filed by a noncitizen investor; (2) an employer that sponsored an approved immigrant visa petition on Form I-140 for an adjustment of status (AOS) applicant where the petitioner’s ability to pay the required wage must be established from the inception of the immigrant visa priority date through to the adjudication of the adjustment of status application; (3) an AOS applicant who must submit Form I-485 Supplement J to establish entitlement to job flexibility benefits in the transition to a new employer in the same or a similar occupational classification as that noted in the former sponsoring employer’s approved I-140 petition; and (4) an applicant for change or extension of nonimmigrant status submitted on Form I-529 by the dependent spouse or children of a noncitizen with work-visa status whose employer must assure that the family members are allowed to remain living in the U.S. with the noncitizen employee (who otherwise might be required to resign from the U.S. job and depart from America with the family).

USCIS should therefore modify Form G-28 to allow parties with a tangible economic interest in the outcome of an agency adjudication to submit information and documents under their possession or control to the agency as long as (A) the petitioner or applicant consents on Form G-28 to the submission of such third-party data or documents, and (B) authorizes USCIS to communicate with both the attorney of record and the attorney submitting notice of a limited scope representation or a limited appearance.  With such consent, USCIS would then be authorized and required to communicate through legal counsel engaged in a limited scope representation or who has entered a limited appearance.  This change would recognize and formalize USCIS’s existing allowance of limited scope representation (see discussion under Comment 3. above).  It would also allow the non-filing third party with a clear economic interest in the outcome of an adjudication to maintain control over information in its possession or control.  Further, it would provide an assurance to USCIS that the third party owning or controlling the information or documentation requested or required vouches for its accuracy and authenticity.  Thus, the allowance of limited scope representation and limited appearances of counsel would serve to minimize instances of fraud and assure the public and the agency that only deserving noncitizens are granted the requested immigration benefits.

As stated, USCIS should be applauded for its proposed modification of Form G-28; but the agency would better fulfill its stated Mission and Core Values (accessible at:

https://www.uscis.gov/about-us/mission-and-core-values [last visited on September 26, 2023]) by upholding “America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve (emphasis added).”

Sincerely,

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Angelo A. Paparelli

[1] Source: Definition of “dox,” Dictionary.com, accessible at: https://www.dictionary.com/browse/dox (last visited on 9/26/2023).

[Blogger’s Note: Readers of this blog may know a little of my family background. Recently, however, the College of Labor and Employment Lawyers (CLEL) invited me to “Tell Us Your Story” for publication in the August 2023 edition of its monthly newsletter. So I’m sharing it here. It’s a story of serendipity, of how twists and turns lead to an unforeseen destiny.

By the way, the photo was taken about the time I began practicing immigration law in my hometown, Detroit, Michigan, circa 1979.]

Telling My Story — the Birth of An Immigration Lawyer

I grew up in Detroit’s inner city among immigrants from Poland and Italy, as well as African Americans, many of whom migrated with their families from the South. This gave me a sense of solidarity with society’s underdogs, persons who – against all odds – persevere and achieve their own versions of the American Dream. I attended an inner-city law school, Wayne State University, and thrived on a wide palette of courses, from constitutional law to real property, tax and international business transactions. Unbeknownst to me, my international business transactions professor submitted my paper on the extraterritorial reach of the U.S. securities law into a writing competition. No one was more surprised than I when my name was called as author of the winning article.  

I traveled to Europe during college summers (my uncle, a travel agent who had his own Italian radio hour, graciously saved a seat for me on his summer charter flights to Italy). My international travel bug, and surprising success in the international business transactions seminar, led me to join a small, well-regarded local firm where one of the partners practiced international business and tax law – with the notion that this would be a springboard to see the world. 

It didn’t pan out as I had planned; I found myself figuratively chained to my desk drafting contracts. This partner encouraged me, however, to become the firm’s immigration law resource, and offered me the chance to spend a week in Puerto Rico far from Detroit’s harsh winter to begin to learn the field at an immigration bar conference. The warmth of the Puerto Rican sun was matched only by the immigration lawyers whom I met there. They were largely happy, prosperous and thriving and they welcomed me into their midst. I’ve never looked back.

I moved in 1982 to Los Angeles where the prospect of practicing immigration law for a larger potential population of clients from around the world seemed brighter. Initial struggles and stumbles ultimately led me to join a large firm which wanted my immigration law expertise, followed by another large firm, and yet another (in between the last two firms, I started my own immigration boutique and grew it over 11 years to 15 lawyers).

Immigration law is a subcategory of labor and employment law, but with a twist. Rather than facing off against opposing parties, I help employers, their noncitizen employees and family members apply for and receive life-transforming benefits – a work visa, work permit, permanent residency and citizenship. They too are pursuing their own self-defined version of the American Dream. I get a lift and am still inspired now, as ever, over a career spanning 40+ years helping strivers thrive.

Last June I made another big career move. I joined Vialto Law (US) PLLC, an independently operated start-up firm affiliated with Vialto Partners, a $2.2 billion spinoff of PwC’s immigration, tax and global mobility practice groups. My mission is to grow the U.S. law firm in talent and clients who value the delivery of employee-friendly, technology-enhanced immigration legal services. 

I’m so lucky to have stumbled into immigration practice and am grateful to be the second management-side immigration lawyer elected as a Fellow of CLEL. (The first, desevedly so, is my friend and colleague, Mary Pivec.)