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

Many happy thoughts and feelings collided in my mind and heart as I read the June 23, 2023 decision of the Supreme Court in U.S. v. Texas.

Pleasant Surprise. Few would have imagined that a coalition of conservative and liberal justices would agree that federal immigration authorities are endowed with largely unreviewable discretion to

The famous line from Shakespeare — “The first thing we do is, let’s kill all the lawyers” (Dick the Butcher, Act IV, Scene II, Henry VI, Part II) — is interpreted in widely divergent ways. My handy AI assistant offers these examples:

  1. An expression of frustration with the legal system and the perceived corruption or incompetence of lawyers.
  2. A call for the dismantling of the legal system in order to create a more just society.
  3. A satirical comment on the way society often scapegoats lawyers for its problems.
  4. A reflection of the character’s desire for lawlessness and chaos, as the line is spoken by a character plotting a rebellion.
  5. A critique of the excessive power and influence that lawyers can have in society.

The line about “attorney-cide” came to me as I pondered how the federal courts and immigration agencies interact with lawyers. Although Section 292 of the Immigration and Nationality Act (INA) provides that a noncitizen in removal proceedings shall have a right to counsel “at no expense to the Government,” and regulations of U.S. Citizenship and Immigration Services (USCIS) at 8 C.F.R. § 292.1 authorize attorneys to represent noncitizens in a variety of immigration benefits requests, federal statutes and immigration officers often plant barriers that impede effective legal representation.
Consider these examples:

  • The Supreme Court will soon decide United States v. Hansen and interpret the scope of 8 U.S.C § 1324(a)(1)(A)(iv). This statute makes it a felony if any person “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” According to the Pew Research Center, there were 10.5 million unauthorized noncitizens in the U.S. in 2017, and few knowledgeable observers believe that the number has shrunk in the ensuing years. Unsurprisingly, unauthorized noncitizens often seek counsel from immigration lawyers. Will the lawyers be barred from informing them about several legal avenues that authorize relief from removal or lawful status if the Supreme Court decides Hansen to mean that by providing such guidance the lawyer is “encourage[ing] or induc[ing]” a noncitizen to reside in the U.S. “in violation of law”? Will the lawyer be prohibited from explaining the path to a green card through cancellation of removal or asylum, or about the avenue available to unauthorized workers who are victims of worksite exploitation? We’ll know once the Supreme Court decides Hansen.
  • There is no right to be represented in person by counsel at the border or a port of entry. As a practical matter, the State Department takes the same approach by allowing consular officers to decide if all visa interviews conducted by consular interviews be with counsel present. State provides in its Foreign Affairs Manual, at 9 FAM 602.1-2.b: “Whatever policies are set must be consistent and applied equally, either all attorneys at post must be permitted to attend consular interviews or none can.” Not surprisingly, virtually no consular posts allow attorneys to be present during consular interviews. The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) tried to change that by submitting a May 24, 2017 ““Petition for Rulemaking to Promulgate Regulations Governing Access to Counsel” (for which I served as a coauthor), as allowed by 5 U.S.C § 553(e) of the Administrative Procedure Act. Needless to say, the Trump Administration did not embrace the proposal. AILA and AIC should refresh the proposal based on intervening experiences and ask the Biden Administration to adopt it
  • USCIS has provided a method for electronic filing of applications to extend or change nonimmigrant status but only in situations where the noncitizen applicant “will not require legal or accredited representation at any point in your request.” What USCIS does not say is that noncitizen e-filers must comprehend and comply with 17 pages of dense text in the instructions to the application form, and that the form’s instructions are as binding as agency regulations.

Continue Reading Let’s Not Kill All the Lawyers — Removing Barriers to Effective Legal Representation in Immigration Matters

“Hell is paved with good intentions.” ~ Samuel Johnson

To its credit, United States Citizenship and Immigration Services (USCIS) – the beleaguered Department of Homeland Security (DHS) component charged with adjudicating requests for immigration benefits – is trying in earnest to improve. On April 18, 2021, the agency posted a notice (“Identifying Barriers Across [USCIS]

Big-Picture, Clean-Slate Immigration Reforms 

for the Biden-Harris Administration

By Angelo A. Paparelli and Stephen Yale-Loehr

As a new administration takes office on January 20, and the tantalizing prospect of enlightened immigration reforms looms on the horizon, an intriguing question has surfaced on Twitter:

“Is there a progressive version of Stephen Miller? Someone who has (1)

President Trump’s October 9, 2019 overtures landed as music to the ears of many grizzled immigration lawyers who persistently suffer battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

If the U.S.’s dysfunctional and baffling immigration laws were a bemusement park, one of the scariest rides would be that tottering roller-coaster, “Worksite Enforcement.”  The ride is rickety and showing its age (having been constructed long ago through the enactment of the Immigration Reform and Control Act of 1986 [IRCA]).  This law — like every

Much digital ink has already been spilled reporting on the phantom tide of undocumented migrants supposedly breaching our Southern border.  This article will address a different, but very-real immigration flood, and suggest ways U.S. employers, noncitizens, and their lawyers ought be emboldened to add to the deluge.

Ironically, it is about a dry subject –

[Blogger’s Note:  Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by  Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services

The State of California won and lost bigly last July 4th. But what if the state’s biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized