Immigration and the Rule of Law

New “interpretive rule making” as to what constitutes “specialty occupation” has business owners and students perplexed.

For employers trying to hire young, skilled non-immigrants the hostility of the immigration service has been palpable.

No sooner did the President issue his April 2017 Hire American—Buy American Executive Order than the Immigration Service[1]began issuing novel requests for evidence challenging petitions filed on behalf of newly minted graduates from American universities on the basis that their entry level positions were not “complex” enough to meet the definition of “specialty occupation” mandated by H-1B regulations.[2]

The standards articulated in the requests for evidence were new in their construction of H-1B regulations.

It was an example of how the immigration authorities were attempting to cast major changes in the law as “interpretive rule making” in circumvention of the formal rule making procedures mandated by the Federal Administrative Procedure Act.[3] Pushback by legal organizations have moderated immigration’s aggressive posture, but there is little question that the definition of what constitutes a “specialty occupation” has gotten narrower, even without Congressional or formal Executive action.

In the last year, this office confronted another similar situation in connection with the 60- day grace period normally afforded students following the expiration of their academic programs or optional practical training.

The governing regulation expressly provides that a student in their 60-day grace period can wind up their affairs or transfer to a new educational institution for additional training. At the time we were representing an employer who unsuccessfully petitioned for H-1B status for one of its more junior employees.

Following the H-1B denial, the employee, who was on a student visa, attempted to transfer her SEVIS[4]file from one school to another.

In the past such a transfer would have been ministerial, but, unexpectedly, Immigration Customs and Enforcement, which oversees the SEVIS program, messaged the transferor school that it would not transfer the file on the grounds that the student was obliged to wind up her affairs and leave the U.S.

This office contacted the transferor school and, ultimately, the International Association of Foreign Student Advisors and learned that denials of file transfer requests were occurring all over the country.

I urged interested parties to consider legal action since the agency’s violation of the law was clear, but none of the parties consulted were prepared to bear the costs such an initiative would entail, which underscores a very important point that in a climate where enforcers in the field may be more aggressive about disregarding legal precedent and even the plain language of controlling regulations, advocates for the rule of law must pick their battles.

Thus, while the separation of families at the Southern border should command the attention of legal advocates, what should not be ignored is that under the emotional radar screen is a systematic degrading of the ability to contain the administrative state.

Very recently, in May 2018, without much warning, the Immigration Service issued a memorandum materially changing the rules governing when students begin accumulating unlawful presence. [5] It is sufficient to state that, for the last 20 years, persons admitted to study in the U.S. under the F-1 visa could only start accumulating unlawful presence after a benefits determination by Immigration that a status violation had occurred or an actual court determination to that effect.

The issue is significant because if one accumulates more than 180 days of unlawful presence one can be made subject to the statutory three- year bar, which can render a person inadmissible to the U.S for up to three years and complicate their ability to obtaining a green card in the U.S.[6]

According to comments advanced by the American Immigration Lawyers Association (“AILA”), the sudden change in guidance could imperil students who, because of the complexity of the rules governing their status, could, unknowingly, have violated their status years before, potentially subjecting them to the three and even ten-year bars.

Significantly, although the Immigration Service’s memorandum significantly changed the law, it was considered by the agency a mere interpretive guidance and not a rule change requiring implementation of the formal rule making process, requiring, among other measures, public notice and a comment period. According to AILA, the rule change was both in violation of Federal procedural law and due process.

The upshot is that pressure on the Administrative state by the political organs of government is resulting in increasing efforts to circumvent the traditional rule making process and implement laws that can be arbitrary, work injustice, and harbor serious unintended consequences.