Decreasing Immigration Expenses Through Federal Court Appeals
Nearly every industry in the US uses a carrot and stick approach to government relations. The carrot involves lobbying/engagement while the stick is litigation.
The exception to this rule is the sector of the economy which relies on technology and other professional immigration. Historically, companies in this sector have understood the necessity of spending time and money lobbying Congress and engaging with the United States Citizenship and Immigration Service (USCIS). But as the industry focused solely on this carrot, USCIS has become increasingly remote and unresponsive to the realities of the industry.
USCIS sends burdensome RFEs, demanding employers provide documents and explanations to satisfy policies that it has never publicized. This creates an unpredictable environment, slows the immigration process, and increases costs.
Why litigation is a stick? Where engagement tries to highlight realities, and encourages the USCIS to make policies conducive to economic growth; Federal court appeals force the agency to comply with the law.
All federal agencies hate being challenged in court. Federal court appeals place the agency and its decision making process under a microscope. Appeals force the agency to divert time and resources to defending its actions. Most important, federal court appeals threaten the way the agency does business.
An agency who believes they will have to defend a policy or practice in court will ensure its actions are: supported by the statute; proceduraly correct; and, logically connected to its regulatory mandate. An active and competent litigation strategy forces the agency to stay within the bounds set by Congress in the Administrative Procedures Act (APA).
A litigation strategy pays dividends, not only by overturning policy, but forcing the agency to be more cautious.
A Tale of Two Agencies: DOL and USCIS
The impact of frequent federal court appeals, or lack thereof, is evident when contrasting how USCIS and the Department of Labor (DOL) regulate.
DOL regulates and defines terms of the US labor market. In that role, Congress calls on it to enforce multiple statutes impacting several different industries. These industries frequently challenge DOL regulations, policies, and decisions in federal court. In fact, several of the seminal cases in APA jurisprudence arise out of DOL cases.
Consequently, when you review DOL’s regulations, and Federal Register notices, you see that DOL tries to meticulously comply with the procedural requirements of the APA. Every legislative rule is posted for notice and comment, the agency rationale for the rule is explained, comments from the industry are analyzed, an explanation is given when comments are rejected, and the exact statutory basis for the government action is cited.
DOL’s compliance with the APA can be seen in its response to the 1990 Immigration and Nationality Act (INA). Within months of the President signing the 1990 INA, DOL submitted notices of proposed rule-making in the Federal Register for notice and comment. Of interest for our example, DOL’s H1B regulations went through five rounds of notice and comment before finalizing the rule in 1993.
In the notice and comment phase, DOL articulates the various APA deference standards, and how their regulations comply with the law and consequently deserve deference. DOL creates predictability through this process. Any change in policy is first posted in the Federal Register for notice and comment.
Contrast the above with USCIS’s regulatory process. Employers who rely on foreign workers are known to be averse to challenging USCIS in federal court. Historically, the only petitioners who file appeals in court are small companies with a personal connection to the foreign worker. (Case names like River Street Donuts, Taco Especiale, and Baldwin Dairy, typify the employers filing suit.) These cases are factually problematic, and chronically underfunded. The counsel may be very knowledgeable immigration attorneys, but lack understanding of Federal Rules of Civil Procedure (FRCP) and the APA. These cases lose, and create bad law, negatively impacting large tech employers.
The entities baring the financial costs of USCIS’s policies have not shown an appetite for appealing in federal court. USCIS realizes the tech industry approach focuses on individual petitions, and not systemic problems in employment immigration policy. USCIS recognizes that the industry is all carrot, and no stick. Consequently, the agency has little incentive to comply with the APA or make rational policy decisions.
For instance, unlike DOL who announces new policies through notice and comment rule making, USCIS can and will throw the industry into disarray by unveiling new policy through RFEs. USCIS routinely changes what constitutes “initial evidence” needed for approval. USCIS decisions and RFEs are so unpredictable that attorneys can only guess what will satisfy the agency.
INS/USCIS has an indifference towards creating predictability. For instance, after the 1990 INA was passed, INS (now USCIS) did not even propose H1B regulations until several years after the act was passed. Its notice in the Federal Register made vague assertions of statutory authority. Moreover, INS did not seriously analyze industry comments that expressed concern about how vague the new rules were.
Another example is the agency’s response to the American Competitiveness in the 21st Century Act (AC21), passed in 1999. This law significantly altered the EB2, EB3, and H1B programs. USCIS took 16 years to publish final regulations. Instead of giving the industry clear guidelines, USCIS published “non binding” policy memoranda that guided adjudications. Because there were non binding, the agency could whimsically decide when, and upon whom, to enforce policy. The layers of policy memos strayed further and further from the purpose of the statute, and from the reality of the regulated industry.
USCIS’s regulations are vague, which has allowed it to change the meaning of a regulation without notice. Consequently, immigration attorneys become modern day oracles: reading the signs in the regulations, policy memos, and most recent trends of denials. But even these oracles did not see things like the Wage Level 1 policy announced through RFE in the middle of the 2017 H1B season.
USCIS is emboldened to make nonsensical decisions and policy, not because the statute allows it, but because they are used to getting all carrots, and no stick.
APA Appeals: How to Swing the Stick
The APA sets boundaries for the federal agencies. Boiled down to its essence, the APA requires the agency to create a predictable regulatory system, and make decisions that follow logically from the statute.
The history of a given statute and regulation have tremendous importance when establishing what authority Congress gave an agency and how well the agency has complied with the APA. In every APA case counsel should research the following:
After reviewing the development of the law, the agency action is compared against the different levels deference created by the courts. Typically, if the agency has complied with the APA and burdens applicable to each level (created by case law) it will receive deference and win in court.
Economics of Federal Court Appeals
Employers are rightly focused on the immediate cost of an APA appeal, and want a quick and demonstrable return on the expenditure. No one likes to pay their lawyer.
When evaluating return on investment, employers should consider the long range benefits of federal court appeals. These benefits far outweigh a victory in a single case.
APA appeals are very inexpensive and fast compared to typical litigation. An APA case has no discovery, depositions, experts, etc. The only evidence is the “administrative record,” (all documents submitted to and received from the agency).
Legal research and writing is the main cost in an APA appeal.
APA appeals can also benefit from economies of scale. USCIS denials fall into a small number of known “grounds” or categories. The research relevant to one ground for denial will be applicable to all similar denials. Employers could achieve economies of scale by splitting the cost of research and writing. Each appeal on the same issue drives down the cost per case.
With sufficient numbers, federal court appeals could approach the cost of an appeal within the agency. The primary difference being, a federal court appeal can make a difference.
2. Decreased Future Operational Costs
Successful appeals can invalidate policy, and change agency operations. In real terms, this means creating predictability in future filings, eliminating RFEs on a particular topic, and speeding up the immigration process.
A consistent and credible litigation strategy deters the agency from future overreaches. USCIS would not flood the industry with new policies through RFEs if it knew denials resulting from the process would be reviewed on appeal. As will be discussed below, a slight increase in litigation would overwhelm the agency. A litigation plan would direct resources to defending actions, drawing manning from normal operations.
As USCIS becomes accustomed to court challenges, the agency would be forced to change practices and comply with the APA. New policies would be published for notice and comment, instead of being unveiled in policy memos, decisions, or RFEs. These policies would be scrutinized for compliance with the APA before being enforced. In short, a litigation strategy would make employment based immigration more predictable and responsive to business.
3. Reputation Within the Agency
I frequently hear people say they are afraid to challenge USCIS in court because the agency will retaliate. This always shocks me.
My experience has always been the exact opposite. The agency is terrified of lawyers with a reputation for challenging denials in court. I have literally seen sticky notes on files saying: “possible litigation case.” A “possible litigation case” is the equivalent of a radioactive waste label: no one wants to touch it. My observation was that frequent litigants always got the benefit of the doubt in a close case. At times, they got cases approved that should not have been. The agency is that terrified of federal court.
As noted above, in the past, employment based appeals have usually been filed in bad cases. Unlike the employers in those cases, employers and firms at the high end of employment based immigration have quality petitions. They believe in every case they send to the agency, and those cases should usually be approved. Standing behind a quality product is good business sense.
When the agency denial is questionable, or flat out wrong, the best strategy for high end employers and firms is to appeal to federal court. Frequent federal court appeals have no bad outcomes.
Even if the appeal fails in court, the employer wins by: