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How Immigration Attys Are Tackling The Trump Era

November 8, 2017

By Allissa Wickham

Law360, New York (November 8, 2017, 9:18 PM EST) — This time last November, Donald Trump defied conventional wisdom and won the presidential election, setting the stage for a dizzying year of immigration policy changes. It’s been an anxious time in the immigration world, but in the face of travel bans and visa scrutiny, lawyers are stepping up to the plate.

It happened. The man who had labeled Mexicans “rapists,” called for a Muslim ban and vowed to build a giant wall along the southern border officially won the U.S. presidency in the early hours of Nov. 9. In the year since, that wall hasn’t materialized, but Trump’s victory has certainly ushered in a new era of worry and uncertainty for immigration attorneys and their clients.

“It’s like everything is upside down,” said Ellen Freeman, a veteran immigration attorney with Porter Wright Morris & Arthur LLP who noted it can feel like one’s decades of experience are “out of the window,” given the new challenges cropping up on a daily basis.

Even before Trump took office in January, immigration attorneys had plenty on their plates, with a new regulation for skilled foreign workers taking effect Jan. 17. But that rule was soon overshadowed by the new administration’s hardline immigration moves, with Trump making virtually any unauthorized immigrant a target for deportation and creating his first travel ban just a week into office.

That ban famously unleashed chaos at airports nationwide, and immigration lawyers jumped into the action to help detained travelers. It also helped ratchet up anxiety levels for immigrants, and not just for people from the seven targeted countries.

“I think the travel ban, in particular, was really concerning to a lot of foreign nationals,” said Chad Blocker, an attorney at the immigration firm Fragomen, Del Rey, Bernsen & Loewy LLP. “I even had Indian nationals reaching out to me to ask if it was OK to travel domestically.”

That first ban was a dramatic turn in a year that would prove to be full of them, between the rollouts of two revised bans, court rulings against the travel suspensions and other major policy shifts, like the end of Deferred Action for Childhood Arrivals — a deportation protection program for young immigrants.

“The changes have come at almost a head-spinning pace,” Blocker said. “So much so, that you may go home on a Friday evening and you just don’t know what the weekend holds. Because you may be in the office the next day, because of some new policy that has been announced.”

Amid the policy whiplash, communication with clients has increased this year, according to attorneys. Hiba Anver, of Erickson Immigration Group, quipped that they’re “often times a communications firm, in addition to being law firm,” with companies eager for information on what has happened and what could be coming down the road.

On top of high-profile moves like the travel bans, attorneys are dealing with other under-the-radar shifts in immigration policy, especially in the wake of April’s “Buy American, Hire American” executive order. These changes include a flood of evidence requests on H-1B visa applications, interviews for employment-based green cards and a policy memo that will likely make status extension requests tougher.

It’s a combination of factors that will eat up lawyers’ time, as immigration attorneys go with green-card seekers to interviews or pour hours into dealing with those “requests for evidence,” or RFEs. Freeman described the climate as a “bad busy,” since “you keep fighting for the same case.”

There’s also a lingering sense among some attorneys that, beneath the government’s changes to case processing, there lurks the goal of curbing immigration.

“I feel like everything that can be done to make the immigration process longer and more difficult, is being done,” said Greg Siskind, an immigration attorney with Siskind Susser PC. “I think there’s a very deliberate effort on the part of Stephen Miller and his minions to try and make the immigration system not work, and to make people not come to the United States.”

In addition to case processing shifts from U.S. Citizenship and Immigration Services, other agencies are also tightening their grip when it comes to immigration.

U.S. Immigration and Customs Enforcement has notoriously become more emboldened this year, with officers reportedly showing up at courthouses in search of immigrants to arrest. And attorneys have flagged scrutiny changes at the U.S. Department of State‘s consulates abroad and at the northern border with U.S. Customs and Border Protection officers.

“Now, every consular officer, views himself or herself as the guardian of the Hire American mantra,” said Avram Morell of Pryor Cashman LLP, who noted that cases are “being questioned with frequency” at U.S. embassies and consulates.

Anver said her firm has gone so far as to establish “an emergency phone number that our clients could call 24 hours a day, in the event that they were to run into any issues at the consulate or at CBP.”

That proactive spirit wasn’t just present at law firms, but also at advocacy groups, which jumped into court this year to challenge Trump immigration moves. Judy Rabinovitz, the deputy director of the American Civil Liberties Union‘s Immigrants’ Rights Project, noted the group had “pulled a lot of all-nighters.”

“It’s not like litigation that we’re planning and we can control,” Rabinovitz said of the cases. “It’s like, this stuff is about to take effect, and it’s going to affect people’s lives, and we’ve got to get in there.”

However, in all the doom and gloom immigration attorneys have found themselves slogging through this year, there is one silver lining, according to Freeman: the immigration lawyer community has become even tighter.

“Whenever we get pieces of information, we are much more willing to share them,” she said. “We’re significantly less competitive.”

Some attorneys are also focusing on combating stress. After the election, Siskind said people in his office were so concerned about their clients’ futures that the firm decided to emphasize stress reduction, and he and his law partner paid to have a meditation coach stop by each week.

“That turned out to be one of the most popular things we’ve done in a while,” he said. “That group still meets in the office a couple times a week to meditate.”

Signs don’t point to any work slowdown for immigration attorneys quite yet, and with questions still lingering about the fate of the important regulations, like work authorization for H-4 spouses, there may yet be policy changes on the horizon.

But in the face of a tricky year from Trump, Bill Stock, an attorney with Klasko Immigration Law Partners LLP, said the message his firm is driving home is that now is the time when “you need to be an immigration lawyer,” not just “a person with a law degree who fills out immigration forms.”

“Know the law. And know how evidence works,” Stock said. “The value of a really good lawyer becomes evident at times like this.”

–Editing by Pamela Wilkinson and Catherine Sum.