Published April 22, 2019

Department of Justice Aiming to Expand Powers of Appellate Immigration Judges

The Board of Immigration Appeals (BIA) is the appellate body where a party can seek review of an Immigration Judge’s decision in an initial removal (deportation) proceeding.  The agencies overseeing the initial removal proceedings court as well as the appellate court are under the jurisdiction of the Executive Office of Immigration Review, which itself is a sub-agency of the U.S. Department of Justice.    In recent days, it has been reported that the Trump administration is considering implementation of a plan to expand the power of BIA judges, including allowing for single judge panels to summarily affirm lower court decisions and allow BIA judges more power to issue precedent setting decisions.

The summary affirmance measure would mark the return of a Bush era rule that has since been overturned by succeeding administrations.  Critics of this measure say it leads to assembly line justice that gives insufficient scrutiny to important life changing proceedings, and will invite a barrage of federal court lawsuits seeking to overturn such decisions.  Proponents see summary affirmance a powerful tool to efficiently manage and adjudicate cases in a heavily overburdened system.

As to the current BIA mechanism at play for setting precedent, the appeals board can establish a binding precedent decision only upon a vote by the majority of all sitting judges.   With the new plan, this requirement would be abolished and allow for a two-judge majority of any three-judge panel presiding over a case to establish precedent.  Additionally, the new rule would allow the Attorney General the same authority,  declaring as precedent any three-judge panel’s decision of his choosing.

Critics see this shift in increased powers as leading to frivolous and legally inadequate BIA decision-making, and with game changing policies improperly applied to previously protected classes of individuals seeking to remain in the U.S.   Also, with the DOJ’s initiative to tackle the huge backlog of Immigration Court cases and expand its core of Immigration Judges and BIA members, the Trump Administration has been accused of improperly factoring in an applicant’s political ideology over their immigration law experience and overall competency.

H-1B Visa Denial Rates Skyrocket

Although the governing statute and regulations have not changed, the Trump Administration’s interpretation and application of the law has indeed changed leading to denials of  H-1B work visa petitions to hit a 10-year high in the first quarter of 2019 .  According to statistics released by U.S. Department of Homeland Security/Citizenship and Immigration Services,  32% of first-time filers were denied, a sharp increase from the 6% denial rate at play in 2015.   

Further, in the first quarter of 2019, an alarming 18% of filings to extend previously approved H-1B petitions were denied, in comparison to 2015 when only a 3% denial rate for the same class of filings.   Information technology companies have been hit particularly hard by these new policies  – implemented as part of the Trump Administration’s current “Buy American, Hire American” initiative.

“If the goal of the Trump administration is to make it much more difficult for well-educated foreign nationals to work in America in technical fields, then USCIS is accomplishing that goal,” said Stuart Anderson, executive director of the National Foundation for American Policy and counselor to the commissioner of the Immigration and Naturalization Service under former President George W. Bush. “But few economists and companies would say preventing high-skilled foreign nationals from working in the U.S. is in America’s best interests.”

In addition to higher denials rates, companies filing for H-1B and other types of work visas are facing longer processing times, that is unless the higher priced, premium processing service is availed of.  

PUBLISHED April 22, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois