Insight

The Building of a Virtual Border Wall

This virtual wall has not just adversely impacted undocumented immigrants; it has adversely impacted those seeking legal immigrant and nonimmigrant status and those wishing to extend nonimmigrant status.

Virtual Border Wall
Tammy Fox-Isicoff

Tammy Fox-Isicoff

January 17, 2018 10:06 AM

President Trump began his term in office with a vow to build a border wall between Mexico and the U.S. Though he has been unable to muster sufficient support to build “the wall,” he has, through administrative edict, constructed a virtual wall.

This virtual wall has not just adversely impacted undocumented immigrants; it has adversely impacted those seeking legal immigrant and nonimmigrant status and those wishing to extend nonimmigrant status.

Before Trump’s tenure in office, it would have been impossible to imagine that an administration could do so much to adversely impact legal immigration without legislative support. This administration will be able to reduce legal immigration to this country by merely delaying the process to obtain residence. Through sufficient delays to the residency process, less adjudications will take place. The legal immigration system works through a series of annual quotas. If a legal immigration spot isn’t taken in the fiscal year, it is lost. This administration has decided to interview every single applicant for residence. Previously, background checks were done on every applicant for residence; however, employment-based immigrants were not interviewed unless the background check disclosed an irregularity, such as an arrest. By mandating that all employment-based immigrants be interviewed, without any additional resources or adjudication officers to conduct the interviews, the administration has, in effect, drastically slowed the pace at which foreign nationals can immigrate to the United States. This will likely result in country immigration quotas not being used and eventually lost. The result of quota backlogs are long lines to legally immigrate to the U.S. and processing that can take more than a decade. There are already severe quota backlogs for Indian and Chinese foreign nationals with advanced degrees or exceptional ability. This quota backlog is so great that it can take an Indian with an advanced degree well over a decade to immigrate to the U.S. even if that foreign national’s skills are deemed in the national interest.

This administration has declared a buy America, hire American policy. The result of this policy is that it has become difficult if not impossible for U.S. employers to hire the talent they need. It has also become difficult for foreign students matriculating U.S. universities to secure U.S. employment post-graduation. The administration has declared that most professional positions paid a starting level wage aren’t in fact professional positions. So, a computer software engineer, earning an entry-level wage as published by the Department of Labor for a university graduate would not likely (through administrative dictate) be performing professional level duties. Don’t most university graduates begin their careers at level one wages for their profession?

The failure to fill State Department positions at embassies and consulates around the world has created backlogs in adjudications of all visas.

In a seemingly incredulous move, this administration sought to strike a rule promulgated by the Obama administration that would have promoted the parole of foreign entrepreneurs who, through their startup initiatives, would have provided employment to a plethora of U.S. workers.

It has been the practice of USCIS to give deference to prior adjudications, absent fraud or legal error. This administration has withdrawn the policy of providing deference to prior adjudications. Thus, when a foreign national seeks an extension of her nonimmigrant status, she has no idea if the next adjudication’s officer will agree with the determination of the prior adjudication’s officer. The life and livelihood of a foreign national can be upended by an adverse adjudication of an extension of status, though nothing in the foreign national’s circumstance may have changed. No foreign national can predictably plan a future in the U.S., and no company can predictably rely on foreign national talent.

As a lawyer, it is frightening to witness the desecration of legal immigration through administration edict. No doubt, our fine bar will continue to fight to preserve legal immigration as it is the core of America.

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Tammy Fox-Isicoff is a former trial attorney for the United States Immigration and Naturalization Service and special assistant United States attorney. Tammy has been selected by Best Lawyers® as in immigration law in South Florida in 2012 and 2016. Super Lawyers has recognized Tammy as one of the top 50 women lawyers in Florida. Tammy holds an AV® Preeminent Peer Review RatedSM by Martindale-Hubbell® and has been continually listed in The Best Lawyers in America, Chambers Global, South Florida's Top Lawyers, Super Lawyers, and International Who’s Who of Corporate Lawyers “The National Association of Distinguished Counsel” has recognized Tammy as being in the top 1 percent of attorneys in the entire U.S.

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