2020 AILA Conference: Day 2, Session 1: Recent Changes To Immigration

[Tsang Intro Splash]

Hi everyone, this is Joseph Tsang from Tsang & Associates, and today we’re back at Day 2 of the AILA Conference 2020. This is the first time AILA is doing this virtual conference, and I’m super excited to bring that to you.

Now, as a quick disclaimer, I’m only reviewing the ones I’m attending, and the opinions shared in the video are mine only, even though I am an AILA member. The opinions I share are not attributed to AILA or even to the speakers. I am summarizing what the speakers are saying, and I’m sharing my two cents on the topic.

And if you don’t know what AILA is, it is the American Immigration Lawyer Association, the largest immigration lawyers association in the United States. Hundreds of thousands of attorneys gather together around the world to discuss these topics every year at this conference, and I’m super excited to get started.

[0:46] Alright, I just finished watching Day 2 Session 1. The official title is “Changes”, but it could also be “Lawyer Tricks” or “How Lawyers Fight.” It’s a super exciting video, and I can’t wait to share it with you.

So, it goes without saying that we are in unprecedented times. There are changes at the consulate level, at USCIS, at the national level, at the border, at every individual application process with the officers and the RFES. What do you do, and how do you advocate for your client?

AILA University has invited some of the top immigration scholars and presenters over here [Elizabeth Chatham, Michael R Jarecki, William Anthony Diaz, Matthew D. Stump], and they are sharing what their tactics are, as well as what AILA is seeing as a whole. It’s absolutely amazing to pick their brains and to see exactly what are some of the options that are out there.

And after watching the video, it was like seeing chess being played at the highest level and seeing all the different unique circumstances all play out, and all the exceptions that are able to be won. Super awesome, let’s get started.

[1:37] Number one, consulate closures. We all know that there are emergency appointments that are available, but how do you apply for it? How successful are they? What are the arguments?

Typically, the individual attorney might have one case out of a dozen that is ripe to file for this emergency, and then they might try, and then they might fail or they might succeed, and that will be the end of it. And they only have their own experience to rely on.

The beautiful thing about AILA as a whole is that we get to access all the different applications that the members submit, and we’ll all get to share it. So, the presenters were able to share that the winning arguments are all revolving around the COVID emergency, the health and public safety, as well as public interest and the economy of the U.S.

Making these as your core arguments when you apply for the visa and apply for the emergency appointment, you’re able to get before consulate officers. You might be the only application that they’re reviewing that day. You have their full attention instead of like a five-minute, ten-minute adjudication. Now they can spend 30 minutes really assessing your case. And if you have a good claim and it’s the senior officer that’s reviewing it, there’s a high chance that you will be able to actually get the visa approved, especially if you have a slightly weaker visa, but you have an emergency claim and you’re really going to help the U.S. That’s actually even better for your case. So, in turn, this was actually a silver lining, and this has been reported that has actually been pretty successful.

[2:54] How successful you ask? They’re actually able to give specific numbers, weighing which argument has a higher chance of succeeding. It’s super geeky about them, but I love it. So, we know the law provides that medical reasons is an exemption, as well as business reasons is an exemption. But which argument is actually better? So, they were able to show that 7% of all the emergency appointments and approvals got the medical exemption. Pharmaceuticals, anything related to medicine, those got the appointments, those got the approvals, and the people were able to come in even during this COVID shutdown. Business reasons, on the other hand, meh, they don’t really like it.

Now, we can kind of venture a guess because at the consulates, they’re constantly seeing business visas and business applications. The sheer number of them is super high, and it’s too easy to make up a business reason. So, typically, they don’t really like it.

[3:42] However, if you take the exact same arguments and you go to the border instead and apply at the border, then the business reasons are actually looked upon and actually allowed. Right? So, that’s super new and interesting, and maybe part of the reason is people at the border don’t really see as many L visas, H visas, and look at business reasons. And they typically only see TN applications, right? Between Canada and Mexico, and those are somewhat of a business application compared to Ls and Hs. And so, they’re more likely to allow them in, right? So, CBP, they typically see students, TN visas, basically basic applications. Now, when they suddenly see an H-1 application and L-1 application, they’re more easily impressed about the business urgency, and so they’re more likely to heed that reason and let them in. The consulates, not so much. If you’re in the pharmaceutical industry, you’re here saving lives, then they’ll grant that exception. Super awesome. 

So, you see this as a major chess move, right? Like, consulates are shut down, nobody can get a visa, and all these lawyers around the country, around the world are saying, “There’s got to be a way, exception, exception, exception.” Test out different types of exceptions. Which one has a higher chance of succeeding? Share the notes, and everybody kind of brings them together and makes more arguments. And if it doesn’t even work at the embassy, then let’s find a different way and get the clients through the border. And all this happened within weeks, within months, and putting it together, and right now it’s only July, and we’re sharing the results up to a specific number. It’s amazing.

[5:09] Alright, the second bit is about when to apply. This also gets really technical, I love it. So, you have an emergency need to go to the U.S., whether it’s a medical reason, a business reason, a national interest reason, a security reason. One of the exemptions. Well, is it a month out or is it a day out? Right? So, the magic number is between [7-10 days]. It’s super cool that they got to these numbers because if it’s longer than that, then the consulate officer who granted you the appointment might say, “Eh, it’s too long, come back later.” Right? We can only grant emergency appointments now. If it’s too short, if it’s within like a day or three days, well, the urgency is already over. I grant you the visa, you buy a plane ticket, you fly over, it’s a 14-hour flight, the need is already over. Right?

So, the magic number is within [seven to ten] days, you need to be in the U.S. for a particular reason. And it’s very, very important that you go, and you need to get this visa. You get the emergency appointment, you get the approval the next day, you have the airline ticket, and then you’re flying, and you’re solving this national need. That is what they’re looking for, and I love how they worked it down to a science.

[6:14] Alright, let’s backtrack a little bit because it’s not as easy as it sounds. Even if you’re a team of doctors, one of the presenters shared this story, super interesting. Ten doctors from Italy needed to come to the U.S. to teach the U.S. doctors how to deal with COVID. Makes sense, perfect timing, medical reason. The consulate denied them their visa and only allowed two in because of the “Hire American. Buy American” policy.

What service are you providing to the United States? What product are you applying to the United States? Why are you so important to need to be in the United States at this moment? Why can’t we hire U.S. workers to solve that need? “Oh, you need to teach us.” Well, the two of you can teach, the rest don’t have to. That’s crazy, but it is the arguments that they made. So you really have to take into consideration the “Buy American” and “Hire American” policy. 

This doesn’t just happen at the USCIS level. I know when every time we file an EB-1 case, every time we file an L-1 case, we’re always making this argument. Our client is going to make America great, and the U.S. actually lacks this particular resource, and they are critically needed. This argument needs to be in every visa application when they’re at the consulate level, even during this time when doctors are coming in to save lives.

[7:23] As a side note, I don’t know if there’s any doctors that realize that the U.S. immigration service and the consulates are doing this thing to protect their jobs, right? I don’t know if any doctors realize that they’re working, they’re trying to save all these lives, and then the immigration agency is preventing other doctors from entering the country at this time to help cure people because, in the name, they are trying to protect their jobs as a doctor. It’s pretty outrageous, it’s far-fetched, it almost seems like a conspiracy theory, but it’s true, and I wonder what they will say. If you’re a doctor, please let us know what your thoughts are.

[7:56] Change number two: You can’t get your visa. Change number one: You couldn’t get to the consulate to get an interview, but let’s say you did go to the interview and get denied, or you can’t even get an appointment, and so you can’t get your visa. What do you do then?

First, if you have a valid visa waiver, right, some countries have it, Taiwan has it, Japan has it, Korea has it, Singapore has it, different countries have visa waiver programs. If they’re able to use your visa waiver, you can directly fly to a nearby country and then go to the border and directly apply with the CBP regarding this emergency. So you’re not entering with a visa, you’re entering with your visa waiver. You can’t get on the plane and directly fly to the US with a visa waiver. No, no planes will carry you, and if they do, they’re taking a huge risk. But it’s still possible, arguably. But generally speaking, if you have a visa waiver, you could directly go to the border and directly ask for permission based on your business reason application, based on your emergency medical reason, whatever the reason it is. If the CBP Border Patrol lets you in, then you can come in. So that is another way around the problem related to the border crossing. 

[9:06] This is change number three. If your country is on lockdown and there are no flights available because your country is in a hotspot and you are required to have a 14-day quarantine before you’re able to enter the country, some of these attorneys were able to do this for their clients. First, have them fly to Mexico, wait for 14 days, and then apply for the O1 or E2 visa. And once they already got that secured, then they go to the border and present it at the border with the emergency reason and get in. Isn’t that crazy? It’s like four different steps, but it is a valid way. And if the clients are able to spend that extra time in a different country, in Mexico, in Canada, then potentially that’s a possibility. You get the visa approved, and then you’re able to enter with all the medical reasons. And if it’s that urgent, the CBP will understand and let you in.

[9:54] Alright, the next change is about the public charge. Basically, if you’re too poor, the US will not give you a green card to allow you in, even if you meet all the other requirements, you’ve waited 10 plus years, if it will cause extreme suffering to a US citizen if you’re not here. It doesn’t matter, you’re too poor, you’re not allowed in. Now, we already did a whole video on this yesterday in-depth, but even today, there are all these attorneys that add additional ideas to what we didn’t talk about yesterday, specifically comparing the public charge issue in the US versus the public charge issue if you’re not in the US.

So, for people who don’t really understand this, in the US, when you apply for a green card, you have to submit this huge form with all these documentation. If you’re overseas, you can submit a simple form. Now, on the face of it, it looks like, “Oh, no-brainer, in the US is hard and overseas is easy.” Not the case. What they have seen is that when you are applying overseas, even though it’s a short form, they have the authority and they have the access to see all your finances because you’re overseas, right? If you’re overseas immigrating to the US, well, all your assets are over there, they have access to that, right, similar to the FBI. Whereas if you are in the US applying, the US agency can’t see overseas documentation. So that actually makes it quite complicated of an analysis between should you apply in the US or should you apply outside of the US.

If you’re applying in the US, yes, you have to present all these documentation and prove that you are not poor and that you are wealthy enough to be independent, and it’s much more reliant on your future in the US, your sponsor in the US, your job in the US, your US tax returns, etc. But if you’re applying overseas, it’s much more about your past, what assets do you have, your relatives, your connections, and if you have nothing there, then they will just assume you will not have anything here. And that’s actually a pretty interesting analysis because they will have access to everything there. That’s point number one. 

[11:45] Point number two is that this idea of public charge also applies to non-immigrant visas. So, everything we talked about, if the US will think you’re too poor, then it won’t give you a green card. Similarly, if you cannot prove that you’re going to be self-sufficient, then they might not even issue you a non-immigrant visa. You can’t get a tourist visa because they’re afraid you come here for three months, but instead of going to Disneyland, you’re going to illegally work at some restaurant, for example. Or you’re getting an H-visa and you’re supposed to come to the US to work, and yes, you have a salary, but that’s still under the poverty guidelines because you’re working in San Francisco and it costs a fortune to have a closet. So based on the public charge rule, they can still deny non-immigrant visas, which is brand new. We’ll see what happens.

[12:27] The next change applies to H1B and PERM. Now, if you know about H1B and PERM, you know that one of the requirements in order to get a work visa is that your employer needs to put up this posting saying, “Hey, everyone, I am hiring somebody from overseas. Just to let you know, if you know anybody who’s better for this job or is able to even apply for this job, let me know. And if that American qualifies, then this foreigner cannot get the job. But just to put a notice out there, I am hiring a foreigner. Everybody should be aware.” Well, where are they supposed to post this? In a normal economy, you post this at a job site, and everybody sees it who’s at the office. But in this time, everybody’s working from home.

So the lawyers and the clients, they’re actually posting this in the dining room because these employers are working from home. So they’re putting it in their dining room because the law requires them to post it wherever they’re working. So their spouse sees it, their kid sees it, but nobody else is really seeing it. But that’s still part of the requirement. Super interesting that they’re doing this. Some attorneys are advising, “Well, we do direct mailing. We do that and we directly email it to all the employees who may be interested in applying for this job or just email blast it to the entire company.” That is another workaround, although we haven’t seen much of that, but it makes sense. I can totally imagine the spouse not being notified, walks in and sees this giant billboard hiring 10 different engineers, thinking it’s like a prank and then pulls them all down like, “No, honey, I need that for my H1B workers”. You should do it. You should totally do it. *sarcasm*

[13:55] Related to the H1B topic at hand, the last change is the H1B electronic filing system that is brand new and implemented this year. That is the big, big topic, and there are some big changes. If you guys didn’t know, before you had to prepare a huge application regarding H1B and file it with the chance of being selected. Now they completely reversed it. You don’t have to submit this giant application. You can submit a mini, tiny application, and then if you get selected, then you can submit your full one. The original plan is to evaluate everything at the end of June 30th and then open it up again and have more people apply if there’s not enough numbers.

Well, USCIS announced that, “Hey, we already got enough applications. We’re not opening it up. No more applications. We’re just going to review these.” AILA is calling BS on that. AILA is trying to pull their own numbers, trying to calculate how many people did apply. We can’t really count on the government’s numbers. We want to double-check them. We want to keep them accountable. In part because of this new application change, you don’t have to build this giant H1B application and file in order to get selected. There’s a belief that there are tons of people, and even fake applications that just submitted and flooded the system. And so now, with USCIS, they just have tons and tons of applications, but a good majority of them are not prepared well or are due to be denied and are not sufficient, and actually maybe even fraudulent or fake. And so that really kills the chances of people actually getting H1Bs.

[15:21] So what we’re afraid of is that 95% or more of the applications that have been filed to USCIS are actually all going to be denied, and therefore, USCIS is only going to approve a small, small, small fraction of the visas that have been selected. And then if they don’t open it up, people don’t apply, and then now this visa category just went from originally over 50,000 now down to about a couple thousand. That will be a huge disaster. Now, I don’t know if that’s the case, but without USCIS opening it up, without being transparent on the numbers, we wouldn’t know. But it makes sense, and that’s why AILA is fighting this.

[15:55] That’s a wrap on all the changes that are happening and what the attorneys at AILA are doing to combat the changes. Watching this video makes me very hopeful, makes me very proud to be an AILA member, seeing all the things that attorneys are doing to fight, and being an attorney myself, yes, I see all these changes and I come up with all these ideas, but how many opportunities do I get to test out every single thing and then, after testing it out, do I get a chance to refine it to make it better? Well, with AILA community, we’re able to share notes and improve each other’s skills, and together we’re able to present and advocate for our clients in a better way. So again, small plug for AILA and a plug for anybody who’s hiring attorneys. You definitely want to hire an AILA attorney. And that’s it. Let’s go to the next session. 

[16:39] Typically, at the end of each AILA session, all the attorneys will stay together. They will ask each other questions, they’ll talk to the speakers, they’ll exchange notes. But since this year’s AILA conference is held virtually, we’re not actually meeting and discussing. So if you have any questions about any particular topics that we covered in this video, please leave a comment below, let us know, email us, call us. We’ll be happy to discuss some of these nuances with you. It’s an extremely exciting time and thank you for joining. 

Take care. Bye-bye.