When President Biden took office, I assumed there would be fewer lawsuits against the government’s immigration policies and that, even as a seasoned immigration attorney with a healthy litigation practice, I would spend less time in court. I prepared to shift the bulk of my time to helping my corporate clients with more routine immigration case work.
I was wrong. While the Biden administration has reversed some Trump immigration policies and regulations, in court it continues to defend its authority to restrict certain foreign nationals from the U.S. (i.e., travel bans), it continues to defend the lengthy delays in processing times for work authorization and interviews at U.S. Consulates, and to defend its narrow interpretations of visa eligibility that impede high-skilled immigration.
In the past year, I’ve won several high-profile and important cases against the government, including successfully challenging the State Department’s visa suspension policies and overturning agency interpretation of “specialty occupation” jobs, the primary visa category for high-skilled foreign workers. By challenging the government on issues that are critical to U.S. companies and their economic competitiveness, we achieved significant progress for the U.S. immigration system and for U.S. businesses and thousands of their foreign national employees. For instance, our victory against the visa suspension policy paved the way for the State Department to announce in November that the new rules requiring foreign travelers to be vaccinated to enter the U.S. would not prevent them from applying for or obtaining a visa at a U.S. consulate. In another case, we won a decades-long argument over how the government interpreted the job role of “market research analyst” for purposes of visa eligibility. The win will hopefully broaden eligibility for many “analyst” roles, including computer analysts that most U.S. employers depend on to fill tech jobs.
The Biden administration has appealed many of these recent cases, so employers should not expect the system to become easier to navigate anytime soon. As global mobility resumes and pandemic-related pressure on the immigration system intensifies, litigation can be an important tool in an employer’s arsenal to overcome restrictive policies.
And in this extremely tight labor market with rapid wage inflation, reflecting the continuing workforce crisis and immigration bottlenecks, employers should consider every available legal strategy to challenge immigration policies that are restricting them from filling critical vacancies. Fighting for employees can also give companies a hiring and retention advantage—the Great Resignation is less likely to sweep through workforces with a strong culture of loyalty, and being willing to go to bat for your employees sends a powerful message of support to your workforce.
Understandably, many companies instinctively shy away from litigating against the government, in part because of concerns about reputational risk—after all what business wants to make headlines for suing the United States?
However, there are tools to protect a company’s need for discretion while advocating for its employees. Not all cases need to make headlines. In fact, most are resolved with no public attention. And the desire to stay out of the immigration spotlight must be balanced with the need to show employees that the company is fighting for them and their colleagues. Executives want to and need to stand up for their workforce, and asking the government to treat their employees fairly is one way a company can show that they value all employees and will look out for their rights.
While I routinely rely on creative tactics to keep clients out of court—from tapping the insight of my firm’s Government Strategies team in Washington to carefully crafting National Interest Exceptions to facilitate mobility in individual cases—sometimes litigation is necessary. It may become an even more important tool in reforming a broken immigration system as we grapple with the fallout of staffing shortages, pandemic backlogs and Congressional inaction. Employers represented by experienced litigators should not hesitate to challenge unfairly restrictive policies to protect the rights of employees and the financial interests of their businesses.
Jeff Joseph is a Partner in the Denver office of BAL. With more than two decades of experience advising companies on immigration law and policy, he is a well-known immigration advocate and currently serves as Treasurer on the Executive Committee of the American Immigration Lawyers Association and is nationally ranked in Chambers and Partners. He is bilingual in English and Spanish, and has given more than 200 lectures on immigration law.