U.S. immigration policy has changed quickly and substantially in the past two years. While a handful of policies have received the majority of media attention—such as the separation of families at the border—the Department of Homeland Security has implemented numerous, far less visible changes that have dramatically impacted the ability to seek immigration relief in this country. These policy changes have transformed the way in which lawyers and their pro bono clients must navigate the immigration system.

Accounting for Unpredictability

As a result of the exceedingly fast changes to immigration policy, it has become increasingly challenging to predict a client’s likelihood of obtaining certain types of immigration relief or to assess the risks associated with attempting to do so.

For example, in October 2018, the United States Citizenship and Immigration Services (USCIS) began implementing a new policy that mandates USCIS to issue Notices to Appear (NTA) in immigration court removal proceedings upon making an unfavorable decision on an immigration application where the applicant is an undocumented immigrant.  This far-reaching guidance would, for instance, encompass vulnerable undocumented victims of domestic abuse seeking humanitarian-based relief, thus creating a perverse disincentive for them to come forward and cooperate with law enforcement.  In June 2018, the Attorney General’s decision in Matter of A-B- purported to make it harder for immigrants to qualify for asylum based on gang or domestic violence, a decision that was, in turn, blocked in December by a federal judge in Washington, D.C.

Given the frequency of these changes, it is important to fully and carefully inform clients about the unpredictability of current policies, and the greater risks associated with seeking immigration relief.

Exercising Caution

Being thorough when preparing and filing immigration applications has become all the more important.  As of September 2018, USCIS adjudicators are empowered to deny more readily an application without first issuing a Request for Evidence (RFE). In the past, USCIS did not issue RFEs or deny an application unless there was no possibility that the deficiency could be cured by submission of additional evidence. Under the new policy, if all required evidence is not submitted with the original application, USCIS may deny the application without giving the applicant an opportunity to provide additional evidence to cure the deficiency.

This new policy has required us to gather as much supporting evidence as we can from the outset of a case to ensure that our clients’ applications are complete and robust at the time of submission. As a result, it has become even more important for us to build trust with our clients as quickly as possible to make sure that they feel comfortable disclosing all relevant evidence and information—including potentially sensitive facts—before we submit their applications to USCIS.

Understanding Timing

There have been significant changes in processing times for many immigration applications. According to an analysis of USCIS data published by The American Immigration Lawyers Association, the overall average processing time for immigration cases increased by 46 percent over the past two fiscal years, even as case receipt volume appeared to markedly decrease in FY 2018. Being forced to wait even longer to receive decisions on immigration applications can have serious negative consequences for our clients, many of whom have difficulty finding employment or securing necessary benefits during this time.

However, the change in asylum interview scheduling policy represents one example of a processing time that has become significantly shorter for certain applicants, posing its own unique challenges. As of January 29, 2018, USCIS began giving priority to the most recently filed asylum applications when scheduling asylum interviews. This new policy has forced newly-filed asylum claims to be adjudicated rapidly, before the immigrants have sufficient time to prepare their applications, while it has required applicants who filed their applications months or even years before the change in policy to wait even longer to receive their interviews.

The collective effect of these policy changes? Legally immigrating to this country is harder than it used to be. Our pro bono immigration clients, many of whom are fleeing violence in their home countries, have been forced to overcome these new challenges as we work with them to ensure that they receive the benefits they rightfully deserve—no matter how long, difficult, or resource-intensive this fight may be.

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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.