For decades, business immigration law, and high-skilled business immigration in particular, was something of a transactional practice.  There was little debate that our country benefits when American employers have access to the world’s best and brightest talent, and while there were difficult cases, there was also a substantial level of predictability. Quite simply, software engineers, financial analysts, doctors, and scientists qualified for H-1B status. The biggest challenge, in years when our economy was strong, was whether our clients would be selected for one of the limited H-1B visas.  If you made it over that hurdle, business immigration lawyers could focus much of their time counseling clients on compliance, monitoring deadlines, and answering questions and putting clients at ease.

In the last six months, however, all that has changed. Business immigration lawyers must now devote significant time to explaining to the government exactly why an applicant cannot become a doctor without a degree, and why a person cannot work as a quantitative analyst for a hedge fund designing algorithms to predict stock market movement if he or she hasn’t graduated from college. From “Level 1” H-1B RFEs, to the rescission of the deference memorandum for extensions, to denials of L-1s for managers making six-figure salaries working for Fortune 100 companies, each case is a major battle to be won or lost. To be clear, this is not by accident. Those who oppose immigration fully intend to make the process harder, more time consuming, and more expensive with the hope that employers will either give up or simply won’t bother at all. But this short-sighted view ignores the very real need for talented foreign nationals to grow our economy and ensure global competitiveness.

The good news is that – despite these new challenges – we are winning.  And we are winning a lot.  Despite the huge spike in H-1B RFEs, cases are still getting approved.  Despite the rescission of the deference memorandum, our clients are still getting H-1B, L-1, and O-1 extensions. When cases are denied, we are re-filing, appealing, or identifying new options. Now more than ever, we are advocating for our clients and demanding that the agencies recognize that laws and regulations matter and that the federal government does not have the authority to implement new policies by adjudication.

To navigate this new climate, we must be more creative than ever before.  We must think strategically, consider a wider variety of options, and prepare carefully constructed and well-argued cases.  To do this, we need to draw on many resources, including the exceptional resources of AILA.  A year ago, I began working with Crystal Williams, Daryl Buffenstein, and Bo Cooper on a complete revision of Business Immigration: Law and Practice, and while I did not know it at the time, this revision could not have been more timely.  In preparing the second edition of that book, we focused on not just the law, but on the practical aspects of preparing and filing a case.  We added suggestions and strategies for every kind of business immigration case, and a slew of checklists, arguments, and references.  Our goal with the revision was to teach not just the law itself, but the practice of law.  We wanted to help immigration attorneys make successful arguments and put together successful cases, and Business Immigration: Law & Practice, Second Edition does just that.

While we cannot bring certainty to an uncertain environment, we can equip ourselves as lawyers to put together the strongest cases possible, and in this way put some level of predictability and confidence back into the practice of business immigration law.  For America to continue to compete at the highest level in the global marketplace, we need access to talented foreign nationals.  Our job is to provide that access, and we can and must do our jobs.  The future of our country is at stake.