Article 2003-9-7, 9-14
RECENT DEVELOPMENTS IN IMMIGRATION
Part I & II
(Part I)
As we go down 2003's road on immigration, it becomes clear that
the Republicans are split, with the majority wanting more restrictive
immigration laws, and the minority reminding the majority that the
road to the White House in 2004 may be determined by votes in immigrant
communities. President Bush continues in his posture of keeping
clean hands while allowing his attorney general, John Ashcroft,
to run roughshod over immigrant rights, even to the point of pushing
for an expanded version of the U.S.A. Patriot Act, which introduced
daunting curbs on rights including broad powers for wiretapping,
surveillance, and investigation of suspected terrorists, detention
of suspected terrorists for up to seven days without being charged
with criminal or immigration violations, and continued detention
after persons are found removable if the attorney general continues
to certify that there are reasonable grounds to believe that they
are terrorists or involved in terrorist activity. Even now, Ashcroft
is defending the Patriot Act against congressional attacks aimed
at defining "terrorism" more narrowly so that the Act
cannot be used against domestic political protesters, and to restrict
the Act's accessibility to reach sensitive data, including medical
and book borrowing and video rental or purchase records . Patriot
Act II among other provisions would cancel all state law enforcement
consent decrees entered into before September 11, 2001 not related
to racial profiling or other civil rights violations, which previously
limited agencies from gathering information about individuals and
organizations; create a presumption for pretrial detention in all
cases involving suspected terrorism; and take away U.S. citizenship
for an American citizen if, with the intent to relinquish nationality,
he or she becomes a member of, or provides material support to,
a group that the United States has designated as a terrorist organization.
Two bills which were just introduced have received much attention
lately, and will probably continue to be a hot topic when Congress
returns to work after Labor Day. The DREAM (Development, Relief
and Education for Alien Minors) Act of 2003 (S.1545, Orrin Hatch
(R-Utah), Richard Durbin (D-IL)), introduced on July 31, 2003, allows
states to determine residency for in-state tuition programs by amending
the IIRIRA of 1996, and gives conditional residence to children
entering the United States before the age of 16 who have good moral
character and have lived in the United States for five years and
graduated from high school. To lift the conditional residence, the
children within 6 years of graduating from high school must either
1. graduate from a two year college or pursue a master's or higher
degree and be in good standing for two years or graduate from certain
one year occupational programs administered by accredited nonprofit
or public schools; 2. serve in the U.S. armed forces for two years
and if discharged, have an honorable discharge; or 3. perform at
least 910 hours of volunteer community service in a program approved
by the Combined Federal Campaign or Secretary of Department of Homeland
Security. The bill also allows children at least 12 years of age
and enrolled full time in a primary or secondary school to receive
a stay of removal and employment authorization if in the U.S. five
years; and gives permanent residence without the need for a conditional
period to those who meet all the requirements before the law is
enacted.
The Border Security and Improvement Act of 2003 (H.R. 2899, Jim
Kolbe and Jeff Flake (R-AZ)) introduced on July 25, 2003, creates
two new categories of temporary visas, H-4A and H-4B. These categories
would theoretically be mainly used for lower-level service jobs
for which there is a need in the U.S. The H-4A category would be
available for temporary workers after a 14 day recruitment period
in a computerized job registry of the Department of Labor. Sponsoring
companies with 500 employees or more would have to pay $1,000 per
petition and companies with less than 500 workers $500. These sums
would be in addition to an application fee to be later set. The
H-4A category would be able to be used up to six years, during which
individuals could apply for permanent residence through any of the
various ways of immigration available under law. If petitioned for
by the H-4A employer, there would be no numerical limitation to
permanent residence. Neither would the quota be applicable in a
self petitioning option in which H-4A visa holders could self- petition
for permanent residence after the third year of H-4A status. The
H-4B category would be utilized by illegals who entered the United
States prior to August 1, 2003, and have resided illegally and worked
here before that date. The burden of proof would be upon them to
prove these elements of their cases. H-4B visas would be for three
years, be non renewable, and aliens would have to pay a $1,500 fine
plus an application fee to be later set to participate in the program.
They would then be able to change to the H-4A category upon working
3 years in H-4B status and going through the recruitment process
for H-4A workers. They would not be eligible for changes of non-immigrant
status or permanent residence processing until complettion of 3
years in H-4B status. If they opted to self petition for permanent
residence, they would be able to do so only after another three
years in H-4A status. Successful application for H-4B status would
provide relief from final orders of exclusion, deportation and removal.
President Bush indicated that he would support the bill in a visit
to Tucson, Arizona, on August 10th .
Immigrant communities across the country are waiting to see what
and when this Administration will pull a rabbit out of the hat and
pass pro immigration legislation to gain support for the Bush reelection.
Will it be either one of the above two, a resurrection of section
245(i), or some other amnesty plan favoring Hispanics? When will
it happen -- in 2003 or on the eve of election in 2004?
The H-1B category which allows professionals with bachelors degrees
or their equivalent to work in specialized occupations for organizations
on a temporary basis has received heavy criticism over the past
year, and faces an imminent reduction in numbers from 195,000 to
65,000 beginning October 1,2003. Thus far, there does not appear
to be much enthusiasm in Congress to keep the expanded number, even
though most of the H-1B petitions must include a $1,000 surcharge
for the extra numbers. Sitting on President Bush's desk for signature
are the Chile and Singapore Free Trade Agreements which will take
away another 6800 numbers from the H-1B category under the agreement
terms under which professionals from those two countries will be
limited in numbers and will be charged under the H-1B quota. Although
there are many H-1B numbers which will not be used in the 2003 fiscal
year (even in 2002, only 79,100 H-1Bs were counted against the cap
and for the first 3 quarters of 2003, 56,986), there is much question
as to whether the unused numbers can be credited to the 65,000 numbers
for fiscal year 2004. Since the extra numbers were tied in to the
tougher labor condition application (LCA) standards and $1,000 surcharge
of the American Competitiveness and Workforce Improvement Act of
1998 (ACWIA) which would no longer be applicable, how could the
numbers be preserved? Would it be posible that the first 65,000
H-1B visas issued in fiscal year 2004 could be unrestricted while
any unused numbers from previous years credited to 2004 would have
to pass through LCA/surcharge requirements mandated by the expired
ACWIA legislation? In light of the uncertainty, readers are encouraged
to apply for H-1B visas sooner rather than later.
The state of the economy is also driving public opinion challenges
to companies which now use L-1 rather than the H-1B visas to have
their employees work in the U.S. The L-1 category is for intra company
transferees who are either of executive/managerial capacity (L-1A)
or have specialized knowledge of the company's products or processes
(L-1B). The L-1 must have worked for the overseas company which
is either the same company, a division, affiliate, or subsidiary
for one year of the past three years unless the company qualifies
under an L-1 visa blanket. ( A qualifying blanket company has an
office in the United States that has been doing business for one
year or more, has three or more domestic and foreign branches, subsidiaries
or affiliates, and has either obtained approval of petitions for
the least 10 "L" managers, executives, or specialized
knowledge professionals during the past 12 months, has U.S. subsidiaries
or affiliates with combined annual sales of of least $25 million,
or has a U.S. work force of at least 1000 employees. A beneficiary
under blanket "L" only needs to have worked for the company
overseas for six months prior to being transferred to the United
States.) Of primary concern are companies that bring in their employees
from overseas and outsource them to other companies in the U.S.
This is especially troublesome in the information technology field.
Two bills have recently been introduced, one to prevent outsourcing
to clients, and the second to reduce the number of L-1s to 35,000
annually (there is no limit at present)and have L-1s go through
a labor condition application type processing to ensure that companies
pay them prevailing wages and not undercut U.S. workers.
It can be seen, however, that this is a losing battle, and that
with increasingly stiff opposition to bringing foreign workers into
the country, companies with sufficient resources will in the next
decade no longer be worrying about H-1Bs or L-1s as they will be
outsourcing most professional service jobs overseas to countries
with English-speaking populations. India stands to benefit the most,
because of its educated English-speaking population. It is also
a country with relative political stability and accepting of low
wages. Already companies such as JP Morgan Chase, Hewlett-Packard,
American Express, and Novartis have set up operations in India.
Statistics are showing that the BCIS is slowing up processing and
giving many more denials than in the past. Eduardo Aguirre, the
director of BCIS, has acknowledged that citizenship applications
across the country are taking one year or more. It has also been
reported that the Department of Homeland Security has denied 11%
more visa/green card applications this year than last and that the
number of applications approved has dropped 22% in this year, leaving
37% more applications pending.
(Part II)
William Yates, acting associate director for operations of the BCIS,
in a memorandum dated August 4, 2003, set out BCIS policy on when
individuals being sponsored for labor certification based immigration
can change jobs and still maintain benefits under labor certification
applications filed by former employers. Under the American Competitiveness
in the 21st Century Act (AC-21), aliens whose I-485 adjustment of
status to permanent residence applications have been pending for
180 days are allowed to keep their cases for permanent residence
so long as they are moving to the same or a similar occupation.
Since the passage of AC-21 on October 17, 2000, there have been
questions as to whether the portability provision includes concurrent
I-140/I-485 filings, whether the employee must have been working
with the petitioner of the labor certification based case, whether
the benefit would attach where the employer withdraws the petition,
and whether the benefit is restricted by the wage level and location
of the subsequent job. Although all questions were not answered
in the memo, it did appear to give insights into BCIS thinking.
The memo spoke only of AC-21 portability of the I-140 after I-140
approval, therefore appearing to exclude concurrent filings from
the 180 day rule until after the I-140 petition has been approved.
This stance unfortunately at present appears to be unfair in many
cases as it has been our experience that the BCIS has not been keeping
to the I-140 timeline for adjudications in cases of concurrent filings,
and we have I-140s pending far past the service center processing
times. The memo stated that where the I-140 has been approved and
the approval withdrawn by the employer before the I-485 has been
pending for 180 days, there is no portability. The memo did note
that there is no requirement that an alien be working in the original
position to gain the benefits of portability -- however that the
employment offer must have been bonafide and that the employer must
have had the intent at the time of I-140 approval to employ the
alien.
There appears to be good news on the way for the 120,000 or so
asylum adjustment candidates who must fit within the annual quota
of 10,000 asylum adjustments. The BCIS is being sued in a class-action,
Ngwanyia vs. Ashcroft, to ensure that the BCIS uses up all of its
10,000 numbers per year. The case is also asking for the distribution
of 22,000 unused asylum adjustment numbers from other years to cut
into the current backlog. Because of this, the Nebraska Service
Center has taken personnel from the employment based adjustment
section to process more asylum adjustment cases for this current
fiscal year. The NSC recently released a statement that it is processing
such cases filed by November 16, 1999. There is also a bill pending
in Congress to eliminate the 10,000 annual quota.
Beginning on June 1, 2003, the BCIS changed its contact procedures
so that members of the public could no longer access the service
centers directly. Through its establishment of the National Customer
Service Center (NCSC), BCIS has centralized all calls across the
nation through its toll-free number, 1-800-375-5283. Reviews to
this date on the new system have been negative. In essence, the
BCIS has interposed a middleman between the public and service center
personnel who might be able to give an inquirer a relevant answer.
The call center's current function appears to be screening out calls,
informing the public that it is too soon to inquire or that it is
too soon from the last inquiry, and sending correspondence to the
public on case status without resolving the situation with the appropriate
service center. Under its present rules of operation, its representatives
will take referrals where customers mailed applications to a service
center over 30 days ago and have not received receipt notices; where
the service center mailed notices or documents to the customer more
than 30 days ago and the customer has not received them; or if the
case is outside the service center's current processing time for
that type of case and the customer has not received an update within
the past 60 days or an earlier referral has not been answered within
the referral processing time frame of 30 days. Other complaints
concerning the call center are its rigid preoccupation with having
the inquirer give much information concerning identity and the case
before actually accessing the database (especially galling to law
firms which have multiple inquiries where previously an identification
of the law firm and service center receipt number was sufficient
to start the inquiry process), and the status letter sent back to
the inquirer which does not identify the subject name of the case
(again frustrating to law firms with multiple inquiries whose computer
databases do not include BCIS receipt numbers). The NCSC while attempting
to save time and money in freeing up service center personnel for
other duties, has so far failed in its primary goal of service to
the public.
A sea change will soon come about in the way that the BCIS handles
family-based adjustment of status cases. At present, with the exception
of individuals residing in the jurisdiction of the Baltimore district
office of BCIS, all family based adjustment cases must be filed
at and processed with the local district offices of BCIS. Because
of the high emphasis on security checks and the pulling away of
adjudicating officers from the adjustment sections to handle special
registration of persons from 25 countries, mostly in the Middle
East, the length of time for adjudications nationwide has ballooned.
According to latest reports from the American Immigration Lawyers
Association, district office adjustment of status cases are taking
365-400 days to process in Honolulu, 720+ days in New York, 545
days in Dallas and 480 days in Miami. The BCIS will soon be transferring
the filing and processing of family based cases to the National
Benefits Center (NBC), formerly the Missouri Service Center. Plans
call for the NBC to begin the process approximately 60 days from
publication in the Federal Register and such publication should
be in the very near future. Preliminary work is already being done
to transfer over functions, and the BCIS New York district has already
announced that it will no longer schedule most family based adjustment
cases in anticipation of the transfer of processing functions to
NBC. It is anticipated that all preliminary processing will be handled
by the NBC, and the file then sent back to the local offices for
interview. Readers should note that the BCIS regional service centers
already handle processing of naturalization cases with interview
notices transmitted by the service centers for appearance of naturalization
applicants at the local district offices. Such appointments are
of course scheduled in coordination with the workload of the district
offices. However, the freeing up of local office personnel should
speed the timing of interviews at the local offices and lead to
an improvement of BCIS service. As opposed to the above discussed
NCSC, preprocessing of adjustment of status cases involves almost
no customer contact.
Appointment times at U.S. consulates and embassies for visas in
the future will stretch out longer in the name of security. As of
August 1, 2003, all individuals needing visas with rare exceptions
are mandated to be interviewed prior to visa issuance. Previously
many individuals obtained visas without seeing an American consular
officer through using consular drop-off boxes or employing companies
which handled the entire visa process for fees. Because of the current
emphasis on interviews, much more consular time will be spent in
setting up interviews, and both nonimmigrant and immigrant visa
processing delays can be expected. The emphasis on security is also
reaching visitors to the U.S. from visa waiver countries (the 27
countries mostly in western Europe) whose nationals do not require
visas to enter the U.S. as visitors for business or pleasure. As
of October 1, 2003, aliens from these countries were supposed to
have machine readable passports to enter the U.S. (Belgian nationals
must have had machine readable passports as of May 15, 2003, to
enter because of the number of stolen passports reported by Belgium.)
Those without machine readable passports would have had to obtain
visas prior to entering the States. However in the recent faceoff
between the Department of State and Department of Homeland Security
(DHS), DHS agreed to a one year waiver of the rule on condition
that each government provide written assurances that machine-readable
passports would be available by October 2004. But even with the
1 year waiver, U.S. consulates and embassies in many countries will
become crowded with visa seekers. The situation is further exacerbated
by the recent suspension of the transit without visa (TWOV) program
on August 2, 2003, which will force all passengers normally only
transiting the U.S. and stopping in one or two airports before changing
flights to obtain visas for this purpose. According to the State
Department, approximately 380,000 passengers arrived in the U.S.
in 2002 under the TWOV program. Travel delays should be contemplated
by all individuals in the United States on temporary visas who wish
to travel overseas and require new visas to return. For example,
individuals working for companies or organizations under H-1B or
L-1 statuses or students returning home for holidays should contemplate
the risk of extended delays in visa processing before making the
trip. One of the stated exceptions to mandatory interview is for
applicants who within 12 months of their previous visas are seeking
reissuance of the visa in the same category at the consular post
of the individual's usual residence, and whom consular officers
have no reason to suspect of noncompliance with U.S. immigration
laws and regulations. However, these applicants should be aware
that such a qualifying case in the applicant's mind may not be the
same in that of a consular officer. Even if the case is qualifying,
the backlog of other cases may delay visa issuance. An alternative
to applying back home for this class of individuals would be requesting
a visa revalidation through the Department of State in Washington
D.C. prior to overseas travel.
These are some of the current events in the field of immigration.
The rest of this congressional session after Labor Day may produce
important changes to the law in light of its proximity to next year's
national elections. We will keep you posted.
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