IMMIGRATION IN THE EARLY FALL (Part II)
By Alan Lee, Esq.†‡
6. With the current rate of usage of H-1B numbers for fiscal year
2005, I will be greatly surprised if the 58,200 H-1B cap numbers
along with the remnants of the 6800 Singapore/Chile Free Trade Agreement
numbers are not yet exhausted by the time that you are reading this
article. The U.S.C.I.S. informed the American Immigration Lawyers
Association around September 20, 2004, that the H-1B quota was likely
to stay open for "several" more weeks because of the recapture
process for unused Singapore/Chile Free Trade numbers. With the
current rates of usage (approximately 6000 per week for two weeks
ending August 18, 2004), the 58,200 would most likely be exhausted
by September 30th and the unused Singapore/Chile numbers within
the first seven days of October (Singapore/Chile numbers can only
be used in the first 45 days of the new fiscal year). It appears
clear that no action to increase the H-1B cap quota will come before
the presidential elections as neither political party wishes to
be perceived in favor of admitting more aliens to the United States
when the economic job forecast is still murky for many Americans
-- however, the parties should agree to act to increase the cap
quota (formerly 195,000) after the political season is over as H-1
cap limitations ultimately hurt U.S. businesses' ability to gain
needed skilled workers and increase business, while at the same
time promoting the flight of jobs to overseas locations.
7. U.S.C.I.S.'s new e-filing system is again in the news, but not
for the reasons that the agency would like to see. One paralegal
complained in the immigration website ILW.COM that he/she had been
charged multiple times for the same I-90 (Application to Replace
Permanent Resident Card) e-mail filing and that the agency would
not give back the overcharges. In the paralegal's encounter, he/she
had typed the application, and hit the finish button. However, no
confirmation receipt appeared. Neither did the application forms
for the firm's client to bring to the Application Support Center
(ASC) so that the C.I.S. could take the necessary biometric information.
He/she thereupon hit the finish button two more times, but nothing
came out. The credit card was charged each time that the finish
button was pushed and the CIS refused to delete or refund the charges
on grounds that with each click the button had produced a completed
application on C.I.S.' end. This is apparently an unforgiving system,
and experiences as related here will cause many potential users
to shun the e-filing process in favor of submitting paper applications
the old-fashioned way. The U.S.C.I.S. obviously has a long way to
go to improve customer relations where e-filing is concerned. The
agency just released further instructions, "Avoiding Common
E-Filing Mistakes", attempting to clarify common mistakes including
submitting an application more than once, but not relenting in saying
that "Every time you successfully submit an e-mail filing application,
your credit card or bank account is charged for that application
fee. U.S.C.I.S. is NOT able to refund payments caused by customer
error." The instructional is by and large confusing in itself
and the solutions presented so time-delayed that individuals who
e-file because of narrow deadlines (one of the reasons suggested
by U.S.C.I.S. for using the e-filing system) would be caught in
a quandary of sending a paper application by FedEx or other express
mail service if there is still sufficient time for refilling to
ensure that the deadline is met or pressing the finish button again.
These are certainly not appealing solutions. The U.S.C.I.S. should,
as the wronged paralegal suggested, have a mechanism for canceling
an application when the forms are not generated or for a refund
of multiple fees when it is brought to C.I.S.' attention. This is
simple logic if the agency wishes increased use of its e-filing
system.
8. The Senate missed an opportunity on September 23, 2004, to benefit
the asylee class through allowing vote on an amendment which was
to be introduced to eliminate backlogs in applying for permanent
asylum, and adjustment of status to permanent residence from permanent
asylum. Asylees who qualify through a well-founded fear of persecution
or past persecution through family planning policies of their home
countries are given conditional asylum status. The annual quota
to move from conditional asylum to permanent asylum is capped at
1000 per year. Currently only those who received conditional asylum
on or before April 19, 2000, and whose identity, background, and
security checks have been updated and cleared have moved on to permanent
asylum. As of September, 2003, the Executive Office of Immigration
Review stated that there were more than 7000 conditional asylees
on the waiting list. That of course translates out to a seven year
wait. Permanent asylees must wait one year in that status before
being allowed to submit applications for permanent residence. A
10,000 per year cap is placed upon adjustment of status to permanent
residence from asylee status. The U.S.C.I.S. estimated that as of
March 1, 2004, approximately 160,000 asylee adjustment applications
were pending, and that applications filed between August 5, 2003-December
8, 2003 would be processed between October 1, 2014-September 30,
2015. Currently only those asylees who applied for adjustment of
status by November 16, 1999, and have had all their security checks
completed are able to move forward to permanent residence. Senator
Sam Brownback (R-KS) was prepared to introduce an amendment to the
Foreign Operations Bill on September 23, 2004, that would have eliminated
the backlogs in the above situations. However, he was forced to
reconsider his action under threat of Republican Senate Judiciary
Committee members Orrin Hatch (R-UT), Chuck Grassley (R-IA), Jon
Kyl (R-AZ), Jeff Sessions (R-AL), Saxbe Chambliss (R-Ga), and John
Cornyn (R-TX) that they would add provisions to heighten the burden
of proof for asylees to win their cases; narrow the period of time
from one year to 90 days during which individuals would be able
to file for asylum after entering the United States, and eliminate
the ability of applicants claiming asylum based on mixed motives
to gain relief. It is difficult to ascertain the reasoning behind
keeping such a restrictive backlog system as it is unfair to keep
asylees in limbo status for as long as they are waiting now and
as forecast for the future. The extended waiting periods obviously
have nothing to do with national security as the asylees' security
clearances do not require long periods of time to complete and they
are already in the United States amongst us anyway.
9. The Republican Congress introduced its bill to fulfill the recommendations
of the 9/11 Commission on how to best protect the country, H.R.10,
the 9/11 Recommendations Implementation Act, on September 24th.
Unfortunately the Republicans have turned their 542 page bill into
an omnibus wish list fulfillment package for the U.S.C.I.S. and
U.S.I.C.E.. Its immigration provisions would subject all persons
entering the U.S. without inspection to the expedited removal procedure
unless they could prove that they were present in the U.S. for more
than five years. In an expedited removal procedure, no relief can
be given except asylum or persecution based reliefs of withholding
of removal and the Convention Against Torture with higher standards
for grant - however, current rules dictate that asylum requests
must be made less than one year from date of entry and the legislation
and does not speak of the latter two persecution related reliefs.
H.R.10 would heighten the need for corroboration in immigration
cases and provide that federal courts could not reverse an immigration
court's finding on the availability of corroborating evidence unless
the court found that a reasonable adjudicator was compelled to conclude
that corroborating evidence was unavailable. The bill would allow
the Department of State to revoke a visa once the individual is
in the United States -- currently the Department has no authority
once an individual has reached the shores of this country. It would
further allow the Department of Homeland Security to revoke an immigrant
visa petition even if no previous notice was given to the individual
before embarking on a journey to the U.S. -- a specific targeting
of our successful Firstland International case in which the Second
Circuit Court of Appeals held on August 2, 2004, that there was
no statutory authority for the government to revoke an immigrant
visa petition once an individual had embarked on his/her journey
to this country unless prior notice of revocation was given. H.R.10
further eliminates the right of habeas corpus review of immigration
decisions for criminal aliens, a repudiation of the Supreme Court's
decision in INS v. St. Cyr that the writ of habeas corpus cannot
be suspended in these cases unless there is specific language in
a statute by Congress so stating. For cases in the federal courts,
H.R.10 also provides that stays of deportation can only be granted
in extraordinary cases where aliens are able to prove by clear and
convincing evidence that the entry or execution of the removal order
is prohibited as a matter of law, leading to the abysmal probability
that the government will attempt to deport most individuals in the
future while their cases are pending. These provisions have little
if anything to do with national security and represent an all-out
effort by anti-immigration legislators to further crackdown on immigration
to this country despite an acknowledged need for large-scale immigration
to meet the future needs of the country as recently expounded upon
in Federal Reserve Chairman Alan Greenspan's speech in August, 2004,
at a Federal Reserve Bank symposium that "...to fully offset
the effects of the decline in fertility, immigration would have
to be much larger than almost all current projections assume. "
Readers are urged to contact their congressmen and senators to express
opposition to this piece of legislation.
10. With due respect to border security, I again point now this
country's need for friends in the world and to favorably influence
young minds that will one day play leading roles in their countries.
In an article that I wrote shortly after the attacks of 9/11, "Immigration
and the Economy -- Where Do We Go From Here?", I warned of
the dangers of ham- fisted attempts to restrict the numbers of students
coming to this country -- that our universities and colleges have
come to depend upon foreign students as a needed source of funds
to keep the schools running in the black and that, in the academic
year 1999-2000, 500,000 international students and their dependents
contributed an estimated $12.3 billion to the U.S. economy. This
amount exceeded the annual budgets of at least four agencies of
the federal government. Besides the Social Security Administration's
attempt to make it harder for students to live here decently in
the time they are here, a hardening attitude against foreign students
is perceived in long waiting times at the consulates for visas,
the uncertainty of obtaining such visas, escalation of denial rates,
and difficulties in returning to the U.S. from trips abroad by such
students. These along with a common perception among many foreign
countries that the U.S. is now a warmongering nation are all contributing
to the idea that America is not the country in which to study. Adding
to the factors is the feeling of insult that the governments of
foreign countries feel at having their citizens forced to pay the
$100 non-refundable SEVIS fee to even obtain an I-20 or DS-2019
school acceptance form to begin the process of applying to study
in the States. $100 is a lot of money to persons in most countries
of the world, and the Department of State was so afraid of the diplomatic
repercussions that it refused to be the conduit through which SEVIS
fees could be paid. To make this country the leader again in attracting
foreign students, we should make the SEVIS fee refundable if applicants
cannot obtain their desired visas and take other steps to make the
foreign students feel more welcome once they are here. If the 9/11
attacks have turned us so defensive that our economy will suffer
and we will lose the opportunity to favorably influence future leaders
of foreign lands, the terrorists will already have won.
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