Article 2004-01-11
IMMIGRATION NOTES FOR THE HOLIDAYS (Part II)

Quotas determine to a great extent when individuals will obtain immigration benefits. They also affect strategies of when or even whether to file cases. For example, even if there is an easy path to immigration, an individual might not take that path or only use it as a backup if the waiting time is inordinately long and there is an alternative route, albeit harder and more uncertain. The Department of State (DOS) in its immigrant visa projections sees 2003 trends continuing for fiscal year 2004 (October 1, 2003-September 30, 2004). DOS predicts that family based cases will continue to move forward as well as employment based cases except for the possibility that the EW-3 cases (those employment based cases requiring less than two years of experience to qualify under) will retrogress in the summer months. Beginning October 1, 2003, the H-1B cap quota has been reduced from 195,000 to 65,000 until September 30, 2004, barring congressional action. A positive effect of the quota change is the wiping out of many facets of restrictions put upon the H-1B program by the American Competitiveness and Workforce Improvement Act of 1998 including the $1,000 surcharge for all new H-1B's. However, the cutback has engendered much question and worry as to when the cap will be reached. Most guesses are that the cap numbers will be exhausted by March 2004. The actual number of cap visas is also in question, as it is widely known that recently signed free trade agreements with Chile and Singapore have reduced the number to 58,200, and there is speculation that the number is much less as there were approximately 22,000 cap H-1B's carried over from last year. In answer to concerns that the H-1B cap is nearly exhausted, William Yates, Deputy Director, CIS, recently responded to AILA that CIS was not near the cap at this time; that it is theoretically possible for the cap to be reached at the end of the calendar year, but such would necessitate CIS receiving record levels of filings; and that he still believed that the cap would be reached in the spring. The CIS on the subject of conditional asylees (from population control policy cases) becoming permanent asylees has given the date of April 19, 2000, as the current entitlement date, but notes that there are currently approximately 7000 conditional asylees on the waiting list. The quota is only 1000 per year, which means that those granted conditional asylums in 2003 can expect to wait seven years to become permanent asylees unless the quota is increased.

The culture of enforcement in CIS received a big boost with headquarters decision to allow service centers to issue notices to appear (NTAs) as of October 1, 2003. (NTAs notify individuals that they now fall under removal proceedings, giving notice of charges against them, and giving a date and time and location for a hearing to commence before an immigration court. ) The NTA Service Center memo dated September 12, 2003, stated that the first phase will concentrate on violations by aliens that are a threat to public security or national security, fraud schemes, temporary protected status (TPS) denial or withdrawal. Vermont Service Center representatives on October 13, 2003, acknowledged their authority to issue NTAs, stated that they had no intent to issue NTAs to spouses of U.S. citizens who sneaked into the country, but that they could issue NTAs to anyone. They further informed New York AILA members that they would focus on areas of concern - aggravated felons, public safety/national security threats or fraud schemes and would also exercise prosecutorial discretion in accordance with former INS Commissioner Doris Meissner's memo on the subject. There are also recent reports that the CIS in suspect I-140 employment based fraud cases has been sending cases to ICE to interview the employers, and that ICE has sometimes been referring cases to the FBI. ICE itself has been concentrating on expanding its ability to detain aliens at various stages of removal proceedings. Under its Hartford pilot project which ended at the end of September, it was detaining aliens who had lost their cases in the immigration court even if they still had the right to appeal to the Board of Immigration Appeals. Now it is considering electronically tethering individuals with negative immigration court orders in the same manner that many criminals with minor crimes have their movements monitored by electronic bracelets. It also appears that DHS has become even more concerned over this subject of individuals with final orders of immigration judges who either never appealed or whose appeals were denied as the New York Daily News on October 6, 2003, reported that CIS is luring such people into district offices with letters that the individuals think are for routine benefits, then detaining them and shipping them out without allowing them to contact their attorneys.

A piece of legislation to keep eyes on is the Clear Law Enforcement for Criminal and Alien Removal Act of 2003 (CLEAR), which would allow state and local law-enforcement agencies to enforce immigration laws where the aliens encountered are not committing crimes. Passage of this legislation would discourage most illegal aliens from reporting crimes to law enforcement personnel. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), government entities cannot prevent their employees from reporting undocumented aliens to immigration officials. However, there are at present seven cities which are still defying the IIRIRA, and in which law enforcement officials will not report undocumented status - New York, Philadelphia, Chicago, Houston, Los Angeles, San Diego and San Francisco. CLEAR is an attempt to expand on IIRIRA and to legitimize law enforcement's presence on matters involving immigration. It should further be noted that as part of the compromise to secure California representative Dana Rohrabacher's vote to pass the medicare legislation signed last week to give the elderly prescription drug benefits, House Speaker Dennis Hastert agreed to allow a vote next year on a bill that Rohrabacher plans to introduce requiring hospitals to report illegal status to the authorities. The House Speaker refused to back down upon his promise even in the face of furious reaction from the Congressional Hispanic Caucus.

In this same vein of restrictionist activities, readers may know that the Department of Justice imposed changes at the Board of Immigration Appeals in 2002 encouraging one member review of most cases instead of the traditional three member review, and dismissing members of the Board seen as pro-immigrant. Such changes were billed as simple procedural matters, but the American Bar Association on October 13, 2003, called upon the Department of Justice to discard such changes and reinstate prior procedures as its study had concluded that these changes were having a serious and sweeping effect upon the administration of justice. The ABA study found that 10% percent of appeals were granted as opposed to 25% before the changes, and that appeals to the federal courts had tripled from 5% in 2001 to 15% in 2002. The ABA further noted that the Second, Ninth, Fifth and Third circuits have been particularly hard hit. The Second Circuit has jurisdiction over the states of New York, Connecticut and Vermont; the Ninth over Alaska, Arizona, California , Hawaii, Idaho, Montana, Oregon, Washington; the Fifth over Louisiana, Mississippi, and Texas; and the Third over Delaware, New Jersey and Pennsylvania.

The DHS is adding another chapter on to the government's attempts in recent years to make foreign students pay an additional fee to become F, J, or M students, putting out a proposed rule on October 27, 2003, to collect $100 from each such individual before they apply for visas abroad or change status to such category here in the United States. In past years, the State Department refused to allow its consulates and embassies to be used to collect such fees on the reasoning that such would create diplomatic problems with the governments of those countries and provoke a tit-for-tat response. Under the proposal, the fee would be imposed before the school acceptance form would be considered acceptable for visa issuance or change of status in applications to consulates/embassies or the CIS. The $100 fee amount would be paid to a bank which would then issue a receipt and the receipt would have to accompany the school acceptance form.

Finally on the labor certification front, the current chief of the Department of Labor's Division of Foreign Labor Certifications, William L. Carlson, issued a memorandum on November 20, 2003, titled "Processing of RIR Requests for Certifying Officers" which acknowledges that changes must be made in order to finish the RIR cases quickly so that the PERM program can come into effect. (RIR, or reduction in recruitment labor certifications, utilize advertising and other recruitment efforts prior to labor certification application submittal and request a waiver of further recruitment efforts as opposed to traditional labor certifications in which barebones applications are sent to the state workforce agency (SWA) and advertising and other recruitment is done when the SWA reaches the case in its backlog; PERM, or Program Electronic Review Management System, does away with the SWAs as only a summary of the recruitment efforts on two forms are submitted directly to the regional offices of the Labor Department). The Labor Department had earlier indicated that when PERM is implemented, it does not want to process cases on two tracks - PERM through its regional offices and RIR/traditional labor certification applications through SWAs. To this effect, the memo lays out steps for certifying officers to follow in RIR adjudications. Initially, certifying officers can deny requests for RIR treatment on initial review if the applications are not complete and in compliance, especially if layoffs by the employer are not adequately addressed. Certifying officers at this stage can issue notices of findings intending to deny labor certifications as appropriate. If the applications are complete and in compliance and the requirements are properly a bachelor's degree plus three years of experience or a masters degree plus six months of experience, the certifying officer is to certify the application. If these are not the requirements, and the case is complete and in compliance, the certifying officer will look at the level of recruitment and detail provided in the recruitment report and if satisfied, certify the application. For any remaining applications, the certifying officer is to send a letter with three options: withdraw the case completely; withdraw the RIR request, remand the case to the state workforce agency, and put it in line according to the priority date or upon specific request according to the remand date; or do a one day retest of the job market, which requirement can also be met by showing advertising done by the employer within the past six months. The memo is encouraging as it shows that the Department of Labor is attempting to clear its backlog of RIR cases in a fair manner.

The above summarizes some of the major issues faced by agencies dealing with immigration in the past few months. In our next article, we will focus upon specific operational news from the agencies which may be helpful in individual cases.

 

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