Article 2004-02-29
Highlights and Lowlights of 2003, Part II
Detention issues in 2003 rate an"F" from the Supreme
Court to Attorney General Ashcroft to "ICE". The Supreme
Court in Demore v Kim decided that criminal aliens could be detained
during the entire course of their removal proceedings regardless
of whether they posed a threat to abscond or to public safety. The
Attorney General in Matter of D-J- through his control of the Board
of Immigration Appeals found a way to allow ICE to detain aliens
throughout proceedings who entered illegally by sea on the rationale
that such illegals posed a threat to national security as Haiti,
the applicant's homeland, was supposedly being used as a staging
point for Pakistanis, Palestinians and others attempting to illegally
migrate into the United States. It is notable that the vast majority
of Haitians are black and given such hostile treatment while Cubans
receive favored treatment if they make it to the shores of the United
States. Haitian community activists along with local and national
immigration advocates called Ashcroft's decision a senseless, baseless
and racist policy aimed at keeping Haitians out of the United States.
ICE became emboldened by the above to the point that it now believes
that it has authority along with CBP to make initial bond determinations
and even to overturn an immigration judge's decision on bond. It
has also tried out new strategies such as detaining persons who
lose their merits hearings even if they have the right to appeal
(Hartford pilot project), has reportedly lured individuals with
final orders of deportation to local CIS offices under the guise
that they would receive immigration benefits, and is now considering
the use of electronic tethering of individuals who have lost their
merits hearings in the same way that many criminals with minor charges
are confined in their homes.
The new U.S. VISIT system (Visitor and Immigrant Status Indicator
Technology) which was put into effect on January 5, 2004, (at 115
airports and 14 major seaports for entry and 1 airport (Baltimore)
and 1 seaport (Miami) for exit) taking biometric information on
all visitors and permanent residents entering the country, receives
an "I" because of its newness with a lean towards the
positive because of its promise. The DHS believes that such a system
will only add 15-20 seconds to the inspection process which if true
would give the country greater security without absolutely clogging
the processes of entry and exit of this country. The concept is
good, but limited in effect as it will not stop attacks by persons
unknown to the authorities who are willing to sacrifice their own
lives in the process; and at this time, if we liken it to a shield,
it is only one-quarter built. Visitors by and large will be allowed
to leave the United States for most of 2004 without a biometric
checkout at most airports and seaports. Neither land border (Mexico
or Canada) is required by Congress to be covered by biometrics until
at least the end of 2004. The major flaw at this time is its non-applicability
to the 27 visa free countries (mostly from Europe) which are part
of the visa waiver program and include countries with large Muslim
populations, e.g. France, UK, and Germany. The threat perception
from two of them was deemed so high that the Bush administration
cancelled many flights from France and the UK to the United States
over the Christmas and New Year's holidays. Security was supposed
to have been enhanced with the 27 countries by requiring their nationals
to obtain machine readable passports by October 2003 to gain entry
to the country, but that date was postponed until October 2004 (except
for nationals of the Netherlands who have been required to obtain
machine readable passports since May 2003 because of the number
of stolen passports reported in the country). Still, US VISIT is
a step in the right direction if the processing times for inspection
hold up to DHS' projections.
Consular processing for visas, both non-immigrant and immigrant,
tried to strike a balance between the need for additional security
against people's needs to travel in and out of the U.S. expeditiously.
Because of the enhanced security clearances required to process
visas, the government received a black eye earlier in the year as
even prominent artists, writers and scientists seemed to wait interminably
for visa clearances. Some coming to the U.S. for recognized awards
shows had to cancel because their visas could not be processed on
time. Persons waiting for immigrant visas sometimes had to wait
up to a year for their security clearances to be processed. The
government did not help the process by throwing in an all inclusive
Technology Alert List (TAL) in August 2002 which included fields
as non-cutting edge as architecture, geography, housing and urban
design . (The TAL's purposes are to maintain U.S. technological
superiority and to render inadmissible aliens who may be seeking
to enter the U.S. to violate U.S. laws prohibiting the export of
goods, technology, or sensitive information from the U.S.). Fortunately
the situation appears to have become better near the last part of
the year, and so we assign consular processing a grade of "C".
However, there are still worries as to future delays in consular
processing because of the insistence of the State Department in
August 2003 to require personal interviews in almost all visa applications
and because of the double layer of visa adjudications now made necessary
by the memorandum of understanding entered into by DHS and the Department
of State in September 2003 giving DHS oversight authority over visa
issuances. Also looming in the future is the specter that many visa
waiver country nationals will not be able to obtain machine readable
passports by October 2004, and will be forced to queue up for visas
at the U.S. consulates and embassies. Persons leaving the United
States who need to pick up visas in their home countries are still
advised to expect delays in visa processing.
Finally other important factors not related to the agencies themselves
have had an impact on the overall immigration picture and the nation
in 2003. The United States jobless rate rose to 6% nationwide in
April 2003, an eight year high, and is currently at 5.7%. That figure
probably had as much to do with slowing the planned implementation
of the Department of Labor's proposed PERM (Program Electronic Review
Management System) program as any other factor. The PERM program
would concentrate all labor certification processing in the regional
offices of the Labor Department rather than the present bifurcated
processing with state workforce agencies (SWAs). Such program would
yield a labor certification within 21 days, but demand more recruitment
efforts from employers than required today under either traditional
or the faster reduction-in-recruitment labor certification processing.
It is entirely possible that, although the Department of Labor is
now talking about publishing a final regulation after its budget
is enacted and regulatory review by OMB (Office of Management and
Budget) is completed, the potential political backlash of offering
expedited processing for permanent jobs to aliens while so many
Americans are still out of work may force a further delay of the
program until after the November elections.
The new buzzword in temporary worker visas for many companies is
"offshoring". Most members of the public learned for the
first time in 2003 that many major U.S. corporations were sending
good jobs out of the United States which typically paid up to $100,000
or more. It was previously known that America's manufacturing base
was eroding because of cheap global competition, but it had been
assumed that America would keep its edge in knowledge industries,
especially in the computer field. Most people were brought to the
realization in 2003 that high-end service sector jobs, especially
in the computer field, could also be shipped overseas. India stands
to be the chief beneficiary as its many highly educated and English-speaking
natives are thrilled to receive a pay package one fifth the amount
that a U.S. worker would obtain for doing the same job. Can the
gold standard in American education still be a degree in Computer
Science or related field as India itself with over 3 times the population
of the U.S. has a seemingly inexhaustable supply of computer workers?
This does not even account for other countries of the world which
could also take significant chunks of the knowledge occupations.
Will the U.S. government be forced to take steps to punish offshoring
companies by denying them participation in government contracts?
Or is there really any need for action at all as some analysts have
estimated that the number of persons in the tech labor force will
double in the next 10 years due to a growing economy and new products?
These questions will begin to be answered in 2004.
2004 will undoubtedly bring about more great changes in the field
of immigration - already President Bush has proposed allowing undocumented
workers to obtain legal status so long as they can be matched with
willing U.S. employers able to go through a recruitment process
without equally or more qualified U.S. workers willing to take the
job. Current criticism from the right and left is that the proposal
is a political ploy for Hispanic votes in the 2004 elections with
the right also accusing Bush of abandoning them and giving an amnesty
and the left critical of the proposal's lack of direction for finally
adjusting aliens' statuses to permanent residence and even discouraging
the idea of staying here permanently. (For more information on the
earned amnesty bill introduced by representatives Jim Kolbe and
Jeff Flake of Arizona upon which the Bush proposal was supposedly
closely modeled, kindly access our web site at "www.AlanLeelaw.com"
for our article, "The Next Amnesty, Can You Prepare for It?"
The article was also published in the Immigration Daily on 9/25/03).
2004 will also be interesting to see how the "I"'s (Incompletes)
in this article will work out over the next 12 months as they are
some of the most important topics in immigration, and whether improvements
can be made in the other areas to promote customer satisfaction,
rational and "compassionate" (this administration apparently
holds rights to use of this word) decision-making.
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