IMMIGRATION IN THE EARLY FALL (Part II)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. † The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in the case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. ‡ This article © 2004 Alan Lee, Esq.
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