Tieing Up Loose Ends and Other Immigration Matters
By Alan Lee, Esq.†‡
We thought it would be a good opportunity to update our readers
on a couple of items that we talked about in the past, and to discuss
a few other current immigration topics.
1 As our faithful readers may know, I wrote three articles in April-May
2005 on the 20,000 additional H-1B numbers for fiscal year ("FY")
2005. I had in December 2004 advocated a reading of the authorizing
statute to include everyone who was eligible into the count who
would normally be eligible for H-1B visas, and after some waffling,
U.S.C.I.S. stated on March 8, 2005 that the available numbers would
be applied to all qualified H-1B nonimmigrants and not just to those
holding a master's or higher degree from U.S. institutions of higher
learning. But when the implementing regulation was finally published
on May 5, 2005, it only included U.S. master's or higher degreed
individuals. Now that decision is being seen for what it really
is - a mistake by the agency. By caving in to pressure by a few
members of Congress, the U.S.C.I.S. is assured of having surplus
unused numbers in FY-2005 and possibly all future years unless it
retracts its present position. There are a number of reasons supporting
such a change in policy: 1.) The statutory language supports a reading
that allows the 20,000 numbers to reach all eligible H-1B nonimmigrant
applicants - in point of fact, that is the most logical reading
of the statute; 2.) U.S.C.I.S. is learning the sad fact that there
are not enough U.S. master's or higher scholars to use up the 20,000
numbers - as of July 12, 2005, U.S.C.I.S. announced that only 8069
H-1B petitions were counted against the 20,000 numbers. Given the
fact that everybody who could have possibly filed FY-2005 H-1B applications
tried to send them out on May 11, 2005, because of the panic (engendered
in great part by U.S.C.I.S.) that the numbers would not be sufficient
to meet the expected demand, the 8069 number is significant in foretelling
that the 20,000 slots will not even come close to being filled;
3.) The U.S.C.I.S. should realize that the situation will most likely
not improve in future years as the winnowing process is too narrow
- The U.S. is becoming a less attractive country for foreign scholars
because of all the restrictions and expenses put into place since
the 9/11 events making it more difficult for them to drive, obtain
social security cards, do banking, gain credit, or even enter the
country; the education process itself going from high school diploma
to possibly an associates, bachelors and then masters naturally
restricts the number of eligible candidates; the limitation of a
U.S. and not foreign degree further narrows the selection process;
and the attractiveness of positions in resurgent home country economies
such as China and India encourage foreign students to go home after
graduation instead of remaining here in hopes of finding work; 4.)
U.S.C.I.S. stands to lose much in revenues from its present stance.
The agency predicted in the regulation that the 20,000 numbers would
provide U.S.C.I.S. with an additional $36,200,000 in FY-2005. Only
about half of that figure will be realistically attainable under
the present circumstances. All of the programs that would have been
partially funded by the extra monies will suffer including training
in high-growth industries, job training services and related activities,
and programs and activities to prevent and detect fraud with respect
to H and L petitioners.
2 Many readers and attorneys have requested an update on the Firstland
International vs INS litigation, a case which we won before the
Second Circuit Court of Appeals on August 2, 2004. The Circuit Court
ruled that the immigrant visa petitions of aliens could not be revoked
by the INS (now U.S.C.I.S.) unless notice of the revocation was
communicated to the beneficiary of the petition before the beneficiary
commenced his journey to the United States. Following the victory,
however, the agency and Congress specifically targeted the Firstland
case in the Intelligence Bill ( Intelligence Reform and Terrorism
Prevention Act of 2004) to erase the notice requirement. In our
view, it certainly made no sense to include it in a bill for the
security of this country as Firstland had nothing to do with revocations
of nonimmigrant visas, a possible security concern, only impacted
those who already had immigrant visa petitions approved and were
for the most part already in the country and had laid down many
roots, and left the government still with the ability to contest
the aliens' immigration by putting them into removal proceedings
- exactly what Congress initially contemplated when it wrote the
revocation statute. Prior to the Firstland ruling, the INS had almost
unfettered discretion to cite any reason for revoking an immigrant
visa petition. A morbid thought among attorneys was that in I-140
employment based immigrant visa petitions proceedings, the INS might
find it easier to approve the I-140s and then revoke them rather
than contesting the I-140 petition filings and have to face a more
difficult standard of proof. (The commonly accepted standard of
proof for I-140 approvals is the petitioner's showing by a preponderance
of the evidence that the organization and alien are entitled to
the classification sought while the revocation standard was the
Attorney General's decision to revoke at any time for what he deemed
to be good and sufficient cause.) With the Firstland case however,
the agency would have had to explain to an immigration judge the
reasons for which the petition could not stand. Issues of fraud,
misrepresentation or any of the multiple grounds of exclusion could
still have been introduced by the government to block the alien's
immigration. In immigration court proceedings, the standard of proof
would most likely have been the alien's showing that he/she was
entitled to adjustment of status to permanent residence including
review of the underlying petition by a preponderance of the evidence,
the same standard used in initial I-140 determinations. Cases like
Firstland in which the INS adjudicated the beneficiary an executive/managerial
employee on multiple occasions only to revoke the designation although
there was never any fraud or misrepresentation or gross error alleged
by the government, and the company's sales and number of employees
had only grown continually from the time of the first favorable
adjudication, would have been avoided. We attempted to protect the
Firstland decision through our contacts with legislators and pro
immigration groups, but to no avail. Its value as precedent was
removed by the passage of section 5304(c) of the Intelligence Bill
on December 17, 2004. Such Act effectively shut the door on others
trying to use the Firstland ruling to support their cases. We have,
however, in the Firstland case itself achieved a final non-appealable
order in the district court on March 23, 2005, consistent with the
Circuit Court decision. Under the opinion and judgment of the Eastern
District Court of New York, U.S.C.I.S. is ordered to reinstate the
I-140 immigrant visa petition filed in 1999 with its original priority
date and following reinstatement to vacate the denial of any I-485
application for adjustment of status and to reopen and adjudicate
the application(s). At this time, we are presently continuing litigation
with the government only over our suit for attorneys' fees and expenses
under the Equal Access to Justice Act.
3 In local news affecting the U.S.C.I.S. district office in New
York City, there appears to be a very serious effort afoot to reduce
the time required to adjudicate I-485 adjustment of status cases
to permanent residence for which the district office is presently
processing applications received as of December 16, 2002. (Local
processing timechart of 6/14/05). As of late May 2005, the district
office said that it was adding 50 officers on detail from other
jurisdictions, 30 to go to its suboffice in Garden City, L.I., and
20 to the Manhattan district office. Also 11 district adjudications
officers and two supervisors would be detailed for backlog reduction,
and that offers had been made to 100 individuals for 66 term openings.
The district office at that point would not accept another list
of two year-old cases not adjudicated or 30 months cases not interviewed
which was proposed by the New York American Immigration Lawyers
Association (AILA) Chapter as it anticipated that many cases would
be soon resolved with the added manpower.
4 The National Benefits Center (NBC) in Missouri has been sending
out administrative closures of I-765 employment authorization applications
for individuals who were in exclusion proceedings on the ground
that these cases are still under the jurisdiction of the immigration
court. Although the Center is technically correct, individuals with
exclusion orders can still adjust status to permanent residence
before the U.S.C.I.S. and not before the immigration judge. It makes
no sense for the NBC to deny a benefit on technical grounds when
the permanent residence issue can be resolved at the time of interview.
On being accused by one AILA member of issuing such decisions, the
New York district office denied that it had done so, suggested that
AILA raise the issue with the NBC, and said that CIS employees in
New York had been instructed to issue employment authorization documents
under those conditions.
5 Aliens and practitioners alike are still holding their collective
breaths on the Program Electronic Review Management System (PERM
program) which is now the only way that a request for labor certification
can be filed as of March 28, 2005. Currently the system is plagued
with numerous problems which are causing labor certification difficulties.
A recent reader to the Immigration Daily complained of denials based
upon the differences between information requested as per the instructions
as opposed to that asked for in the form. The Department of Labor
(DOL) also appears to be acting defensively at this time and sending
out audit notices instead of approvals to prove that it is serious
against any fraud in the program. The potential for abuse is recognizably
high. Under PERM, employers only send in or e-mail a 10 page ETA
9089 form without supporting documentation to PERM centers in Atlanta
or Chicago and the DOL is authorized to make an adjudication based
on the form alone. All supporting documentation is to be kept for
5 years by the employer. Everyone at this time hopes that the system
will improve to allow fast and fair adjudications. On the backlog
of labor certifications applications pending as of March 28, 2005
when PERM came into effect, they are or should all be in the backlog
reduction centers in Philadelphia and Dallas. (Prior to PERM implementation,
cases were filed at local State Workforce Agency (SWA) offices either
through a traditional filing consisting only of forms ETA 750A &
B to initiate the process or reduction in recruitment (RIR) consisting
of forms ETA 750A & B along with proof of prior recruitment
of U.S. workers). The DOL has assured everyone that adjudications
will be made in the chronological order of receipt to the local
SWAs, but that RIR cases will probably go faster than traditional
labor certification applications since recruitment was already conducted
in those cases. In our recent conversations with the backlog reduction
center in Philadelphia, we received contradictory responses. In
one, a staff member informed us that Philadelphia was still working
on April 2001 cases, but that it expected to advance very rapidly
since there were not many April cases left. (Readers should note
that SWA offices across the country received a huge amount of applications
in that month as it was the final month for which benefits could
be given under section 245(i) if individuals filed immigrant visa
petitions or labor certification applications by April 30, 2001.
Section 245(i) is a forgiveness provision under which individuals
who filed the above and were present in the U.S. on December 21,
2000, could adjust status even if illegal in most instances upon
payment of a $1,000 fine to the U.S.C.I.S. accompanied by Supplement
A to Form I-485). In 2 others, we were informed that Philadelphia
had not yet finished in putting the cases.
In future articles, we will attempt to update readers on other
important developments of the agencies dealing with immigration
matters as well as events in Congress and the courts.
|
