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January 2007 Newsletter January 2, 2007 DEAR CLIENTS AND FRIENDS: As I start this Newsletter, I continue to have strong recollections of a searingly anguished interview granted to National Public Radio by Mayor Allen E. Oberloa of Worthington, MN, in the aftermath of a workplace enforcement raid made in his community on the Swift meatpacking plant by agents of Immigration and Customs Enforcement (ICE). The purpose of this ICE raid was to squelch alleged patterns of hiring unauthorized aliens, many of whom purportedly were involved in document fraud and identity theft. As a result, ICE arrested over 1,200 individuals in six raid sites – 230 of whom were working at the Swift plant in Worthington. Mayor Oberloa’s interview did not concern immigration policy or the legalities or justification of the ICE raid. Rather, he spoke movingly of the effects of these arrests on his own community of Worthington – the disruption to local families, many of whom had U.S. citizen children or spouses; the ripping away from Worthington of productive workers from the community’s largest employer; the unexpected closure of the Swift facility right before Christmas; the expected plummet of retail sales by local merchants who depend on strong holiday spending for a profitable year; the negative impact on local school funding from the departure of children (many of whom are U.S. citizens) of those arrested; the additional burden placed on the town’s social service safety-net and assistance programs; the illogicality of apprehending tax-paying, industrious residents who are working in jobs that otherwise would go unfilled by U.S. workers. In short, the Mayor of tiny Worthington – a rather remote, rural town of 13,000 in southwest Minnesota – was confronting the human face of immigration enforcement, and the image presented is neither pretty nor readily explainable. In a further corollary to the Worthington raid, the Minnesota Police Association has publicly opposed attempts to involve state and local law enforcement agents in immigration enforcement actions under the belief that such actions run counter to the imperative of building faith and trust within ethnic communities. Not surprisingly, the local Worthington Police Force, the most appropriate agency to support such a raid, was deliberately kept ignorant of the raid, thereby highlighting the serious split between immigration and civic enforcement interests. Also, various communities throughout Minnesota have refused to contract jail cells with ICE for those arrested as a protest to what they regard as an unwarranted intrusion of government power into local community affairs. In a sense, these recent raids by ICE encapsulate many of the frustrations in dealing with immigration law and policy today. As a society, we should enforce our laws. But our laws should also serve the national welfare and have an underlying decency and integrity that merit the support and understanding of our nation’s citizenry and social institutions. As evidenced by the situation described above, the ICE enforcement action, although sanctioned under law, raises disturbing questions on whether our immigration laws truly are in sync with our nation’s economic and social objectives. This, then, becomes the background for turning to this Newsletter’s first issue area dealing with proposed legislation to reform our immigration laws. Comprehensive Reform Efforts The prospects for Comprehensive Immigration Reform seem to be much brighter as the 110th Congress convenes this January. Given the reconstitution of the political landscape with the Democrats assuming majority control in the Congress, immigration reform may be one of the few issue areas on which the President and the Congress can find agreement. After all, President Bush has been publicly on record since January 2004 as favoring a fundamental revision of our immigration laws that would balance border security and enforcement with a redesign of our immigration benefits system. While some progress was made in the recently adjourned Congressional term, the Senate and House failed to reach agreement on a single legislative proposal, and the nascent immigration reform movement died amidst partisan accusations, a preoccupation with other issues on the national agenda, and a fundamental disagreement on the extent to which immigration benefits our national welfare. I do not believe that the assumption of power by the Democrats reflects any mandate for immigration reform. The Congressional races were largely concerned with the war in Iraq, the economy, governmental ethics, and environmental policy. Immigration reform ranked as a far lower issue of concern in the public’s view. However, according to various public opinion polls in the wake of the midterm elections, the American public seems more supportive of fundamental immigration reform than had previously been the case. In fact, Americans now seem to have a greater receptivity to initiatives intended to clean up the burgeoning population of unauthorized foreign nationals that has been estimated to number anywhere from 10-12 million individuals. As this new Congressional session commences, the leadership has indicated that it will use the essential provisions of the Senate’s previously enacted reform measure (S 2611) as the starting point for the immigration reform debate. The three (3) central principles appearing in the Senate’s previous Comprehensive Immigration Reform measure consisted of the following: Border Security: increased security arrangements and more stringent documentation requirements along the borders and at the nation’s ports of entry, including expanded grounds for detention, in order to staunch the inflow of unauthorized foreign nationals; Internal Enforcement: greater and more flexible grounds for the apprehension and removal of unauthorized foreign nationals, including criminal liability for certain immigration-related infractions that previously had carried only administrative sanctions, and a greater recommitment to employer sanctions and workplace raids so as to choke off the economic impetus that motivates much of unauthorized immigration; Immigration Benefits Reform: a redesign and expansion of the grounds for legal immigration to bring immigration policies into alignment with our nation’s needs in this era of an interdependent, globalized world and to develop a sustained national commitment to normalizing the status of foreign nationals who for years have worked productively within our society but who remain barred from the mainstream of American social and economic life owing to the illegality of their immigration status. I feel that there is roughly a 12-month window in which to pass immigration reform legislation given that this is a highly divisive issue with profound political implications. Neither political party will want the immigration debate to be a central issue in the 2008 Presidential elections, although both parties are hoping to enhance their stature among our nation’s various ethnic communities. In my opinion, the biggest hurdles to the passage of reform legislation are: 1) piecemeal liberalizations primarily in raising the immigrant visa and H-1B quotas so as to lessen the business community’s interest in wide-ranging, comprehensive reform; 2) strident opposition to legalization and/or guest worker proposals from organized labor which historically has been focused on job preservation; 3) opening up immigration reform to a myriad of new immigration proposals (i.e., the Christmas Tree phenomena) from special interest groups that will destroy the finely-created balance between border security, immigration enforcement, and benefits reform; and 4) a lack of focused political leadership to tackle meaningfully the complex, heavily nuanced, and deeply felt issue of immigration reform. Passports for Western Hemisphere Air Travel Under long-standing law, citizens of the United States, Mexico, Canada, and Bermuda have not needed passports to enter the United States when arriving from any part of the Western Hemisphere. Effective January 23, 2007, under a program known as the Western Hemisphere Travel Initiative (WHTI), all citizens from previously passport-exempt countries will be required to present a passport when entering the United States by air. In contrast, this passport requirement will not go into effect for admission through sea and land border crossing points until January 2008. This new passport requirement was developed in response to the security recommendations of the 9/11 Commission. What is interesting is that this initiative applies not only to foreign nationals applying for admission to this country, but also to U.S. citizens. Furthermore, the United States introduced this past October a new passport that contains a great deal of encrypted data intended to verify the applicant’s identity and to provide the immigration inspector more background information relevant to admissibility determinations. The United States is also instituting new requirements that foreign nationals hold machine-readable passports containing biometric data. The WHTI signifies the end of the ability of Mexican citizens to enter the United States solely upon presentation of border crossing cards (BCC). Rather, while a BCC can still be used as a visitor’s visa, it will only be valid if presented along with a valid Mexican passport. This new WHTI does not change the ability of Canadian citizens to enter the United States without having to obtain a visa. Rather, a Canadian applicant for admission needs to show proof of entitlement to status (oftentimes, an approval notice issued by U.S. Citizenship and Immigration Services) along with a Canadian passport. Only Canadians qualify for a blanket visa exemption, although visitors coming for trips of under 90 days who are citizens of 27 designated countries are also exempted from the requirement of a visa under the Visa Waiver Program. U.S.-VISIT Program One of the currently unfolding themes in U.S. immigration law is the application of new technologies to monitor foreign nationals in the United States. The cornerstone of this effort is the U.S.-VISIT Program, which essentially creates a seamless, technology-driven continuum of security measures that begins when a foreign national obtains a visa through a U.S. Consulate overseas and extends through the point at which a foreign national is admitted to the United States. The underlying purpose of the U.S.-VISIT Program is to systematically verify identity and monitor various security-driven watch lists in making admissibility decisions for nonimmigrants coming to the United States. The next logical extension of the U.S.-VISIT Program is the implementation of an exit registration system. After all, if a central aim of the U.S.-VISIT Program is to monitor the periods of a foreign national’s residence in the United States, it is imperative to track not just the dates of admission but also the dates of a nonimmigrant’s departure. In December 2006, the Government Accounting Office (GAO) issued a report indicating that it is not economically or technically feasible to implement a biometric exit tracking system. While such an exit system has been successfully tested at a number of pilot airports, there are major technological and economic hurdles to implement such a system at all land border crossing points, particularly those along the border with Mexico. In particular, the exit system has been plagued by numerous performance and reliability problems in accurately recognizing various travelers’ tags as used disproportionately by nonimmigrants traveling by car. The GAO Report estimated that the initial implementation cost for a land-border exit registration system would be $3 billion and would result in major traffic congestion and delay at land-border crossing points. As a consequence, the phase-in of the exit system has now been delayed, if not put into jeopardy. The Department of Homeland Security is under legislative compulsion to devise and implement an entry-exit registration system. Indeed, such an initiative if accurately and systematically devised and implemented (with adequate provisions to clear up mistakes in data registration) would provide a means to establish the legitimacy of periods in which a foreign nonimmigrant resides in this country. The open question, though, are when such a system will be successfully introduced, its cost, and the associated disruption in travel and trade from a rigorous exit monitoring system. Redesign of Citizenship Testing Standards One of the requirements to become a naturalized U.S. citizen is to establish a satisfactory understanding of U.S. history and civics. Traditionally, the naturalization test involved memorized facts about the United States, rather than an applicant’s understanding of the fundamentals of U.S. values and civic principles. In order to reorient the testing process to focus on the concepts of democracy and the rights and responsibilities of citizenship, U.S. Citizenship and Immigration Services (USCIS) unveiled a list of 144 questions and answers that may be added to a new naturalization exam. The new questions will be pilot tested with about 5,000 volunteer immigrants in ten cities in early 2007 and are scheduled to be incorporated into the naturalization process in 2008. A list of the new naturalization questions is available at the USCIS website: Personal Interview Requirement for Visa Issuance Purposes At this time of the year, many foreign nationals travel abroad, particularly to their home countries. In order to reenter the United States, a foreign national needs to fulfill certain documentary requirements and to establish eligibility for admission to the United States. For a very comprehensive article on the entire admission process, please see a recent article that I co-authored with my colleague in the firm, Sarah Peterson Stensrud, appearing in the articles tab of my firm’s website. In most instances, the admissions process starts with the need for a foreign national to obtain a visa through a U.S. Consulate abroad. In the aftermath of the 9/11 tragedy, the State Department has grown increasingly insistent that all foreign nationals appear personally for an interview as well as for collection of biometric data that is used as part of the U.S.-VISIT admissions process. On December 18, 2006, the U.S. Department of State issued some clarifying instructions on instances in which a foreign national might be exempted from the need to undergo a personal interview when applying for a visa. Essentially, this list includes the very young, older visa applicants, diplomatic visa applicants, and certain other nonimmigrant visa applicants. In particular, foreign nationals are generally exempted from personal interviews who are filing for reissuance of the same visa classification within 12 months of the expiration of their previously issued visa at the consular post of their usual residence. All other visa applicants under law need to schedule and appear for an interview, thereby adding additional time, disruption, and expense, as well as the need to engage in advance planning to schedule the interview and to then wait out an uncertain period of time required to conduct the mandatory background security check. We recurrently get calls from our clients who face the need to make hasty, unscheduled trips back home, mainly to attend to family emergencies. The question inevitably posed to us regards obtaining the required visa to reenter the United States. There is no unitary answer to this question, and I need to confess that no situation is as painful to me as discussing visa application obligations when my client is struggling to come to terms with the frustration and worry from being apart from a family member or loved one in a time of need. All I can say is that the U.S. visa issuance and immigration admissions processes are strict and oftentimes unyielding, but we work quickly and diligently to explore various options that can meet our client’s needs for a quick and relatively effortless means of reentry during a period of significant personal torment. Health Care Immigration Bills for Physicians and Nurses Two pieces of legislation related to healthcare workers were passed in the waning days of the recently completed Congressional session – one of which concerns foreign physicians and the other dealing with foreign nurses. Many physicians initially enter the United States to do their Graduate Medical Training under a J-1 visa. This visa classification obligates the physician to return to his/her home country for two years prior to gaining eligibility for an H-1B visa and/or permanent resident status. However, owing to the need for increased access to physicians among the poor and medically underserved, the Congress has created certain options under which a physician can seek a waiver of this two-year home residence obligation. Perhaps the most widely utilized physician waiver option is known as the Conrad State 30 Waiver Program, which empowers the state departments of health to recommend waivers of the two-year home residence obligation to physicians who are working in designated medically underserved areas or, in select instances, are providing highly meritorious medical services to at-risk patient populations even if the physician’s practice site is not located in a designated medically underserved area. The Conrad Waiver program sunset on June 1, 2006, although physicians admitted to this country prior to this sunset date are grandfathered for waiver purposes. However, the Congress passed a two-year extension of this waiver program in legislation entitled “Physicians for Underserved Areas Act.” This legislation solidifies the waiver program for the next two years, thereby providing physicians, their communities, and healthcare planners with an additional recruitment and retention tool to staff underserved and hard-to-fill placements. There are growing indications of a substantial shortage of physicians in the U.S. workforce and that healthcare outcomes are negatively impacted by lack of access to physicians. In light of this situation, the U.S. Government has undertaken a series of steps intended to increase the number of practicing physicians, especially in practice situations that traditionally have been understaffed. International physicians represent one of several provider sources to meet the twin problems of inadequacies in the number of physicians and misdistributions in their practice settings. However, it would make sense from a public policy standpoint to enact various provisions that would integrate foreign physicians more completely into the physician workforce, thereby providing an additional source of physicians to serve the needs of American patients. In a second legislative initiative pertaining to healthcare workers, the Congress passed the “Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005.” The bill extends the H-1C visa classification for nurses working in underserved areas until 2009. The H-1C classification allows up to 500 nurses to come to the United States each year provided that they work in designated medically underserved areas and their employer can show that it has taken "significant steps" to recruit and retain U.S. citizens or eligible immigrant nurses. Given the grossly inadequate numbers of nurses, this recent legislative initiative is not only inadequate to address legitimate national needs, but outright laughable. The United States has an obligation to ensure that nurses and other healthcare professionals meet high quality standards as relating both to substantive capabilities and cultural aptitude to deliver medical services. But the erection of high quality control standards should not be done at the expense of stifling immigration flows in a profession that so profoundly and beneficially affects those living the United States. This country maintains maddeningly constrictive immigration provisions for foreign nurses, particularly in failing to provide nonimmigrant visa options that would enable licensed and trained nurses to immigrate in a time efficient manner for stipulated periods of employment. Rather than addressing this national need in a constrictive manner as represented by the H-1C reauthorization bill, the Congress needs to forthrightly recognize the seriousness of the nursing shortage and to develop appropriate provider sources in this area, including foreign professional nurses. Immigration Waiting Times and Outlook When I was an undergraduate in college, my second major was Economics. A basic principle in Economics is that the relationship of supply and demand is the basic determining feature in the availability and pricing of goods and services. This relationship of the supply and demand for visas is also the guiding feature in immigration, and the continuing and growing backlogs in the waiting periods for visa number availability shows the total disequilibrium between the number of available immigration slots in the U.S. system and the number of individuals who have been cleared for immigration but must await availability of a visa in order to actually come to this country. So, let’s take a quick look at the visa number availability as we head into this New Year. In terms of the H-1B Temporary Worker classification, which is the most widely utilized temporary, nonimmigrant visa classification for foreign professionals, the H-1B visa numbers are now only a distant memory. The H-1B quota is set at 65,000/year with an additional 20,000 allotment for Master’s Degree holders. The “normal” H-1B quota was reached on May 26, 2006; the Master’s Degree special program’s numbers were exhausted as of July 26, 2006. Therefore, unless either a foreign national’s employer can qualify for an exemption from the quota (e.g., universities and university-affiliated entities) or the foreign national (e.g., extensions, certain J-1 physicians, aliens previously granted H-1B status, etc.), the new H-1B numbers will not become available until October 1, 2007. The H-1B application period opens on April 1, 2007. We are now encouraging our corporate clients to solidify their decisions on their new-hires and to commence the process of filing for H-1B benefits. We expect that the demand will be very high for the H-1B numbers which thereby raises the likelihood that the H-1B numbers will become depleted soon after the application period opens on April 1. Turning to the situation for permanent residence, I am very concerned that we will see backlogs develop in the immigrant visa quota lines for the Second Employment-Based Preference classification. This classification refers to positions that require Advance Degree Professionals – i.e., aliens who possess a Master’s Degree or above. Traditionally, there have not been backlogs in this particular Preference classification, other than for India and China. However, the worldwide cap for this Preference classification is limited to 40,000 numbers. Given the relatively quick processing time of labor certification applications under the PERM Program, the accelerated issuance of labor certification application approvals by the Backlog Elimination Centers under the old system, and the continued strong demand in the U.S. economy for highly qualified professionals, I think there is a real possibility – in fact, a high probability – that we will see backlogs starting in 2007 in the quota lines for Second Preference professionals in the worldwide classification. In short, the lengthy delays now experienced by natives of China (currently 18 months) and India (currently four years) may very well spread to the other countries of the world, thereby adding greatly to the delay in consummating an employment-based immigration case for many of our clients. In terms of the family-based preference categories, they continue to be backlogged for years for foreign nationals from all countries. Fortunately, under law, certain nuclear family relationships are exempted from the quota cap. But other significant family relationships are subject to the numerical quota, and the demand is such that substantial backlogs continue to add a significant period of delay and frustration in reuniting families. Any individual or business entity involved in immigration should periodically consult with the U.S. State Department’s Visa Bulletin so as to keep abreast of the backlogs that currently plague our immigration system. This Bulletin can be accessed at: A Final Word As we enter 2007, I can reflect on this past year with an immense amount of professional pride owing to two highly satisfying and inspiring dyads: my relationship with my colleagues in this firm and my relationship with our community of clients and friends. First, as a firm, we continue to generate a great deal of energy, enthusiasm, and commitment to our work in navigating our clients through the labyrinth of our immigration laws and the administrative agencies that administer these laws. As a team, we have a high level of collegiality, personal rapport, and commitment to each other. The team of professionals here has consistently justified my confidence in serving the needs of our clients in a professional, ethical, and results-oriented manner. This is a good place in which to work and to grow, and I sincerely invite our community of clients and friends to get to know us. Second, in terms of my relationship with you, the readership of this Newsletter runs the gamut from our clients with whom we have formed a close professional relationship to casual inquirers. I have a high passion for immigration law. It has been a legal field that has sparked my commitment and energy for the past 25 years as I find it enormously requiting – and at times, humbling – to apply such a complex compendium of laws and regulations on behalf of an enormously interesting, diverse clientele in order to obtain immigration benefits that I believe serve well the personal needs of my clients and the broader national needs of this country. I continue to be gratified by being sought after as a provider of immigration legal services, and sincerely extend a note of thanks to those whom we have served. I hope that we have justified your faith in our services. I wish you a year of health and happiness, and look forward to sharing with you in this coming year the unfolding saga of one of this nation’s greatest national traditions – the immigration of those seeking to develop new lives in this country. As always, I would value your comments on this Newsletter and, more generally, on your interactions with our firm. Again, I wish you all the best in this year to come. Cordially, ROBERT D. ARONSON
This notice one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this notice represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments, in this case the relevance of the H-1B cap to hiring decisions. This notice in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. This notice does not create an obligation on behalf of Aronson & Associates to file any H-1B petition before the cap is reached, absent a properly executed Contract for Legal Services following a consultation concerning a specific case. |
Aronson & Associates, P.A. |