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May 2003 Newsletter
DEAR CLIENTS AND FRIENDS: I am writing this letter as part of an on-going effort to share with you some of my perceptions on new, emerging directions in our immigration laws. It is unquestionably a daunting if not outright impossible task today to define any unitary direction in immigration. On the one hand, there are some powerful forces suggesting that our immigration laws and policies should be sharply curtailed, including the perceived threat to national security and the general downturn in the U.S. economy. On the other hand, there are strong philosophical and utilitarian grounds for liberalizing immigration, including the inescapable fact that immigration at present is one of the primary requirements for sustained U.S. economic growth. In fact, there are a multitude of studies which suggest that a stark cut-off or even major diminishment in immigration flows would create substantial disruptions within our economy. The state of affairs today is that U.S. immigration laws remain fully intact so as to allow foreign nationals to obtain visas and other related immigration benefits covering a wide variety of activities in this country. In short, visas continue to be granted; petitions and applications continue to be adjudicated; green cards and other benefits continue to be issued. The main battleground, however, lies in the attitude toward and the administration of our laws, particularly given the creation of an entirely new federal agency – the Department of Homeland Security – that now has the overall responsibility not only for safeguarding our nation’s security interests, but within this mandate to administer our immigration laws. GOVERNMENT REORGANIZATION: DEPARTMENT OF HOMELAND SECURITY Effective March 1, 2003, the Immigration and Naturalization Service, which had long been part of the U.S. Department of Justice, was eliminated, and the administration of our immigration laws was assumed by the U.S. Department of Homeland Security (DHS). As a result of this reorganization, the broad scope of U.S. immigration policies is now administered by three separate Bureaus:
Within the new DHS regime, there seems to be a widespread acknowledgement of the need to address bureaucratic ineptitude and inefficiency. Over this past period of time, we have witnessed unprecedented slowdowns in the pace of immigration processing and wildly inconsistent adjudications covering nearly every conceivable immigration benefit. This systemic, ongoing delay in adjudications along with a torrent of requests for further information serves as a corollary to the maxim of “justice delayed is justice denied”. To be sure, any success in cleaning out the immigration backlog and in expediting the adjudicatory process would represent a substantial step forward in restoring a sense of fair-play and integrity to our immigration laws. What is frankly unclear – and likely will remain unclear for many more months – are two central issues: first, the degree to which the DHS core mandate of “national security” will influence the adjudication of requests for immigration benefits; and second, how the three separate Bureaus each having jurisdiction over part of the immigration pie (i.e., benefits, enforcement, and admissions control) will be able to mesh harmoniously rather than acting at cross-purposes one to the other. SECURITY AND IMMIGRATION In the wake of the 9/11 tragedy, there has unquestionably been a growing realization that foreign criminal elements have an express, concerted desire to harm the United States. Growing out of this realization, we as a nation have rightfully taken a renewed commitment to securing our borders against foreign malefactors. This commitment is most noticeable in new procedures requiring foreign nationals entering the United States to undergo more extensive background security checks, which are not only conducted by the Department of State and the Department of Homeland Security, but also, as appropriate, by the Federal Bureau of Investigation (FBI). In short, there is a wealth of information that can be managed by new technology to identify and restrict access to this country by those posing security threats. But the concern is that security measures are being used as an excuse for senseless delays in adjudications and incursions into traditional national values of due process, personal liberty, and individual privacy. In my opinion, there is a valid role for ensuring that entering foreign nationals do not present challenges to the welfare of this country, including threats to our security. I also strongly believe that foreign nationals should conform their activities to the parameters and duration of their status as granted by professional, competent, and humanitarian adjudicating agencies. But I cannot see the justification for using security concerns as the reason for delaying the issuance of benefits to aliens already in the United States, much less as grounds for curtailing the speech or activities of citizens and non-citizens, alike. To me, this becomes an inexcusably bogus resort to national security to cover up for administrative ineptitude, at best, and anti-foreigner sentiment, at worst. Here are some of the specific security-related measures which have become incorporated into our immigration procedures:
LEVELS OF ACCOUNTABILITY AND RESPONSIVENESS Perhaps the greatest concern growing out of enhanced security awareness is the government’s “zero tolerance” policy, which vastly curtails the authority as well as motivation of individual immigration examiners to exercise favorable discretion in their decision-making process. By its nature, the adjudication of benefits involves discretion which when rightly discharged should be molded by common sense, humanitarian concerns, time constraints, business necessity, etc. Yet, the prevailing policy is to eliminate this rich admixture of “real world” considerations, and to replace it instead with a straight jacketed policy that basically eliminates the exercise of discretion of individual examiners. Conjoined to this “zero tolerance” policy is an equally disturbing phenomenon of making immigration examiners essentially inaccessible to inquiries by and discussion with interested parties. First, the BCIS has announced that interested parties will no longer be able to call the various Regional Service Centers with inquiries on pending cases, but rather will be routed to large, impersonal centralized inquiry points. Second, the authority of the local district offices has been greatly restricted to handle problems encountered by foreign nationals, which all too often funnels these problems back into a large, centralized, impersonal, and largely unresponsive system that frankly is ill-suited to render prompt and efficient customer service. H-1B QUOTA CAP The H-1B Temporary Worker Provisions are by far the most widely utilized temporary, nonimmigrant visa classification covering the employment of foreign professionals in the United States. It provides a relatively time-efficient pathway in order to secure relatively generous periods of authorized status for foreign professionals working within this country. At present, it takes under the “normal” filing pathway around 3-4 months to gain H-1B approval. In contrast, filings under the Premium Processing procedures compel the BCIS to adjudicate an H-1B petition within 15 days.At present, the H-1B quota allotment totals 195,000 visa numbers, which particularly in this economic climate is more than sufficient to cover existing business needs. However, barring congressional intervention to the contrary, this figure is scheduled to drop on October 1, 2003, to 65,000 numbers, which is clearly insufficient to handle the wide-ranging needs of U.S. business concerns for foreign professionals. If the H-1B quota figure remains stuck at 65,000 per year, we anticipate that these numbers will become exhausted at some point relatively early in the next fiscal year. This would lead to substantial disruptions among U.S. businesses waiting for foreign nationals to get cleared for H-1B visa purposes. Therefore, whereas our immigration system for years has provided for the relatively smooth, predictable employment of foreign professionals, this impending constriction of the H-1B visa numbers will be highly disruptive by injecting uncertainty and delays into the employment of foreign nationals. We expect the H-1B debate to become rather intense starting late this summer. Very possibly, the Congress will see fit to raise the quota cap or, at least, to create major exemptions from the cap for advanced degree professionals, physicians, scientific personnel, and/or other specific occupations putatively meriting special and favorable consideration. PERSONAL NOTES This continues to be a year of challenge, but also a year of considerable accomplishment. I feel that as a firm, we continue to serve successfully the immigration needs of our clients in a professional and effective manner, and hopefully to provide our clientele with a sense of genuine commitment to their overall well-being in the United States. To be sure, we continue to see growth in the demand for our services and we value this entrustment of our clients’ immigration welfare to our care. The Annual Meeting of our professional association, the American Immigration Lawyers Association (AILA), will take place in New Orleans this coming June. All five of the Ingber & Aronson attorneys will be attending this meeting, and I am very proud of the fact that three of us have been honored by being asked to deliver presentations to our peers. At this meeting, I will chair a session with a panel comprised of attorneys and U.S. government officials on waivers of the J-1 two-year home residence obligation. I have also recently had two articles on immigration law accepted for publication – one that concerns J-1 waiver policy which is to be published by my professional association, and a second that concerns an overview of immigration law now being published by the American Medical Association. I recently delivered a major presentation on the immigration of foreign nurses to the Greater New York Hospital Association. I continue to chair the Public Policy Committee of the Hebrew Immigrant Aid Society (HIAS), which is perhaps the premier voluntary agency dealing in refugee, migration, and general immigration matters, and we have issued a series of very well received position papers on evolving immigration policy. I have also again been named as a Minnesota Super Lawyer and a Leading American Attorney, as well as to Who’s Who in America and Who’s Who in International Law. As always, I would appreciate receiving your comments and thoughts on the utility of this type of informational piece. Also please inform me of your suggestions of additional individuals who might wish to receive this type of commentary. Please let me know if you have any further questions. Cordially,
ROBERT D. ARONSON
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Aronson & Associates, P.A. |