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September
2007 Newsletter September 5, 2007 DEAR CLIENTS AND FRIENDS: To say the least, we have witnessed a whirlwind of immigration-related events over the past few weeks. First, the much-publicized Senate initiative to effect wide-ranging, balanced reforms to our immigration system under the rubric of “Comprehensive Immigration Reform” (CIR) crashed, burned, and was finally pulled from the legislative agenda this past June. There are multiple reasons for the failure to pass this much needed legislation, but ultimately, the demise of this Bill resulted from the failure of the self-designated “Grand Bargainers” comprised of Senators drawn from the liberal and conservative wings to hold the support of the moderate elements of the Senate. The rise and fall of the CIR movement was chronicled in several previous Newsletters, particularly the issue of May 31, 2007. Second, after several false starts, the Government opened a month-long window of opportunity that allowed many of our clients with long-delayed cases to file their Applications to Adjust to Permanent Resident Status. This filing window closed on August 17, 2007. As a consequence, U.S. Citizenship and Immigration Services (USCIS) is now wading through a huge volume of applications, and we are waiting to see whether this deluge of applications will result in a delay in processing these final requests for Permanent Resident Status as well as have negative spill-over effects so as to slow down the processing of other immigration filings. So, now that we have made it through the summer months and weathered a frenzy of filing activity and dashed legislative initiatives, I would like in this Newsletter to take a step back and present our Readership with a snapshot of some current and emerging immigration-related issues of potential interest. Specifically, this Newsletter focuses on the following five (5) issues: 1. The U.S.
Government’s Own Assessment of the State of the
Immigration System; As immigration practitioners and advocates for our clients, we daily fight through the frustrations of dealing with the various U.S. government agencies involved in the immigration process. From my standpoint, I would categorize my five (5) central frustrations as the following: 1) long, unconscionable delays in processing cases; 2) a real lack of accountability in rectifying problems and errors; 3) legal errors by seemingly ill-trained, poorly motivated Government officials who all-too-often render decisions with little oversight from their superiors; 4) a growing antagonism toward immigration requests in this post 9/11 period and a lack of flexibility, discretion, and even concern for the effects of immigration adjudications on individual foreign nationals, their employers, and their communities; and 5) an antiquated legal system that does not recognize present-day realities, but instead imposes artificially low numerical ceilings supported by a decaying, obsolete infrastructure that create backlogs and delays in seeing a case through to its conclusion. Naturally, I was quite interested in reviewing the Annual Report of the USCIS Ombudsman, as released this past June, that takes a look inward to consider areas in our system that could be improved. This Report made 25 new recommendations for improvement, the most important ones, in my opinion, being the following: 1. Need for
a speed-up in the FBI name checks/background security checks that
is now required as part of the adjudication process in
immigration cases; I found the Ombudsman’s comments on the status of the FBI name check process to be particularly concerning. As an aftermath of the 9/11 tragedy, the U.S. Government has implemented a wide range of security-driven initiatives, including an expanded involvement of our nation’s internal security organs in reviewing requests for immigration benefits. Over time, we have seen the expansion of these security driven measures from being limited to actual status adjudications (i.e. nonimmigrant visas, permanent residence, and citizenship) to virtually every aspect of an immigration case, including the issuance of interim benefits such as employment cards and international reentry permission. While security is obviously important, it is now being used as an excuse for unprecedented slowdowns in immigration processing rates. As of this past May, there were 329,160 FBI name checks pending, of which 64% (over 210,000) had been pending more than 90 days – and over 106,000 have now been pending for more than a year! And this number of delayed, drawn-out cases continues to increase. We live in a digital age and it is incomprehensible for this name check procedure to drag on so long, as well as inexcusable that under the shibboleth of “national security,” the FBI and USCIS are insulated fully from any type of accountability to the public, Congress, or the courts. While the Government has a legitimate responsibility in applying a widened arsenal of initiatives to protecting the national security, it has an equal responsibility in ensuring that this function is performed in a timely, efficient, and competent manner. II. WORKPLACE COMPLIANCE: THE SOCIAL SECURITY “NO MATCH” INITIATIVE Particularly in the aftermath of the Congress’ inability to enact wide-ranging reform, we are now facing piecemeal initiatives mainly coming out of the Department of Homeland Security that largely focus in immigration enforcement. In the belief that jobs act as the primary magnet attracting inflows of unauthorized foreign nationals, it is not surprising that the Government has turned its attention to workplace compliance efforts – i.e., new initiatives to create new employer responsibilities for ensuring the legality of their employee workforce. The cornerstone of employer responsibilities for immigration compliance is the I-9 Employment Eligibility Verification form that requires every employer to review proof of identity and employment authorization for every employee – U.S. citizen or otherwise – within three days of hire. If an employer fulfills its I-9 obligations in good faith based on the facial validity of documents drawn from a stipulated list, the employer is insulated from liability should the employee ultimately turn out to be unauthorized for the position, provided that the employer does not have actual or constructive notice of the employee’s lack of authorized status. The question becomes in many instances what facts would put an employer on constructive notice that its employee may not be authorized for the position. On August 15, 2007, Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security, issued a Final Rule that states that the issuance of a “No Match” letter from the Social Security Administration (SSA) puts an employer on constructive notice so as to require it to take certain, stipulated corrective/re-verification actions to protect itself from legal liability – including possible criminal exposure. This new policy was slated to go into effect on September 14, 2007, although its implementation has been enjoined at least temporarily until October 1, 2007, by a Federal District Court that was bothered by the possibility that the high rate of erroneously-issued “No Match” letters by the SSA and the inability of that Federal agency to correct its misdeeds in a time-efficient manner would unnecessarily penalize both employers and their employees, including U.S. citizens. But assuming that
this initiative is a foreshadowing of things to come, let me summarize
very briefly this new provision. Basically,
an employer will receive safe harbor upon performing the following
actions upon receipt of a “No Match” letter: Sarah Stensrud, an Associate Attorney in the firm, has written an extensive analysis of this new “No Match” initiative on an employer’s compliance obligations. We will be sending out this important and timely article within the next few days as part of our own commitment to enhance the ability of our corporate clients to adhere to their new legal obligations. III. IMMIGRATION QUOTAS AND WAITING TIMES We seem to have an accordion-like immigration system in that the Government announced the availability of Immigrant Visa numbers through August 17, 2007, covering the immigration needs of many Permanent Resident applicants, which was then followed by a blanket unavailability of such numbers starting in the second half of August. The Department of State issued its Visa Bulletin for September (available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html). For September, numbers again become available for most of the employment-based preference classifications, although the Government has imposed cut-off dates so as to apportion the remaining visa numbers for this current fiscal year. The new Federal fiscal year starts on October 1, 2007, meaning that the immigration system will receive its new numerical allotments. Traditionally, the cut-off dates have advanced substantially each October, and then tend to retrogress as the State Department gets a better sense of the number of applications on file in comparison to the number of Immigrant Visa numbers remaining in the system. My own guess is that the Department of State will continue to impose an artificial cut-off date at least through the early months of the new fiscal year as it seeks to work through the implications of the unprecedented flurry of Permanent Resident applications that occurred this past July-August. Should this indeed transpire, foreign nationals pursuing Permanent Residence based on employment positions will face an additional waiting period in order to attain Permanent Residence. Generically, this means that a case for Permanent Residence will face Government-imposed waiting times at three main stages: 1) front-end: in processing a petitioner’s request to qualify a foreign national for Permanent Residence; 2) mid-point: waiting for availability of an Immigrant Visa number as required to file an Adjustment of Status Application; and 3) back-end: USCIS processing of Adjustment Applications that can get delayed should the Immigrant Visa numbers retrogress and/or complications arise with the mandatory FBI background security check. We also continue to face an unavailability of new H-1B visa numbers for petitions that are subject to the H-1B quota. Whereas the Senate’s Comprehensive Immigration Reform proposal recognized the inadequacy of the current limit of 65,000 numbers each year, there has been to date no separate split-off legislation to ameliorate this situation. The American business community has been advocating fiercely for an increase in these numbers, but to date the Congress has not responded. As such, unless the situation changes, we will again be faced with a maddeningly chaotic H-1B filing process when the application deadline date arrives of April 1, 2008. IV. THE RIGHT IMMIGRATION DOCUMENTS: DON’T LEAVE HOME WITHOUT THEM As part of an overall effort to tighten up border security, the U.S. Government is currently undertaking three initiatives intended to impose new, more secure travel documentation requirements. First, the Western Hemisphere Travel Initiative (WHTI) requires all citizens of the United States, Canada, Mexico, and Bermuda to have a passport or other accepted document that establishes the bearer’s identity and nationality to enter or re enter the United States from within the Western Hemisphere. Historically, a passport has not been required and travelers from these countries in most instances could complete a “Declaration of Citizenship” in lieu of more formal citizenship identification. Under this WHTI program,
U.S. citizens and citizens of Canada, Mexico
and Bermuda traveling by air between the U.S. and Canada, Mexico,
Central and South America, the Caribbean, and Bermuda now are required
to present a valid passport to enter (or re-enter) the U.S. This
means that all citizens of the United States, Canada, Mexico, and
Bermuda are now required to present a valid passport when entering
the United States at any airport as of January 23, 2007, except in
limited circumstances when a U.S. citizen has a passport application
pending (see below). As a result, passports are now required of the
following: As early as January 31, 2008, U.S. citizens traveling between the U.S. and Canada, Mexico, the Caribbean, and Bermuda by land or sea will be required to present a valid U.S. passport or other documents as determined by the Department of Homeland Security. There is, though, some chance that this implementation date will be moved back to accommodate logistical complexities in the implementation of this new land-border crossing requirement. Second, the Department of Homeland Secruity has issued a Propsed Rule on August 22, 2007, that, if enacted, would obligate all Permanent Residents holding Form I-551 (i.e., the “Green Card”) without an expiration date to apply for a new card. Most foreign nationals hold I-551 cards with a validity period of 10 years, meaning that they periodically need to update their cards to incorporate new security measures – largely, information based on biometic data. While a foreign national does not lose Permanent Resident status upon a failure to timely renew the card, a lack of a conforming card can create major difficulties when the foreign national seeks to reenter the United States. But there is one class of long-term Permanent Residents whose I-551 card does not carry an expiration date. The Proposed Rule would create a 120-day applicatoin period for requesting a replacement card. After this period of time has lapsed, the USCIS would set a termination date for the validity of these outmoded I-551 cards. While individuals failing to timely renew would not lose their status, their cards would be invalidated, thereby subjecting them to conviction as a misdemeanor offense. The penalty for conviction under these provisions is a fine of up to $100 and/or imprisonment of up to 30 days. The comment period on this Propsed Rule will terminate on September 27, 2007, and the expectation is that this Rule will be finalized and enacted soon thereafter. Third, in light of this increased emphasis on new security-enhanced passports, the application rates for U.S. passports have soared to roughly 1 million/month and processing times have ballooned to around 12 weeks. To help address this enhanced emphasis on possession of a U.S. passport, the President signed into law on July 30, 2007, the Passport Backlog Reduction Act of 2007, which is an initiative to speed up the issuance of U.S. passports. This legislation provides the authority to the Department of State to rehire retired Foreign Service Officers on a temporary basis to help tackle the extensive passport backlog and meet the requirements of the Western Hemisphere Travel Initiative (WHTI) as set into law as part of the Intelligence Reform and Terrorism Prevention Act of 2004. At present, the processing rates at the State Department seem to have improved, although we remain a long distance from the previous situation in which passports were regularly issued within a week. V. SOME DEVELOPMENTS WITHIN
THE FIRM ROBERT D. ARONSON
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Aronson & Associates, P.A. |