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Be Careful of What You Wish For: The Hidden Meaning of Premium Processing Fees
by Gary Endelman

DISCLAIMER:
Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography All right! Let's get it out right up front and center! I LIKE A 15 DAY TURNAROUND AND AM WILLING TO PAY FOR IT! This is a realist talking who works as an immigration lawyer with anxious clients who want the visa yesterday. Sound familiar? They neither understand nor want to appreciate the complexity of the system and care little about the hidden meaning of premium processing fees. We should and here's why.

In any democracy, it is the elected representatives of the people that should make basic policy decisions. To the extent that the Congress loses or gives away control over immigration to an unelected federal bureaucracy that is largely immune from popular redress, the fundamental premise of our entire political credo is undermined. The INS does not have to present itself every two or six years for a judgment as to how it has been doing. Congress does. We do not want to go the way of Japan where a permanent civil service actually runs the nation's business regardless of what elected government happens to be in power at any particular moment.

Congress must decide what kind of immigration policies America needs and face up to what they cost. The addiction to user fees, which is simply a euphemism for back door taxation, is an unwelcome hangover from the Reagan years that has only become worse over time. So long as Congress does not fund immigration out of tax revenues from the general treasury, it will never take a long, hard look at what the INS is doing and why. It will never summon the political will to change in any meaningful way a system that no longer serves the US economy it was created to support. In fact, to the extent that aliens themselves pay such user fees with after-tax dollars, this is a particularly insidious form of double taxation that American history should condemn.

"I want my H/L/O/P petition approved fast and I do not care about all of this high sounding rhetoric" you fire back! Such trust in the INS is both touching and misplaced. Is this the same INS already mandated by Congress to approve L-1 petitions in 30 days? Is this the same federal bureaucracy already ordered by its own regulations to approve labor condition applications in 7 days? All those who get them back that fast raise your hand? Is this the same system of regional service centers that is imploding to the point where 200,000 unopened packages of mail now gather dust in St. Albans Vermont as we are introduced to the concept of "frontlog"?

What we are doing, those of you who want the goods and not noble words, is rewarding inefficiency. The INS cannot do what we pay it to do, even at fees which have risen steadily as service goes down and waiting times soar. Not surprising, that, considering the crazy quilt, unending series of unfunded mandates that Congress continues to pile on it without bothering to consider how the Service will make it happen or, more to our point here, who will pay for it. No need. The INS just hikes its fees. For a while, perhaps a long while, the magic medicine of the $1000 premium processing fee will make the patient feel better. Yet, once the initial effect wears off, the fundamental sickness remains and then even $1000 will not be enough. Remember the $500 H-1B processing fee now $1000? If we are to decide cases in 15 days, the Service will doubtless tell Congress, we need more money- $1000 becomes $2000 and then who knows? Either the Service will treat 15 days as advisory, much as it now does with the 30 day limit for L1s, or the fee will rise. There is no end once we start down this slippery slope for, by beginning the journey in the first place, we are discouraging innovation, forestalling the need to do things differently and subsidizing both duplication and complexity that is nothing so much as a full employment program for bureacrats and lawyers.

There is, I would submit, a better way. Congress should take back the reins from the agencies who now run the show. Decide what the nation should have and what we are willing to pay for. If the INS cannot do the million and one things Congress tells it to do, and it cannot, then simplify things. Do what any family would do. This is what we care most about and this is what we have to do to get it. Lawyers will get more business and make more money. They need not fear simplicity. In fact, it is their fast friend since complexity shuts out the vast majority of aliens from using their services. Only by weaning America from the hidden narcotic of user fees will the day of true recovery ever arrive.


About The Author

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.


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