News From The Annual American Immigration Lawyers Association Conference
From June 12 through June 16, the attorneys in our offices were attending the 46th annual conference of the American Immigration Lawyers Association in San Francisco, California. There were more than 3,500 people in attendance. In addition to sessions that focused on the practical side of immigration issues, a number of government representatives attended the conference, sharing insights into what to expect over the coming year, as immigration becomes a larger and larger issue.
Commissioner Ziglarís Address
Facing what could at best be called an unsympathetic audience, INS Commissioner James Ziglar acknowledged that the INS was in need of major systemic improvements, but argued that the agency was in no way totally responsible for either the attacks of September 11th or for the response.
Ziglar mentioned his longstanding support of efforts to reorganize the INS, and affirmed his support for President Bushís proposed Department of Homeland Security. While noting that there is no way to know how this will effect the INS, which is slated to be transferred to the new agency, Ziglar said the change would substantially improve enforcement efforts. He also said that because the reorganization would provide a fresh start for the beleaguered agency, it would also improve the delivery of services.
He called the development and implementation of an entry-exit tracking system the INSís highest priority, promising that a system will be fully functional by the end of 2004. For people using the Visa Waiver Program, the system should be online by the end of this year. He also said that the Student and Exchange Visitor Information System, or SEVIS, the student tracking program, would begin to be implemented this July.
According to Ziglar, the INS has received more than 10,000 comments to its proposed regulation limiting most business and pleasure visitors to the US to a 30-day stay, but did not indicate when the INS would be publishing a final rule.
Throughout the speech, Ziglar acknowledged that the INS faces a difficult task in balancing liberty and security. He warned against what he called the strongest wave of anti-immigrant sentiment in the US in decades, and said the INS remains committed to serving the United States as a nation of immigrants.
Service Center Updates
The directors of all five of the INS regional service centers were present at the conference, and they provided an overview of the situations at the centers. They all agreed that the new background checks that are done on all applications have resulted in some delays. First, officers have to be trained in order to qualify for access to the database, then they have to receive training in how to use the database. This process took most of the month of March. This process is apparently causing some significant problems in premium processing cases because the checks cannot be completed within the 15-day period. The checks are also causing problems at local INS offices.
There will be a number of changes implemented at the service centers within the next 12 months. The service centers hope to accept applications for employment authorization documents electronically sometime before the end of this year. Over the next three to five years, the agency will be involved in a push to begin accepting more and more applications electronically. Also, the directors indicated that premium processing for I-140s would begin sometime during 2002, and that concurrent filing of I-140s and I-485s was a real possibility.
They also indicated that the INS is considering changing the way applications are delivered to the service centers. The Missouri Service Center, which handles only applications filed under the LIFE Act, uses a drop box type system. Applications are mailed to an office in Chicago where the fee is accepted and initial data entry is performed. The application is then sent to Missouri. This model has been very effective, and the agency is considering expanding it to the other service centers.
Information from the Department of Labor
Meetings with officials from the Department of Labor were among the most popular at the conference. Much of the discussion focused on the proposed PERM program and on recent DOL memos on dealing with labor certification applications in light of the recent economic downturn.
More than 280,000 applications for labor certifications are pending with state employment security agencies and the regional DOL offices. With only 250 people in the states and 70 people in the DOL working on these cases, they are moving very slowly through the Section 245(i) backlog.
The PERM program is still at least a year away. The hope is that by moving to an attestation based system, rather than having state and federal officials examine all the supporting evidence, will vastly improve processing times. However, many attorneys have problems with the program as outlined in the proposed regulation released earlier this year. Much of the flexibility of the program would be gone, and it would be much more difficult to obtain labor certifications for positions requiring special skills. Also, there is great concern over provisions that would effectively terminate Schedule A labor certification for registered nurses. One of the provisions in the regulations would require the nurse to be in the US at the time of filing, and because there is no nonimmigrant visa available for nurses (other than the H-1C visa, of which only 500 are available each year), very few nurses would qualify.
Other significant problems with the PERM program are the elimination of the use of alternative experience and experience gained with the petitioning employer, the fact that the wage would have to be stated in any advertisement for the position, and the elimination of the provision that allows the employer to offer only 95 percent of the prevailing wage. Even more disturbing is a provision that would allow the DOL to revoke a labor certification either within one year or before a visa number becomes available, whichever is later. Given that backlogs in employment based categories are expected to develop over the next year, this could pose a serious problem.
Noting that the purpose of the labor certification program is to ensure that US workers, even if only minimally qualified, get a job, DOL representatives urged AILA members to understand the Departmentís new positions on the labor market.
Over the years, as processing times for traditional, supervised labor certifications became longer and longer, reduction in recruitment became the standard type of labor certification. During the late 1990s, with the strong economy and tight labor market, the system worked well. However, for the past two years, the economy has faltered and there have been increasing layoffs, especially in high tech industries that frequently used the labor certification process. In light of this, the DOL is requiring many employers to conduct additional recruitment efforts to test the current labor market, rather than the market as it existed at the time the application was filed. Of course, many attorneys are concerned that DOL employees who do not have expertise in labor market conditions will be making decisions on the basis of faulty information.
One of the biggest pieces of news at the conference was that the INS is going to begin strictly enforcing the requirement that all noncitizens keep the INS updated of their address. Failure to do so can result in a $200 fine and 30 days in jail. It is also a ground of deportation for which there is no waiver available. For those who are required to register with the INS, which currently includes people from Iran, Iraq, Libya and Sudan, as well as nationals from as many as 33 countries to be named later and any other person an INS inspector determines should be required to register, failure to apprise the INS of an address change will result in a $1000 fine and up to six months in jail. For nonimmigrants, failure to keep the INS informed of an address change is a status violation and can lead to deportation. Some lawyers at the conference reported having clients jailed and placed in deportation proceedings for failure to notify the INS of address changes.
Efforts to extend and increase the Conrad State 20 waiver program for J-1 physicians continue. There are a variety of bills on the subject, some of which would extend the current expiration date of July 1, 2002 to July 1, 2004, and some of which would eliminate the expiration date altogether. There are also proposals to increase the number of waivers available from 20 to either 30 or 40.
Finally, nearly everyone, both attorneys and INS representatives agreed that the INS is issuing more requests for evidence than ever before. Many of them seem to be coming from inexperienced examiners and are seeking information that is either not relevant to the application or is clearly excessive. This is especially a problem in premium processing units, where the requests seem to be being sent in an effort to comply with the 15-day processing limit. The INS has hired a substantial number of new employees Ė for example, there are 150 new examiners at the Nebraska Service Center Ė but hopefully as they gain experience the problem with inappropriate requests for evidence will cease to be such a substantial problem.
About The Author
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at email@example.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.