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Our Faustian Bargain: The Unintended Consequences of Premium Processing

by Gary Endelman

Gary Endelman As we approach the return of the H1B quota to 65,000 on October 1, those who use this work visa might consider this. Take a glance at the most recent processing report of the Texas Service Center (2/15/03), and you will note with astonishment that they are now working on H petitions submitted on or before September 5, 2002 -- a delay of over 5 months. Processing times in California are equally dreary. This confirms the anecdotal reality that most immigration practitioners know all too well, namely that an H case filed without premium processing is doomed to gather dust on the Service Center shelves.

Most large employers understand that the need to make such "facilitation payments" to the INS is simply the cost of doing business, accustomed as they are to the vagaries of international commerce. It is the emerging company that wants to hire US workers who lacks the cash to pay the $1000 expedite fee with any regularity. As some observers noted when the INS first introduced the concept of premium processing to the hosannas of the immigration bar, the very acceptance and existence of premium processing is a disincentive to efficiency. Why, after all, should the INS improve service when they can make a boatload of money by taking longer? Indeed, if things get bad enough, desperate employers will be willing to pay more than $1000. If a 5 month backlog can earn a $1000 fee, how much will a 10 month backlog bring in? When everyone expedites, what relevance does premium processing retain? Right now, employers have no choice. They are at this future place where expediting is the norm. Since DOL regulations do not allow for the filing of a labor condition application more than six months in advance, and the Texas Service Center is taking over 5 months to decide a normal H case, and the H quota is going south in a few months, can anyone afford not to expedite?

The real losers in this are not only the aliens and the companies that want to hire them, but everyone who works in the American economy and depends on it. The INS is stifling growth, killing off jobs, and making sure that the Intels of the future never become what they could be and what we all need them to be in these uncertain economic times. Small companies just getting started, the ones who are the engine of job creation in an economy where the big boys are constantly trying to get lean and mean, are precisely the ones least able to afford the added $1000 surcharge. President Bush calls for a tax cut on dividends to stimulate the economy but allows the INS to operate our immigration system in a way that ensures economic revival will never happen. THAT is why all Americans, even, perhaps especially those, who have never heard of the H1B visa, need to be concerned.

It has now reached the point where even the Office of Inspector General in the Department of Justice admits that processing backlogs for non-expedited cases are, in part, aggravated by the growing use of premium processing by desperate employers who will pay anything for results, if they can afford it. An Audit Report of the INS Premium Processing Program issued by the OIG last month told us what we already knew:

    The Premium Processing program has adversely affected the time required to adjudicate routine applications and petitions. Consequently, more applicants are paying the $1,000 Premium Processing fee to assure adjudication within 15 calendar days. The mandate to adjudicate premium applications within 15 days has contributed in part to the increased backlog of routine petitions at the service centers. The backlog has steadily increased since the second quarter of fiscal year (FY) 2002, reaching 3.2 million in September 2002. Thus, a program whose purpose was ultimately to reduce or eliminate adjudications backlogs may be having the unintended consequences of increasing at least some of those backlogs...The increase in premium cases further prolongs processing times for routine cases because staffing and resources must be pulled from the general adjudication areas to meet the demands of Premium Processing (emphasis added).
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. There is little reason to think that the newly-born Bureau of Citizenship and Immigration Services (BCIS) will fare any better and every reason to fear that even the promise of a 15 day turnaround will fade in an agency culture increasingly dominated by enforcement and a desire not to be the one who approves a case for the next Mohammed Atta. The system is ailing and we all know it. 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 illness remains and, then, even $1000 will not be enough. Remember the $500 H1B add on fee that is now $1000-the price we paid to get a 3 year hike in numbers? It is not hard to imagine how the BCIS will pitch their argument to Congress for a rise in the Premium Processing Tax: " We cannot decide cases in 15 days! We need more money!" Suddenly, $1000 becomes $2000 and who knows where it ends? Either the BCIS will treat the 15 days as advisory, much as the INS did with the mandate to decide L1 cases in 30 days, or the fee will soar. There is no stopping point once we start down this slippery slope. Down this path lies only the discouragement of innovation, the forestalling of the need to do things differently, and the subsidizing of duplication and needless complexity that is nothing so much as a full employment program for bureaucrats and lawyers.

Addicted lawyers, and I am one, need the jolt of a quick fix. Get that case through now! Our clients do not care about the long run and, consequently, neither do we. Not only does this not solve the problem, but it actually makes things much worse. It distracts our attention by giving the false appearance of progress. It erodes our interest in, and ability to, contribute to a fundamental reordering of immigration priorities that the nation so obviously needs. The gulf between large employers who can pay the $1000 fee and the small ones who cannot must disappear. The continued existence of such a divide has enabled the INS to practice the politics of divide and conquer with skill and efficacy. Yet, this has been a pyrrhic victory for, in the end, even the INS could not charge enough to hide the rot eating away at its insides.

There is a better way. Congress, not the BCIS, must run the show and decide what our immigration priorities should be. Only the elected representatives of the American people can say what kind of an immigration system we are willing to pay for. Simplify things. Do what any family would do. Decide what America cares most about and find out what it takes to get it done. 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 emerging employers and aliens from using their services. Only by weaning America from the hidden narcotic of user fees can Congress make it possible for the patient to enjoy true recovery.

About The Author

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

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.