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Fall 2003 Update On Immigration Policy And Procedures

by Romulo E. Guevara

There have been several noteworthy developments on the legislative front, policy and procedural issues this season, among them: the extension of the religious worker law, the sunset of several provisions in the H-1B visa program, case adjudication delays caused by additional security clearances, new audits and investigations policies, the problems encountered with regard to communicating with the National Customer Service Center, and Service Centers, new authority to issue Notices to Appear. These developments were discussed at American Immigration Lawyers Association (AILA) conferences and meetings with government officials which I recently attended in Boston, Massachusetts and New York City. The former was a conference sponsored by the AILA New England Chapter1 and the latter was the monthly meeting of the AILA New York Chapter on October 29, 2003.


On October 15, President Bush signed H.R. 2152 (P.L. 108-99). The much anticipated legislation extends the special immigrant religious worker program until September 30, 2008. The four Service Centers placed religious worker cases on hold when the law sunset on September 30, 2003. Now that the law has been extended, regular processing of religious worker cases will resume immediately. There will be no need to file new I-360 petitions and the previously filed I-360s that were put in abeyance will not be rejected.


With the sunset of several provisions in the H-1B visa program on October 1, 2003, including the $1000 training fee, the additional attestations for dependent employers, and the reduction of the numerical limitations, what remain are unwanted reminders of how troubling it can (and will) be for practitioners, employers and professional foreign national employees to navigate through these narrow waters of fewer visa numbers.

As of October 1, 2003, the total number of H-1B visas that can be issued is only 65,000, a significant drop from the 195,000 visas available in fiscal year 2002. However, the numerical limitation will not apply to a nonimmigrant who has been sponsored for an H-1B visa by an institution of higher education and non-profit entity related to or affiliated with any such institution. Nor would it apply to an H-1B visa petition that has been filed by a non-profit research organization or a governmental research organization. The numerical limitation will also not apply to H-1B extension requests.

Prior to going to press, the U.S. Citizenship and Immigration Service (“USCIS”) has reported that approximately 22,000 H-1B visas have been carried over from the last fiscal year into the new fiscal year. In addition, free trade agreements with Singapore and Chile require the reservation of 6,800 H-1B visas for their respective nationals. Any unused visa numbers will be added back to the cap. Therefore, approximately 36,200 H-1B are available as of October 1st towards the 65,000 limitation.

The problems that plagued the H-1B program in prior years, when the numerical limitation was reached early in the fiscal year, will likely haunt practitioners and their clients alike. For instance, in 1999, the cap was reached in April; in 2000, the cap was reached in March, six months before the end of the fiscal year. With only 36,200 H-1B visas currently available, it is possible that the cap will be reached by February 2004. In 1999 and 2000, USCIS (then known as INS) did not employ the proper counting methodology causing a slew of problems for both employers and H-1B workers alike. Will a similar dilemma again arise? A few years ago, AILA raised concerns about the Service’s method of counting the visa numbers correctly. USCIS will continue to use Form I-129W for purposes of counting the visas issued towards the numerical limitations. It is uncertain whether the proper methodology will be used given the Service’s prior performance.

The reduction in H-1B visas will likely yield some delicate issues when handling the preparation and filing of new petitions. The following are some points to keep in mind:

· Because the numerical limitation is likely to be reached in February 2004, H-1B petitions should be filed as soon as possible even with a start date up to six (6) months in advance.

· File through Premium Processing (in most of cases) in order to secure a visa number for clients simply because visa numbers are based on approval dates not filing dates. However, Premium Processing is not advisable in cases where the existing nonimmigrant visa status will expire before a future start date of employment and no status will exist in between the expiration of the exiting status and the start date of H-1B employment.

· If the nonimmigrant’s prior status that allows him or her to work runs out before he or she changes to H-1B status (such as F-1 OPT to H-1B), he or she cannot continue to work until the H-1B is approved. No H-1B petition will be approved once the 65,000 cap is reached. However, it is arguable that the nonimmigrant may still accept compensation in terms of benefits and/or a sign-up bonus.

The term “hire” is defined as the “actual commencement of employment of an employee for wages or other remuneration.” 8 C.F.R. §274a.1(b). Employment is defined as “any service or labor performed by an employee within the United States.” 8 C.F.R. §274a.1(h). Therefore, employment is tied to services and wages. If there is compensation but no services, there is no violation of status.

AILA expects the numerical limitations to increase, the $1,000 training fees and the dependency provisions to return. Congress is currently considering reviving these provisions, including a disturbing provision to require an employer to make a recruitment attestation before filing an H-1B, regardless of whether this employer is H-1B dependent or not. It is hoped that the recruitment attestation, which was only applicable to H-1B dependent employers, is not extended to all employers.


The USCIS reports that visa security clearances have substantially increased in post-9/11 case adjudications. Since the September 11 terrorist attacks, additional visa clearances have been conducted by Interagency Border Inspection System (IBIS) prior to the issuance of visas. A visa applicant’s name is entered into a federal compilation database to determine his or her admissibility into the U.S. If an IBIS “hit” results, the Consulate must investigate before the visa can be issued. In 2002, 122,000 clearance requests were received, which was significantly higher than 2001. In 2003, as of this writing, 179,000 clearance requests have reached USCIS.

USCIS also reports that it is seriously considering the elimination of the Visa Revalidation program in the U.S. Also, all nonimmigrants are expected to be fingerprinted at the time of visa application. The question remains, will fingerprints be required for every visa application one files? Or will the fingerprint be taken at the port of entry instead of the consular offices?


The USCIS has adopted a new policy in which it will engage in visits or audits. There will be three (3) sources of random visits or audits: (1) USCIS Fraud Profiles, (2) FBI Initiatives, and (3) I-9 Audits. It is the USCIS’ intent to create a fraud profile by application type. In doing so, it will develop a model of presumptive misrepresentation. If any applicant falls into this model, a full investigation will be launched.

First, USCIS is identifying areas of the highest risk of fraud. The Immigration and Customs Enforcement unit (ICE) is the department that conducts the audits and visits. As of the date of this writing, USCIS has advised that I-129 and I-360 petitions are the first subjects of inquiry this year. Next year, different application types will be the focus until all application types are profiled.

Second, the FBI initiatives will investigate potential immigration violations. One of the primary functions of the FBI is to prevent terrorism as opposed to going after people who violate immigration provisions, considered civil rather than criminal in nature. However, by an Order of the Attorney General, the FBI now has full authority under Title 8 (federal immigration laws) and Title 18 (federal criminal laws) of the U.S. Code to arrest aliens without a warrant when they have reason to believe the alien is in the U.S. in violation of the immigration laws. A simple admission from the alien, a review of immigration records, or any such reliable information is sufficient to trigger the FBI’s arrest power. Basically, USCIS believes visa fraud is a sophisticated form of alien smuggling. The focus will begin with H-1Bs from some of the former Soviet Republics (those with significant Muslim populations) or Middle East countries with aliens involved in the Information Technology, health and bio-professions. The concern here is the perceived high risk of bio-terrorism from these countries against the United States. (Click here to read the FBI Memo)

Third, I-9 audits have become more common in the last few months. These audits to purportedly uncover immigration violations are used as an excuse to discover more facts about the target. USCIS has focused on airport facilities since 9/11 (such as airport hotels, restaurants, etc.) or on employers who are located in landmark buildings or locations. Many times these audits tend to be aggressive in that they are paper intensive and employers are subject to heavy fines per violation.

Immigration attorneys are urged to hire co-counsel in the areas of employment/labor law or criminal law in the event that their clients are subject to any of these investigations.


As many of you have experienced, the national 800 number of the National Customer Service Center (NCSC) effectively cut-off most of USCIS’ customers and their representatives in the spirit of re-organization and effective customer service! The NCSC organization is as follows: Tier One is located somewhere in Kentucky and three other locations through out the U.S. and its operators are NOT Immigration Information Officers (IIOs), instead they are contractors who read from a script (presumably the same information that is listed in the USCIS website’s case status page). When Tier One finds the need to go further up the bureaucratic scale, it forwards the call to Tier Two, located in New York City and Los Angeles. Tier Two involved IIOs who handles more complex yet not so sophisticated immigration questions. Only after Tier Two decides that further action is necessary does it send a “Referral” to the appropriate Service Center (Vermont, Nebraska, Texas, or California). Vermont Service Center, for example, reports that 26,000 referrals since June 9, 2003 and they lack the resources necessary to address each of the queries. USCIS is aware of this unfortunate and ineffective performance of the NSCS and has opted not to address it at this time. We hope that in the near future the system will be reviewed and revamped for higher efficiency and usefulness.


The USCIS is studying the possibility of pre-certifying employers in two areas (1) the ability to pay the proffered wage in the I-140 context, and (2) “specialty occupations” in the H-1B context. An employer will be able to apply for pre-certifcation and obtain certification of its financial ability for Immigrant Visa processing and/or that the positions it commonly offers are specialty occupations for H-1B purposes. USCIS believes pre-certification will significantly reduce the number of RFEs (Requests for Evidence) that are issued on these issues, many of which are repetitive when an employer has multiple petitions. However, there are valid concerns that arise if pre-certification will come into existence. How will the USCIS treat employers that are not pre-certified? Will an employer that is not pre-certified be jeopardized or prejudiced in the adjudication process? It is plausible that more detailed RFEs will be issued to employers that are not pre-certified thus causing additional hurdles for otherwise routine cases.


On September 12, 2003, William Yates, Associate Director for operations of USCIS issued a memorandum discussing the guidelines that Service Centers must follow when exercising their authority to issue a Notice to Appear (Form I-862).2

The memorandum discusses three (3) areas where the Service Centers may exercise their prosecutorial discretion when adjudicating immigration applications. First, “all cases where the alien’s violation of the Immigration and Nationality Act (INA), and/or Federal, State, or local statutes and codes constitutes a threat to public safety or national security.” Second, NTAs will be issued in “instances where fraud scheme has been detected.” Finally, NTAs will be issued in “certain applications for Temporary Protected Status (TPS) where the basis for the denial or withdrawal constitutes a ground of deportability or excludability.”3 (Click here to view the NTA Memo)

The first phase of implementation is likely to have been completed by now. It was scheduled for completion by the end of September 2003. Additional phases will be conducted in conjunction with Immigration and Customs Enforcement (ICE) and the Executive Office of Immigration Review (EOIR). If the Service Center encounters an alien subject to mandatory detention under Section 236(c) of the Immigration and Nationality Act, all relevant paperwork will be prepared and signed but not served on the alien. The Service Center will notify ICE for custody determination and proper NTA service.

The Vermont Service Center stated recently that it is unlikely to exercise their prosecutorial discretion on aliens that entered the U.S. without inspection. The Department of Homeland Security is highly concerned with what they call “undesirables” – such as aggravated felons or those posing a security risk to the U.S.


Finally, USCIS reports that it is in the process of finalizing a memorandum outlining the specific criteria by which an I-130 Petition for Alien Relative and an I-140 Petition for Immigrant Worker may be expedited of the alien beneficiary is in removal proceedings. Many practitioners have faced frustrating difficulties when clients are in proceedings before the EOIR or the BIA and the backlogs at the Service Centers have caused delays, even removal orders because the I-130 or I-140 remains unadjudicated. Immigration Judges may lack the patience to continue rescheduling cases until an approval on an immigrant petition is obtained. Judges could potentially deport an alien if the I-130 or I-140 petition remains unadjudicated. A memo outlining the procedures for expediting I-130s and I-140s for aliens in proceedings will be a welcomed measure.

The immigration landscape continues to be in constant flux. The changes are often not to the benefit of immigrants or to U.S. employers. Advocacy continues to be essential in preventing many of the unfair measures that lurk in the horizon.

About The Author

Romulo E. Guevara is a senior associate attorney at Cyrus D. Mehta & Associates, PLLC. He received his J.D. from Hofstra University School of Law in 1996. Prior to joining the firm, he practiced business immigration law and represented clients before Immigration Courts, the Board of Immigration Appeals and consular offices abroad.

1Advanced Immigration Solutions for Health Care and Biotech, 2003, AILA New England Conference, October 10-11, 2003.

2Yates, “Service Center Issuance of Notice to Appear (Form I-862)”(September 12, 2003).

3By regulation, NTAs must be issued when the basis for a TPS denial or withdrawal results from a ground of deportability or excludability. See, 8 C.F.R.§§244.10(c)(1) and 244.14(b)(3).

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