Highlights And Lowlights Of 2003
Looking back to 2003, we can begin to assess many of the more important immigration related events and non-events which had important effects or will have importance in the future in the field of immigration. Unfortunately most of them were negative on alien rights, although some give hope for a brighter tomorrow.
The most important of course was the splitting of the INS into three separate divisions under the Department of Homeland Security (DHS) on March 1, 2003 - "CIS" (Citizenship and Immigration Services), "ICE" (Immigration and Customs Enforcement), and "CBP"(Customs and Border Protection). It is unfair to judge the changeover on the basis of nine months of operation, and so the grade that we assign it is an "I" for "Incomplete". Most people in the past had pointed out a basic conflict in the INS ' dual missions to give benefits as well as enforce the law with its personnel flip-flopping from one side to the other, and had urged the change. However, the adjudicative branch, CIS, is still reliant upon former INS personnel and it will take time to develop a new culture attuned more to customer benefit than enforcement. Additionally there have been and will continue to be problems of coordination among the three divisions. In a highly publicized case last year, a college student taking a trip to Mexico was denied reentry and thrown in jail because CBP did not have proof of his permanent residence status and failed to confirm his status with CIS immediately. Other examples currently are the recent reluctance (now in the process of cure) of the CIS to correct errors made on I-94 entry-exit forms by CBP inspectors at the borders and airports, and CBP's position that CIS delays in issuing reentry permits (currently processing applications filed 8/26/02 as of 1/7/04) are CIS issues and the mere filing of an application and the presentation of its receipt upon reentry are no indication that it would be approved. Finally in 2004 CIS officers will be able to adjudicate cases without reference to the zero tolerance policy which had been in effect since March 2002 and was only recently rescinded in September 2003. During that period, many INS officers were required to sign a document that their jobs were on the line if they made a mistake, and the Acting Director of CIS for the Central Region was quoted as saying that DHS personnel would not get into trouble for late decisions, but faced "great problems" if they missed any of the required security clearances.
The National Security Entry/Exit Registration System (NSEERS), also known as Special Registration, had two components - call-in and port of entry registration, of which the former was one of the most awful initiatives of the Administration and rates an emphatic "F". By clumsily handling a delicate situation requiring the utmost tact in processing those individuals (males 16 and over from 25 countries, mostly from the Middle East) deemed necessary to interview for terrorist ties, the Administration managed to alienate entire immigrant communities and subject the U.S. to extensive criticism overseas. The fruits of its registration efforts from September 2002 to September 2003 after 290,526 registrations (83,519 call-ins and 207,007 port of entries) was a government statement that 11 had links to terrorism--even though none were charged with terrorism grounds of inadmissibility or removability. However, the Administration also used this program to detain, terrorize and humiliate many individuals and their families and even now proudly states that 13,799 of these registrants were put into removal proceedings. Finally in the face of heavy criticism, the Administration on December 2, 2003, without acknowledging its failure suspended the program's requirement that aliens register again after 30 days and one year of continuous presence in the U.S. Now annual registration will be required only on a case by case basis when individuals are called in by ICE.
The CIS initiative to create the National Customer Service Center (NCSC) rates another "F". Put on-line June 1, 2003, it interposed another layer of bureaucracy between applicants and service center personnel who could actually answer their specific inquiries. The NCSC line (1-800-375-5283) only allows contact with contractors (not CIS) who read from scripts and can do nothing to assist in specific questions except to refer the matter forward to the appropriate service center after wasting the applicant's time. Only after 3 referrals can the inquirer speak with a CIS representative. Although its period of existence has been short, the grade is deserved as its very concept goes against customer service improvement.
A bright spot for the CIS was its rolling out the "Case Status Online" computerized system which allows applicants with receipt numbers to check the status of their cases at the service centers. Although begun in late 2002, it became very popular in 2003. The grade to be assigned is a "B", as I-751 removal of conditional residence based on marriage and I-829 removal of conditional residence based upon investment applications are still not in the system and many older N-400 naturalization cases are not posted. In addition, at present, it does not cover applications which have been filed to local district offices of CIS (except those which have been transferred to the National Benefits Center in Missouri for pre-processing); nor can it currently check the status of a case once it has been transferred from a service center. The system can be accessed through "https://egov.immigration.gov/graphics/cris/jsps/caseStat.jsp" or through our website at "www.AlanLeeLaw.com".
The National Benefits Center (NBC) rates an "I" as its main purpose only began in the second half of 2003 - taking over the preprocessing of all family based cases from local CIS district offices including entirely handling employment authorization and advance parole applications. The CIS plans to rollout its family based application centralization process after notice in the Federal Register (which was expected in 2003 but never came), starting with the Pacific Northwest and then moving clockwise across the country phasing in each region every 60 days. In addition to family based I-485 adjustment of status to permanent residence applications, it will accept diversity visa (visa lottery) cases and later phase in acceptance of N-400 naturalization applications. The NBC holds great promise to alleviate backlogs in local district office processing and stress on individuals as it will allow applicants to track their cases on the CIS "Case Status Online" system.
Another electronic initiative by the CIS beginning May 29, 2003, filing applications online, met with limited appreciation as the filings were confined to I-765 employment authorization and I-90 permanent residence replacement card applications. At this time, electronic filing instead of current paper filing of forms and documents receives an "I".
With the largest generation of Americans (the Baby Boomers) nearing retirement age, one would assume that every effort would be made to provide adequate numbers of registered nurses to meet the demand. (In one forecast, the United States will require 1 million more registered nurses in the next five years alone.) However, it seems that the opposite is true. CIS announced in July 2003 that beginning July 26, 2004, it would enforce the requirement that all foreign nurses must present visa screen certificates before being allowed to work temporarily in the United States as nurses. Although there are genuine concerns in this country over nursing qualifications, foreign nurses already have to pass a battery of tests to become nurses here. Unless something is done now, many Americans in the future will receive no nursing care and nursing salaries will soon spiral out of proportion to those of other occupations. The Visa Screen enforcement action for 2004 rates a "C-".
Giving service centers the ability to issue notices to appear (NTAs) as of October 1, 2003, rates an incomplete ("I"). An NTA is a notice to individuals that they are under removal proceedings and must appear in an immigration court to answer charges that they are removable. It is too soon to know how service centers will wield their new-found power. Will they be judicious and sparing in exercising their authority, or will they issue NTAs in the future for all denied applications, or for that matter, all approved applications for which priority dates for immigration are not current? (Until about 20 years ago, INS had for a long time issued notices to individuals to appear at the local INS offices for interviews with the deportation branch when INS approved I-130 visa petitions without current priority dates.) Although CIS has stated that the service centers would focus on aggravated felons, public safety/national security threats or fraud schemes, it also said that it could issue NTAs to anyone.
Detention issues in 2003 rate an"F" from the Supreme Court to Attorney General Ashcroft to "ICE". The Supreme Court in Demore v Kim decided that criminal aliens could be detained during the entire course of their removal proceedings regardless of whether they posed a threat to abscond or to public safety. The Attorney General in Matter of D-J- through his control of the Board of Immigration Appeals found a way to allow ICE to detain aliens throughout proceedings who entered illegally by sea on the rationale that such illegals posed a threat to national security as Haiti, the applicant's homeland, was supposedly being used as a staging point for Pakistanis, Palestinians and others attempting to illegally migrate into the United States. It is notable that the vast majority of Haitians are black and given such hostile treatment while Cubans receive favored treatment if they make it to the shores of the United States. Haitian community activists along with local and national immigration advocates called Ashcroft's decision a senseless, baseless and racist policy aimed at keeping Haitians out of the United States. ICE became emboldened by the above to the point that it now believes that it has authority along with CBP to make initial bond determinations and even to overturn an immigration judge's decision on bond. It has also tried out new strategies such as detaining persons who lose their merits hearings even if they have the right to appeal (Hartford pilot project), has reportedly lured individuals with final orders of deportation to local CIS offices under the guise that they would receive immigration benefits, and is now considering the use of electronic tethering of individuals who have lost their merits hearings in the same way that many criminals with minor charges are confined in their homes.
The new U.S. VISIT system (Visitor and Immigrant Status Indicator Technology) which was put into effect on January 5, 2004, (at 115 airports and 14 major seaports for entry and 1 airport (Baltimore) and 1 seaport (Miami) for exit) taking biometric information on all visitors and permanent residents entering the country, receives an "I" because of its newness with a lean towards the positive because of its promise. The DHS believes that such a system will only add 15-20 seconds to the inspection process which if true would give the country greater security without absolutely clogging the processes of entry and exit of this country. The concept is good, but limited in effect as it will not stop attacks by persons unknown to the authorities who are willing to sacrifice their own lives in the process; and at this time, if we liken it to a shield, it is only one-quarter built. Visitors by and large will be allowed to leave the United States for most of 2004 without a biometric checkout at most airports and seaports. Neither land border (Mexico or Canada) is required by Congress to be covered by biometrics until at least the end of 2004. The major flaw at this time is its non-applicability to the 27 visa free countries (mostly from Europe) which are part of the visa waiver program and include countries with large Muslim populations, e.g. France, UK, and Germany. The threat perception from two of them was deemed so high that the Bush administration cancelled many flights from France and the UK to the United States over the Christmas and New Year's holidays. Security was supposed to have been enhanced with the 27 countries by requiring their nationals to obtain machine readable passports by October 2003 to gain entry to the country, but that date was postponed until October 2004 (except for nationals of the Netherlands who have been required to obtain machine readable passports since May 2003 because of the number of stolen passports reported in the country). Still, US VISIT is a step in the right direction if the processing times for inspection hold up to DHS' projections.
Consular processing for visas, both non-immigrant and immigrant, tried to strike a balance between the need for additional security against people's needs to travel in and out of the U.S. expeditiously. Because of the enhanced security clearances required to process visas, the government received a black eye earlier in the year as even prominent artists, writers and scientists seemed to wait interminably for visa clearances. Some coming to the U.S. for recognized awards shows had to cancel because their visas could not be processed on time. Persons waiting for immigrant visas sometimes had to wait up to a year for their security clearances to be processed. The government did not help the process by throwing in an all inclusive Technology Alert List (TAL) in August 2002 which included fields as non-cutting edge as architecture, geography, housing and urban design . (The TAL's purposes are to maintain U.S. technological superiority and to render inadmissible aliens who may be seeking to enter the U.S. to violate U.S. laws prohibiting the export of goods, technology, or sensitive information from the U.S.). Fortunately the situation appears to have become better near the last part of the year, and so we assign consular processing a grade of "C". However, there are still worries as to future delays in consular processing because of the insistence of the State Department in August 2003 to require personal interviews in almost all visa applications and because of the double layer of visa adjudications now made necessary by the memorandum of understanding entered into by DHS and the Department of State in September 2003 giving DHS oversight authority over visa issuances. Also looming in the future is the specter that many visa waiver country nationals will not be able to obtain machine readable passports by October 2004, and will be forced to queue up for visas at the U.S. consulates and embassies. Persons leaving the United States who need to pick up visas in their home countries are still advised to expect delays in visa processing.
Finally other important factors not related to the agencies themselves have had an impact on the overall immigration picture and the nation in 2003. The United States jobless rate rose to 6% nationwide in April 2003, an eight year high, and is currently at 5.7%. That figure probably had as much to do with slowing the planned implementation of the Department of Labor's proposed PERM (Program Electronic Review Management System) program as any other factor. The PERM program would concentrate all labor certification processing in the regional offices of the Labor Department rather than the present bifurcated processing with state workforce agencies (SWAs). Such program would yield a labor certification within 21 days, but demand more recruitment efforts from employers than required today under either traditional or the faster reduction-in-recruitment labor certification processing. It is entirely possible that, although the Department of Labor is now talking about publishing a final regulation after its budget is enacted and regulatory review by OMB (Office of Management and Budget) is completed, the potential political backlash of offering expedited processing for permanent jobs to aliens while so many Americans are still out of work may force a further delay of the program until after the November elections.
The new buzzword in temporary worker visas for many companies is "offshoring". Most members of the public learned for the first time in 2003 that many major U.S. corporations were sending good jobs out of the United States which typically paid up to $100,000 or more. It was previously known that America's manufacturing base was eroding because of cheap global competition, but it had been assumed that America would keep its edge in knowledge industries, especially in the computer field. Most people were brought to the realization in 2003 that high-end service sector jobs, especially in the computer field, could also be shipped overseas. India stands to be the chief beneficiary as its many highly educated and English-speaking natives are thrilled to receive a pay package one fifth the amount that a U.S. worker would obtain for doing the same job. Can the gold standard in American education still be a degree in Computer Science or related field as India itself with over 3 times the population of the U.S. has a seemingly inexhaustable supply of computer workers? This does not even account for other countries of the world which could also take significant chunks of the knowledge occupations. Will the U.S. government be forced to take steps to punish offshoring companies by denying them participation in government contracts? Or is there really any need for action at all as some analysts have estimated that the number of persons in the tech labor force will double in the next 10 years due to a growing economy and new products? These questions will begin to be answered in 2004.
2004 will undoubtedly bring about more great changes in the field of immigration - already President Bush has proposed allowing undocumented workers to obtain legal status so long as they can be matched with willing U.S. employers able to go through a recruitment process without equally or more qualified U.S. workers willing to take the job. Current criticism from the right and left is that the proposal is a political ploy for Hispanic votes in the 2004 elections with the right also accusing Bush of abandoning them and giving an amnesty and the left critical of the proposal's lack of direction for finally adjusting aliens' statuses to permanent residence and even discouraging the idea of staying here permanently. (see our article, "The Next Amnesty, Can You Prepare for It?").
2004 will also be interesting to see how the "I"'s (Incompletes) in this article will work out over the next 12 months as they are some of the most important topics in immigration, and whether improvements can be made in the other areas to promote customer satisfaction, rational and "compassionate" (this administration apparently holds rights to use of this word) decision-making.
Alan Lee, Esq. is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was given two awards by the Taiwan government for his work protecting human rights in 1985. Readers may visit Mr. Lee's website at http://www.alanleelaw.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.