Copland and Brenner

Table of Contents

1. Service Centers To Begin Issuing Notices to Appear
2. H-1B Numbers And Fees Revert Under Sunset Provisions
3. Machine-readable Passport Requirement Postponed
4. Social Security Administration Further Restricts Number Issuance

1. Service Centers To Begin Issuing Notices to Appear

   On September 23, the American Immigration Lawyers Association (“AILA”) web site affirmed that the Service Centers of the Bureau of Citizenship and Immigration Services (“BCIS”) expect to begin issuing notices to appear (“NTA’s”) on October 1, 2003. (Posted on AILA InfoNet at Doc No. 03092311) The recent AILA posting followed a September 4, 2003 teleconference in which AILA’s Service Center Operations Liaison inquired about this prospect in light of “the impression that the BCIS’ mandate was immigration service and benefits and that decisions and actions of an enforcement nature would be the responsibility of other agencies.” This inquiry is the apparent result of an earlier “reliable report from a BCIS official” regarding Service Center issuance of NTA’s.

   In response, AILA was advised that: “We take our adjudications responsibility very seriously. We have been directed to be ready to issue NTAs where an applicant poses a risk to public safety or national security or may have committed fraud. We will rely on existing investigative personnel resources, and do not expect that our issuing NTAs will set us back in regard to our adjudication of cases. We will expect our employees to exercise prosecutorial discretion and to be guided by Headquarters’ November 17, 2000 memo on this topic. Implementation will be phased in, after evaluation of issues encountered as the result of earlier phases of this initiative.”

   The subject of the November 2000 Memo in question, signed by legacy Immigration and Naturalization Service Commissioner Doris Meissner, is “Exercising Prosecutorial Discretion.” (Posted on AILA InfoNet at Doc. No. 00112702, Nov. 27, 2000) Prosecutorial discretion, the memo notes, “is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone.” “The ‘favorable exercise of prosecutorial discretion’ means a discretionary decision not to assert the full scope of the INS' enforcement authority as permitted under the law,” and “will take different forms…but include decisions such as not issuing an NTA.”

   The Memo cites Heckler v. Chaney, 470 U.S. 821, 831 (1985), a U.S. Supreme Court decision, for the premise that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” (emphasis added) Moreover, the Memo goes on to say, “the ‘discretion’ in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances.” (emphasis added)

   The Memo offers the following principles regarding the exercise of prosecutorial discretion:

   - it “is an appropriate exercise of prosecutorial discretion to give priority to investigating, charging, and prosecuting those immigration violations that will have the greatest impact on achieving these goals” of “protecting public safety, promoting the integrity of the legal immigration system, and deterring violations of the immigration law”
   - prosecution may be declined for “a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by prosecution is not substantial”
   - while supervisors “should ensure that front-line investigators understand that it is not mandatory to issue an NTA in every case where they have reason to believe that an alien is removable,” “priorities include identifying and removing criminal and terrorist aliens, deterring and dismantling alien smuggling, minimizing benefit fraud and abuse, responding to community complaints about illegal immigration and building partnerships to solve local problems, and blocking and removing employers’ access to undocumented workers”
   - some aliens “who are subject to removal may come to the Service’s attention in a variety of ways,” including being “identified when they apply for immigration benefits”
   - “adjudicators may have a better opportunity to develop a credible factual record at an earlier stage than investigative or other enforcement personnel”
   - factors to consider in deciding whether to exercise prosecutorial discretion include but are not limited to:

   - immigration status
   - length of residence in the U.S.A.
   - criminal history
   - humanitarian concerns
   - immigration history
   - ultimate likelihood of removal
   - other means of achieving goal
   - eligibility for relief
   - honorable military service
   - community attention

   For those concerned about the apparently very malleable decision-making process in exercising prosecutorial discretion, the Memo states that “minds reasonably can differ, different factors may point in different directions, and there is no clearly ‘right’ answer.” In cases “where it is clear that no statutory relief will be available at the immigration [court] hearing and where detention will be mandatory, it best conserves the Service’s resources to make a decision early.” Even if an early, unfavorable, exercise of prosecutorial discretion is not made, the Memo notes that “immigration violations are continuing offenses that…continue to make an alien legally removable regardless of a decision not to pursue removal on a previous occasion.”

   ServiceCenterofficers may be less likely to favorably exercise prosecutorial discretion given this note at the end of the Memo: “Some INS personnel have expressed concerns that, if they exercise prosecutorial discretion favorably, they may become subject to suit and personal liability for the possible consequences of that decision. We cannot promise INS officers that they will never be sued. However, we can assure our employees that Federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agency’s legal authority – such as this memorandum – from personal legal liability for those actions.” (emphasis added) There is no indication as to what, if any, liabilities (or protections) may follow from an unfavorable exercise of discretion.

2. H-1B Numbers And Fees Revert Under Sunset Provisions

   With fiscal year 2003 behind us, so-called “sunset provisions” implemented by the American Competitiveness and Workforce Improvement Act (“ACWIA”) of 2000 have expired. Among other things, ACWIA raised the number of initial H-1B visas available annually during the economic boom of the late 1990’s as well as associated filing fees. Under ACWIA, the available number of visas for fiscal years 2001 – 2003 was 195,000, and a “training fee” of $1,000 was required in most cases.

   As of October 1, 2003 (the first day of the federal government’s fiscal year 2004), the number of H-1B visas for initial filers shrank to 65,000, and the filing fee reverted to a mere $130. For those unaware of these changes, the most likely problem area in the short term will be rejection of any petition that includes a single filing fee totaling $1,130. The BCIS Associate Director of Operations has issued a memorandum advising that “[a]ny H-1B petition filed on or after October 1, 2003 that includes the additional $1,000 imposed by ACWIA together with the base filing fee of $130 in a single remittance should be rejected by Service Centers as improperly filed.” However, if “the fees are in separate remittances, then the $1,000 ACWIA fee can be rejected and the petition and filing fee accepted.”

   While the Memo continues on to indicate that the forms and instructions “will be revised to delete all references” to the ACWIA fee, AILA is not so sanguine. In a Practice Advisory to its members (posted on AILA InfoNet at Doc. No 03092314), the organization notes that the ACWIA fee “generated $210 million in 2001.” Therefore, AILA predicts that “the government is unlikely to allow such a large revenue stream to lapse” and that Congressional action will be taken to reinstate the fee sometime after October 1.

   Many will no doubt be concerned that the dramatic decrease portends a return to the difficult years of 1996 – 2000, when H-1B numbers were at a premium and thousands of beneficiaries faced lengthy delays in starting work. In this context, the Department of Homeland Security’s Office of Immigration Statistics recently released a report with some disturbing numbers. The report, titled Characteristics of Specialty Occupation Workers (H-1B: Fiscal Year 2003, issued in September 2003, follows a similar report issued in July 2002 regarding fiscal year 2001, as mandated by ACWIA.

   The Report covers a variety of characteristics of H-1B workers, including country of birth, age, level of education, occupation, compensation and industry in which employed. The Report also details the numbers of petitions filed and approved, as follows:

   Fiscal Year 2000: 299,046 H-1B petitions filed (164,814 for initial employment, 134,232 for continuing employment); 257,640 approved (136,787 for initial employment, 120,853 for continuing employment).

   Fiscal Year 2001: 342,035 H-1B petitions filed (201,543 for initial employment, 140,492 for continuing employment); 331,206 approved (201,079 for initial employment, 130,127 for continuing employment). Among the approved cases, 161,561 beneficiaries were from India, 27,330 from China.

   Fiscal Year 2002: 215,190 H-1B petitions filed (109,576 for initial employment, 105,614 for continuing employment); 197,537 approved (103,584 for initial employment, 93,953 for continuing employment). Among the approved cases, 64,980 beneficiaries were from India, 18,841 from the People’s Republic of China. 69,104 (35.1 percent) were between the ages of 25 – 29.

   The Report, along with other H-1B petitions reports mandated by ACWIA, is available online at the DHS web site at http://www.immigration.gov/graphics/shared/services/employerinfo/h1b.htm .
   

3. Machine-readable Passport Requirement Postponed

   In August 2003, we reported on a Department of Statement (“DOS”) requirement that all aliens seeking to enter the U.S.A. on the visa waiver program (“VWP”) must possess a machine-readable passport as of October 1, 2003. Now, after consultation between Secretary of State Colin Powell and the DHS, that requirement has been postponed until October 1, 2004 for citizens of the following countries: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. Five other countries (Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia) did not request an extension “because virtually all of their citizens already have machine-readable passports.” The DOS notice may be viewed at http://www.travel.state.gov/mrppostponed.html.

4. Social Security Administration Further Restricts Number Issuance

   By final notice published in the Federal Register on September 25, 2003, the Social Security Administration further limited eligibility for issuance of a Social Security Number (“SSN”). For any alien not authorized to work in the U.S.A., he or she must demonstrate a “valid nonwork purpose” under federal, state or local law. Generally, this means that an alien must prove that a SSN is required to receive a federally-funded benefit, or a means-tested public benefit to which he or she is entitled. The new rule, effective October 27, 2003, may be viewed on the Federal Register web site by pointing your browser to http://www.access.gpo.gov/su_docs/fedreg/frcont03.html and clicking on September 25, 2003.