Copland and Brenner

Table of Contents

1. Rejecting Amnesty
2. H-1B Update: Advanced Degree Visas Still Available
3. USCIS: Service (of arrest warrants) With a Smile?
4. FBI Name Checks: It Ain't Over ‘Til It's over

1. Rejecting Amnesty

   In remarks made at an Arizona Air Force base on November 28, 2005, President Bush reaffirmed his goal of amending U.S. immigration law. To that end, he stated, “We have a comprehensive strategy to reform our immigration system. We're going to secure the border by catching those who enter illegally, and hardening the border to prevent illegal crossings. We're going to strengthen enforcement of our immigration laws within our country. And together with Congress, we're going to create a temporary worker program that will take pressure off the border, bring workers from out of the shadows, and reject amnesty.”

   The first prong of the President’s three-part border enforcement plan is to “promptly return every illegal entrant we catch at the border, with no exceptions. More than 85 percent of the illegal immigrants we catch are from Mexico, and most of them are escorted back across the border within 24 hours.” For Mexicans, this means using “interior repatriation” (that is, busing apprehended aliens to their hometowns in interior Mexico rather than dropping them off just inside the border). A pilot program involving this practice, according to the President, shows that only eight percent of aliens subject to interior repatriation attempt illegal reentry.

   For non-Mexicans, the President said, the “practice of catch and release has been the government's policy for decades. It is an unwise policy and we're going to end it.” In opposing the policy he cited a 75% no-show rate at immigration court hearings. The solution he offers is three-fold: “increase the number of beds in our detention facilities,” continue to apply expedited removal proceedings, and “press[] foreign governments to take their citizens back promptly.”

   The second prong of the White House proposal “to strengthen border enforcement is to correct weak and unnecessary provisions in our immigration laws.” This means, he said, addressing “the cycle of endless litigation that clogs our immigration courts and delays justice for immigrants.”

   The third component of the plan “is to stop people from crossing the border illegally in the first place,” by “increasing manpower…technology and infrastructure” across the border, and “integrating these resources in ways we have never done before.”

   In the context of the many illegal aliens already in the U.S.A, the President supports significantly increased work site enforcement against employers who hire unauthorized workers, a program that “gives businesses access to an automated system that rapidly screens the employment eligibility of new hire against federal records,” and “confronting the problem of document fraud.” As has been widely reported, the President believes that “we will not be able to effectively enforce our immigration laws until we create a temporary worker program.” However, he makes clear that he is “not going to sign an immigration bill that includes amnesty.” He believes that a temporary worker program, that allows workers to “be able to register for legal status for a fixed period of time, and then be required to go home” would “help meet the demands of a growing economy, and it would allow honest workers to provide for their families while respecting the law.”

   Jumping on the Bandwagon

   In his remarks, the President cited legislation already pending in the Senate and House of Representatives, noting that the Senate bill “improves border security and toughens interior enforcement and creates a temporary worker program.” In the Senate, the Secure America and Orderly Immigration Act of 2005 (S. 1033/H.R. 2330) is a bi-partisan effort sponsored by Senators John McCain (R-AZ), Edward Kennedy (D-MA), and a few of their colleagues. As described by the American Immigration Lawyers Association “AILA”), “S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would: establish a break-the-mold new essential worker program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).” AILA supports S. 1033 and H.R. 2330. (AILA, 109th Congress Hot Bills )

   As reported by The New York Times on November 30, Mexican President Vicente Fox has “renewed his optimism that five years since Mexico began migration negotiations with United States [sic], Mr. Bush might finally succeed in getting support for limited reforms from Congress.” However, “[n]ot all Mexican political analysts were so sure,” and one “said he was worried that the president would press only for increased law enforcement and ignore the more politically polarizing proposals for guest workers, not to mention concerns about the status of the estimated six million Mexicans already working in the United States without legal residency.”

   No doubt the President’s high-profile remarks may generate another round of misconceptions that the laws have already changed. We will update readers as to actual developments once they occur.

2. H-1B Update: Advanced Degree Visas Still Available

   USCIS indicates on its web site that, as of November 14, 2005, there were a total of 12,647 approved H-1B cases under the so-called “advanced degree exemption,” with 3,451 cases pending. Those numbers add up to a total of 16,098 cases against the advanced degree cap of 20,000. Thus, if all the pending cases are approvable, that would mean 3,902 advanced degree H-1B visas were still available as of November 14.

3. USCIS: Service (of arrest warrants) With a Smile?

   In June 2000, a newspaper article on the web site www.Austin350.com quoted then-candidate George W. Bush as saying, “So long as people are coming to feed their families, our country must be mindful that they’re human beings. And I must tell you that the INS sends a different message at times….It is an agency that sends mixed signals to people we’re trying to help. I intend to reform the INS [Immigration and Naturalization Service].” The meaning of his words then – the goal of establishing separate agencies for benefits and enforcement - was reiterated time and again by Administration officials. One such example is former Attorney General John Ashcrofts’s November 14, 2001 Department of Justice (“DOJ”) web site announcement that the INS would be split into separate components, one for enforcement and one for services, so that “the dilemma of competing mission priorities is eliminated.” And so it was, at least in theory, at least for awhile.

   The Department of Homeland Security was established by the Homeland Security Act, signed into law in November 2002. Thereafter, by virtue of three notices published in the Federal Register from February 28 to March 6, 2003, the DOJ reorganized and amended Title 8 of the Code of Federal Regulations to reflect the transfer of certain immigration functions to the DHS. Because the rules were considered technical rather than substantive, the notices constituted final rules requiring no notice prior to implementation.

   Because of the stated goal and policy of reorganizing the legacy INS into separate components with distinct missions, there was optimism among practitioners that the benefits agency would in fact limit its function to benefits. This would mean, for example, that when an alien appeared at an immigration services office seeking service, he or she would not be arrested for alleged civil or criminal violations of the immigration laws.

   Generally stated, a notice to appear (“NTA”) is issued to an alien when he or she is placed in removal proceedings for a violation under the Immigration and Nationality Act (“INA”). An unwelcome, though not surprising, development concerning NTA’s was included in the Federal Register notice of March 6, 2003: “the following officers, or officers acting in such capacity, may issue a notice to appear” to an alleged violator: district directors, officers in charge and assistant officers in charge, service center directors, and 22 other specifically designated job titles. A catch-all, for “Other officers or employees of the Department of Homeland Security or of the United States who are delegated the authority to issue notices to appear,” meant that essentially any officer so appointed could arrest an alien. Because the rule was “limited to agency organization, management or personnel matters,” it was not deemed to be a rule or regulation requiring any advance notice. It was simply a final rule upon publication. But that was not all.

   By notice published in the Federal Register on June 13, 2003, the DHS revisited the topic, and expanded to 37 the list of officers specifically designated to issue NTA’s, plus two additional catch-all provisions. Again, “benefits” officers within the Bureau of Citizenship and Immigration Services – including District Directors, Service Center Directors, Supervisory District Adjudications Officers, Supervisory Asylum Officers, and Officers in Charge – were also included in the 37 specific job titles listed. Since that final rule ostensibly involved mere agency organization, management and personnel matters, it was deemed not to be a regulation or rule that required notice of proposed rulemaking. Again, it was simply final upon publication.

   More recently, on November 4, 2005, yet another rule on the subject of immigration enforcement was published in the Federal Register . Again, the rule expands various lists of DHS officials authorized to perform certain immigration enforcement functions, including the issuance of NTA’s. Again, the “rule relates to agency organization and management” and “does not affect any rights of aliens or the general public” Thus, again, the rule was final upon publication.
   Why is this so important? One example is the online USCIS advice to lawful permanent residents that “E-Filing is a quick, hassle-free, secure way to submit I-90 applications.” After this convenient online filing, an applicant will receive a notice with a USCIS-scheduled appointment for capturing biometrics and photographs at [the] local Application Support Center.” On November 30, however, AILA warned its members to “[b]e sure that your clients with pending I-90 applications [to replace green card] clear up any outstanding wants or warrants prior to their I-90 interviews. Recent reports from Los Angeles and Pittsburgh indicate that foreign nationals with IDENT [Automated Biometric Identification System fingerprint checks] hits are being arrested, detained or given NTAs when they appear for the green card.” (AILA InfoNet Doc No. 05113010) Apparently, not only biometrics are being captured.

4. FBI Name Checks: It Ain't Over ‘Til It's overApplicants for permanent residence and naturalization can be woefully familiar with processing delays involving the National Name Check Program of the Federal Bureau of Investigation (“FBI”). In such name checks, all combinations and varied phonetic spellings of a person’s name are checked against FBI Universal Indices. In most cases, the process is very speedy – approximately 85% of name checks are returned as having “No Record” within 72 hours. However, if there is a “hit,” meaning the name appears in an FBI investigation as a perpetrator (main file) or an associate, co-conspirator, witness or victim (reference file), significant delays can ensue if information must be retrieved from paper records. For applicants facing such delays, information on how to contact the FBI to inquire about name check status was posted to our web site on November 21, 2005.