Copland and Brenner

Table of Contents

1. One Message, On Message: The Problem, the President, the Policy (and the Remaining Problem)
2. H-1B Cap: It's All Over for FY2006
3. DOS Optimistic on Employment-Based Priority Dates
4. Attorney General Concerned About Immigration Judges
5. J-1 Developments: Au Pair Extensions and "Home Country Residence"

1. One Message, On Message: The Problem, the President, the Policy (and the Remaining Problem)

   Smuggling – of human beings, drugs and other illegal travelers and cargo – is big business, and a big problem. On January 27, The New York Times published news of a tunnel running from near Tijuana, Mexico to Otay Mesa, California. The tunnel, described as nearly one-half mile long and, in some places, 60 feet below ground and five feet high inside, was “outfitted with a concrete floor, electricity, lights and ventilation and groundwater pumping systems.” On the U.S. side, agents discovered approximately 200 pounds of marijuana in the “vacant industrial building” where the tunnel ends. On the Mexican side, “several thousand pounds of marijuana” were found, which took several hours to extricate through the tunnel shaft.

   The Times article states that, since September 11, 2001, 21 tunnels have been discovered between Mexico and the U.S.A. “Most are attributed to Mexican drug cartels searching for ways to move contraband into the United States, but some appear to be the work of smugglers of illegal immigrants.” On January 30, U.S. Immigration and Customs Enforcement (“ICE”) announced its first arrest involving the recent discovery, of Carlos Eugenio Cardenas-Calvillo, a 44-year-old Mexican national, on charges of conspiracy to import a controlled substance.

   Tunnels are but one means of illegal arrival in the U.S.A. Many illegal immigrants travel by vehicle and on foot, braving harsh – and frequently fatal – conditions as well as ruthless smugglers who traffic in human beings. On May 18, 2003, Tyrone Williams of Schenectady, New York – reportedly a legal immigrant from Jamaica - was arrested following a gruesome discovery in the truck he was allegedly driving. The tractor trailer, abandoned near Victoria, Texas, was found to contain several corpses as well as dozens of men, women and children suffering from extreme heat exhaustion. Various reports estimated that 70 – 100 illegal immigrants, natives of Mexico, El Salvador, Guatemala and Honduras were transported on the truck, some having avoided capture when it was finally opened in the Texas heat. Ultimately, 19 people died on that horrific journey.

   14 people were indicted on charges following the incident. John Ashcroft, then Attorney General, announced in March 2004 that the death penalty would be sought against Williams. Trials in Texas, including the retrial of Williams, are still under way.

   On November 2, 2005, Department of Homeland Security Michael Chertoff announced the Secure Border Initiative (“SBI”). According to Secretary Chertoff, SBI is a comprehensive, multi-year plan that will devote significant resources to “address all aspects of the border security problem across the board - deterrence, detection, response, apprehension, detention, and removal.”

   According to a Fact Sheet issued by DHS that same day, SBI is viewed as “the enforcement complement to the Temporary Worker Program that President Bush proposed last year.” The President’s remarks during his January 31 State of the Union Address – that “we must have a rational, humane guest worker program that rejects amnesty…allows temporary jobs for people who seek them legally…and reduces smuggling and crime at the border” – reiterates last year’s proposal.

   The problem is that the President’s proposal for a “willing worker” program has not led to the actual existence of such a program. Even if it does, such a program will do nothing to address the reality of the 10 – 15 million illegal immigrants already living and working in the U.S.A. It is the real need for some sort of amnesty program to address this reality that will challenge the powers that be in Washington as they contemplate solutions.

2. H-1B Cap: It's All Over for FY2006

   On January 18, 2006, U.S. Citizenship and Immigration Services (“USCIS”) issued a press release stating that the agency had received enough H-1B petitions under the so-called “advanced degree exemption” to meet the cap of 20,000. The exemption was in place for certain alien beneficiaries holding a U.S.-earned master’s or higher degree.

   In its announcement, USCIS stated that it “has determined that the ‘final receipt date’ for these 20,000 cap-exempt petitions is January 17, 2006” and that any petition subject to the cap and received after that date will be rejected “unless the petitioner or beneficiary is eligible for a separate cap exemption.” For those received by January 17, “a computer-generated random selection process” will be used to “select the exact number of petitions from the day’s receipts needed to meet the congressionally mandated cap exemption of 20,000.” After this random selection, “any remaining H-1B petitions for foreign workers with a U.S.-earned master’s or higher degree that do not receive a FY2006 number and are not otherwise exempt will be rejected and returned along with the filing fee(s).”

   We note that petitions for aliens already holding H-1B status do not count against the annual cap. Therefore, USCIS will continue to process H-1B petitions to extend that status, change employers or the terms of the authorized employment, or add concurrent H-1B employment. In addition, H-1B petitions by institutions of higher education, a related or affiliated nonprofit entity, a nonprofit research organization or a governmental research organization are also exempt from the cap and will be processed by USCIS.

   By regulation, an H-1B petition subject to the annual cap may be filed six months in advance of when the proposed employment would commence. This means that the earliest date on which a petitioner may file a petition seeking an H-1B visa number for the first day of FY2007 ( i.e. , October 1, 2006) is April 1, 2006.

3. DOS Optimistic on Employment-Based Priority Dates

   During 2005, we updated readers on Department of State (“DOS”) bulletins and projections, some dire, regarding the availability of employment-based immigrant visas. On January 26, AILA informed members of more upbeat developments: its DOS Chair was advised that the Department “has seen a decrease in demand for employment-based visa numbers for USCIS adjustment of status cases. This has resulted in the rapid advancement of the established cut-off dates.” (AILA InfoNet Doc. No. 06012664, Jan. 26, 2006)

   Worldwide, in the first and second preference categories at this time, the DOS sees “no need to impose a cut-off date for the categories.” For February, there continue to be backlogs for China (January 1, 2003 for first preference and April 1, 2002 for second preference) and India (February 1, 2004 for first preference and August 1, 2001 for second preference). However, DOS has found a “lack of demand” that “has resulted in the rapid advancement” of priority dates for these two countries in these preference categories.

   As to the third preference category, there are backlogs worldwide and in each of the four countries (China, India, Mexico and the Philippines) with separate cut-off dates. DOS “had been concerned that the amount of 245(i) filings during March-April 2001 would result in a large concentration of demand, and limit movement of the cut-off dates. So far this has not been the case, and it may be that such cases (if they exist in large numbers) are still in the [Department of Labor] backlog.” China is expected to “stay at the Worldwide date” (currently April 22, 2001) and India’s “cut-off [currently January 1, 2000] should continue to move, but such movement may become more limited.”

4. Attorney General Concerned About Immigration Judges

   In separate memoranda to immigration judges and members of the Board of Immigration Appeals dated January 9, 2006, Attorney General Alberto Gonzalez expressed his concern regarding “reports of immigration judges who fail to treat aliens appearing before them with appropriate respect and consideration and who fail to produce the quality of work [expected] from employees of the Department of Justice.” While he is “convinced that most immigration judges ably and professionally discharge their difficult duties,” he believes that “there are some whose conduct can aptly be described as intemperate or even abusive and whose work must improve.”

   In an effort to evaluate the problem, the Attorney General is requiring a “comprehensive review of the immigration courts,” including “the quality of the work as well as the manner in which it is performed and encompass both the Immigration Court and the Board of Immigration Appeals.” In the meantime, he urges the jurists to “bear in mind the significance of your cases and the lives they affect. To the aliens who stand before you, you are the face of American justice. Not all will be entitled to the relief they seek. But I insist that each be treated with courtesy and respect. Anything less would demean the office that you hold and the Department in which you serve.” (AILA InfoNet Doc. No. 06011041, Jan. 10, 2006)
   

5. J-1 Developments: Au Pair Extensions and "Home Country Residence"

   In a proposed rule published in the Federal Register on February 2, the Department of State seeks to amend au pair regulations to allow one-time program extensions of the original 12-month period. Except for a pilot program initiated in February 2004 to assess the impact of such a change, J-1 regulations have limited au pairs to a single, 12-month maximum period with a U.S. host family. DOS review of the Au Pair Pilot Extension Program found that “extensions enhance the overall success of this program,” and “host families and au pair participants have enthusiastically embraced the extension concept.”

   The proposed rule would allow “designated sponsors of the au pair program to submit requests…for consideration of program extensions for six, nine, or 12 month durations for first-year au pair participants.” The rule is somewhat confusing, however, in that it is unclear whether DOS or U.S. Immigration and Customs Enforcement (“ICE”), or both, have jurisdiction over extensions.

   For example, the rule states that “[t]he Department [of State, presumably, since it is a DOS regulation], in its sole discretion, may approve extensions for au pair participants beyond the initial 12-month program. This is followed by instruction that “[t]he request for an extension beyond the maximum duration of the initial 12-month program must be submitted electronically in the Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS).” Immediately thereafter, instruction is that “[s]upporting documentation must be submitted to the Department of State….”

   SEVIS is a web-based system for maintaining information on international students and exchange visitors in the United States. SEVIS is administered by the Student and Exchange Visitor Program (SEVP), a division of ICE, which is the largest investigative arm of the Department of Homeland Security (DHS). At this writing, there is no information on the ICE web site regarding the DOS proposed rule and its role in the process.

   In any event, interested parties may submit comments to the DOS within 60 days of the proposed rule. A variety of methods may be used to submit comments. To check out those options, and to read the complete rule, you may point your browser to http://www.access.gpo.gov/su_docs/aces/fr-cont.html.

   Meanwhile, for J-1 exchange visitors subject to the two-year “home country” residence requirement, AILA recently clarified for its members DOS policy involving the European Union (“EU”): “Since the [Immigration and Nationality Act] requires two years in the individual’s country of nationality or legal residence, and the EU is not a country, the option of returning to any of the EU countries is not acceptable. European nationals must fulfill the two y ear requirement in their country of nationality or legal residence.” (AILA InfoNet Doc. No. 06011360, Jan. 13, 2006)