Important Information from the 2002 AILA Annual Conference

American Immigration Lawyers Annual Conference

The 46th Annual Conference of the American Immigration Lawyers Association (AILA) was held in San Francisco, California from June 12-16. Several members of our immigration team attended the conference and were invited panel speakers. More than 3,500 immigration professionals, government officials and business professionals attended the conference. The panels included sessions focusing on various immigration issues, recent regulations affecting employment sponsored immigration, updates on interpretation and application of laws and regulations from government representatives, and a review from the INS Commissioner James Ziglar.

The following are highlights from the conference.

Defending the agency, INS Commissioner James Ziglar acknowledged that while the INS was in need of systemic improvement, it was not entirely responsible for the events leading to the September 11 attacks or for the federal government’s response to the attacks. According to the Commissioner, INS policies and procedures have been tightened across the board to enhance national security since September 11.

The Commissioner affirmed his support of President Bush’s restructuring proposals which include a Department of Homeland Security that will oversee and combine approximately 22 agencies, one of them being the INS. Last week, President Bush proposed creating a Homeland Security Department, combining 22 agencies - including the INS - to defend America against terrorists. According to the Commissioner, the transformation is expected to considerably improve enforcement efforts. In addition, he stated that the reorganization would provide the agency with a fresh start that would also improve the services it provides to foreign nationals, U.S. employers and families.

Balancing security and constitutional rights was also stressed by the Commissioner as he noted that many recent proposals are likely to be criticized by various associations including AILA. The Commissioner also appeared to encourage discourse over these proposals to ensure that constitutional freedoms and rights will not be sacrificed in the name of national security. As new regulations and policies take effect, it will be interesting to see how the INS will be able to manage its enforcement and security responsibilities while adhering to long-held constitutional principles.

A number of other proposals were addressed and defended. These included changes regarding tourist and business travelers and the practice of authorizing six-month stays upon entry. Currently the minimum admission period is 1 year, the proposed regulations would reduce this to 6 months, establishing greater control over a visitor's ability to extend status or to change status to that of a nonimmigrant student, and they will have a presumed limit of 30 days upon entry unless the foreign national provides the Immigration Officer with information and documentation supporting a request for a longer period of time.

The development and implementation of an entry-exit tracking system was also stressed as one of INS’ highest priorities. The Commissioner stated that a system will be fully functional by the end of 2004. Individuals who are eligible for the Visa Waiver Program will utilize an online system for this purpose that may be available by the end of this year according to the Commissioner. He also commented that implementation of the Student and Exchange Visitor Information System (SEVIS), the student tracking program, would begin this July. A new electronic security system is also being implemented to address photo substitution. The system will allow immigration inspectors to view a photograph of the person who was issued a visa, and compare it with the photograph in the visa that is presented to the them.

Commissioner Ziglar warned against a new wave of anti-immigrant sentiment, and acknowledged the difficult task INS faces in balancing liberty and security. Throughout his speech he also affirmed the INS’ commitment to serving the United States as a nation of immigrants.

Meetings with officials from the Department of Labor (DOL) focused on the proposed PERM program and on recent DOL memos relating to labor certification applications and the effects of the recent economic downturn on the adjudication of these applications.

Update on Pending Applications

Currently, there are more than 280,000 applications for labor certification pending with state workforce agencies and the regional DOL offices nationwide. There are only 250 people in the states agencies and 70 people at the regional level processing these cases. Movement on these cases is very slow, particularly in states where they have not pushed through the backlogs created last year dues to the April 30, 2001 deadline of Section 245(i).

PERM Regulations

While proposed regulations for the PERM program have been published, it is open for comment and final regulations may be at least a year away. The DOL’s goal is to improve processing times with a new attestation based system replacing state and federal official examination of all supporting evidence filed with each application under the current system. Unfortunately, the program as outlined in the proposed regulations do not account for real-world employment practices and may hinder the ability of many employers to use the labor certification process as a means for finding and employing qualified foreign nationals when U.S. workers are not available. For a more detailed discussion of the proposals please refer to our May 7, 2002 news flash.

Impact of Current Economic Climate

Through the late 1990s, due to the strong economy and tight labor market, the labor certification and reduction in recruitment system which provided U.S. employers with an avenue to conduct real-world recruitment on their own and file an application requesting certification of their need for employing foreign nationals proved to be an asset to U.S. companies and to the economy. However, as the economy has faltered in the last couple of years, and companies experience increasing layoffs, particularly in high tech and telecommunications industries that frequently used the labor certification process, this process has become more and more tenuous. In light of this, the DOL is requiring many employers to conduct additional recruitment efforts to test the current labor market in addition to the recruitment conducted to test the market as it existed at the time the application was filed.

Dale Ziegler, Chief of the Division of Foreign Labor Certification for the Department of Labor ("DOL"), issued a memorandum on March 25, 2002 which provides guidance to Regional Certifying Officers ("CO") regarding adjudication of RIR labor certification applications in an economy experiencing layoffs. For a more detailed discussion of the proposals please refer to our March 27, 2002 news flash.

The Directors of all five INS regional service centers were present at the conference. They provided an overview and update of processing at their respective centers. All of the directors noted that the new background checks conducted on all applications have resulted in some delays. To conduct the IBIS background checks, officers have to be trained on accessing the database, then they are trained on how to use the database. The training was approximately a one month project that was conducted and completed in March. Some local INS offices are also encountering processing delays due to the additional checks as a result of lack of personnel, training or equipment (computers and software) needed to conduct the checks.

Within the next 12 months a number of other changes are also expected. Applications for employment authorization documents are expected to be filed electronically, hopefully sometime before the end of this year. Over the course of the next three to five years, the agency will be involved in transferring to electronic filing of more applications. The long awaited premium processing of I-140 is also expected sometime during 2002 according to the directors, and concurrent filing of I-140s and I-485s is apparently also a possibility being discussed by the service.

Other Hot Topics

MANDATORY Address Updates for Foreign Nationals

The INS will begin to strictly enforce the requirement that all noncitizens keep the INS informed of address changes. The Immigration and Nationality Act requires all foreign nationals within the U.S. to notify the INS of address changes within 10 days of the change, using form AR-11. This requirement includes almost all foreign nationals; everyone who is a permanent resident or in any other status other than U.S. citizen is required to comply. Failure to do so can result in a $200 fine and 30 days in jail. Violation of this requirement is also grounds for deportation -- for which there is no waiver available.

For individuals who are required to register with the INS, which currently includes people from Iran, Iraq, Libya and Sudan, as well as nationals from as many as 33 countries to be named later and any other person an INS inspector determines should be required to register, failure to apprise the INS of an address change will also result in a $1000 fine and up to six months in jail. For more information regarding the registration refer to our June 18 news flash.

For nonimmigrants (i.e. individuals in B, H, L, F, O, etc. status) failure to keep the INS informed of an address change is a status violation and can lead to deportation.

J-1 Physicians

Efforts to extend and increase the Conrad State 20 waiver program for J-1 physicians continue. A number of bills are being sponsored. One such bill, HR 4858, passed the House on June 25, calling for a two-year extension. Others call for the elimination of the expiration date altogether. There are also proposals to increase the number of waivers available from 20 to either 30 or 40.

INS Requests for Evidence

Both attorneys and INS representatives commented on the fact that INS adjudications officers are issuing more requests for evidence than ever before. According to the service center directors and AILA liaison members on the panel, some of the requests may be coming from inexperienced examiners who are seeking information that is either not relevant to the application or is clearly excessive. The directors noted that the INS has hired a substantial number of new employees (50 new examiners at the Nebraska Service Center). The goal is to reduce the inappropriate or excessive requests as the officers gain experience.

The American Competitiveness in the 21st Century Act (AC21)

The INS has not yet issued regulations or provided additional interpretation regarding the I-485, Adjustment of Status portability provisions. This provision allows a foreign national to switch employers 180 days after the adjustment application is filed provided certain requirements have been met.

GT Panel Speakers

Elissa McGovern led the Core Curriculum Question and Answer assisting new attendees. Dawn Lurie was one of three experts on the Trainee Visa Panel which discussed H-3, and B-1 visas as well as setting up and utilizing J-1 programs. Laura Foote Reiff participated in a standing room only session on H-1Bs. Martha Schoonover moderated a panel entitled, "The Final Step for Employment-Based Workers", covering adjustment of status vs. CP, 245(k) and (i), AC21 portability and changes that occur after filing the I-485.Cora Tekach, current DC Chapter Chair, was on a panel for post-conviction removal relief.

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