Cite as "AILA InfoNet Doc. No. 01040403 (posted Mar. 1, 2001)"
Warren R. Leiden
Berry, Appleman & Leiden LLP
Subcommittee on Immigration
Committee on the Judiciary
United States Senate
U.S. Immigration Policy: An Overview
On Behalf of the
American Immigration Lawyers Association
April 4, 2001
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Warren R. Leiden, and I am a partner in the
San Francisco office of Berry, Appleman & Leiden LLP, a national
law firm concentrating in corporate immigration law. I appear today
as an observer and participant in the development of U.S. immigration
policy for over twenty years and on behalf of the American Immigration
Lawyers Association (AILA). AILA is the national bar association of
over 6,000 attorneys and law professors who represent the entire spectrum
of applicants for immigration adjudications.
I appreciate this opportunity to present our views on
current U.S. immigration policy and I hope to provide some useful
guidance on issues and concerns worthy of the committee's attention.
Overview of U.S. Immigration Adjudications Programs
Values Embodied in U.S. Immigration Policy
U.S. immigration policy is based on a number of values
that relate to the core social and economic principles on which our
nation was founded. These values are complementary and interweave
to create the rich fabric that is beneficial to all Americans. Among
the most important values are:
- The unification of American families;
- Employment related immigration to keep America strong
in a global economy;
- Asylum protection for refugees fleeing persecution;
- Naturalization based on allegiance to the principles
contained in our Constitution and laws;
- Immigration policy that is implemented through a
well-regulated system based on law, with fair, uniform, and predictable
Based on these values, U.S. immigration policy is built
of three main pillars - family-sponsored immigration, employment-based
immigration, and protection for refugees and asylum seekers. These
three areas continue to have primary relevance in the new century,
but all three have policy structures that are overly restricted and
out of date. Despite the significant efforts of many good people in
government service, each of these three areas has become overly complicated,
substantially backlogged, and unnecessarily hampered by a patchwork
of rigid limitations and sometimes-contradictory restrictions.
The current situation calls out for change in the direction
of modernizing our immigration policy, both in terms of numerical
limits and in the direction of streamlining and simplifying, to the
benefit of all Americans.
Family Unification Through Family-Sponsored Immigration
The goal of family unification and re-unification has
long been a primary value in U.S. immigration policy. Respect for
"the family" is deeply embedded in our national character,
and families are recognized as our most important and primary social
Current law and policy gives special attention to the
unification of the immediate relatives (spouses and minor children)
of U.S. citizens. No fixed quota limits their numbers, and thus they
are eligible for immediate immigration, although processing delays
has made this much slower than "immediate immigration" might
Family-sponsored immigration also includes the spouses
and children of lawful permanent residents ("green card"
holders) and the adult children and siblings of U.S. citizens. However,
each of these categories is subject to a preference quota that limits
and delays immigration. All of the family-sponsored preference categories
are back-logged at least two years, and some are back-logged ten years
or more - these are not processing delays, this is the waiting time
before processing can begin.
Most family-sponsored immigration is accomplished in
two steps: first the U.S. citizen or permanent resident files a petition
to qualify the spouse or child, and then (when the quota number is
reached) the spouse or child files an application with the INS or
an overseas U.S. consulate to obtain immigrant status.
U.S. citizen spouses and minor children are permitted
to file the petition and application concurrently, since there is
no wait for the quota, but the spouses and children of lawful permanent
residents must wait for a quota number, with the current minimum wait
of over four years. For the immediate families of lawful permanent
residents this raises the terrible choice of whether to obey the immigration
laws and separate their family for several years or keep their family
intact in violation of the law. Adult children and siblings of U.S.
citizens are also subject to quotas, which vary from two to well over
Preference quotas for family immigration haven't been
increased since 1990, although the demand for family unification has
grown. Congress would do well to reconsider whether there should be
a quota at all on the immediate family of lawful permanent residents
and to consider generally right-sizing the family immigration quotas
to better meet demand and promote unification.
These preference category quotas are complicated by
additional "per-country" limits, which are based on the
birthplace of the immigrant. A legacy of the "national origin"
quotas that were abolished in 1965, the per-country limits extend
some of the preference category quotas to twice as long a wait. While
waiting for the quota to file their application for permanent residence,
some minor child "age-out" when they turn 21 years old,
which shifts them to preference categories with much longer waiting
periods. For instance, if a child of lawful permanent resident ages-out
of the minor child category, the quota wait increases by almost three
The age-out problem can also arise after the green card
application has been filed. Approval of such adjustment of status
applications can take two years or more due to processing delays,
and if the minor child turns 21 before the application is approved,
he or she loses out and has to get back in line in a different preference
category. To its credit, the INS has instituted special handling procedures
that catch many of these cases, but all it takes is one slip-up and
the application becomes void. Furthermore, these special handling
procedures take additional resources that can further delay the processing
of other cases. A simple change in the law could eliminate this problem
entirely, but the present situation is very unforgiving.
Yet another problem arises after the "green card"
application is filed. This is because the Employment Authorization
Document (EAD) is granted for only one year, despite the fact that
the process will take more than one or two years. Moreover, there
is no credit for timely filing of the renewal, if the immigrant doesn't
have the new EAD in hand, they can't lawfully work. As a result, pending
green card applicants must file to renew their employment authorization
almost every six to nine months. The solution here is simple - grant
EADs to adjustment applicants for the duration of their adjudication
or at least two years, and provide a 240 day grace period if the renewal
is filed on time. This would take all the time pressure off the INS
and the applicants, and would relieve some real hardship.
Still another area needing review is the inability of
immediate relatives to immigrate with their minor children. Although
an adult U.S. citizen may sponsor his or her parents, their minor
children (the siblings of the U.S. citizen) cannot immigrate with
them, with the consequence that families may be separated for years.
Such a situation suggests the need for a change in the law.
Other initiatives central to family reunification also
call for legislative action. A key to family unification is the permanent
restoration of Section 245(i). Section 245(i), which has been extended
to April 30, 2001, allows certain groups of eligible people to obtain
their immigrant visas in the United States, so long as eligibility
criteria are satisfied. A permanent restoration would allow immigrants
on the brink of becoming permanent residents to remain in the U.S.
while the INS processes their applications. The restoration of Section
245(i) would allow families to stay together and provide revenue to
the INS. Without 245(i), for example, people can face the possibility
of up to a 10-year separation from their families due to the bars
These bars to reentry were enacted in 1996. People who
have been unlawfully present in the U.S. for six months or longer
are barred from reentering the U.S. for three years or ten years.
Now with five years of actual experience with the bars in effect,
we can conclude the bars have not fulfilled their intended purpose
of serving as a deterrent to people overstaying their visas. Rather
they have become simply an unforgiving punishment that does not fit
the violation and whose main result is to divide and separate families,
and force people underground. The law provides only very limited waivers
and exceptions to the three and ten year bars, and no waiver for the
permanent bar until after ten years. Repeal or substantial revision
of these bars should take place in addition to a permanent restoration
of Section 245(i).
Under the 1996 laws, new grounds of inadmissibility
were created and waivers were severely restricted. Some of the permanent
bars to admission allow for no review and no waiver, regardless of
any mitigating facts. The general policy of creating broad grounds
of inadmissibility with no opportunity for relief needs to be reconsidered.
The agencies need the authority to exercise discretion to take into
account actual circumstances including innocent intent, family ties
in the United States, or other humanitarian considerations.
The affidavit of support is another provision of the
1996 immigration laws that needs to be reformed to promote family
reunification. All family members sponsoring relatives for immigration
must complete a legally binding affidavit of support. In many cases,
overly strict interpretations of the requirements have needlessly
limited the ability of families to be reunited. It is important to
restore broad discretion in affidavit of support requirements to INS
and consular officials. The INS and consulates need the discretion
to consider broader evidence in meeting the threshold public charge
minimum requirements, including job offers of applicants. In addition,
the INS needs to reconsider the age and residency requirement in the
affidavit of support. Furthermore, the present requirements place
an unfair burden on a widow-beneficiary of a restored spousal petition
after the death of the petitioner. In such a case, the adjustment
or immigrant visa application could be denied because the petitioner
is no longer able to sign the affidavit of support. The law should
be changed so that in a case involving the death or mental incapacity
of the petitioner, an alternative affiant may be considered.
Employment-based immigration has historically served
several goals. In the increasingly global economy, it helps keep America
competitive by attracting some of the best and the brightest, and
international personnel are essential to developing products that
will appeal to other countries and societies. Employment-based immigration
also permits the supplementation of the U.S. workforce at many levels,
with protections for the U.S. labor market, its opportunities, wages,
and working conditions.
Employment-based immigration is comprised of two types
- limited nonimmigrant stays and employment-based permanent residence.
For professionals, multinational managers and executives,
and certain other occupations, there are a number of nonimmigrant
categories that permit lawful stays and employment in the U.S.. The
H-1B program for "specialty occupations" is the most widely
used and best known. The subject of legislation in 1998 and 2000,
the H-1B program has the agencies struggling to keep it workable for
employers in the real world.
The H-1B process begins with the submission of a Labor
Condition Attestation (LCA) to the Labor Department, by which the
employer promises to meet certain wage, working conditions, employment,
and notice standards. The Labor Department is required by statute
to "approve" the LCA within seven days. The employer then
files a petition with the INS, which cannot be approved without the
approved LCA. For employees new to the H-1B program, employment cannot
begin until the petition is approved by INS.
Unfortunately, in attempting to comply with the new
laws, the Labor Department doubled the length of the LCA form in January,
and has had great difficulty making its automated receipt and approval
process work. The regular time for routine LCA approval grew to three
to four weeks in February, but for some weeks, up to eighty percent
of the LCAs had to be re-filed due to government operations problems.
Add to this the INS processing time of two to three months, and the
entire H-1B processing time grows to three to four months. Needless
to say, employers have great difficulty in keeping up with their business
needs when new personnel cannot begin work for three or four months.
The H-1B program was also the subject of massive and
controversial "interim final" regulations that were published
in December 2000 and effective on January 19, 2001. Employers were
dismayed that some of the most difficult new requirements for "non-dependent" employers were never published as proposed regulations for public
comment before becoming effective, or appeared to far exceed the spirit
and the letter of the statutory law. Equally troubling was the imposition
of complicated new requirements that will require substantial changes
in the way that business is done and records are kept, by large national
corporations and small businesses alike, without any education period
or guidance from the Labor Department to help employers come into
Similar problems with Labor Department H-1B regulations
necessitated corrective legislation in 1991 and a federal court injunction
in 1997. While many had hoped that these extreme remedies would not
be necessary after the 2000 legislation, it does not appear that the
lessons of the past have yet been learned. The public was granted
an extension of the comment period to April 19, 2001, and it is hoped
that the Department will now take measures that will obviate the need
for litigation or corrective legislation.
The 2000 Act that increased H-1B nonimmigrant numbers
will expire in 2003, in the middle of the next Congress. Unless extended,
the expiration of 2000 Act will allow the H-1B cap to revert to its
1990 level, which is less than half of current usage. Thus, it will
not be long before the committee will need to address a continuation
of the H-1B program that was refined in 2000.
A common complaint of nonimmigrants and their employers
is that nonimmigrant spouses are not granted work authorization as
an incidence of their dependent visa. This is particularly true for
intra-company transferees, many of whom have spouses who were employed
prior to their transfer to the U.S., but who now cannot accept any
type of employment unless they separately qualify for a principal
nonimmigrant work visa. In the modern era, in which both spouses of
a family often expect to work, this is a policy that needs to be rectified
for each relevant nonimmigrant category.
Employees who qualify can stay lawfully in the U.S.
and work as nonimmigrants while completing the employment-based permanent
residence ("green card") process. At the professional and
managerial level, almost all beneficiaries (employees) are in fact
lawfully employed as nonimmigrants by the petitioning employer during
the green card process, because they can qualify for H, L, E, or other
nonimmigrant visas. It is necessary to employ the nonimmigrant visas
because the permanent residence process can take several years to
accomplish. Unfortunately, there is no lawful nonimmigrant work status
for skilled or other essential workers (other than for seasonal work
such as at resorts), and thus they do not have a legitimate way of
being employed in the U.S. during the lengthy green card process.
This is a serious problem that undermines the integrity of the employment-based
immigrant program and deserves close attention from the committee.
Employment-Based Immigration for Permanent Residence
Current immigration laws provide for several categories
of employment-based immigrants, including persons of "extraordinary
ability" and those petitioned by a U.S. employer for employment
as a researcher, manager, executive, professional, skilled or other
essential worker. In most cases, the employment-based immigrant process
has three steps: labor certification, immigrant petition, and adjustment
of status application (or immigrant visa application to a U.S. consulate
Labor certification is the Department of Labor's approval
of the employer's labor market test as a condition to petitioning
for an immigrant employee. The employer applies by precisely reporting
the job, wages offered, job requirements, recruitment efforts, and
the results of recruitment. Since the introduction of streamlined
procedures in 1996, the labor certification program has seen tremendous
improvements; petitions can take as little as two or three months
for "historically certifiable" occupations. On the other
hand, applications that are not eligible for the streamlined procedures
remain unapproved for two years or more.
Critics of employment-based immigration deride the labor
certification process, although they suggest no workable alternative.
Supporters of the program would prefer a system that reflected employers'
real world practices rather than the artificial, after-the-fact labor
market test that is now required. In overhauling the labor certification
program, it is possible that an attestation process could be the path
to a more workable and effective approach.
Upon the approval of the labor certification, the employer
files the employment-based immigrant petition with the INS. Although
virtually pro forma in many cases, the INS has an uneven record on
petition approvals. Among similar petitions, some are approved in
two or three months, some remain unadjudicated 18 months later or
more. The public has a very difficult time understanding these anomalies,
and employers have urged the INS to adopt a "first in, first
out" approach to processing immigrant petitions.
Once the immigrant petition is approved, the employee
may file the adjustment application, assuming that the quota eligibility
is reached. Adjudication of adjustment applications, the end of the
green card process, has been a serious problem for the INS. After
a virtual freeze on adjustment adjudications in 1999 and 2000, applications
are once again being adjudicated. However, waits of two years for
the decision are not uncommon.
Due to the low adjudication levels at INS, the number
of employment-based immigrant visas issued has been far below the
current quota levels set in 1990. At the same time, the immigration
of persons born in China and India was delayed by up to two or three
years due to the per-country limits, despite the fact that tens of
thousands of employment-based visas were going unused. This particular
problem was addressed in the 2000 Act, and we are already beginning
to see some relief for China and India born applicants.
The availability of employment-based immigrant visas
is not expected to last. The 1990 immigrant visa levels simply don't
match the levels of employment-based nonimmigrants and their dependents.
Put simply, if INS were approving employment-based green cards at
the rate that applications are being filed, we would have backlogs
for all nationalities, not just India and China. Once the INS picks
up the pace of adjudications, we will run out of employment-based
immigrant numbers. This inevitability will need to be addressed in
the near future, perhaps in this Congress, if the INS is able to improve
its adjudication volume.
When the principal immigrant files the adjustment of
status application, it is normally accompanied by concurrent applications
for the EAD and travel permission (advance parole). The INS is required
by regulation to provide the EAD within 90 days, and it is usually
made available at just that point. Unfortunately, as with family-sponsored
cases, the EAD is only granted for one year, although the adjustment
process almost always takes longer. And since there is no grace period
while INS adjudicates the renewal, applicants are obligated to file
the renewal almost six months before the expiration. As a result,
applicants must file for renewal of their EAD only months after the
first EAD is approved. As noted above, this situation could be remedied
easily by changing the EAD duration or allowing for a grace period.
Diversity Visa Lottery Program
Our immigration law also provides for a visa lottery
that allots 55,000 visas per year to nationals of countries with low
"sending" levels (of immigrants to the U.S.) that are located
in "low sending" regions. The program is promoted to encourage
diversity in legal immigration.
Asylum from Persecution
America has long stood as a beacon and haven to refugees
seeking protection from persecution in other countries. Americans
have respected this principle since the earliest days of our nation,
and the obligation to protect refugees has been codified in international
law through treaties and protocols. Our current asylum laws were enacted
in 1980, and substantially restricted in 1996. Generally, persons fleeing persecution apply for asylum at a port of entry upon arrival or after they have been in the U.S. for a period of time. One year after a grant of asylum by the INS or an Immigration Judge, the individual is permitted to apply for adjustment to permanent residence. Numerous studies have examined and confirmed the difficulty that many refugees have coming forward to speak about their persecution, particularly if they have been subject to torture or witnessed grisly acts or killings.
When Congress enacted the provisions for "expedited
removal" (exclusion without hearing) at the ports of entry and
the requirement of mandatory detention, there was an attempt to permit
asylum seekers to avoid expedited removal and detention. Regrettably,
the well-intentioned protection procedures have not been adequate
to prevent the incarceration of bona fide refugees who, sometimes
after many months on incarceration, are finally recognized as worthy
of asylum protection. For individuals who make it into the U.S. and
are not incarcerated, there remains the new provision that requires
that the asylum application must be filed within one year of entry,
or it will not be entertained, regardless of the merits of the asylum
The 1996 law also lowered the number of asylum grantees
who could be granted permanent residence to 5000 persons per year.
Since approvals of asylum applications are much higher than this,
the backlog of asylees seeking permanent residence grows larger every
year. Without permanent residence, these refugees have not yet really
been accepted in American society, and they are not permitted to begin
acquiring the required years of residence to qualify for naturalization.
The draconian provisions enacted in 1996 were a reflection
of certain perceptions of the time, but experience has shown that
these restrictions have caused more hardship to refugees and done
more harm to our national principles than the perceived problems they
were supposed to address. Now five years later, the committee would
do well to review the effectiveness and the harm caused by these provisions
and make recommendations for their amendment or elimination.
Another value long held by Americans is that newcomers
who subscribe to our principles and the U.S. Constitution should be
able to become citizens without great difficulty. This approach is
in sharp contrast to many other countries that look only to the parents
to determine citizenship ("blood") or that have very lengthy,
difficult and subjective naturalization procedures.
A major focus of the INS in the past decade, naturalization
is very popular among permanent residents and the numbers of naturalized
citizens has increased significantly. These increased numbers are
in spite of the fact that naturalization is "hard to get started"
(according to many would-be applicants) and takes a significant amount
of time to complete.
Agencies Adjudicating Immigration Petitions and Applications
In its ideal form, the U.S. immigration process is a
system of laws and objective requirements, in contrast to so many
countries where immigration procedures are unwritten and qualifying
criteria are uncertain or largely subjective.
Unfortunately, the actual practice can lag far behind
these important ideals. Although great strides have been made in some
areas, the responsible government agencies have not yet achieved the
uniformity, predictability, or timeliness that the public expects
and deserves in the adjudication of applications and petitions. The
adjudication of immigration benefits is ultimately a "service"
enterprise, but not all levels of agency management understand this.
All too often, the outcome of an the application hinges on the particular
region it is filed in and the particular examiner who processes the
case. This is particularly noticeable to national employers who petition
for similar cases around the country and are forced daily to comply
with "special" rules for each jurisdiction, although nation-wide
law is being applied. Similarly, employers and their attorneys are
too often dismayed by approvals and denials of almost identical petitions
without an explanation.
Last year's legislation set out a number of guidelines
for processing times that, if followed, would bring great improvements.
In addition, the legislation authorized appropriations to supplement
the funds already received from application fees of the examinations
fee account. As the committee knows, immigration enforcement activities
are supported by appropriations, while all INS adjudications are funded
solely by user fees. Some appropriations for the adjudications function,
if targeted and properly monitored, could provide the resources to
the INS to develop the infrastructure needed to make substantial productivity
gains in the future.
It is also likely that the committee will address the
separation of the enforcement and adjudication functions of the INS.
While all sides appear to agree that the functions need to be separated,
it is important to recognize that the separation functions will need
coordination and need to be accountable to a high level, single office
with the authority to make decisions that are binding on both functions.
While considering INS reorganization, Congress needs to ensure that
adequate congressional appropriations are made available to adjudications
to improve customer service and to offset the costs of those adjudications
for which no fee is charged or from which funds are diverted.
There are several different proposals on this subject,
and the language of the bill introduced last Congress in the Senate
by the former chairman and ranking member of the subcommittee would
make a good starting point for consideration.
Attached at the end is a brief list of recommended INS administration actions that would accomplish significant improvements
for family and business petitioners and their immigrant beneficiaries,
that could take place prior to any reorganization and that, in fact,
would help ensure that any reorganization of the INS is successful.
U.S. immigration policy based admissions on three main
pillars: family unification, employment, and protection of refugees.
Our policies and laws in all three areas have become out of date as
to numbers and purposes, and overly restricted by patchwork of accumulated
amendments and rigid rules. The fact that all three areas are needlessly
complicated and substantially backlogged points clearly to the need
for streamlining and simplification to produce modern policies and
procedures that will work long into the 21st Century.
Interested members of the public and their organizations
are eager to work with the committee to develop up-to-date and smarter
immigration policy and practices. Through its oversight responsibility,
the committee needs to help guide the agencies to succeed in providing
timely, predictable, affordable, and accurate adjudications. Through
legislation, the committee will need to review our out-of-date quota
limits for immigrant and nonimmigrant categories and raise them to
meet America's interests in the 21st Century. In addition, the committee
will need to look to new solutions and new categories to provide for
lawful regulation of entry and work authorization for those our country
Thank you again for this opportunity to testify on this
Warren R. Leiden
Attachment to the Testimony of Warren R. Leiden
April 4, 2001
Recommended INS Administrative Actions
The following actions can be taken by INS without statutory
change, and would provide significant improvements to both efficiency
for the agency and outcomes for the public.
- Re-institute concurrent filings of employment-based
immigrant petitions and adjustments of status. Prior to the
advent of the INS Service Centers, all adjustment of status applications
and immigrant visas petitions were filed at local district offices.
When INS instituted the Service Centers, the agency initially transferred
all processing of immigrant visa petitions to the service centers,
but continued to require that adjustment of status applications
be filed at the local offices. This requirement meant that employment-based
immigrants had to wait until the Service Center had approved their
immigrant visa petition until they could file for adjustment of
status at the local office, adding many months to the process, and
delaying the time when they could file for employment authorization.
For individuals whose nonimmigrant status was expiring, or children
of applicants who were approaching 21, this delay often meant losing
eligibility for adjustment and work authorization. Now that the
INS has moved adjustment of status processing to the Service Centers
as well, there is no need to continue to require separate filing
of the petition and adjustment applications. Concurrent filing would
eliminate the hardship caused to immigrants and their families from
the delays and backlogs in processing immigrant visa petitions,
preserve their work authorization and the eligibility of dependent
children who might otherwise "age out."
- Lengthen the validity period of Employment Authorization
Documents and combine them with Advance Parole. Current INS
regulations allow applicants for adjustment of status to apply for
work authorization. Regulations also prohibit adjustment applicants
from traveling abroad without first obtaining permission from the
INS (called Advance Parole). The vast majority of adjustment applicants
apply for both of these documents concurrently with their adjustment
applications. INS policy is to issue work authorization and advance
parole only for one year. If the adjustment applications take longer
than one year to process (which is the normal case), the applicant
must reapply for both documents and pay additional fees. These applications
further aggravate the INS workload, and are a nuisance for applicants.
INS should provide work authorization and advance parole through
the anticipated duration of the adjustment processing, and should
combine these documents into one to minimize processing and backlog.
- Allow individuals to travel outside the U.S.
while extension or changes of status requests are pending. Current
INS policy and regulations are extremely ambiguous with regard to
the status of applications for extension or change of status if
the individual must travel abroad while the case is pending. In
some circumstances the INS considers the petition "abandoned"
and in others will process the case to conclusion, but require the
individual to wait outside of the U.S. until the approval is issued,
or file an additional application after entry to have the decision
"apply" in their case. To avoid unnecessarily duplicative
filings upon return to the U.S. of these individuals, INS should
determine that such cases may continue while the beneficiary is
temporarily abroad, and should state categorically that any decision
reached after the return of the individual to change or extend their
status is binding, regardless of any intervening departure.
- Reduce the proliferation of resource-intensive
Requests for Evidence (RFEs). INS adjudicators are given wide
latitude in interpreting the eligibility standards for immigrant
and nonimmigrant visa categories, resulting in an increasing number
of requests for evidence. INS customers receive wildly inconsistent
adjudications and RFEs requesting documentation unrelated to any
known standards in statute or regulation. In addition, each of these
RFEs requires the examiner to take extra time to articulate the
request, a supervisor's review, and resources to print and mail.
It also requires additional time and resources to process and review
the responses from the applicants/petitioners, a waste of valuable
resources. By developing and publicizing clearly articulated standards
for eligibility, the Service would improve consistency and reduce
- Enforce a policy of not revisiting decisions
already made in the absence of fraud or changed law or facts.
Currently, INS adjudicators are issuing RFEs and denials on such
matters as extensions of status where there has been no change in
the previously approved circumstances, wasting INS and public resources.
- Provide for the issuance of EADs to fiancées
with approval of the fiancée petition. INS regulations
provide that K-1 fiancées of U.S. citizens who enter the
U.S. to get married are authorized to work incident to their status.
However, the Service requires these individuals to file a separate
application for an Employment Authorization Document after they
arrive, and wait up to 90 days for issuance of the card (K-1 status
requires the couple to be married within 90 days of entry). To avoid
needless duplication of adjudications, the INS should automatically
issue an employment authorization document with the petition approval,
so the individual may commence work immediately upon entry.
- Enable foreign student advisors to authorize
optional practical training. Foreign students in F-1 status
are eligible for two primary types of "practical training"
work authorization: curricular practical training (which involves
an established training program that is part of the curriculum)
and optional practical training (which is not directly part of the
curriculum and which can be undertaken during studies or for one
year after graduation). Currently, the foreign student advisor at
the institution may authorize curricular practical training by endorsing
the student's documents. However, the student must apply to INS
for an Employment Authorization Document to engage in optional practical
training. Enabling foreign student advisors to authorize optional
practical training would avoid the needless processing of routinely
- Develop standardized and accurate processing
time reports and make them available on the web. Currently,
each of the four INS Service Centers has its own format for reporting
its processing times for different petitions and applications, and
this information is not generally available to the public on the
INS web site. In addition, the processing times do not reflect the
actual time between the date the Center receives a case and the
date the applicant/petitioner receives a decision. The Centers do
not report their "front log," the delay between the date
a case is physically received and the date it is entered into their
computer database, nor the delays between the date a decision is
made and the date that decision is actually mailed. In addition,
the Centers do not report the oldest date of any cases pending,
rather the average date that the "majority" of cases pending