Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 01040403 | Dated April 1, 2001
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:
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to have primary relevance in the new century, but all three have policy structures that are overly restricted and out of date.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 unit.
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 suggest.
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 ten years.
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 years.
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 to reentry.
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 compliance.
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 overseas).
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 claim.
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 needs.
Thank you again for this opportunity to testify on this important subject.
Warren R. Leiden
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.
Cite as AILA Doc. No. 01040403.