This is part 2 of a 7 part document. This newsletter is never sent out unsolicited and is only sent to people who have subscribed. UNSUBSCRIBE instructions can be found at http://www.visalaw.com/subscribe2.html. The complete newsletter will also be posted shortly at http://www.visalaw.com/bulletin/ if you do not receive each part. Please do not send requests to resend individual parts. 4. DEPARTMENT OF LABOR BUDGET PLAN DRAWS PROTESTS FROM IMMIGRATION LAWYERS The American Immigration Lawyers Association has notified Congress that there are major problems with the Department of Labor's proposed budget for the 2000 fiscal year which begins in October. Part of the DOL plan calls for the alien labor certification programs to be transferred from the DOL's Employment and Training Administration to the DOL's Employment Standards Administration. The movement of the programs to the ESA would mean that one organization would oversee the administration of the labor certification program as well as enforcement of the rules. AILA argues that having one office handle administration and enforcement would create a serious conflict of interest. AILA also is complaining that the DOL budget contains no additional funding for the labor certification program and suggests that the DOL will impose a user fee that would go well beyond simply funding the administration of the labor certification program. The planned user fee would fund DOL enforcement actions as well as a new training program for workers supposedly displaced by labor certifications. The point of a labor certification is to prove that US workers are not displaced by an alien worker, so it would seem contradictory to make employers pay a user fee for this purpose. AILA supports a user fee if it is reasonable and only used for improving labor certification processing. One DOL plan will probably interest many. The DOL is writing a plan to turn the labor certification program into an attestation program similar to the H-1B program. Presumably, employers would attest under the potential for major penalties that it has recruited for the position and that no US workers are available. AILA has a cautious attitude regarding this proposal. According to AILA, DOL's record with attestation programs is spotty especially in light of the DOL's currently proposed H-1B regulations. 5. INS OFFERS FURTHER GUIDANCE ON IRANIAN CASES An Iranian reader of this publication recently passed on to us an INS Request for Evidence in an H-1B change of status case that contained the following language: "The Office of Foreign Assets Control, United States Department of Treasury (OFAC) has reviewed the executive order and OFAC found that an employer in the United States may not lawfully make a binding offer of employment to an Iranian national residing in Iran. It follows from this finding that the Service has determined employment-based immigrant or nonimmigrant visa petitions filed by United States employers on behalf of Iranian nationals residing in Iran must be denied in compliance with the executive order. Additionally, the Service finds that Iranian nationals presently in the United States in nonimmigrant classifications that specifically require the maintenance of a foreign residence must also be denied in compliance with the executive order. Please specify the beneficiary's country of residence." We passed on this information to the American Immigration Lawyers Association as did other immigration lawyers around the country. AILA brought this issue up with the INS in a recent meeting and received the following helpful written guidance from Jackie Bednarz of the INS Office of Policy and Programs: "The President directed all Executive agencies "to take all appropriate measures within their authority to carry out the provisions" of the Iran trade sanctions [E.O. 12,959, 60 Fed. Reg. 24,757 (1995)]. E.O. 12,959 prohibits "the importation into the United States...of any goods or services of Iranian origin." E.O. 12,959,1(a). Also prohibited is "any transaction...by a United States person relating to...services of Iranian origin." Id 1(d). In December 1995, the INS disseminated information about the Executive Order to its field offices. In January 1998, the INS General Counsel advised the INS that the Executive Order could require denial, or revocation of approval, of visa petitions relating to employment that would be in violation of the trade sanctions. Since then, INS has consulted with the proper Executive Branch agencies to determine the precise scope of the sanctions and what types of employment might be prohibited. To date, INS has not disseminated additional guidance to its field offices. There is, currently, no requirement to deny or revoke approval of any petitions. The INS will develop and distribute appropriate guidance to field offices upon completion of all necessary Executive Branch discussions to determine the appropriate measures to be taken." Thomas Simmons, the Branch Chief of Business and Trade Services of the INS' Adjudication Division indicated that the INS may begin to take a tougher line after an interagency meeting takes place to discuss the sanctions. According to Simmons, the INS will probably publish a policy in the Federal Register. _______________________________________ 6. EXCHANGE VISITOR FEE INCREASED ANNOUNCED In June of 1996 the US Information Agency announced an interim rule imposing a fee for applications for waiver of the two-year home residency requirement imposed by INA section 212(e) to $136. As of March 11, 1999, this interim rule will become final without change. The Agency has determined that this amount is sufficient to recoup all costs related to review of such waiver applications. There will be no fee imposed for requests for advisory opinions, as they do not impose a specific benefit on the requesting person, as does the waiver itself. _______________________________________ 7. INS REPORTS PROGRESS IN REDUCING NATURALIZATION BACKLOG The INS has released a report on its progress in reducing the national backlog of naturalization cases. According to the INS, although the agency continues to have problems related to reforming the entire naturalization process, there has been an improvement in processing speeds and the INS is "beginning to see positive outcomes." The INS believes it has made a substantial step in restoring the integrity of the application system by its taking over of the fingerprinting process. The agency has been under fire for the last two years as the result of its inadvertent naturalization of several thousand convicted criminals ineligible for citizenship. The INS has now opened more than 100 fingerprinting sites across the country to handle the fingerprinting process. As far as reducing backlogs, the agency reports that it completed 238,067 naturalization applications between October and December 1998. This is nearly double the number adjudicated in the same period in 1997 and a 16% increase over the June through September 1998 period. The agency also reports that an increasingly large number of applicants are clearing the fingerprinting stage of the naturalization process. From August 1998 to November 1998, the number of naturalization applicants fingerprinted increased 62% and the number of fingerprints rejected by the FBI for being unreadable declined from 14.3% to 6.7% between the last fiscal year and the beginning of the current fiscal year. Finally, the agency reports a 32% increase in the number of naturalization interviews conducted in the five biggest INS offices. These offices handle nearly two-thirds of all naturalization applications filed across the country. The INS has reported some troubling signs, however. First, as we indicated a few months ago after interviewing an INS District Director on the subject of naturalization, a number of INS offices are having difficulty hiring and retaining employees to work naturalization cases. The INS is attempting to alleviate this problem by deploying 200 adjudicators to cities with the largest pending caseloads. The INS is also studying the reasons for the turnover rate. A number of technology problems have arisen that have slowed processing, though the INS claims to have them all resolved. One problem involved the interface between the INS regional offices and the fingerprint centers' fingerprint scheduling systems. _______________________________________ 8. NATURALIZATION AND CITIZENSHIP UPDATE In an effort to reduce the current citizenship backlog, the INS has hired 300 new employees. Two hundred of the employees will be assigned to review applications, conduct interviews, and make decisions, and another 100 are being stationed in the four service centers that process citizenship application - California, Nebraska, Texas and Vermont. The INS is also establishing a national telephone hotline for questions about eligibility, the application process, and individual case status. Also, all files will be moved to a central office, to be established in Missouri, in an effort to reduce the number one complaint about the Service, lost paperwork. **** The INS office in Los Angeles has admitted that it wrongfully delayed processing some citizenship application in a mistaken belief that the applicants were required to pay an additional $130 after the citizenship fee rose from $95 to $225. As many as 2,500 people were effected. They should be receiving a letter in the mail explaining the mistake. **** An internal error at the INS caused the date and time of some 10,000 naturalization ceremonies on notices sent to successful citizenship applicants in the past few months. Anyone who received an ineligible notice can call (213) 894-0422 or (213) 894-2802 to find out when their oath taking is scheduled. These lines are English speaking only, so non-English speakers may wish to have someone present to translate. _______________________________________ 9. PRESIDENT CLINTON SEEKS TO EXTEND FEDERAL AID TO LEGAL IMMIGRANTS WHO WERE CUT OFF IN 1996 The Clinton Administration has proposed spending $1.3 billion over five years to restore welfare benefits to legal immigrants who lost benefits as a result of the Republican-led welfare reform legislation passed in 1996. While the proposed funds would not fully restore benefits to their previous levels, another 132,000 immigrants will be covered. Since agreeing to welfare reform in 1996, both the President and Congress have worked to extend benefits to some of those cut off in 1996. In large part, the drive to restore benefits has been the result of growing political pressure from immigrants, who are voting in larger than ever numbers. Pressure has also come directly from states with large immigrant populations, such as California and New Jersey. Details of the proposal were included in the President's budget, released on February 1, 1999. The plan would extend benefits to immigrants who arrived in the U.S. after August of 1996, when the current federal welfare reform rules went into effect, and cover almost all legal immigrants. Those who would be immediately benefited are about 70,000 legal immigrants who were either disabled after entering the U.S. or who turned 65 after entry. States would also be given the option of providing health coverage to approximately 55,000 legal immigrant children and prenatal care to 23,000 legal immigrant women who arrived in the U.S. after 1996. The proposed budget also includes $70 million for states to improve their English language instruction facilities. The proposal would integrated the teaching of English into instruction about U.S. history and government, as will as information about economic life in the U.S. Republicans are generally opposed to the new measures, but because of their perceived, and perhaps deserved, anti-immigrant stance, and their increasing unpopularity with immigrants they are hesitant to speak out against the administration's proposal. The Republicans current vulnerability on immigration and welfare issues may make them unwilling to oppose the measure, giving it a good chance of passing. _______________________________________ 10. DETAILS OF PROPOSED FISCAL YEAR 2000 INS BUDGET RELEASED The INS has requested an eight percent increase in its total requested budget for fiscal year 2000. The agency is requesting a total of $4.27 billion. The increased funding would allow the hiring of 306 new employees, and improve border control and detention facilities. In announcing its proposals for employing the funds, the INS stated its intention "to extend ongoing initiatives while maximizing the efficiency of its resources." The Service wants to continue working to improve customer service as well as furthering its multi-year plan for border and illegal immigration control. Infrastructure. The FY 2000 budget includes $70.6 million for building projects, especially Border Patrol stations and detention facilities. Projects along the Texas border would receive $26.9 million, California, $12.8 million, and Arizona, $2.3 million. The money proposed for detention facilities is as follows: Texas, $11.2 million, California, $1 million, Arizona, $800,000, and Florida, $9.5 million, for the renovation of Krome Detention Center. Border Management. The FY 2000 budget includes $59.2 million for the hiring of 121 new positions and technological improvements along the border. The INS hopes to accomplish the joint goals of improving the legal immigration process and of preventing contraband and undocumented immigrants from crossing. The number of Border Patrol agents will remain the same as in 1999, nearly 9000. Fifty million dollars of the funding is being requested to expand the Integrated Surveillance Intelligence System (ISIS), a high-tech border enforcement strategy that allows areas to be effectively monitored that used to be to remote to be adequately policed. This money will fund 14 new positions and 176 surveillance cameras. The remainder, $9.2 million, would be used to hire 87 new employees for Texas border stations, and to install two new SENTRI lanes, which allow for easier passage for frequent, low risk crossers. Interior Enforcement. The FY 2000 budget includes $20 million to deal with immigration enforcement within the U.S. The budget embodies three main goals: tracking criminal aliens, improving transportation of detainees, and providing for 40 additional juvenile bed spaces. The INS plans to continue its cooperation with the National Crime Information Center (NCIC), and proposes a three-year process during which the Service will transfer all the data relevant for its purposes from the NCIC. Naturalization. Naturalization remains the top priority of the INS, and the proposed funding for it in the budget is $124 million, plus a projected $688.6 million in fee receipts, which are typically the only source of funds for naturalization. The FY 2000 budget proposes an additional 200 adjudicators and additional support staff who would be dedicated to reviewing naturalization applications. The budget also proposes $26.2 million to continue development of a national telephone service that would provide information about eligibility, procedures, and individual case status. _______________________________________ 11. LAWSUITS AGAINST THE INS LATEST TOOL IN RESOLVING PROBLEM CASES While the INS is claiming to be putting customer service first, immigration lawyers and immigrants who have been observing the operations of the agency over the past several years all seem to have reached a similar conclusion - service is worse than ever and it is not unusual for cases to drag on for years without INS action. In the past, these problem cases were resolved by immigration lawyers simply by contacting the INS to alert them to the problem. If that did not work, working through the American Immigration Lawyers Association would help. And then perhaps a Congressmen could offer assistance. Recently, however, the old civil methods of trying to get INS to do their job don't seem to be working very often and immigration lawyers are left with the one option that as lawyers they know best - suing the agency. Immigration lawyers can file mandamus actions to compel an officer or employee of a the United States to perform a duty owed to a plaintiff. Failure to comply with the court order can lead to an INS officer being held in contempt of court. The American Immigration Lawyers Association is actively encouraging its members to utilize this tool and is providing extensive guidance materials to make the job easier. Recently, for example, our firm, Siskind, Susser, Haas & Devine, successfully used a mandamus complaint to get the INS Texas Service Center to adjudicate an old I-485 adjustment of status case. The plaintiff in this case was a research scientist who was the beneficiary of a National Interest Waiver. The application for adjustment of status had been pending about 20 months and repeated fax and phone inquiries went unanswered. The AILA liaison was not able to help on the matter either. Rather than give up, we drafted a lawsuit and sent it to the local office of the US Attorney attached to a letter indicating that we would file the suit to compel the INS to act on the case unless we received a satisfactory response. Within a day, we received a call from the US Attorney asking us for two weeks to resolve the matter. And within a few days, we had gotten a call from the INS asking us to send our client for new fingerprints (the old ones had already expired). We have been assured that as soon as the prints clear the FBI, the case will be completed. Of course, we have heard this before. But the threat of a lawsuit means that the INS will likely not ignore the case again. This case illustrates a basic principal. Merely threatening a lawsuit can force the INS to act on a case. One expert we conferred with who has filed numerous mandamus actions over the years reports that the INS will act to resolve a case nearly half the time just on the basis of a threatened lawsuit. The rest of the time one should be prepared to go to court. The good news is that even if one has to go to court, the INS often has only weak arguments to defend itself. Immigration applicants can rely on 28 USC 1361, the Mandamus Act. The Act is simple and states that district courts have original jurisdiction of any action in the nature of mandamus to compel an officer of employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Mandamus actions, by the way, are different than injunctions. Mandamus actions are used to force someone to do something. Injunctions are used to prevent an action. While mandamus actions are not useful in every case, they are appropriate where a plaintiff's claim is clear and certain and the duty of an INS officer is ministerial and so clear as to be free from doubt. The best cases will be those where the plaintiff's case has been pending much longer than normal. The American Immigration Lawyers Association has recently added a wealth of materials on mandamus actions on its members-only Infonet web site at http://www.aila.org. The AILA Mandamus "kit" contains a useful how-to guide as well as several sample mandamus briefs. _______________________________________ 12. BORDER AND DEPORTATION NEWS Operation Safeguard '99, the INS Border Patrol's latest in a series of buildups along the U.S.-Mexico border, began January 21. The INS will post 90 more agents at the Nogales, Arizona office, new roads in the border area, install portable lights along the border and along common migrant routes, and hire three new pilots, allowing for 24 hour helicopter surveillance. One of the goals of the new border policy is to force migrant crossings to areas outside border cities in order to more easily spot migrants. Critics point out that the policy makes the migrants vulnerable to bandits in Mexico who attack right as the migrants are about to cross. Also, as seen last summer, if the migrants are not found by the Border Patrol, exposure to harsh desert conditions can cause death. The buildup coincides with the yearly increase in the number of migrants returning to the U.S. after spending the holidays in Mexico. **** The FBI is investigating the death of an illegal immigrant while being transported to prison following an arrest for illegal entry. After a court hearing in Tucson, Arizona, Rene Velasquez-Fuentes was being taken to a jail in Florence, Arizona run by Corrections Corporation of America. Velasquez had been in a fight with other inmates while being kept in the courthouse jail in Tucson, but did not appear seriously injured. The FBI has declined to comment on the case. Florence police Lt. Jerry Williams said he was aware that Velasquez had been combative and had to be subdued, but had no information on the type of restraint used. **** Two men have been arrested in Long Beach, California on suspicion of running a prostitution ring with illegal immigrants, one of whom was a 14 year-old girl. The men face prostitution-related charges as well as federal charges of alien smuggling. The women involved are currently being held as witnesses and will probably be deported. **** Two Cuban men have escaped from detention at the Krome Detention Center in Miami, taking advantage of construction around the perimeter of the facility to sneak out a fence and into the swamps of the Florida Everglades in broad daylight. Both men are Mariel Cubans, and have served time in prison as the result of felony convictions. Because the 1996 immigration law requires them to be deported, and the U.S. has no deportation agreement with Cuba, they faced a potential life sentence in detention. So far the search for the men has turned up only their uniforms. **** Six Cuban detainees who had been in custody at Krome Detention Center and then released to a local jail in an effort to diffuse tensions at Krome, had to be returned because they were not given adequate medical care at the jails where they were sent. Two of the men said that they were not given any medical treatment once they arrived at the jail. Officials at Krome say a doctor had cleared each of the detainees for the transfer, and officials at the jail say they were not denied any needed medical care. **** A Chinese man who fled to the U.S. with his wife to avoid China's forced sterilization policy has finally been released from detention after four years in custody. Bi Meng Zheng was the subject of a campaign by the human rights group Amnesty International against the practice of keeping some immigrants in detention for indefinite amounts of time. Unlike most long-term detainees, Zheng had no criminal record other than his illegal entry into the U.S. His asylum application was denied because he failed to appear for a hearing, and he was later arrested. China refused to accept him, so he remained in detention. Now that he is free, he hopes to be reunited with his wife, who is currently in Switzerland, and his daughter, who is still in China. **** The Border Patrol arrested 162 illegal immigrants in San Diego, California on February 5, 1999. All of the people arrested had been smuggled across the border and were living in a single house in deplorable conditions. Most of the immigrants were returned to Mexico, and authorities are investigating who owns the house and for how long it has been used to house illegal immigrants. **** Four separate attempts to illegally enter the U.S. in New Mexico on one day resulted in the capture of nearly 80 Mexican nationals. They were found after the Border Patrol stopped the van in which they were being transported. While there was no smuggler with them, Tony Duran, one of the Border Patrol agents who made the stop, thinks they were all smuggled into the country by the same operation. Most of the illegal immigrants said they had paid a smuggler $700 to work in tomato fields. **** Three men from Mexico have been returned there to face charges of murder, in three unrelated cases. The men were arrested in California after fleeing arrest warrants in Mexico. Two of the men were deported for being illegally in the U.S., and the other was extradited based on a treaty between the U.S. and Mexico. **** Almost 150 illegal immigrants from Cuba and Haiti were found in South Florida in one week during January. The high numbers continued into February, with over 90 people landing in Florida over the first weekend in the month. According to federal officials, the jump in immigration is due to the increasing organization and financial resources of smugglers, the good weather, poor economies at home, the Cuban Coast Guard's apparent indifference to those attempting to leave. Also a factor, according to Dan Geoghegan, spokesman for the Border Patrol, are Cuban nationals living in Florida who hire smugglers to bring their families to Florida from Cuba. **** A man in Santa Cruz County, Arizona is suspected of firing shots at a group of about 30 migrants who were crossing his property 15 miles north of the border. One of the migrants was shot in the arm and was flown to a hospital in Tucson for treatment. Agents in the area say local property owners often react with violence to trespassers. **** Police in Silt, Colorado apprehended 15 illegal immigrants, but had to let them go after the INS failed to pick them up. Silt police officials said that when they called the INS about the aliens, the Service was very uncooperative, only making excuses about why they could do nothing about the immigrants. **** There were almost 170 separate landing of illegal immigrants in South Florida during the last two weeks of January. Six were Cuban men who landed on the shores of Pompano Beach. They landed after two weeks on the water, failing to reach their destination of Key Biscayne because of strong currents. When they landed in the early morning, local residents, aroused by the commotion, called local law enforcement officials, who in turn called the Border Patrol. **** Eleven refugees from Cuba who landed on South Beach in Miami were met by both the Border Patrol, who noticed their boat before it landed, and by Emilio Estefan, husband of international music star Gloria Estefan, who had been jogging on the beach. He got coffee for the refugees, and others on the beach gave them money. **** Border Patrol officials in Arizona stopped 105 illegal immigrants about eight miles north of the border. The group was apparently about to be loaded into the covered bed of a pickup truck. According to the Border Patrol it is not unusual for this many illegal immigrants to be transported in a single vehicle. **** Four Chinese women were saved from almost certain death when a customs inspector on the Canadian border saw them hidden in the chassis of a refrigerated truck. The women, who were being smuggled into the U.S., were wedged into the chassis of the truck. Emergency crews worked for 30 minutes to get them out. They have been deported to Canada. **** Eleven stowaways were found in a cargo container on a ship in the Port of Long Beach, in Los Angeles. The men, believed to be from Hong Kong, were taken into custody and are expected to be deported to their home country unless they can show they merit asylum. **** A riot in an INS detention facility in San Diego, California resulted in injuries to two detainees and one guard. The riots were between Hispanic and Asian detainees and involved about 40 people. The facility is privately owned by Corrections Corporation of America, one of the leaders in the growing prison industry. **** One of the survivors of a failed attempt to sneak into Puerto Rico from the Dominican Republic told the frightening story of their time at sea. Skarlet Brano said that after setting off for Puerto Rico, the motor on their boat failed, leaving them adrift for 10 days. Fourteen people died on the journey and all of the survivors suffered from dehydration and second degree burns from sun exposure. **** INS Commissioner Doris Meissner has announced the deployment of over 1,600 new employees, of which over 1,000 are Border Patrol agents. Texas will receive 185 new agents, Arizona 395, California 83, New Mexico 15, and 22 new agents are being assigned to the U.S.-Canada border. **** A raid on a food packaging facility in Clayton County, Georgia led to the detention of 33 suspected illegal immigrants. Officials believe the immigrants were hired to work there by a local temporary employment service, Interim Personnel, and investigations of that business are ongoing.
SISKIND'S IMMIGRATION BULLETIN - 02/99 (2/7) - Articles 4-12
Gregory Siskind, Attorney at Law Fri, 26 Feb 1999 20:45:06 -0500
