DECEMBER 2003 / JANUARY 2004 NEWSLETTER

1.   SUSPENSION OF NSEERS 30-DAY AND ANNUAL INTERVIEW REQUIREMENTS

After a careful review of the National Security Entry/Exit Registration System (NSEERS) program, the Department of Homeland Security (DHS) has announced an “interim rule” which suspends the requirements for the 30-day follow up interview of port-of-entry registrants (POE) and the annual re-registration of both “Call In” and POE registrants. This interim rule is applicable only to those registrants whose re-registration or 30-day follow up interview is on or after December 2, 2003. Any registrant who intentionally missed a deadline before this date is in violation of Special Registration.

It should be noted, however, that all other requirements and Special Registration procedures are still in effect. Certain visitors may still be registered at the time of their entry into the U.S.  DHS will also continue to have the option of requiring certain individuals to register in the future should they deem the continued monitoring of these individuals necessary for national security purposes.  Furthermore, Special Registrants must continue to comply with such requirements as departure registration, in which they must depart only from designated ports, appear before a Customs and Border Protection (CBP) officer, and report changes in address, employment or educational institution.  However, the new rule stipulates that F, J, or M non-immigrants may be excused from the latter requirement if they have already submitted these changes to the Student and Exchange Visitor Information System (SEVIS).

2.   RIDGE FAVORS STATUS FOR ILLEGAL IMMIGRANTS

Department of Homeland Security Secretary Tom Ridge recently announced a proposal suggesting the legalization of illegal immigrants in the United States. Although his view has not been formally approved by the White House, Mr. Ridge said that the government might consider giving some sort of status to illegal immigrants already in the country on a one-time basis, if only for national security purposes.

Currently, there are eight to twelve million illegal aliens, a large portion being Mexicans who have illegally entered the U.S. Before the Sept. 11 attacks, the Bush administration had considered reaching an agreement with the Mexican government in a plan to legalize the status of millions of illegal Mexicans in the country. However, interest in the proposal declined after 9/11, when the government focused their attentions towards blocking the entrance of illegal immigrants and deporting those who were found.

Mr. Ridge suggested that although citizenship would not be afforded by illegal immigrants, they may be granted work permits and provided drivers’ licenses.

3.   PRESIDENT BUSH’S STATEMENT: NO GENERAL AMNESTY

At a recently held presidential press conference, President Bush was asked about the policy of a blanket amnesty. Moreover,  he was asked to comment on Tom Ridge’s intentions to legalize many of the illegal aliens in this country. 

 President Bush responded that there is indeed a need for an immigration policy that would assist employers who are willing to employ immigrants with immigrants who desire to work.  In addition, he claimed that he is currently working on making recommendations to Congress. However, President Bush firmly stated that the administration is against blanket amnesty for all illegal aliens.

4.   BASIC PILOT PROGRAM EXTENSION AND EXPANSION ACT OF 2003

President George W. Bush signed the Basic Pilot Program Extension and Expansion Act of 2003 into law on December 3, 2003, in order to extend the Employment Eligibility Verification Pilot Program. The program verifies employment eligibility, which was first introduced in the Illegal Immigration Reform and Immigration Responsibility Act of 1996. The Basic Pilot Program, originally limited to only a few states and set to expire on November 2003, allows employers to voluntarily verify the employment authorization of their new hires through USCIS and the Social Security Administration. The current law now extends the pilot program for another 5 years and expands the program to be available in all 50 states by December 1, 2004.

In addition, the Basic Pilot Program Extension and Expansion Act of 2003 would also extend the EB-5 immigrant investor regional center pilot program for an additional 5 years. Under this program, 5,000 EB-5 Investor Visas are set aside for those applying under a pilot program involving a USCIS designated “Regional Center”, which is a specific geographical area within the U.S.

5.   USCIS TO MAKE TRAVEL DOCUMENTS MORE SECURE

The Director of U.S. Citizenship and Immigration Services, Eduardo Aguirre, recently announced the production of new, redesigned travel documents. Travel documents allow legal residents, refugees and asylees to re-enter the U.S. following travel abroad. The new travel documents employ the same personalization process as the current U.S. passport, such as the digitized integrated photo.  However, they also have a number of new features: they are now light green and resemble the size and shape of the U.S. passport, and they have hidden elements that can only be viewed by sophisticated forensic equipment.

These changes are intended to enhance security by making the documents more difficult to duplicate. Furthermore, with more than 200,000 people applying for travel documents annually, the new equipment and techniques will allow USCIS to increase the daily production by ten fold. Refugee travel documents and re-entry permits still in circulation will remain valid until their expiration date.

6.   DEPARTMENT OF LABOR ISSUES GUIDANCE ON REDUCTIONS IN RECRUITMENT (RIR)

Increased backlog due to mass remands of RIR applications in Region VI has resulted in a memorandum issued by DOL regarding “standard operating procedures” for employers should a Certifying Officer find the level of recruitment insufficient. This memorandum offers various options for employers, including the option to look back at recruitment in the last six months in lieu of the re-test option.  In this instance, a detailed recruitment report is required.

According to the California Employment Development Department, Region VI is recalling many RIR’s previously remanded in order to reconsider these applications under the new guidance. However, any RIR’s in which the requirement is a bachelor’s degree with zero experience will not be recalled.

7.   “BE REAL ACT” WOULD CLOSE LOOPHOLES IN GUEST WORKER PROGRAMS

On November 18, 2003, Congressman Tom Tancredo (CO-06) introduced a bill, the Border Enforcement and Revolving Employment to Assist Laborers or “BE REAL Act”, intended to close loopholes in guest worker programs and tighten border security. The legislation would authorize the hiring of an unprecedented number of border patrol agents in an effort to discourage illegal entry. Additionally, the bill does not propose amnesty to illegal aliens and declares true border security to be a precondition required for the establishment of any guest worker program.

8.   USCIS TO STREAMLINE PROCESS FOR CHILD CITIZENSHIP CERTIFICATES

Parents will find the process of obtaining Certificates of Citizenship for children to be more efficient thanks to the launching of the CCA program by USCIS. This program, which would mainly benefit parents of internationally adopted children, is important for the advancement of the Child Citizenship Act (CCA).

The implementation of the CCA program will reduce the backlog for the N-643 forms (Application for Certificate of Citizenship of an Adopted Child) and automatically grant Certificates of Citizenship to certain adopted children within 45 days of entry to the U.S. The program will also begin a 45-day processing for children who fall under the IR-3 (Immediate Relative) category, which accounts for seventy percent of children adopted by U.S. citizens, and whose adoption was finalized.

9.   DEPARTMENT OF HOMELAND SECURITY EMPLOYEE CHARGED WITH IMMIGRATION FRAUD

Isidro Guerrero Fernandez, a Department of Homeland Security employee, was recently arrested in Miami for selling fraudulent Employment Authorization Documents to illegal aliens for as much as $12,000 each. Guerrero, who began his operation in December 2002, would have an associate meet illegal aliens at a restaurant where they would pay a portion of the fee.  Afterwards, they met with Guerrero at the Citizenship and Immigration Building, where he worked, to process their EAD cards. Guerrero was charged with soliciting and accepting bribes while being a public official, conspiring to transfer identification documents, and unlawfully obtaining these documents.

10.  WAL-MART CLAIMS NO RESPONSIBILITY FOR HIRING OF ILLEGAL ALIENS

Following the seizure of 250 illegal immigrants from 61 Wal-Mart stores, the company insists that they were not aware of the methods by which subcontractors hired cleaning workers and believed all workers to be legal immigrants.  As such, Wal-Mart claims its subcontractors should be held accountable for hiring illegal immigrants.

However, the confiscation of company papers shows that the government intends to prove otherwise.  Large corporations such as Wal-Mart usually hire contractors to supply nighttime cleaning workers. These contractors, in turn, after offering a bid and assuring the company of no law violations, will hire a subcontractor who may yet hire another firm to employ the workers and hand out the wages.  Although this layering strategy may protect corporations from legal ramifications with regards to immigration, illegal aliens take a greater reduction in wages with each contractor hired. A Wal-Mart spokesman, however, denies any knowledge of this layering strategy in effect within the company.

Some contractors offer bids so low that they barely cover overhead costs and makes them more likely to turn to illegal aliens for cheaper labor.  However, under the present law, chain stores are under no obligation to reject low bids from contractors.

11.  IMMIGRANTS PROTEST AGAINST RACIAL PROFILING BY FEDS

Immigrant groups are attempting to present lawsuits against Federal agents for illegally forcing local police to arrest non-citizens in the wake of the 9/11 attacks and adding the immigration information into a national crime database.  Immigrant groups claim that such actions increases racial and ethnic profiling between authorities and immigrants.
   In addition, the groups argue that local authorities
are not suppose to make non-criminal arrests based on                      immigration violations, although some exceptions apply.  However, the NYPD responded that they will continue to follow Mayor Bloomberg’s directive of “don't ask don't tell.” It is questionable whether the US PATRIOT act, passed by President Bush on October 23, 2001, permits indefinite detention of immigrants who are not terrorists.
 Section 412 of the anti-terrorism legislation does not include any requirement that those who are detained indefinitely be removable because they are terrorists. However, immigrants who are found not to be deportable for terrorism, but have an immigration status violation, such as overstaying a visa, could face indefinite detention if their country refuses to accept them.  Detention would be allowed on the Attorney General’s finding of reasonable grounds to believe involvement in terrorism or activity that poses a danger to national security, and detention could be indefinite upon a determination that such an individual threatens national security, or the safety of a community or any person.

12.  LOTTERY APPLICATIONS DECREASE

As year 2003 comes to a close, it was marked as the year with the lowest Green card application entries.  Less than half of the usual number of applications were entered. In previous years, there has been over 13 million application entries; in 2003, only 5 million were submitted. Immigration advocates explain that because the Green card lottery can only be filed electronically, it has consequently led to a decrease in applications. 

According to government officials, the computer only policy has prevented fraudulent and duplicate applications, thus resulting in a lower application count this year. However, immigration advocates argue that the reason for the decrease is because immigrants who intend to apply do not have access to computers. In addition, immigrants feel reluctant to have their personal information on a computer database, especially aliens who are illegal in the country.

The State Department affirms that the information on the database is confidential and will not be used as a resource to prosecute illegal immigrants.  Nonetheless, the State Department cannot deny Homeland Security to access the database.