Immigration Initiatives and Their Impact on Employers
By: LAURA J. DANIELSON
Since September 11, 2001, Congress and the Administration have focused on anti-terrorism initiatives that have had a far-reaching impact on U.S. immigration. Not only are immigrants of all types-from green card holders to frequent visitors-directly affected; employers of immigrants and those engaged in international business have been significantly impacted as well.
The initiatives having the biggest impact are:
- Special Registration for males of certain nationalities;
- dissolution of the INS and creation of new agencies under the Homeland Security Department, and
- mandatory in-person visa interviews at various U.S. consulates abroad. All three have resulted in significant delays in travel and visa adjudications.
This program being implemented during the last gasp of the INS affects male nationals or citizens over age 16 from Iran, Iraq, Syria, Sudan, Libya, Afghanistan, Oman, Algeria, Qatar, Bahrain, Somalia, Eritrea, Tunisia, Lebanon, United Arab Emirates, Morocco, Yemen, North Korea, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. (Armenians used to be on the list but successfully lobbied to be removed.)
Men from these countries (excluding those with U.S. permanent residence, asylum or pending asylum applications, or U.S. citizenship) who arrived in the U.S. as of a certain date are required to physically appear and register with the INS within a fixed time. (For specific details please go to our web site at www.fredlaw.com.) Those failing to register are subject to serious penalties and possible deportation. After registering, these individuals have reporting requirements and can only depart the U.S. from specific exit points. The program has thus far been very unevenly implemented, as INS has received limited guidance from the top. Registrants have been required to wait full days at INS offices. Many find themselves in deportation proceedings as a result of prior overstays or other minor violations, even with legitimate permanent residence applications pending that would override those violations. Special registration procedures can also be implemented at the time of entry.
The impact on U.S. businesses is tremendous for those with key employees required to travel outside the country. Legislation is pending to cut off funding and disband the program, restoring $165 million to border security. Members of Congress and immigration lawyers have criticized special registration because it is based on profiling rather than intelligence information.
Homeland Security Department
This new department merges 22 agencies, including the soon-to-be-disbanded INS. It opened for business on January 24 with former Congressman and Pennsylvania Governor Tom Ridge at the helm. The INS will purportedly be divided into two separate agencies, one for enforcement and the other (the Bureau of Citizen and Immigrant Services) for adjudication. The most noticeable result of these changes is confusion at INS offices, including ever-changing filing fees. Adjudications have slowed steadily, and in some immigrant and non-immigrant categories have ground to a virtual halt.
Again, the impact on U.S. businesses is tremendous, as employees spend months awaiting simple work authorization extensions and travel permits. Such employees are often forced to take unexpected leaves of absence when caught without work permission and find themselves forced to delay essential travel abroad. Companies have been forced to cough up $1,000 "premium processing" fees to obtain quick turn-around times for select non-immigrant categories. As more and more choose to premium process, the backlog for the regular applications increases perceptibly. About all we can advise is that employers anticipate their immigration needs in advance and file sooner than they normally would.
Mandatory Visa Appointments
In many countries, the U.S. State Department has initiated a mandatory appointment and interview process for obtaining visas; it is anticipated that this will become standard throughout the world. In London, for example, where Fredrikson & Byron has an office and is expanding its immigration services, individuals used to receive visas through a simple drop-box procedure. Now interviews are required for nearly all visa classifications, including business visitors. (This does NOT include those who are eligible under the visa waiver program to enter the U.S. as business or travel visitors for fewer than 90 days.) Appointments must be made at least two weeks in advance and cannot be made from a phone outside of the U.K. The Embassy is recommending that applicants allow up to four hours for the interview and at least two days for receipt of the actual visa. Procedures change daily. When an individual is working in the U.S. on a permit that needs renewal, the application normally is sent to an INS Service Center. While being adjudicated and once approved, that individual can keep working even without a valid "visa," which authorizes only ENTRY to the U.S. When that employee needs to travel abroad, he or she must obtain a new visa to re-enter the U.S. Often the employer cannot afford the two-to-four-week delay.
One solution is that individuals holding H and L visas can revalidate them at the U.S. State Dept. in advance of travel. This requires sending off the passport for up to two months, but avoids the frustrations and delays of an in-person interview. Unfortunately, many companies have urgent travel needs that arise at the last minute. Our London office is doing everything it can to minimize this inconvenience and help schedule and prepare individuals for visa interviews, both in London and throughout Europe.
We can only hope that the new Homeland Security Department and Bureau of Citizen and Immigrant Services will be able to improve adjudications and visa processing while at the same time effectively address national security concerns. In the meantime, U.S. businesses will continue to hire foreign employees and multinational corporations will continue to transfer key individuals. Fredrikson & Byron strongly urges all our clients to act early in obtaining immigration counsel.