A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP
First Quarter 2003

In this Issue:

Heightened Alert at U.S. Consulates/Embassies

Operation Liberty Shield:  Statement by Homeland Security Secretary Tom Ridge

Excerpts of Minutes from the AILA DOL ETA Liaison Meeting February 5, 2003

INS Office Summary of How Call-In Special Registration is Being Handled

Heightened Alert At U.S. Consulates/Embassies

U.S. Government facilities worldwide remain at a heightened state of alert and some have drawn down their dependents and/or personnel. These facilities may temporarily close or suspend public services from time to time for security reasons. In those instances, U.S. embassies and consulates will make every effort to provide emergency services to American citizens. Monitor the local news and maintain contact with the nearest American embassy or consulate.

As the Department continues to develop information on any potential security threats to Americans overseas, it shares credible threat information through its Consular Information Program documents, available on the Internet at http://travel.state.gov. In addition to information on the Internet, U.S. travelers can get up-to-date information on security conditions by calling 1-888-407-4747 in the U.S. and outside the U.S. and Canada on a regular toll line at l 317-472-2328.

Operation Liberty Shield:
Statement by Homeland Security Secretary Tom Ridge

The Department of Homeland Security in consultation with the Homeland Security Council, has made the decision to raise the national threat level from an Elevated to High risk of terrorist attack or Level Orange. The Intelligence Community believes that terrorists will attempt multiple attacks against U.S. and Coalition targets worldwide in the event of a U.S - led military campaign against Saddam Hussein.  A large volume of reporting across a range of sources, some of which are highly reliable, indicates that Al-Qaida probably would attempt to launch terrorist attacks against U.S. interests claiming they were defending Muslims or the “Iraqi people” rather than Saddam Hussein’s regime.  There are many recent indications that Al-Qaida’s planning includes the use of chemical, biological, and/or radiological materials.

Intelligence reporting also indicates that while Al-Qaida and those sympathetic to their cause are a principal threat, Iraqi state agents, Iraqi surrogate groups, other regional extremist organizations, and ad hoc groups or disgruntled individuals not connected to existing organizations or state agencies, may use this time period to conduct terrorist attacks against the U.S., or our interests abroad.

In recent months, there have been reports of suspicious activity in and around military facilities, ports, waterways, general infrastructure (bridges, dams, power generating facilities), and targets that are considered symbolic to U.S. power and influence. The discovery of ricin production in London raises the concern of the Intelligence Community that extremists are planning to follow through on longstanding threats of poison plots against U.S, British and Israeli interests - and possibly other targets in Europe.

The Department of Homeland Security, in conjunction with numerous departments of the federal government, has begun implementing increased protective measures under a comprehensive national plan to protect the Homeland: “Operation Liberty Shield.”

Operation Liberty Shield will increase security at our borders, strengthen transportation sector protections, enhance security at our critical infrastructure, increase public health preparedness and make sure all federal response assets can be deployed quickly.

Tom Ridge has recently spoken to the nation’s Governors and asked them to deploy the National Guard or additional police forces to improve security at critical locations throughout their states. Other state, local and private sector leaders are also being contacted to engage their support to increase the nation’s security.

It is, of course, hoped that heightened security measures will help deter terrorism and increase protection of America and Americans. In the meantime, as on the other occasions when the national threat level has been increased, members of the public are encouraged to continue their daily work, family and leisure activities with a heightened awareness.

Excerpts of Minutes From the
AILA DOL ETA Liaison Meeting February 5, 2003

1. What is the current time frame for PERM? Where does the reg stand at the current time? Is DOL ETA still planning to issue an interim final rule? Is DOL ETA currently developing the technology necessary to implement PERM, and will that be ready at the same time that the regulations are ready?

ANSWER: Work on PERM is progressing. DOL ETA has been briefing the policy advisers on the comments and the primary recommendations. The preamble is being written now, the regulatory language thereafter. The regulatory writing is going slower than has been hoped. As AILA was aware, a contractor was hired to help organize the comments. This contractor has now had its contract extended and has been asked to help write the regulation. The regulation may be ready in the April to July timeframe; however, the automated system that will process labor certifications may not be ready until the fall. The publication date will not be the same as the effective date. The effective date will be the same date as the date the automated system is in effect.  DOL does not want a repeat of the H-1B faxback system’s initial days. DOL needs to write the business rules before an operational performance document can be given to the technical experts to automate the process. These technical people are working from what they believe the business rules will look like, but if the rules change, then that may require a reworking of the automated system. DOL ETA is still considering whether the rule will be a final rule or an interim final rule.

2. We have noticed that the most recently released OES wages are higher in most cases than the prior years’ numbers. In what year was the data collected that is the basis for the new wage figures, or was it based upon a compilation of the data from the prior three years?

ANSWER: The latest data collected for the OES wages were collected in the fall of 2001. Updated data from 1999 and 2000 were also used, with numerical tweaking. The Bureau of Labor Statistics is currently considering the possibility of doing 2 surveys per year.

3. AILA continues to have concerns regarding the implementation of the March 20 Memorandum on layoffs and industry availability. In most cases the regional certifying offices do not provide any basis in writing for their determination that there is industry availability. AILA proposes that the certifying officers should document to the employer the basis for their conclusion that there is industry availability for a specific occupation, and allow employers to submit evidence to rebut this finding, as an alternative to placing another advertisement.

ANSWER: DOL ETA will not be making any changes to the Memorandum. Certifying Officers are looking at determinations on reduction in recruitment based on historical experience with occupational availability. Mr. Sheinfeld pointed out that the structure of the regulation never intended an adjudicatory process for the approval or denial of an RIR. AILA pointed out that GAL 1-97 does set up a kind of adjudicatory process concerning evidence of a shortage occupation.

AILA pointed out that it is more efficient and practical to specify the source of the Certifying Officer’s views of availability, as is currently done in Region VI. DOL ETA stated that one can always write to the Certifying Officer to provide information on a shortage occupation. Such data can be submitted any time either individually by counsel or through the AILA local chapter. With respect to a combination NOF (one that solicits information on layoffs and requests re-advertising on industry availability), the employer must address the layoff question. Assuming that is addressed, the employer can either re-advertise or try to rebut the finding of industry availability. It is a matter of case strategy.

INS Office Summary Of How
Call-In Special Registration Is Being Handled

NEWARK, NJ
            USCIS Office statements:

• Whether to detain/put in proceedings any registrant is a case-by-case determination, taking into account “all factors and aspects” of the situation.

Reports from individuals/attorneys of actual experiences:

• Upon check-in on the 14th floor, client was asked to submit old and new passports. G-28 was submitted at interview.  There was a three (3) hour wait before client was interviewed.

• Two reports of confusion and having trouble finding anyone (guards, USCIS employees) who had heard of special registration. Eventually sent to room 1404.
  
  
• Interviews vary: (1)Relaxed interview, with questions similar to those on Form G-325. Checked passport for travel patterns, and other cards, such as credit cards, social security, drivers’ license. (2) 1.5 hour interview. (3) 30-minute interview. (4) virtually no interview at all.
  
  
• Officer indicated that they don’t take anyone into custody unless there is an outstanding warrant, and that you don’t have to be a NJ resident to go to this office. Also indicated that USCIS WILL deport if you fail to register.
  
  
• On 1/8/03, registrant with pending I-140/I-485, and grandfathered under 245(i), was detained with bond (which was not set until after 5:00 pm for person who arrived at 8:30 am) of $2,500.
  

NEW YORK, NY
            USCIS Office statements:

• Registrants who entered without inspection (EWI) will be registered and will not be turned away (even though EWI’s are not subject to special registration).
  
  
• Out of status registrants will be referred to Investigations for possible issuance of a Notice to Appear. Investigations will use prosecutorial discretion in determining whether to issue a Notice to Appear (“NTA”), but most likely someone who has no application pending WILL be issued the NTA.
  
  
• Persons with a 245(i) application pending most likely will not be referred to Investigations, unless there is a “hit” from the computer checks. If there is a hit, most likely an NTA will issue.
  
  
• Registrants who are currently in status, but have had past status violations, generally will not be referred to Investigations if they’ve since returned to the U.S. with the proper visa, waiver, etc. But the District does have discretion to put in proceedings anyone it feels is removable.
  
  
• The District does not plan to detain out of status registrants, but reserves the discretion to do so.

Reports from individuals/attorneys of actual experiences:

• H-1B applicants are being questioned as to whether or not they are currently working for the petitioner (as are employment based adjustment applicants) and are requested to produce a current employment letter and recent paystubs.
  
  
• New York registrant with an out-of-state driver’s license will be questioned extensively as to his actual place of residence and the reason for holding an out of state license.
  
  
• On 02/03, attorney reported that counsel has been allowed at Special Registration in the New York District. Attorney had had difficulty with access to counsel when cases are sent to Investigations, but after a meeting with the District Director, attorneys have been told that counsel will also be allowed at interviews held by Investigations.
  
  
• Law firm reported on 02/19 that they have recently accompanied a number of Pakistani men for Special Registration in New York. Attorneys from the firm said that the interview process was extremely slow with numerous computer glitches and breakdowns. They also report that an individual from the Pakistani Consulate was present to provide advice to his countrymen who were not represented by counsel. Just below is some of what has been going on, particularly during the investigation part of the process when registrants are taken to the 10th floor:
  
  Generally, registrants have been handcuffed, and then shackled to the floor (in their seats). Meanwhile, they are questioned for hours, without an attorney present.
  
  Between questioning, they are placed in holding cells, with other men who are being deported. One registrant said that he was moved from cell to cell at least three times.
  
  Another registrant was told by the investigator that his lawyer had given him fraudulent documents in connection with his labor certification, and that it had, in fact, never been filed. He then told the registrant that he would go to jail for 10 years for this crime. The investigator claimed that he had access to the labor department’s files and that there was no record of the registrant’s case. However, law firm states that the case was filed by their attorneys, and there is no question about the authenticity of the documents.
  
  
• Attorney reported on 02/12 that, all in all, the level of questioning has markedly increased from one month ago.
  
  
• Registrant with pending 245(i) adjustment application detained and issued NTA.
  
  
• Registrants are asked for their passports, I-94s, social security cards, drivers licenses, and credit cards. One officer indicated that the credit cards would not be necessary if the person has a social security card, but others ask for the credit cards. Passports and I-94s are held and returned (with notation on the I-94) only to those considered to be in status.
  
  
• Persons who entered on advance parole are being told that they do not need to register.

Treatment of late registrants:

• A Belgian citizen, who is also an Iranian national, decided after the 12/16 deadline that perhaps he is subject to registration. He went in to the NY district office on 12/20. He was asked no questions as to the late registration and everything proceeded normally.
• The explanation of a Syrian registrant (who had overstayed his tourist visa but had filed a meritorious request for deferred action) that he had not heard about the requirement was accepted on 1/7, and he was registered. His passport was held and he was given an appointment for an interview with Investigations in a couple of months, but this seems more related to the overstay than the late filing.

Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2002, American Immigration Lawyers Association

The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 @ asiliato@meyner.com
Website: www.meyner.com