First Quarter 2002

I. USCIS Considering Reduction in Visitor Visa Admission Period to 30 Days
On March 19, the USCIS Commissioner James Ziglar appeared before Congress to respond to questions about the recent approval notices issued in the cases of the two men who flew the planes into the World Trade Center on September 11. In his testimony, Mr. Ziglar stated that USCIS is considering regulatory changes that would result in most holders of visitors' visas being admitted for a period of 30 days, rather than the current practice of admitting visitors for 180 days. According to the Commissioner, USCIS is also considering changes to regulations that would prevent a person who has entered under some other status from beginning a course of study before their request for a change of status to student is approved.

II. Work Authorization for Spouses of L-1, E-1 and E-2 Visa Holders
On Wednesday January 16, 2002 President Bush signed H.R. 2277 and H.R. 2278 into law. The respective laws will permit the spouses of intracompany transferees on L-1 visas (H.R. 2278) and spouses of treaty traders and investors on E-1 and E-2 visas (H.R. 2277) to apply for work authorization during their period of stay in the United States. Additionally, H.R. 2278 reduces the requirement of employment abroad before transfer from one (1) year to six (6) months for multinational corporations that have "blanket L" programs.

Similar laws regarding work authorization for spouses of international employees have been in existence in the following countries: Argentina, Australia, Canada, Hong Kong, Italy, Netherlands, Sweden and the United Kingdom. Canada has recently implemented similar spousal laws and there is a push to expand spousal work authorization throughout the European Union. (U.S. Chamber of Commerce, Labor and Employee Benefits Division, June 2001).

It appears that the United States and many of the other countries have realized the difficulties of attracting intracompany transferees to their respective countries, often times at the expense of the spouse's professional career. Providing work authorization apparently will allow the spouses of L-1, E-1 and E-2 visa holders to work in any field (i.e. no "specialty occupation" requirement) and will allow (employer permitting) part-time or flexible work schedules.

Though no regulations have been issued, it would seem clear that the validity of the work authorization would be contingent upon the beneficiary's spouse remaining in L-1, E-1 or E-2 status. Additionally, it appears that a Form I-765 (work authorization application), along with a copy of evidence of valid L-2/E-4 status of the beneficiary's spouse would be required to obtain work authorization.

It is estimated that approximately fifteen thousand (15,000) individuals are likely to apply for work authorization under these two new laws.

As stated above, H.R. 2278 also reduces the one-year of continuous employment with the company abroad requirement to six-months if the "importing employer" has filed a blanket petition under INA §101(a)(15)(L) and has "met the requirements for expedited processing of aliens covered under such petition." The language of the statute does not appear to require the six months continuous employment to occur immediately prior to the filing of the Form I-129. INA §101(a)(15)(L) presently permits the continuous employment time to occur within one (1) of the proceeding three (3) years prior to filing of the Form I-129.

III. Update on USCIS Reorganization
As previously reported, the USCIS is currently undergoing complete reorganization of the agency. It is unclear whether the contemplated reorganization will be done administratively or legislatively; in fact, the Chair of the House Judiciary Committee, James Sensenbrenner (R-WI) and the Bush Administration are at odds over the shape of the reorganization. Meanwhile, Governor Ridge and the Office of Homeland Security are pushing a proposal that would combine USCIS, Border Patrol and the US Customs Service into an entirely new agency. The House will be holding further hearings on reorganization in early April, and Gov. Ridge's proposals may be moving forward very quickly as well. In addition, we anticipate that the Administration will be announcing changes in requirements for various visa programs, most notably the student visa categories. We will of course post these changes as soon as they are announced.

The complicated politics of USCIS reorganization make it very difficult to predict the outcome. Please be assured that AILA is weighing in on the important questions involving USCIS reorganization, including presenting Congressional testimony and lobbying members of Congress and the Administration.

IV. Resolution on Immigration Reform Opportunities in the Context of the U.S./Mexico Discussions AILA Board of Governors January 18, 2002 Ixtapa, Mexico 

Resolution: In recognition of the historical opportunities afforded by the on-going U.S./Mexico discussions, the worker shortage that continues in some sectors despite the recent economic slowdown and is projected to expand and intensify into the next decade, the contributions made by immigrants and undocumented people to and in the United States, and the increasing visibility and power of immigrant communities nationwide, AILA adopts the following policy statement on the principles that should guide future immigration reform in the context of the U.S./Mexico discussions.

1. Migration issues need to be approached in a comprehensive manner reflecting current needs and realities within the North American hemisphere. These current needs and realities include the post September 11 national security focus and, despite the recent downturn, continued worker shortages in sectors of the U.S. economy.

2. Immigration reform can make important contributions to our national security.

3. Opportunities for work authorization and legal status need to be created through a regularization program for undocumented people living, and working in, and contributing to the United States. In order to unite families and keep them together, liberal and generous waivers must be made available for grounds of admissibility and deportability.

4. Opportunities to bring in essential workers need to be improved through the reform of current programs and the development of a new temporary worker program that differs from existing and past models, and allows workers to enter the U.S. safely, legally, and expeditiously.

5. Legal channels for people coming to work and live in the U.S. in the future need to be opened to reduce backlogs in family-based immigration and delays in business-based immigration.

6. Congress must appropriate sufficient funding for these initiatives to succeed.

Proponents: AILA Executive Committee

Background: Our current immigration system has failed in many ways and needs to be fixed. Notwithstanding the current economic downturn, employers in several sectors (health care and construction especially) are unable to get the workers they need, families remain separated for years due to bureaucratic processing delays and long backlogs, hard-working tax-paying people who contribute to our economy are undocumented and forced to live an underground existence, people are losing their lives trying to cross the border, and smugglers are profiting from this trade in human lives. The United States needs to reform its immigration system to recognize the contributions that immigrants have made and their continued importance to our national well-being. These factors will only intensify as the U.S. emerges from the current economic slowdown and from the shadows of the September 11 terrorist attacks.

The U.S./ Mexico discussions have internationalized the issue of immigration and have led to a vast broadening of the policy debate in Washington, D.C. Along with its focus on national security, the Bush Administration continues to affirm the importance of these bilateral efforts, with the U.S./Mexico working teams officially meeting on November 20 to continue the discussions that had been disrupted by the September 11 terrorist attacks. The two governments reportedly are reviewing various proposals, and a post-September 11th Congress may be receptive to these initiatives, with some Republicans who ordinarily would oppose "regularization" or a new temporary program supporting their President's initiatives, and Democrats seeking to affirm their support for immigration and immigrant constituencies. Service sector employers have entered the immigration debate because they view the worker shortages and instability in their sector as symptoms of a broken immigration system, and will reemerge as important players as the economy improves. The AFL-CIO recently reaffirmed its support for amnesty, changing its historical position on undocumented workers, now perceived less as competition than as a vast pool of potential members who, if legal, would not undercut wages of American workers. In addition, the 2000 Census has documented the vast increase in the number of Hispanics and other immigrants nationwide. Finally, the growing interdependence and integrated markets of the U.S. and Mexico, and the U.S. and the rest of the world, has emerged as a factor that also is encouraging a reexamination of immigration policy.

While the September 11 terrorist attacks have led to a re-examination of U.S. immigration policy and delayed the U.S./Mexico discussions, they did not end these discussions nor diminish the need for reform. With the Administration's support, it is likely that these discussions will continue and proposals will be advanced for Congress to consider. While these factors suggest the need for this reexamination, they predictably encourage forces that oppose change. Restrictionists are seeking to block meaningful reform and are actively presenting their views to Congress, the Bush Administration, and the general public. They already have attempted to hijack the September 11 terrorist attacks and are trying to frame these attacks to reinforce their efforts. The Bush Administration will have to confront these groups and the restrictionist wing of the Republican Party that works with them.

Discussion: The principles noted above are central to successful immigration reform.

1. Approaching Immigration Reform in a Comprehensive Manner. The United States' current immigration system needs to be reformed to reflect current needs and realities. The status quo is unacceptable, especially in a post-September 11 world in which enhanced security becomes a higher priority as well as the need to balance our security with the continued flow of people and goods. As a result of our current system, families are separated for long periods of time and U.S. employers cannot bring in needed workers. People are forced to live an underground existence in the shadows, not making themselves known to the government for fear of being separated from their families and jobs. The current enforcement system has failed to prevent illegal immigration and precious resources that should be spent on enhancing our security are wasted on stopping hard working people from filling vacancies in the U.S. labor market. Border enforcement efforts that do little to enhance our security have led to people losing their lives, while current laws make it difficult for many to enter legally. Our immigration system needs to be reformed so that legality is the norm, and immigration is legal, safe, orderly, and reflective of the needs of American families, businesses, and national security. While discussions between the U.S. and Mexican governments naturally focus on the issues facing the two countries, migration issues are best addressed in a "Mexico-plus" manner that would not preclude remedies for nationals from other countries.

2. Implementing Immigration Reform as an Important Component of our Enhanced National Security. Immigration reform that legalizes hard working people already here and that creates a new temporary program will help the U.S. government focus resources on enhancing security, not on detaining hard working people who are filling vacancies in the U.S. labor market or seeking to reunite with their close family members. In addition, reform that includes a new legalization program and a temporary worker program will encourage people to come out of the shadows and be scrutinized by our government. The legality that results from these initiatives will contribute to our national security.

3. Developing a Regularization Program for People in the U.S. without Authorization. People who work hard, pay taxes, and contribute to the U.S. should be given the opportunity to obtain permanent residence. This legalization would stabilize the workforce of U.S. employers, encourage people to come out of the shadows to be scrutinized by our government, and allow immigrants to work and travel legally and be treated equally. Many have been here for years, are paying taxes, raising families (typically including U.S. citizen and lawful permanent resident spouses and children), contributing to their communities and are essential to the industries within which they work. It is neither in the best interests of the workers nor their employers for this situation to remain unaddressed.

4. Creating a New Temporary Worker Program. Current immigration laws do not meet the needs of our economy for short- and long-term employees in those sectors currently experiencing worker shortages and others that are expected to experience shortages when the economy rebounds. A new temporary program would give workers the opportunity to work in areas of the country where they are needed and would give employers experiencing shortages the workforce they need. Current programs often have proven unusable by both employees and employers, and do not accommodate employers facing longer term, chronic labor shortages. The framework for a new temporary worker program must significantly differ from existing programs, and must respect both the labor needs of business as well as the rights of workers.

5. Opening Up Legal Channels for Family and Business-Based Immigration. Our immigration system has been characterized by long backlogs in family-based immigration and long delays in business-based immigration. Illegal immigration is a symptom of a system that fails to reunify families and address economic conditions in the U.S. and abroad. To ensure an orderly future process, it is critical to reduce bureaucratic obstacles and undue restrictions to permanent legal immigration. Developing an increased legal migration flow will make immigration more orderly and legal. It also will allow more people to reunite with their families and work legally in the U.S., and would facilitate fair, equitable, and efficient immigration law, policy, and processing. It is essential to make legal future immigration that otherwise will happen illegally.

6. Adequately Funding Immigration Reform Initiatives. Immigration reform must include adequate funding to implement reform. Congress frequently passes new immigration laws without including adequate funding. Lack of adequate funding has contributed to the long backlogs and ineffective, inefficient and unfair services that currently characterize the Immigration and Naturalization Service (INS). Whether funds are directed to the USCIS or other entities to implement reform, any changes in the law must be accompanied by adequate funding, in the form of direct congressional appropriations.

Implementation: If adopted, this resolution will guide AILA members and staff in advocacy efforts directed at legislative changes, promulgation of regulations, efforts with the media, and work with Congress, the Administration, USCIS, DOS, DOL, and other government agencies.

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.