Five Things Every Manager Should Know

by Christopher Thomas, Holland & Hart LLP

The world of immigration law continues to evolve at an unprecedented pace. Since September 11, 2001, immigration practitioners have witnessed major procedural and substantive modifications to the law on nearly a monthly (sometimes daily) basis. This article will highlight a few of those changes.

I. Dissolution of INS/Creation of DHS

The events of September 11 focused the country’s attention on the shortcomings of the Immigration and Naturalization Service (INS). The INS failed to track some of the terrorists who entered the U.S. on student visas but never showed up at their selected schools. Six months later, to add to the controversy, the INS mailed approval notices for two of the deceased terrorists that would have allowed them to extend their visa statuses and continue their flight training. These failures, along with a multitude of other problems, led to a universal call for change.

In response, following several months of debate, President Bush signed into law The Homeland Security Act of 2002 (PL 107-296), which led to the creation of the Department of Homeland Security (DHS). The INS was thus disbanded and its functions were merged into three new divisions within DHS: the United States Immigration and Customs Enforcement (ICE), the United States Customs and Border Protection (CBP), and the United States Citizenship and Immigration Services (CIS).

II. Increased Scrutiny and Policy Changes

In April 2002, just after four Pakistani crewman had unlawfully obtained visa waivers from a border officer and disappeared into Virginia, the Commissioner of the former INS testified before Congress that he had instituted a “zero-tolerance policy with regard to INS employees who failed to abide by headquarters-issued policy and field guidance.” This directive understandably made immigration officers nervous. Consequently, many began to send Requests for Evidence (RFEs), a device by which they sought to verify, and often re-verify, employers' assertions in pending visa petitions and to ensure that cases were properly adjudicated. As expected, such requests led to longer processing times and backlogs at the service centers, leading the CIS to rescind the memorandum eventually and to permit its officers to begin to exercise at least some practical discretion.

Despite the rescission of the “zero tolerance” policy, the negative, almost hostile, culture continued at CIS service centers. In light of the growing backlogs, the CIS decided to formulate yet another novel policy. Under this policy, rather than send RFEs to clarify issues in cases, Associate Director William Yates issued a policy memorandum that authorized CIS officers to deny petitions without RFEs. Though Mr. Yates attempted to limit the situations in which such denials could occur, many CIS officers seemed to be incapable of interpreting the instructions in the memorandum. As a foreseeable consequence, petitions that clearly met the requisite legal standards began to be denied outright, leading to a flood of angry appeals and unprecedented backlogs at the appellate unit at CIS.

Eventually, with the realization that the “denial without RFE” memorandum was also a clear failure (and, incidentally, directly contrary to published regulations), Mr. Yates issued a new policy memorandum, rescinding the earlier memorandum and seeking to reestablish compliance with previously published immigration law. In this most recent policy memorandum, Mr. Yates reminded adjudicating officers that the standard to be met in immigration petitions is “preponderance of the evidence” (meaning that the matter asserted is more likely than not to be true), and that they should not impose the standard of “beyond a reasonable doubt.” Interestingly, since the publication of this memorandum, immigration practitioners around the country report that the world of immigration is beginning to return to a more practical, hospitable environment.

III. New Developments with the H-1B visa

A variety of employment-based visas are available for employers to bring employees to the U.S. To obtain a nonimmigrant visa, an employer generally, with several exceptions, must submit a petition for nonimmigrant visa status on behalf of its prospective employee at a regional service center of the CIS. Thereafter, if the employee is outside of the U.S. (unless the employee is Canadian), the employee will need to apply to obtain a visa in his or her passport through a U.S. Embassy or Consulate abroad.

Perhaps the most known, and maligned visa category is the H-1B. Employers have routinely relied upon the H-1B visa to bring professional-level employees (i.e., employees with at least a BS degree or equivalent experience in a specific specialty) to the United States to fill specialized occupations. Unfortunately, the H-1B category (with the exception of university employees), as of October 1, 2003, is now subject to an annual cap of 65,000 (as opposed to the previous cap of 195,000) for each fiscal year (running from October 1 to September 30). Last year, as a consequence of a mad rush by employers to secure their professional workforces, the H-1B visas were gobbled up by mid-October.

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