U.S. INS ENFORCEMENT COMMITTEE MEETING
PRELIMINARY DRAFT MINUTES
(not yet cleared by agency)
Meeting held June 2, 2000
Present from INS:
Michael Pearson- Executive Associate
Commissioner for Field Operations
Tomas Airi- Operations
Jennifer Sava-PGM-Inspections
Donna Kay Barnes- Operations- Inspections
Tracy Renaud- ISD
Cindy Lechner- Deputy, I-90 Renewal Project Manager
Present from AILA/AILF:
Denyse Sabagh
Palma Yanni
Jim Eiss
Anna Gallagher
Judy Golub
Crystal Williams
Due to limited time, not all questions were
addressed.
PRIORITIES
Have there been any shifts in the
Enforcement Division’s priorities for this year? Have
the 2000 guidelines for worksite enforcement priorities been
developed yet? If so, please provide a copy of any
documents articulating the priorities.
Question deferred.
PROSECUTORIAL DISCRETION
What is the status of the guidelines to
the field regarding where discretion exists and how that
discretion should be exercised? May AILA obtain of copy
of any guidance issued? People applying for
naturalization are continuing to be placed in proceedings,
even though they are eligible for the benefit. As the
prosecutorial discretion issue remains unresolved, gross
injustices are increasing and INS resources are being
unnecessarily wasted. Can a guideline be issued at
least on this issue?
Response: The guidelines are
still being worked upon. We have reviewed the issues
with INS people in some of the key cities, and are now
providing input to General Counsel and Policy & Planning.
One of the goals of the proposed guidelines is to ensure
that, if INS decides not to prosecute, there will be
information placed in the individual’s A file that the
INS will abide by in the future.
ARRESTS IN & AROUND COURTHOUSES AND
AT INTERVIEWS
AILA members in Miami have observed INS
performing arrests in and around courtrooms, and observed INS
parking in front of courthouses, which serves to intimidate
individuals who are trying to exercise their rights under
law. In addition, the upsets caused by these tactics
raise safety issues, and the “disappearance” of
guards during these actions raise serious security concerns.
See below.
Also, people are being arrested at
adjustment of status interviews, even in cases where INS had
indicated in response to FOIA requests that no orders were
outstanding. Obviously, INS knows where to find these
people, since interview notices were sent to them. Why
is INS using its resources this manner, which intimidates
others who are trying to exercise their legitimate rights,
rather than using call-in notices, as has been done in the
past?
Response: INS views these
situations as opportunities to find the individuals in
question—they are there and easy to get to. [AILA
urged that, since many of these individuals will be eligible
for relief, the INS should proceed with the interview and
later do a call-in if the person is found ineligible for
relief.] INS requested further information regarding
the scope of the problem and the rate of instances in which
relief is available. It was also suggested that, where
the problem is particularly prevalent, the issue be taken up
with the DD.
IGNORING G-28s
Investigators in at least two districts
(Nevada and Houston) are reportedly refusing to honor G-28s
in marriage cases being investigated for fraud. This is
a clear violation of 8 CFR section 292.5. Where
attorneys are faced with this problem and local INS refuses
to honor G-28s, what procedures should attorneys follow to
ensure that INS complies with its obligations under 8 CFR
292.5? Will HQ instruct these field offices regarding
their obligation to communicate with attorneys where G-28s
have been filed?
Response: HQ is willing to put
something out to the field stating that G-28s must be
honored. It was noted, however, that attorneys should
be careful to write the G-28 to ensure that its scope covers
such additional actions. (For example, if the
G-28 refers to representation “with respect to I-130”
the G-28 might be read not to include investigations. Thus,
INS recommends that the G-28 refer to “all immigration
matters.”) Also, where the attorney is a target of the
investigation, clients will be contacted without contacting
the attorney. However, refusing to honor the G-28 on
the basis that the INS believes there is now a conflict of
interest because of the investigation is not appropriate.
INS requested further follow-up on details of the problem.
EXPEDITED REMOVAL
What are the most recent figures for
expedited removal? Do most occur at land ports or
airports? Northern or Southern Border? Are most
expedited removals under (a)(6) or (a)(7)? If (a)(6),
do the most cases relate to false documents or just false
statements? What are the statistics regarding
removal of people with facially valid visas? What
standards are being used to remove people for whom the State
Department has already ruled on eligibility by virtue of
issuing the visa?
Response: INS does not capture
statistics that way. The following information is
available regarding expedited removals for the period 1/1/97
to 2/29/00:
Fiscal 97 (starting 1/1)
23,471
Fiscal 98 76,656
Fiscal 99
89,589
Fiscal 00 (to 2/29)
32,931
Over 75% of expedited removals are at
land ports, and less than 10% are at airports (INS believes
that this is because there are more credible fear cases at
airports). On an anecdotal basis, subsection (c)(6) is
the most common charge at the Southern border, with
subsection (c)(7) more likely at the Northern border.
We've received recent reports of US
citizens being placed in expedited removal and deported along
the California/Mexico border. These incidents involved
persons born in the United States who returned to live in
Mexico for a period of time before returning back to the
United States. Border officials refused to accept the
birth certificates in both cases. Representatives of
both families are attempting to resolve the situation
locally. However, they would like to report the matter
to Headquarters. Does the Expedited Removal Working
Group still exist? Who comprises the group, and to whom
should communications concerning such cases be sent?
Response: There is such a
subgroup; it is led by Ken Elwood. To get a name
removed from the lookout book, write a letter to Donna Kay
Barnes at INS.
MANDATORY DETENTION
What is the present Service position on
the applicability of mandatory detention to aliens who are
convicted of a crime after the October 1998 effective date of
mandatory detention but who receive a non-custodial sentence
that does not include even a term of imprisonment that is
suspended? The July 1999 Pearson and Cooper memoranda
seem to suggest that mandatory detention would not apply to
such individuals, but practice in the field does not seem
entirely consistent.
In addition, does the Service believe
that discretion exists not to apply mandatory detention even
when statutorily applicable? Will the Service continue
to press for legislation to restore discretion on custody for
criminal aliens, and what is the status of those efforts?
Question deferred.
3/10-YEAR BARS
A recent Department of State memo (copy
attached) indicated that Canadians and Commonwealth Citizens
of Canada who enter the United States following inspection by
an INS officer, but who have received neither a visa nor an
I-94, should be treated, for purposes of the 3 and 10 year
bars, in the same manner as duration of status case, similar
to an F or J. Does the INS concur with this memo?
What documents and records do officers use to determine if
the bar applies pursuant to Section 212(a)(9) of the INA?
What guidance is currently in place for these cases?
Response: INS thinks that it
agrees with the memo. The issue will be covered in the
new regulation that is currently going through clearance
processes at the agency.
EXPIRING GREEN CARDS
With the large number of I-551s expiring
due to the 10-year expiration date, what will officers do
when an expired card is encountered? How will officers
know if someone has already been warned to renew? Will
the original I-551 have to be turned over when the
application has been filed? What is acceptable proof of
status in the meantime?
Response: When INS encounters
an expired card, it is to advise the individual that the card
is expired, give him or her an I-90 and allow the person
entry. POEs are NOT supposed to require an I-193.
If one was improperly required, bring it to the attention of
the DD and request a refund of the fee.
Starting June 20, 2000, green card
renewals of expiring cards only will be applied for at the
ASCs. They will then be sent to CSC or NSC for
processing. (If, however, a new card is needed for
other reasons, the application must be made at the district
office.) Applicants for card renewal will be allowed to
retain their card, so they must bring a copy of the front and
back of the card for the file when applying. A
secure-type sticker will be placed on the old card while the
new card is being printed. FBI check fingerprints are
not required for green card renewals. Children turning 14 who
have expiring cards also can go to the ASCs to apply. They
will have to provide the fingerprints, but the prints will be
kept in the A file rather than be sent to the FBI.
INS has made a commitment to 90-day processing of the cards,
from intake to card order (not card production), unless there
is an RFE or investigation. Right now, card production
is taking 1 to 3 days.
With respect to naturalization
applicants, if an individual applied for naturalization 6
months or more before card expiration, INS won’t require
a new card, but one can be requested.
ABUSIVE PRACTICES IN EL PASO
Our members are reporting a growing
practice in El Paso whereby individuals who are scheduled for
hearings with immigration judges or who are at the El Paso
Service Processing Center awaiting such scheduling are being
taken to the bridges into Mexico, placed on the bridge and
then brought back into the U.S. and placed in expedited
removal, thus avoiding the IJ proceeding. At least one member
has heard from individuals within the INS in El Paso that a
“150-day experiment” with respect to this tactic is
being conducted in that district. At what level was
this experiment authorized? What steps will HQ take to
end this clear abuse of rights?
Question deferred.
SAN ANTONIO RAID
AILA has already made known to you its
objections to the manner in which, and the reasons for which,
the workplace enforcement action at the Air Force facility in
San Antonio was conducted. We understand that INS has
now instituted proceedings to rescind the H-1Bs of the
individuals targeted in that action.
- What was the process by which the decision was made
to institute these rescissions?
- What is the reasoning behind the rescissions?
- How much weight was given to the fact that the INS
could, in conjunction with the Department of Labor,
be in violation of an injunction against the
enforcement of a DOL regulation?
In addition, we understand that one of
the employers attempted to file petitions that reflected the
presence of the workers in San Antonio, and that those
petitions have been threatened with denial because their
answers to the item “dates of intended employment”
showed a start date after the date the petitions were filed.
INS cannot approve a petition with a start date before the
earliest date on the labor condition application, and the DOL
will not accept a labor condition application with a start
date that is not in the future. For example, if an
employer files on April 29, 2000 a labor condition
application naming a start date of even April 28, 2000, the
labor condition application would be rejected by DOL. A
labor condition application with an April 30, 2000 start date
would, however, be accepted by DOL on April 29. However,
if a petitioner tried to submit an H-1B petition to INS
whereby the labor condition application names a start date of
April 30, but the petition names a start date of, for
example, April 28, that petition would be denied because the
labor condition application does not include the full period
of the petition.
This raises an impossible dilemma for
employers. Companies, particularly contractor
companies, frequently move employees around the country.
Particularly in light of the decision in NAM v. DOL,
enjoining the DOL and others from enforcing the DOL’s
90-day limitation on temporary placements of personnel, if
there is any clarity with respect to this issue, that clarity
runs on the side of there being no requirement of new labor
condition applications when employees are moved about. And
the movement of employees has never been regarded as a “material”
change under which INS regulations would require an amended
petition. Indeed, INS officials have stated publicly
that a change in location of the employee would be such a
material change only if DOL regulations required a new labor
condition application. And, in light of the NAM
injunction, DOL regulations clearly do not require such an
application.
This is at best a hypertechnical issue.
Some attorneys, such as in the case of one of the employers
in this situation, will err on the side of caution when
encountering movement of employees, and will file an amended
petition to be absolutely safe. But how can they even
attempt to comply with this new reading of the law after the
INS is attempting to deny these attempts at caution? As
discussed above, they cannot submit documents naming start
dates in the past, so there is no way to satisfy the demand
these Notices of Intent to Deny are making.
In any event, these cases are a classic
demonstration of form over substance. In most such
situations, employers are paying considerably higher amounts
than the required wage. They are performing the job as
stated on the petition. The only variation is the
location at which the job is being performed. This
variation is not material at all to the law governing H-1Bs.
Response: INS is not prepared
to address the specific case, as it involves an ongoing
investigation. There are parts of the history of the
development of this investigation that are still not publicly
known. With respect to the broader issues
of movement of H-1Bs, INS is in the process of clearing
answers to some of the questions.
In light of the situation that resulted
from this and other workplace enforcement actions, is INS
revising its guidelines on this subject to require HQ
clearance of such actions? It is clear from the San
Antonio situation that local judgment regarding the wisdom
and even legality of some actions is not fully informed by
national policy and public relations considerations.
See above.
EMPLOYMENT AND ALIEN SMUGGLING
There have been reports of
employers in states in the Midwest being visited by
investigators from Atlanta, asking questions about alien
smuggling. At least one of these cases resulted in
charges against the employer not only of knowingly employing
unauthorized aliens, but of alien smuggling and harboring.
Is this a local initiative from Atlanta, or is it being
directed from HQ? Why is Atlanta conducting
investigations in distant states? May we see the directives
under which employer sanctions violations are being expanded
to include criminal smuggling?
Question deferred.
NAFTA FILING PROCEDURES
An October 20, 1999 memorandum under Mr.
Pearson’s name seems to have instructed ports of entry
that they may no longer accept NAFTA filings in advance of
the individual’s application for admission to the U.S.
While AILA agrees that it is contrary to NAFTA to require
prior approval procedures, we do not believe that it is a
violation of the treaty for ports of entry to offer or
suggest prior processing. In fact, we have found such
procedures helpful and efficient. In response to the
10/20/99 memo, many if not all of the ports that once had
preliminary processing have discontinued the practice. The
result has been delays and a marked decline in the quality of
adjudications at these ports. AILA urges that a
clarification be issued to ports that, while NAFTA prohibits
a pre-application processing requirement, ports can offer
such a procedure and even suggest to applicants that the
procedure be used.
Response: INS agrees that NAFTA
does not prohibit acceptance of advance processing, it only
prohibits requiring such processing. INS would like to
put out permission for ports to offer the option, but points
out that each port has resource problems and wants to avoid
setting up an environment for forum shopping. It also
cautions that, because of resource allocation issues, the
cases submitted in advance may not be the first reviewed.
The possible of issuing such permission will be looked at
further.
QUALITY OF NAFTA ADJUDICATIONS
It appears that, if the use of Free
Trade Officers is to diminish, more training is needed for
the inspections officers who are handling free trade
applications. Attorneys have encountered inspectors in
the Western ports who insist either that L-1s cannot be
processed at ports of entry or that Blaine, Washington is the
only port where L-1s can be adjudicated.
In addition, the substantive quality of
adjudications by inspectors at the Western ports of entry
(not coincidently, the ports at which preliminary processing
procedures were once available) has significantly
deteriorated in recent months. Rather than looking at
the case as a whole, inspectors are applying mechanical,
bright-line tests on the basis of one or two elements not
necessarily related to the application. For example, an
individual with a Ph.D in computer science was denied a TN
for an electronics engineering job on the basis that the
degree is not “in” engineering. The
inspector insisted that NAFTA requires that the degree be in
the exact field of the TN category. NAFTA contains no
such requirement.
In fact, unlike the H-1B category (in
which degrees in related fields are routinely accepted), the
TN category requires only that a degree be held, and neither
the treaty nor the regulations require a particular
discipline for the degree.
There also have been multiple reports of
TN denials for Software Engineers, based on an assertion that
Software Engineers are not Engineers. This had been a
long-resolved matter. Attached is a copy of 1995
correspondence from Jackie Bednarz, then the Branch Chief for
Nonimmigrant Adjudications, confirming this long-observed
tenet. There have been no changes in law or fact since
that time to justify this new trend in the Washington
State-area POEs.
What actions are being taken to better
train inspectors to handle Free Trade adjudications? What
guidance is being provided with respect to TN classification
qualification? In light of what is rapidly appearing to
be a program failure resulting from the phase-out of FTOs, is
HQ considering rebuilding the FTO force?
Response: Inspections and Field
Operations are together reviewing these issues. The
Field Operations Manual is in the process of being updated,
and in the meantime ports are using a compilation of NAFTA
guidelines in existence (which have been shared with AILA).
INS is training all immigration inspectors to handle these
cases.
With respect to the problems being
encountered with Software Engineers, INS has consulted with
DOL. The State Department has already agreed that
Software Engineers fit under NAFTA. INS will look at
the Standard Operating Procedures used by the NSC in
adjudicating these NAFTA cases, and will pursue a written
resolution. In the meantime, INS asks that we wait
until after the planned Service-wide training to see if the
situation improves. The training is targeted for
summer.