Immigration-Related Issues of Concern to US Employers and Foreign Workers in light of Terrorist Actions on September 11, 2001
The horrific events of September 11, 2001, and the ensuing days have produced anger, shock, sadness and compassion in peace-loving people around the world. President Bush has urged us all to get back to work and show the terrorists that we will persevere and prevail. Despite the heartbreak of the last several days, life and business in America must and shall carry on. This need to move forward raises issues and concerns for American employers and their foreign workers.
At present, very little is known directly from the agencies in the Federal Government that administer our nation's immigration laws. This memorandum will provide some preliminary answers and suggestions on how to facilitate the needs of business, counsel foreign workers and their dependents, and anticipate the changes that likely lie ahead.
Expect Delays and Increased Scrutiny at Ports of Entry (land borders and airports)
The media have widely reported both the heightened security measures and the disruption of the domestic and international transportation system caused by the terrorists' actions. These two factors have also resulted in closer scrutiny of foreign persons seeking to enter the United States. Substantial delays at land borders have developed as officials of the Immigration and Naturalization Service ("INS") have more closely scrutinized identity documents and eligibility for admission to this country under the immigration laws. Not much is yet known on a comprehensive basis about delays at the land border with Mexico. The Canadian government, however, maintains the following web-site (reportedly updated every two hours) that lists waiting times in each direction between Canada and the United States at several land ports of entry: http://www.ccra-adrc.gc.ca/customs/general/times/menu-e.html
There are also reports that even lawful permanent residents ("LPRs") are not immune from higher level scrutiny. Reportedly, LPRs need to be able to present one or more documents in addition to their alien resident cards ("green cards") to confirm their identity. LPRs should try to have available at least one additional forms of photo identification, preferably two, and some other document to show retention of lawful permanent residence in the U.S. Foreign nonimmigrant workers who seek to enter the U.S. should possess documentation that clearly establishes identity and the right to enter in the requested work-visa status. While usually a passport, with unexpired work-visa stamp, and an INS approval notice have been sufficient in the past, it may be wise to carry a letter from the sponsoring U.S. company confirming the intention to employ the individual in the sponsored job. Persons seeking admission as students or business visitors should likewise carry documents confirming identity and verifying the legitimate purpose for entry to the country.
Given the increased scrutiny at the ports of entry, and the substantial delays, employers and foreign workers or visitors now in the U.S. should seriously consider if travel abroad - whether for business or personal reasons - is really necessary. Consideration should thus be given to eliminating all non-essential departures from/re-entries to the U.S. for perhaps the next 30 days. This temporary deferral of travel should allow the procedures and anticipated time for border-crossing to be more widely reported and better understood. Obviously, however, persons who do not depart the U.S. before expiration of the period of authorized stay need to take action to maintain lawful status by timely filing for extension of stay (assuming that is a lawful action in the individual's case).
Expect Delays at the INS and other Government Agencies
Senior officials in the Administration and Congress have indicated in recent days that a top-to-bottom legislative review will soon occur in all matters affecting national security. Immigration procedures are likely to receive particularly intense scrutiny. Reports in the media suggest that many of the suspected terrorists lived in the United States under temporary or permanent immigration status. The nonimmigrant student visa categories (F-1, M-1, J-1) and the trainee categories (H-3, J-1) are likely to receive especially close review because of reports that a number of the alleged terrorists may have used these types of visas.
In addition, even before the terrorist actions on September 11, the INS had previously announced an audit of its benefits operations throughout the country. This audit - designed to confirm whether the agency is receiving adequate user-fee compensation for services - will take place later this month and conclude in October. During the audit, usual adjudication activities are likely to be curtailed or delayed. Perhaps anticipating the outcome of the audit, the INS has already proposed higher filing fees that would likely take effect in January, 2002.
Other government agencies that administer the immigration laws are also adversely impacted by the terrorist actions and the government's response. The Department of State and Department of Labor have not yet announced the likely actions these agencies plan to take in the coming days and months. Although there is no centralized source for this information, some U.S. consular posts have begun to post information on their individual web-sites.
For planning purposes, sponsoring U.S. employers, individual foreign workers and their family members should expect significant delays in obtaining work-visa benefits or other immigration-related benefits. Requests for extensions of approved work-visa petitions, applications for Employment Authorization Documents ("EADs"), applications for travel permission ("advance parole"), requests for changes in job duties or approved location, and certain types of immigration-related requested changes arising from corporate restructurings, all are likely to face longer delays from the government agencies. Thus, the possible need to submit any such requests, applications and petitions should be determined immediately, and the corresponding submission to the government should be put on a fast track. Where appropriate and applicable, the INS's new Premium Processing Service (which costs an additional $1,000 filing fee and offers the prospect of INS action or decision in 15 days) should be utilized.
Possible Legislative Changes
Just before the terrorist attacks, hopes were high that Congress and the Administration would soon make significant changes in the immigration laws that would allow larger numbers of individuals to qualify for benefits. Possible "regularization" for Mexican citizens, perhaps a broader amnesty for other nationalities, and a near-deal on renewal of Section 245(i) (to allow more people obtain permanent residence) were seemingly just within grasp. The terrorists, however, completely changed the calculus in Congress. Seasoned insiders in Washington now predict that Congress will likely consider no such beneficial immigration legislation till at least the start of the new year, and the only new laws to expect will likely involve efforts to increase national-security protections. Thus, for now, the immigration system we have is the system we must use. Foreign nationals and their U.S. employers should therefore focus on the provisions as they now exist, including those enacted in October, 2001, that allow certain forms of immigration-status "portability," greater numbers of H-1B visas (with greater labor protections) and streamlined procedures for employers of H-1B workers affected by corporate restructurings.
Need for Proactive Planning
Now more than ever, employers and foreign workers need to be proactive in considering how the immigration laws can be used to facilitate, not impede, their business and career plans. These deliberations can best flourish if guided by attorneys experienced in employment-related immigration law. While the terrorists may have diverted attention briefly from the business of America, including business-based immigration law, there is no need to be overcome by events. Thoughtful planning and careful implementation are still the best approaches to achieving immigration-related business objectives.
Disclaimer: The foregoing is general information provided to the public on a subject of great interest to U.S. employers and H-1B workers. It is intended merely as a general review of a complex and confusing subject for which there are very few clear and reliable answers. The information is not intended as legal advice and may not be relied on as such. By providing to the public the general information below, no attorney-client relationship is created. The legal outcome in a given case will completely depend on all of the relevant facts in a given case and thus will vary from case to case. For legal advice and representation, the readers are cautioned to consult a qualified attorney who practices immigration law.
About The Author
Angelo A. Paparelli (firstname.lastname@example.org) has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.
Paparelli & Partners LLP