September 11 Ushers in a New Era in Immigration Law and Practice
Angelo A. Paparelli and John C. Valdez
One consequence of the tragic events of September 11 is that immigration law has achieved new visibility and a much greater sense of national importance in the minds of legislators, the Bush administration, the media and the public. This attention has already resulted in changes in immigration law and practice in the post-September 11 era. Many more changes are likely in the future. This article offers observations and predictions of some of the likely attributes of this new era.
INCREASED DEMAND FOR THE SERVICES OF EXPERIENCED IMMIGRATION ATTORNEYS
Experienced immigration lawyers will likely be in greater demand than ever before and clients, whether corporate or individual, will come to recognize the need to pay for expertise in this complex specialty area of law. The "do-it-yourself" mentality that has at times prevailed - particularly with the ready availability of online resources - will probably be replaced by a new cautiousness, and a healthy recognition that even a seemingly simple petition or application may contain traps to ensnare the uninitiated. The near-term situation will likely resemble the era that followed the enactment of the Immigration Reform and Control Act of 1986, which signaled a new willingness on the part of corporations to retain competent immigration lawyers because corporate conduct for the first time was subject to sanctions under the Immigration and Nationality Act.
INCREASED SCRUTINY IN THE ENFORCEMENT OF THE IMMIGRATION LAWS
In the post-September 11 era, enforcement of all of the immigration laws will no doubt be more vigorous. Government bureaucrats - whether they are adjudicators at the Regional Service Centers or inspectors at ports of entry - will likely be less willing to exercise favorable discretion. An illustration of a more rigid posture regarding the exercise of favorable discretion by the INS can be found in the position announced in a new memorandum released by INS Headquarters [Memorandum from Michael Cronin, Acting INS Executive Commissioner, Office of Programs, Deferred Inspections, Parole and Waiver of Documentary Evidence Requirements, File No. HQINS 70/10.10 (Nov. 14, 2001)] ("the Cronin memorandum").
The Cronin memorandum limits the authority of INS officers to grant parole, waivers of visa or other documentation requirements, and deferred inspection. In particular, it provides that "[d]uring the nation's heightened security alert and until further notice" inspectors at Ports of Entry ("POEs") and Port Directors no longer have authority to grant deferred inspections, waiver of passports, visas and other documents, or to exercise parole authority. It also limits the exercise of these powers to District Directors, Deputy District Directors, Assistant District Directors for Inspections, and Assistant District Directors for Examinations.
While claiming that the new policy restricting the number of authorized officials who can exercise discretion does not change the existing statutory standards for paroles and documentary waivers, the memorandum allows the favorable exercise of discretion only if the following criteria are met:
What does the Cronin memorandum mean for your clients?
- All appropriate database checks have been completed; and
- The alien is likely to comply with the terms of the exercise of parole or documentary waiver discretion, and
- inadmissibility is technical in nature (i.e., involving documentary or paperwork deficiencies); or
- compelling humanitarian circumstances require the alien's entry to the United States.
The Cronin memorandum will cause increased scrutiny and difficulties for some clients attempting to reenter the United States, as the following scenarios suggest:
- The Hapless F-1 Student:
- An F-1 student is returning from a trip outside of the United States after she has completed a course of study. She is returning for authorized practical training, but her Form I-20 is technically expired - the form says the Designated School Official at the alien's college or university must have endorsed it in the last year, but the regulations say that the I-20 must have been so endorsed in the last six months. See 8 C.F.R. section 214.2(f)(13)(ii). Thus, a subtle paperwork deficiency may prevent the alien's entry to the United States. Unlike the situation in the past, a POE inspector or Port Director no longer has the authority to grant a waiver, parole, or deferred inspection in this situation, and the alien must seek assistance in accord with the requirements set out in the Cronin memorandum.
Lawyers should therefore caution clients about the closer scrutiny they may face when applying for entry from abroad and the INS' increased reluctance to exercise discretion favorably. Indeed, the consequences of an adverse finding at a POE can be severe, as suggested in an AILA Infonet report that a number of employment-based nonimmigrants at major POEs have been "placed in custody and subjected to expedite removal" since the Cronin memo was released. See Jonathan Ginsburg, Vice Chair, Notice By AILA Visa Office Liaison Committee, as reported on AILA Infonet on December 12, 2001.
- The "Porting" H-1B Traveler:
- An H-1B alien, invoking H-1B portability,1 is returning from a trip abroad. He left the United States before receiving the INS fee receipt and lacks other documents to show that his new employer filed a new H-1B petition on his behalf. Previous INS Headquarters memoranda dated January 29, 2001 and June 19, 2001, contemplated a search of the INS CLAIMS database as a first step to confirm eligibility for portability. As an alternative, the cited memoranda say that generally an applicant who lacks evidence of a pending H-1B petition should not be processed for expedited removal unless there is evidence of fraud or misrepresentation. With the issuance of the Cronin memorandum, it is unclear whether the earlier memoranda are still applicable. Will inspectors at POEs question whether the January 29 and June 19, 2001 memoranda continue to state agency policy in light of the Cronin memorandum? Will officers go to the trouble to track down the persons authorized to grant parole or deferred inspections or documentary waiver when the CLAIMS system, the INS database that issues fee receipts and confirms submissions at the Regional Service Centers, reflects the acceptance of the new employer's H-1B petition but the alien lacks documentary evidence? Unlike Blanche DuBois in Streetcar Named Desire, the authors would suggest that aliens and their attorneys not rely on the kindness of strangers.
Practice Pointers for Lawyers Counseling Clients on Travel in the Post September 11th Era
Other Enforcement Issues
- Forewarn your clients about the risks of foreign travel;
- Urge them to delay any truly unnecessary travel;
- Make sure they carry all possible documents demonstrating their eligibility for admission;
- Explain the nuances of withdrawal of application for admission (and resultant visa cancellation by INS) versus request for deferred inspection, parole or documentary waiver and advise them of the reduced list of INS officials authorized to grant such benefits.
- Offer general trips on traveling after September 11th. (See Cyrus Mehta's article on the ilw.com web site: http://www.ilw.com/articles/2001,1218-Mehta.shtm; see also an article by Steve Yale-Loehr and Stanley Mailman about travel and documentation tips generally post-Sept. 11 as appearing in the Dec. 24, 2001 issue of the New York Law Journal. This publication will be reproduced shortly in Bender's Immigration Bulletin.
In addition to changes the government will make to address matters of national security, the INS will likely continue to enforce the nation's immigration laws vigorously in matters that are unrelated to the need to snare terrorists and protect our homeland. Some recent illustrations of INS' increased enforcement efforts include the following:
The foregoing cases demonstrate the increased willingness of the federal government and of private parties to venture into the business arena in the enforcement of the immigration laws. They also show the government's commitment to apply additional resources, both in terms of money and personnel, to achieve enforcement goals.
- The indictment of Tyson Foods and certain executives and other employees for alleged alien smuggling. INS Commissioner, James Ziglar, has stated that this "case represents the first time INS has taken action against a company of Tyson's magnitude." The indictment alleges that "Tyson Foods cultivated a corporate culture in which the hiring of illegal workers was condoned" and "aided and abetted" aliens in procuring "false documents so they could work at Tyson poultry plants." In pursuing this matter, the INS, in an unusually broad government investigation, has worked in cooperation with the United States Attorneys Office for the Eastern District of Tennessee, the Federal Bureau of Investigation, the Internal Revenue Service, the Department of Agriculture, the Department of Labor, the Social Security Administration, the Bedford County Tennessee Sheriff's Department, the Shelbyville Tennessee Police Department, and the Tennessee Highway Patrol. Department of Justice Press Release, #654: 12-19-01, http://www.ilw.com/immigrationdaily/News/2001,1220-Tyson.shtm.
- Indictment of Golden State Transportation for alleged alien smuggling. In a criminal matter involving one of the largest asset forfeitures in an alien smuggling case, the Department of Justice has procured indictments against Golden State Transportation, a Los Angeles-based bus company, its principal officers, and more than 30 employees in the United States District Court in Tucson, Arizona alleging that they conspired with migrant smugglers to move undocumented immigrants from the southwest border to locations across the United States. Department of Justice Press Release, #636: 12-10-01, http://www.ilw.com/immigrationdaily/News/2001,1211-Smuggling.shtm.
- Recognition by the 2nd Circuit of a civil private right of action under the Racketeer Influenced Corrupt Organizations Act ("RICO") by one cleaning company against another on a claim that the knowing use of workers who lacked employment authorization caused the law abiding company to lose a bid for a valuable janitorial services contract. See Commercial Cleaning Services LLC v. Colin Service Systems, 271 F.3d 374 (2nd Cir. 2001).
- U.S. v. O'Conner, 158 F. Supp. 2d 697 (E.D. Va. 2001). In this case, two business associates were defendants in a sixty-one61 count criminal indictment in connection with their role in inducing 200 aliens to invest money for the purpose of obtaining visas under the EB-5 treaty investment program. The defendants were convicted of all offenses cited in the indictment, which included conspiracy to commit immigration fraud, conspiracy to commit money laundering, and filing false income tax returns.
While there may be good reasons for INS to target specific employers, lawyers representing employers will likely be called upon to protect the interests of their clients against unwarranted and intrusive investigations of business practices. This responsibility will require lawyers to fully document cases that demonstrate eligibility for the immigration benefit the client seeks, to advance creative legal arguments zealously and ethically within the bounds of the law, and to go into federal court as and when needed to prevent injustice and governmental overreaching.