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HIGHLIGHTS OF THE ANNUAL MEETING OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
More than 2,500 immigration lawyers from around the United States and from twelve other countries gathered in Seattle, Washington from June 10th to 13th for the annual meeting of the American Immigration Lawyers Association, the organization of the nation's immigration and nationality attorneys.

Every year at the AILA meeting, major government officials from the Immigration and Naturalization Service, the State Department, the Labor Department and the United States Information Agency report to AILA on the latest developments at their agencies. And immigration lawyers report on what is happening in the law. 

Because AILA's annual meeting can normally be expected to make news, Visalaw.com decided to report daily from the meeting. Here is a summary of some of what we heard:

Saturday, 12 June 1999

INS Commissioner's Remarks

The major event on today's schedule was INS Commissioner Doris Meissner's annual address to the AILA membership. The Commissioner began her remarks by praising AILA for providing a "reality check" to determine how the agency is doing.

Meissner noted that the INS has made major strides on the enforcement side. She said the INS is now committed to achieving the goal of getting the agency's service side up to speed as well. She compared the agency to a road being converted from a 2 lane road to a superhighway. 

Unfortunately, construction creates major inconveniences. She admitted that service is unacceptably poor, but the reconstruction is progressing. 

Meissner noted that the agency is having success in addressing the backlogs at the agency. Measures to make the process more secure have been successful and now processing times are improving as well. Naturalization processing backlogs have declined from a high of 27 months to now just one year. And by October 2000, times should be down nationally to just six months. The INS has processed nearly a half million more cases in the first six months of the current fiscal year compared to the same period a year ago. Furthermore, the fingerprint rejection rate is now half of last year.

The agency has used additional funds to send 200 adjudicators to eight district offices and many others have been hired at the service centers. 

The INS has now established a new national customer service telephone center in Kentucky that is opening this month. One welcome function of the agency will be to accept calls from people needing to notify the INS of a change in address. A new national records center is being established as well in Missouri. It is opening in October and fully operational next year and is expected to dramatically reduce the problem of lost files. 

One area of difficulty has been getting the Service Centers to work well with the district offices. 
The agency is using its money to increase staff, convert temporary positions to temporary ones and to upgrade systems.

Meissner next turned her attention to technology. She pointed out her web site which includes many forms, a new self-test to help people study and new web sites for local INS offices. 
Meissner believes that the agency is acting more compassionately and is pointing to implementation of the NACARA Central American relief legislation. For example, asylum officers can now here cases and grant relief from deportation without having to go to an immigration judge. The agency also acted of compassion in handling people from countries affected by Hurricane Mitch. Deportations were suspended and Temporary Protected Status was granted. 
Hurricane Mitch also exposed other problems with the INS' detention system. The 1996 law broadened the class of persons subject to mandatory detention. To address the demand for more space, the Clinton Administration wants 0 million more for detention and is asking in the bill for discretion in deciding to detain immigrants. 

Meissner discussed the agency's restructuring plans. The details of a plan are now being developed and implementation plans are being worked out. The plan being worked out has been done in conjunction with groups like AILA. At its heart, there will be two basic organizations under one roof - an enforcement agency and a service agency. The INS is now moving the proposal to Congress and Meissner asked for AILA's support. 

The Commissioner also took questions from the floor. AILA president Jimmy Wu expressed serious concerns about adjustment applications taking so long around the country. Meissner admitted the problem is serious but that the new infrastructure being developed will help resolve this problem. 

One AILA member suggested making the date of permanent residency effective as of the date of the filing of a permanent residency application and not adjudication. Meissner thought the suggestion was interesting and would discuss it further. 

Meissner was asked about the problems with CIA fingerprint clearances taking so long. These delays are dramatically slowing down green card processing. Meissner pledged that the bottleneck will be overcome, but no timeframe was solved. 

Meissner was next asked whether filing fee increases could be allocated to adjudications. The Commissioner sidestepped the issue saying that the funds should be used for infrastructure improvements first and not processing. She also noted that the INS does not choose how to allocate funds - Congress does. She did acknowledge that adjudicators have been shifted from adjustment applications to naturalizations, but explained that this is because the backlog in naturalizations is the most serious problem right now. 

Commissioner Meissner did promise to consider some suggestions from audience members. One suggestion she agreed to consider would be the simultaneous filing of I-140 and I-485 petitions (much like marriage applicants may submit I-130 and I-485s together). Another is the granting of two year employment authorization documents in adjustment of status cases. 

J-1 Update

AILA's annual J-1 program panel this year included Les Jin, the USIA General Counsel, Marcia Pryce, head of the Waiver Refview Branch and Jean Perelli, a waiver review officer. AILA members Robert Deasy, Michael Maggio and Robert Aronson led the discussion. Jean Perelli noted that Cathy Washburn at the Department of Interior is looking for physicians to work at Indian reservations. Ms. Pryce reminded the audience that any federal agency can sponsor someone for a waiver as long as the waiver recommendation comes from "a fairly high level."
Les Jin discussed hardship cases and noted that the cases should be persuasively documented. Maggio asked about the importance of maintaining a relationship with a particular doctor in hardship cases, particularly for psychiatrists. Ms. Pryce responded that the if acceptable care was available in the home country (based on the opinion of the US State Department), then the doctor-patient relationship is not likely to be considered.

With respect to Fulbright cases, USIA confirmed that they do not care if the Fulbright office in the home country has no objection to a waiver. Only the US Fulbright office will be heard on the matter.

Les Jin commented on cases when the home country no longer exists (such as the Soviet Union). The USIA has not yet reached a decision on this. Jean Perelli noted that the USIA will act as an interested government agency on behalf of a divorced or widowed (or widowered) J-2 spouse or J-2 child if a parent dies.

Les Jin was asked about third country acquisition and the loss of home country nationality. Jin commented that the USIA was concerned about people thwarting the purposes of the exchange visitor program. The USIA now wants real proof that it is truly impossible to regain citizenship. 
Bob Aronson reminded AILA members that there is now a physician ad hoc task force addressing various immigration issues related to doctors. About 100 AILA members are part of the coalition. The group is now heavily focusing on restoring national interest waiver availability to physicians. 
State Department reorganization - The USIA is being merged into the State Department as of October 1st. Les Jin noted that waiver reviews will be going into the Consular Affairs section, but day to day activity will remain unchanged in the short term. Long term changes may be coming, but there is no indication now what they may be. The General Counsel's office lawyers at USIA will be going in different directions. The State Department's general counsel's office will absorb several of the USIA lawyers. Jin will go over to broadcasting. Stanley Colvin, also of the USIA general counsel's office, has not been granted a final assignment yet. The office location will physically move at the end of September of this year.

Marcia Pryce confirmed (again) that the di minimus rule for Fulbright funding no longer exists. That rule used to apply a more lenient standard when less than 00 was used by the exchange visitor. Les Jin announced that the USIA is spearheading an interagency work group that is dealing, among other issues, with the di minimus rule and there may be some changes. 

Friday, 11 June 1999

The highlight of today's sessions was an address to the entire body of conference attendees by Senator Spencer Abraham (R-MI), the chairman of the Sentate Immigration Subcommittee. Abraham began by praising AILA for its cooperation with the Senate. He then went on to discuss his own experience being a pro-immigration Senator in a relatively anti-immigrant legislative body. 

Abraham made the observation that the same anti-immigration arguments are being espoused today as 150 years ago in this country. At that time, anti-immigration forces were trying to keep out Catholics. At the turn of the century, the same arguments were used to keep out eastern and southern Europeans. Today, anti-immigration forces have targeted immigrants from Latin America, Asia and the Middle East. According to Abraham, Americans "must be vigilant against those who would build a wall around this country."

Abraham has focused on using his position to spotlight the positive contributions of immigrants to this country. For example, he recently held hearings on immigrant contributions to the national defense. He noted that many of his fellow Senators, for example, were surprised to learn that 20% of Congressional Medal of Honor winners have been immigrants. That is one of the highest honors this country awards.

As for Abraham's platform priorities, chief on the list is elimination of Section 110 from the 1996 Immigration Act. This section would impose an onerous entry-exit control system at all points of entry into the US. Some experts estimate that it would tie up traffic by as much as 24 hours at some locations. Abraham stated that all members of Congress realize this bill could be disasterous "except for one," a not so subtle reference to his counterpart in the House, Congressman Lamar Smith of Texas. Abraham and Smith have had an acrimonious relationship because of their starkly different viewpoints on immigration.

Abraham also sent a warning to the Department of Labor reminding them that the upcoming H-1B regulations implementing the 1998 H-1B bill should accurately reflect Congress' intentions. Abraham observed that last year's bill set an important precedent since it was the first time in recent history that Congress actually increased the number of immigrants allowed in a visa category.

Abraham discussed the vicious campaign being waged against him by the anti-immigrant Federation for American Immigration Reform. FAIR recently ran newspaper advertisements in Michigan claiming that Abraham is in favor of immigration policies that make it easy for terrorists like Osama Bin Laden to enter the US. Abraham suggested that the ads were racist in nature since he has an Arabic background. 

Abraham closed first by thanking his grandparents for immigrating to America to realize their dreams and then he drew a standing ovation when he pledged to be resolved in his pro-immigration position.

AILA president Jeanne Butterfield also addressed the membership. She began by letting the membership know that for the first time in several years, the climate for immigrants in Congress was improving. But she cautioned that AILA members should not expect major legislative improvements this year. Nevertheless, there will be some opportunities for progress, though there will be battles to prevent rollbacks as well. 

Several factors will affect legislation this year including more favorable public attitudes toward immigration, the upcoming national elections and the 2000 census where immigrants are expected to affect the apportionment of seats in Congress.

AILA will be actively promoting several pieces of legislation in the current Congress. Butterfield mentioned the following:
·       HR 1485 restores discretionary relief for people with criminal convictions 
·       HR 1481 would restore INA Section 245i 
·       S.745/HR 1650 would replace Section 110 with a one year feasibility study

AILA will also actively oopose HR 41, Congressman Stump's bill to create a ban on new immigration and efforts by Lamar Smith to impose a high school education requirement on family immigrants.

AILA's Director of Advocacy, Judy Golub, then led a panel discussion on the subject of legislation 
in the current Congress. One common theme was the growing power of immigrants in the political arena.

There were other interesting sessions dufing the day as well. There were two programs during the day discussing the current state of the National Interest Waiver program in light of the NYSDOT decision. Approvals of national interest cases have declined dramatically, though some are getting through. Of roughly 500 immigration lawyers in the audience, for example, only one has seen a physician case approved since NYSDOT. The most important advice for immigration lawyers is to consider initial filings for national interest cases as the first step in what will likely an appeal to the federal district court. Consequently, the arguments and evidence should be prepared with a district court judge in mind. A few other useful tips:

- get support letters from people who are independent of the applicant (i.e. not just those who have worked with the alien either currently or in the past). People who have cited the applicant's work or who have been on conference panels are good candidates. Letters from people who work with or have worked the applicant can and still should be provided, however.

- do not use form support letters, letters that sound like they were written by the lawyer, or letters that all sound alike

- consider waiting if the applicant is a recent graduate 

INS official Thomas Simmons acknowledged serious problems with the NYSDOT decision and indicated that the agency may take up a new rulemaking. The agency also plans on issuing a guidance document this summer that may liberalize certain aspects of NYSDOT's administration. One area that may be affected is the NYSDOT requirement that an alien be much better qualified than his or her peers. It may also bring back the notion that national benefits can arise from local activities.

A panel on J-1 visas was held with several officers from the USIA participating. Marcia Pryce, the USIA Waiver Review Branch chief indicated that the upcoming merger with the State Department was not disrupting services though staffing turnovers were causing some slowdowns. Physician waiver cases are currently taking four to six weeks, according to Ms. Pryce. Ms. Pryce also provided a fax number to submit case inquiries - 202-401-9809.

Thursday, 10 June 1999

AILA President Jimmy Wu gave his farewell message and outlined some of the accomplishments of AILA in the last year. A key change has been the dramatic increase in the use of technology by AILA members, particularly in the use of AILA's Infonet

Incoming President Steve Clark addressed the ongoing problems with H-1B processing and the incredible frustration that is resulting from the current situation. He also promised to more closely focus the organization on the incredible slowdown of processing of immigration applications at the INS Service Centers. 

According to Clark, the INS is siphoning off most of the fees from immigration applications to enforcement. Clark also accused the INS of mismanagement and pledged that AILA will focus on lobbying for adequate budgets and sound management for the INS. 

Clark urged AILA members to work with clients to bring up INS problems with their elected officials and promised that AILA will play a key role in helping with this effort.

Clark noted that AILA liaison meetings will take on greater importance in combination with grassroots efforts by AILA members. 

Some of AILA's priorities:
·       the restoration of INA Section 245i 
·       restore 212(c) relief 
·       reshape definition of aggravated felonies to be what it says - not an excuse to beat up on foreigners

According to Clark, "The Service Centers are simply out of control." AILA will make a major push through the courts to force the INS to do its job. Clark pledged to work to make AILA the glue that binds immigrants in a national movement to improve the immigration system.

Finally, Clark pushed for an end to the arbitrary cap on H-1B visas noting that visas available in October will possibly run out as early as December of this year for NEXT year's quota.

Late Breaking Immigration News

Leading AILA members began the conference with a discussion of the latest news. 
Ron Klasko, AILA Past President and outgoing AILA General Counsel, noted that the INS has agreed that aliens are grandfathered under INA Section 245i as well as spouses and children even if they married or born after the priority date was established. Also, even if a petition is denied by the INS, the priority date can still be used for 245i grandfathering purposes.
Klasko also reported that people who are Duration of Status and who filed on time for an H-1B visa will be deemed in status until H-1B visas are available for the next fiscal year.

Houston lawyer Peter Williamson encouraged AILA members to sue the INS when the agency fails to properly handle a case. 

AILA Past President Denyse Sabagh urged AILA members to advocate vocally on the legislative front. Sabagh led AILA during the legislative battles that surrounded the 1996 Immigration Act. Sabagh told AILA members that they should always tell clients to contact their Congressional representatives and let them know about their problems even if they have a case that cannot be solved under the existing law. Sabagh said that it is imperative that Congressmen know what they have created with their legislation. Sabagh urged AILA lawyers to push Congressment to sponsor private immigration bills for individual aliens. Even if these cases have little chance of success, they send a message to Congress that there is a real problem.

H-1B Developments

There were several important announcements made about the H-1B visa program today. Jacqueline Bednarz, Special Assistant to the INS Executive Associate Commissioner for Policy and Programs revealed the latest news on the H-1B cap. First, Bednarz confirmed what everyone already knows - that the cap has been hit. The INS had approved 108,386 cases as of the end of May and Service Centers will not approve any cases filed after April 9, 1999. 
The INS has reached the cap with more than 43,000 cases in the pipeline. Word of the impending reaching of the cap has apparently sifted down to the public because the pace of filings has decreased substantially in the last month. Bednarz also noted that the INS has been approving about 90% of cases filed.

Ms. Bednarz also reminded AILA lawyers that employers who will not be using H-1B numbers are obligated under the law to revoke the visas so that others may use them. The INS has set up a special fax number - 202-305-0108 - for employers to notify the agency.

In one of the day's most important announcements, Bednarz confirmed what many had hoped - the INS will allow duration of status F-1 and J-1 visa holders who applied for a change of status before now to have an automatic extension of their status until new H-1B numbers are available. Currently, the INS regulations only provide for a 120 day extension of status. There are two basic requirements noted by Bednarz:
F-1 or J-1 status was maintained (including no illegal work) and 
the J-1 home residency requirement does not apply 
The INS will outline this change in a public notice to be published in tomorrow's Federal Register 

Gail Coleman, Deputy Associate Solicitor for the Fail Labor Standards Division of the Department of Labor, confirmed that the Labor Department will soon release final regulations implementing last year's H-1B legislation. Highly controversial proposed regulations were released earlier this year and were described in our January 1999 newsletter. The regulations would become final before the end of the summer, according to Coleman.