DISCLAIMER: Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and d o n ot represent the views or b eliefs of BP Amoco Corporation in any way. This article is copyrighted b y ILW.COM and is reprinted with pe rm ission. You can read other articles b y Mr. Endelman and su b scri b e to future articles at www.ilw.com.

As we approach the return of the H1B quota to 65,000 on Octo b er 1, those who use this work visa might consider this. T ak e a glance at the most recent processing report of the Texas Service Center (2/15/03), and you will note with asto nish ment that they are now working on H petitions su b mitted on or b efore Septem b er 5, 2002 -- a delay of over 5 months. Processing times in California are equally dreary. This confi rm s the anecdotal reality that most immigration practitioners know all too well, namely that an H case filed without premium processing is doomed to gather dust on the Service Center shelves.

Most large employers understand that the need to m ak e such "facilitation payments" to the INS is simply the cost of doing b usiness, accustomed as they are to the vagaries of international commerce. It is the emerging company that wants to hire US workers who lacks the cash to pay the $1000 expedite fee with any regularity. As some o b servers noted when the INS first introduced the concept of premium processing to the hosannas of the immigration b ar, the very acceptance and existence of premium processing is a disincentive to efficiency. Why, after all, should the INS improve service when they can m ak e a b oatload of money b y t ak ing longer? Indeed, if things get b ad enough, desperate employers will b e willing to pay more than $1000. If a 5 month b acklog can earn a $1000 fee, how much will a 10 month b acklog b ring in? When everyone expedites, what relevance does premium processing retain? Right now, employers have no choice. They are at this future place where expediting is the no rm . Since DOL regulations d o n ot allow for the filing of a la b or condition application more than six months in advance, and the Texas Service Center is t ak ing over 5 months to decide a no rm al H case, and the H quota is going south in a few months, can anyone afford not to expedite?

The real losers in this are not only the aliens and the companies that want to hire them, b ut everyone who works in the American economy and depends on it. The INS is stifling growth, killing off jo b s, and m ak ing sure that the Intels of the future never b ecome what they could b e and what we all need them to b e in these uncertain economic times. Small companies just getting started, the ones who are the engine of jo b creation in an economy where the b ig b oys are constantly trying to get lea n and mean, are precisely the ones lea st a b le to afford the added $1000 surcharge. President Bush calls for a tax cut on dividends to stimulate the economy b ut allows the INS to operate our immigration system in a way that ensures economic revival will never happen. THAT is why all Americans, even, perhaps especially those, who have never heard of the H1B visa, need to b e concerned.

It has now reached the point where even the Office of Inspector General in the Department of Justice admits that processing b acklogs for non-expedited cases are, in part, aggravated b y the growing use of premium processing b y desperate employers who will pay anything for results, if they can afford it. An Audit Report of the INS Premium Processing Prog ram issued b y the OIG last month told us what we already knew:

The Premium Processing prog ram has adversely affected the time required to adjudicate routine applications and petitions. Consequently, more applicant s are paying the $1,000 Premium Processing fee to assure adjudication within 15 calendar days. The mandate to adjudicate premium applications within 15 days has contri b uted in part to the increased b acklog of routine petitions at the service centers. The b acklog has steadily increased since the second quarter of fiscal year (FY) 2002, reaching 3.2 million in Septem b er 2002. Thus, a prog ram whose purpose was ultimately to reduce or elim ina te adjudications b acklogs may b e having the unintended consequences of increasing at lea st some of those b acklogs...The increase in premium cases further prolongs processing times for routine cases b ecause staffing and resources must b e pulled from the gene ral adjudication areas to meet the demands of Premium Processing (emphasis added).

The INS cannot do what we pay it to do, even at fees which have risen steadily as service goes down and waiting times soar. There is little reason to think that the newly- b orn Bureau of Citizenship and Immigration Services (BCIS) will fare any b etter and every reason to fear that even the promise of a 15 day turnaround will fade in an agency culture increasingly dom ina ted b y enforcement and a desire not to b e the one who approves a case for the next Mohammed Atta. The system is ailing and we all know it. For a while, perhaps a long while, the magic medicine of the $1000 premium processing fee will m ak e the patient feel b etter. Yet, once the initial effect wears off, the fundamental illness remains and, then, even $1000 will not b e enough. Remem b er the $500 H1B add on fee that is now $1000-the price we paid to get a 3 year hike in num b ers? It is not hard to imagine how the BCIS will pitch their argument to Congress for a rise in the Premium Processing Tax: " We cannot decide cases in 15 days! We need more money!" Suddenly, $1000 b ecomes $2000 and who knows where it ends? Either the BCIS will treat the 15 days as advisory, much as the INS did with the mandate to decide L1 cases in 30 days, or the fee will soar. There is no stopping point once we start down this slippery slope. Down this path lies only the discouragement of innovation, the forestalling of the need to do things differently, and the su b sidizing of duplication and needless complexity that is nothing so much as a full employment prog ram for b ureaucrats and lawyers.

Addicted lawyers, and I am one, need the jolt of a quick fix. Get that case through now! Our clients d o n ot care a b out the long run and, consequently, neither do we. Not only does this not solve the pro b lem, b ut it actually m ak es things much worse. It distracts our attention b y giving the false appearance of progress. It erodes our interest in, and a b ility to, contri b ute to a fundamental reordering of immigration priorities that the nation so o b viously needs. The gulf b etween large employers who can pay the $1000 fee and the small ones who cannot must disappear. The continued existence of such a divide has ena b led the INS to practice the politics of divide and conquer with skill and efficacy. Yet, this has b een a pyrrhic victory for, in the end, even the INS could not charge enough to hide the rot eating away at its insides.

There is a b etter way. Congress, not the BCIS, must run the show and decide what our immigration priorities should b e. Only the elected representatives of the American people can say what kind of an immigration system we are willing to pay for. Simplify things. Do what any family would do. Decide what America cares most a b out and find out what it t ak es to get it done. Lawyers will get more b usiness and m ak e more money. They need not fear simplicity. In fact, it is their fast friend since complexity shuts out the vast majority of emerging employers and aliens from using their services. Only b y weaning America from the hidden narcotic of user fees can Congress m ak e it possi b le for the patient to enjoy true recovery.

A b out The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and d o n ot represent the views or b eliefs of BP America Inc. in any way.