AILA/INS
ENFORCEMENT COMMITTEE MEETING
PRELIMINARY DRAFT MINUTES
(not yet cleared by agency)
Meeting held January 25, 2001
Present from INS:
Michael Pearson- Executive Associate Commissioner
for Field Operations
Donna Kay Barnes- Operations- Inspections
Partice Ward- Operations- Inspections
Jackie Bednarz- Policy & Planning
Present from AILA/AILF:
Denyse Sabagh
Charles Kuck
Palma Yanni
Crystal Williams
Sigrid Ebert
BORDER/INSPECTIONS ISSUES
1. NAFTA adjudications. AILA would like to thank
the INS for the 7/24/00 memo on Sofware Engineers. It has helped to alleviate some of the
problems that applicants were encountering. However, as you can probably imagine, other
issues have arisen:
a. Applicants at many diverse ports of entry have
encountered problems with literal-minded readings of the memo. While inspectors are quite
properly accepting engineering degrees for Software Engineer positions, some are requiring
an engineering degree, and thereby rejecting degrees in other related fields, such as
mathematics or computer science.
b. Applicants in other occupations also are
seeing their applications denied because their degrees are not an exact match with the
occupation, even if they are related. For example, at Sumas, an Accountant was refused
because his degree was in Commerce, not Accounting. As indicated in the 7/24 memo, the
only NAFTA occupation for which a field of study is specified is Hotel Manager. Thus, POEs
should not be requiring exact matches between field of work and field of study. Indeed, in
all areas but the Hotel Management field, the treaty and the regulations require only that
the individual hold a degree, not that the degree even be in a related field. The facts
that the treaty specifies a degree type in that one field, and that INS regulations
specify that degrees for H-1B purposes must be in related fields, all point to the
conclusion that, had a specific degree been required, it would have been so stated. In any
event, it is highly unreasonable to require an exact match of degree and field.
c. Adjudications of applications for people in
the Scientific Technician field continue to be problematic. We continue to receive reports
of inspectors requiring that Technicians hold at least a 2-year degree, notwithstanding
that the regulations’ standard is “theoretical knowledge” and “ability
to solve practical problems,” and makes no reference to a degree requirement. As
indicated in the 7/24 memo, clarification on qualification for this category is needed.
d. Some inspectors are rejecting applications on
the basis that they believe the salary is too low. An AILA member was advised by an
inspector at Edmonton that any application for a position in information technology with a
salary of less than $50,000 will be routinely rejected at that port. Neither NAFTA nor the
regulations contain any requirements regarding salary, and inspectors should not be making
decisions based on their own personal opinions of what the salary should be.
e. Some applicants are continuing to encounter
problems because their job titles are not on the list of NAFTA occupations, even if their
occupations are on the list. For example, Port Huron denied an application for a Systems
Analyst because the job title was Infrastructure Analyst.
f. AILA members report that their clients have
been told that they should not be represented by attorneys, with reasons given ranging
from “there must be something wrong with your application if you need an attorney,”
to “you are throwing your money away because these applications are so simple,”
to “attorneys don’t know what they are doing.” These appear to the public
to be inappropriate attempts to coerce applicants into proceeding without representation.
INS RESPONSE: INS has been conducting regional
trainings on NAFTA adjudications. Those who are trained in turn go back to the POEs and
conduct trainings there. INS expects to complete the trainings by June 2001. INS will not
reinstate the Free Trade Officer system.
Canada and the U.S. both instruct their officers
that the qualifying degree should be closely related to the occupation, and one side
cannot change this perspective without the agreement of the other. There are
working groups-called trilateral forums--of the different agencies involved in temporary
entry issues working on common standards for adjudications. Jackie Bednarz of INS chairs
these groups.
INS asks that AILA follow up with specific
examples of the problems encountered. INS is trying to achieve “transparent criteria”
for adjudications.
INS indicated that the remarks cited regarding
representation by attorneys in POE filings are inappropriate, and officers will be
admonished not to make such remarks.
2. Fee checks at POEs. Some land ports
of entry, such as Blaine, have stopped accepting attorneys’/law firms’ checks,
even though they will accept checks from the individual or the employer. This apparently
is the result of an instruction that the applicant, in order to pay by check, must show
photo identification or evidence of employment with the employer if it is a company check.
This obviously precludes use of a third party check, including that of an attorney. It is
common practice for the attorney on an application or petition to advance the filing fee,
to simplify matters for the employer and employee. Could this instruction be expanded to
allow acceptance of attorney or law firm checks where the G-28 shows the attorney as
representing the applicant and/or employer?
INS RESPONSE: The process for how fees are
collected is under review. To solve this problem, the attorney can make out a check to INS
from his or her firm and attach the G-28.
3. Pre-admission review of NAFTA applications.
Where does the proposal stand to reinstate the voluntary option of providing the NAFTA
application to the POE in advance?
INS RESPONSE: The option to send
applications to the POE in advance will not be reinstated. INS is concerned that this
option creates a backlog and starts a slippery slope of essentially requiring advance
filing, which is prohibited under NAFTA. Thus, INS is insisting upon submission of the
application only at the time of application for admission.
4. Re-entry of Canadians under approved TNs and
L-1s. There have been increasing instances of reports of individuals with currently-valid
TNs and L-1s being refused entry on those statuses even though no facts (or law) have
changed since approval, and even though the inspector has no information that the
inspector who first granted the status (and inspectors who subsequently admitted the
individual under that status) did not possess. The inspector merely indicates that s/he
disagrees with the initial decision and will not admit the individual this time. I-94s
have been revoked, and L-1 petitions sent for rescission (a process that takes several
months to sort out). This has resulted in considerable upset among employers who should be
able to rely upon an adjudication to conduct cross-border business. To suddenly halt the
ability of key employees to move back and forth between the two countries on what gives
every appearance of being the whim of a particular inspector is focusing increasing
attention on the INS’ quality of border adjudications, and is likely in the near
future to result in considerable adverse publicity. Employers, and employees, must be able
to rely upon an approval (absent, of course, the emergence of a ground of inadmissibility)
for the period granted.
While the problems seems to arise at many ports
of entry, complaints regarding this kind of situation seem to occur most frequently at the
Toronto PFI and at Sumas.
AILA suggests that inspectors be emphatically
reminded that they may revoke existing statuses (or refuse entry under them) only in the
presence of gross error or material change in circumstances.
INS RESPONSE: The problem is that, each time
an individual enters under NAFTA, it is a new application for admission even if the person
still holds an I-94 card from a prior admission, and thus eligibility is within the
inspector’s scope of review. INS agrees that it makes no sense, from an efficiency
point of view, to review eligibility on each admission, but if an inspector encounters
information that may not have been available on initial TN admission, that inspector is
well within his or her authority to deny admission.
5. Admission until expiration date, rather
than petition expiration. We continue to encounter problems with inspectors admitting
individuals only until the visa expiration date, rather than the expiration date on the
petition approval, even when the alien points the discrepancy out to the inspector. This
problem is widespread, rather than being concentrated in a particular port or ports. While
supposedly the problem can be solved by contacting the District Offices, many District
Offices are now totally inaccessible ore refuse to act because “the officer must have
had his reasons.” What can be done to promote training of inspectors on this issue?
INS RESPONSE: Another memo on this admittedly
intractable problem will be sent out.
6. Inappropriate behavior by INS officials.
Perhaps emboldened by the publicity surrounding the situation in Portland, an increasing
number of individuals have been coming to AILA members to complain about rude and abusive
behavior by INS officers at ports of entry. Unfortunately, these individuals, fearing
possible retribution, are often afraid to file formal complaints. We are providing
examples of some of the complaints heard by AILA members.
AILA suggests that INS embark upon a program for
supervisors to weed out abusive officers, and for officers to receive sensitivity
training. It is imperative to the INS’ public image and to the image of the U.S. as
it greets visitors that the Service establish and enforce a zero tolerance approach to
rude and abusive behavior.
INS RESPONSE: INS has been conducting 3-day
mandatory communications skills trainings designed specifically for immigration
inspectors. Fifty-five facilitators were carefully chosen from among existing inspectors
to receive the training, and then to convey the training to others. New inspectors at the
academy are also receiving the training, and a course for journeyman inspectors is being
developed. The idea is to instill cultural changes at the first line supervisor level and
among the newest cadre of inspectors. Feedback from the program has been very good.
It also has been noted that, where cameras are in
use in the secondary inspection areas, the level of complaints has noticeably decreased.
CONFIDENTIALITY OF INFORMATION IN SECTION 210 SAW
APPLICATIONS
7. Pursuant to section 210(b)(6)(A) and 8 CFR
210(e)(3), information provided in a SAW application is confidential and may only be used
to adjudicate the temporary residence application, or for enforcement under section
210(b)(7).
The San Antonio INS district routinely requires
all naturalization applicants who obtained permanent residence under the SAW program to
re-prove their eligibility for SAW status based on INS’ review of the confidential
SAW application. Naturalization applicants are required to provide tax returns, and social
security records from 1985 when they were employed in qualifying agriculture, letters from
the agricultural employer upon which SAW status was granted, letters from the agricultural
extension agent of the county where the employment took place verifying that a specific
crop was grown by a specific employer, proof that an agricultural contractor was
registered as a contractor in 1985 and similar evidence. None of this type of
documentation was required for the initial SAW applications, which accepted any credible
evidence. Applicants are now forced to try to produce evidence from fifteen years ago.
Much of the requested information is unavailable since most SAW applicants were paid in
cash, and had no valid social security number with which to file tax returns or pay social
security. Local county agricultural agents have indicated that they did not keep the type
of information requested by INS. When an applicant is unable to produce this extensive
evidence, the case is dismissed for failure to meet one’s burden of proof.
This practice is in violation of the provisions
of the SAW statute, and indeed the officers involved may well be violating the criminal
prohibitions against use of confidential information in the SAW application process. Will
INS HQ advise local offices to cease these practices?
INS RESPONSE: These issues need to be pursued
with ISD.
INVESTIGATIONS INVOLVING UNSETTLED AREAS OF LAW
8. AILA members have been reporting instances of
employers receiving calls from INS officials from the Operations division asking about the
exact address where an H-1B is working. When asked about the purpose of the call, the
officials indicate that they are making sure that H-1Bs are working where they were
supposed to be working. One indicated that INS is conducting a survey. Given the supposed
limited resources of INS, it seems odd that investigations of where H-1Bs are working are
being conducted when the questions of what must be done when an employee goes to a
different location remains unsettled. Why are these investigations being conducted?
INS RESPONSE: This office is not aware of this
effort, but it probably relates to concerns about fraud in the H-1B program. INS is trying
to get an idea of the extent of the issue. The H team is preparing instructions to the
field. |
