By Stanley Mailman and Stephen Yale-Loehr**

Recent newspaper articles confirm to the public what immigration lawyers have known for a long time: the administration of our immigration system is a mess. Put aside the immigration system itself, which President Bush conceded at the beginning of the year needs radical reform. The way the current system is managed violates every good rule of public administration. On the side of services to the public, severe and uneven delays deprive applicants of statutory benefits; policy contradictions and the lack of regulations make it hard to divine how the agency will apply the law. The enforcement side has been a scandal, particularly in its dragnet style and shockingly harsh conditions of detention.

According to one recent article, it takes a year and a half to become a citizen in San Antonio, but three times that long in New York, a delay even greater than the President promised to reduce when he campaigned for his first term. Elsewhere in the country naturalization backlogs are also ballooning, and are equally lopsided. So are delays in other types of applications. A California company that seeks to bring a worker of extraordinary ability for permanent residence faces a wait of a year and a half just to get the initial petition approved; obtaining the immigrant visa may take another year. For the same kind of worker, a New York company must wait about two years plus the visa processing. Overall, a recent report by the U.S. General Accounting Office (GAO) indicates that despite a funding increase of $80 million annually starting in 2002, the number of pending immigration applications had increased by 59 percent to about 6.2 million by September 30, 2003, the end of the last fiscal year.

The immigration agency is not the only agency responsible for delays. To qualify an ordinary worker for a green card, an employer, even before filing an immigrant visa petition, must first obtain a labor certification, that is, a certification from the Department of Labor (DOL) that qualified U.S. workers are unavailable. But “labor certs” have been taking two or three years, or even longer, depending on where the job is. The last step for workers (or beneficiaries of a family petition) to obtain a green card is adjustment of status, a process that itself can take years – in Atlanta three years, for some in Houston as long as five.

The timetable for temporary workers is of course shorter. The fastest track is for intracompany transferees (L-1) – usually 30 days, probably because Congress set that time limit by statute. But petitions for O-1s (temporary workers of extraordinary ability) often take months, as do petitions filed for H-1Bs (professional workers), unless the employer springs for “premium processing,” a service that guarantees action in 15 days for an extra fee of $1,000.

Safeguarding From Sopranos

In a case that should have caused embarrassment to the government but clearly didn’t, the Pittsburgh Post-Gazette reported that the Pittsburgh Opera had to cancel the appearance of a Bulgarian soprano in Handel’s Julius Caesar earlier this year because the immigration agency had so badly mauled the application with typos and clerical errors. The best the agency would offer was to reprocess the application when it rose from the bottom of a new four-month pile or to expedite it on payment of the $1000 premium.

The standard answer to complaints is “9/11.” According to the Post-Gazette, the government’s spokesman explained delays by saying: “We slowed the process down. We run them through national security databases to ensure that that individual is entitled to the service. We make no apologies for that. We need to safeguard the homeland.” From sopranos?

Mark Scorca, president of Opera America, has a different theory. He says that many of the government staff members “who processed the [routine] visa applications now work in the [premium] processing program. That is a managerial choice . . . as to where they are going to devote their highest and best attention. We are not like a big corporation that can blindly pay $1,000 for an expedited petition review,” the Post-Gazette reported. Indeed, while Congress saw premium processing as an additional service to speed up processing, it has apparently become an expensive substitute – the only workable way to get nonimmigrant visa petitions done on time.

The immigration agency acknowledges that it must do better. The U.S. Citizenship and Immigration Services has a backlog reduction plan, and claims that two years from now, by the end of 2006, it will eliminate the immigration backlog and reduce application waiting times to an average of six months. To achieve that goal, the agency estimates that it must increase productivity by 19.6 percent, a Herculean task.

Adjudication delays are not the only problem. Uncertainty also pervades immigration practice today. We can’t be sure how the government will parse an ambiguous statute in the absence of an interpretive rule. And certain policy decisions now take longer because they overlap the purview of different agencies. Before March 1, 2003, the Immigration and Naturalization Service (INS), an agency of the Justice Department, performed most immigration functions. But under the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, the INS was dissolved and its functions distributed among several agencies of the Department of Homeland Security (DHS), including the Citizenship and Immigration Services (CIS).

Now, for example, the CIS passes on such immigration benefits as reentry permits for residents and extensions of stay for nonimmigrants; the DHS agency known as Customs and Border Protection (CBP) inspects incoming travelers. To correct a mistake made in issuing the I-94 entry permit, a nonimmigrant goes to CBP if it was made at the time of entry, but to CIS if made in the course of extension. But to give those instructions, the agencies had to coordinate and agree, which they did only recently.

Apart from the split in functions, indeed even before it occurred, the then-INS failed to resolve ambiguities in the statute. Among the most troublesome are those that appear in section 212(a)(9)(B) of the Immigration and Nationality Act (INA), which was enacted in 1996. That provision deals with the individual who overstays, and is therefore “unlawfully present” in the United States, for more than 180 days. Should that person then simply leave without removal proceedings she is barred from the United States for three years from the date she leaves. If she is unlawfully present for a year or longer, the bar extends to ten years.

According to an INS memo, the time an applicant for change to another temporary status waits for a decision on a timely-filed petition is “authorized” while the petition is pending, even if it extends beyond the period that the initial status expires. What is not clear is whether a petition remains pending when a timely appeal is taken from its denial. The INS Office of General Counsel said that it does. That legal opinion recommended, however, that the INS amend its regulations to state this position explicitly: an appealable decision is not final until the right to appeal is waived, the time for appeal has expired, or the appeal or certification is decided. So far we have no such amendment. Practitioners simply have to guess whether their clients, while awaiting the result of an appeal, risk accumulating unlawful presence.

Increasing Resentment

Immigration practitioners have experienced delays and uncertainty for a long time. And discourtesy by immigration personnel to lawyers and applicants alike has been common if not institutional. But after 9/11, the treatment of many foreign persons in contact with our immigration agencies has deteriorated. The special registration program, targeting nationals of most Middle Eastern countries and those with contacts in that area, including many students, has sparked sharp resentment. The U.S. government eliminated most of the special registration program and folded it into the more general U.S. VISIT program last December.

Resentment over our treatment of foreign passengers, particularly travelers from the Middle East, has boiled over with reports of how we treat foreign citizens living in our midst, especially those detained after 9/11. Some of these reports come from individual sources. Two of them involve elaborate studies, one by the Inspector General of the Justice Department. The other is by Mark Dow, the author of a new book called American Gulag: Inside U.S. Immigration Prisons (June 2004, Univ. of Cal. Press). These reports draw a picture of violence to immigration detainees, coerced sex, and sexual humiliation that anticipates the photographs of Abu Ghraib.

Sadly, these abuses have produced no corresponding gains in security. Although the final report of the commission investigating the 9/11 attacks is not yet published, the commission made a preliminary finding in April that “immigration policies promoted as essential to keeping to keeping the country safe from future attacks have been largely ineffective, producing little, if any information leading to the identification or apprehension of terrorists.”

The mismanagement of our immigration laws continues to cause us ill will around the world and harms our national interest. Foreign students, upset by reports of visa snafus, fingerprinting on entry, and delays in the issuance of routine work permits for practical training are looking for their degrees elsewhere. “Educators warn that unless the rules are modified, US dominance in the competition for the world’s most talented students and scholars could be at risk.” Indeed, applications from international students to U.S. graduate schools fell 32 per cent this year. Immigration lawyers would add that without a sea change in the culture of our immigration authorities, no legislative change or infusion of more money will be enough to fix our broken immigration system.

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* This article originally appeared in the June 28, 2004 issue of the New York Law Journal. Copyright © 2004 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration law at Cornell Law School.

Footnotes

See Stanley Mailman & Stephen Yale-Loehr, Sanity for the Southwest Border, N.Y. Law J., Feb. 23, 2004, at 3.
See Nina Bernstein, A Longer Wait for Citizenship, N.Y. Times, June 12, 2004, at A1.
See GAO, Report No. GAO-04-309R, Immigration Application Fees: Current Fees Are Not Sufficient to Fund U.S. Citizenship and Immigration Services’ Operations (Jan. 2004).
See Nancy Martinez, Immigration Wait is Texas’ Worst, The Houston Chronicle, June 15, 2004, at A1.
See Marylinne Pitz, Spelling Mistake Sidelines Soprano; Miscue Adds Extra Months to 6-Month Visa Approval Process, Pittsburgh Post-Gazette, Feb. 26, 2004, at A-1.
See http://uscis.gov/graphics/aboutus/repsstudies/backlog.htm (last visited June 20, 2004).
See Stanley Mailman & Stephen Yale-Loehr, Immigration in a Homeland Security Regime, N.Y. Law J., Dec. 23, 2002, at 3.
Compare CBP Field Manual § 15.12(a) with memorandum by William R. Yates, USCIS Assoc. Dir. for Operations, File No. HQOPRD 70/42.10 (Mar. 30, 2004), reproduced in 9 Bender’s Immigr. Bull. 676 (May 15, 2004).
See generally 5 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 63.10 (2004).
See memorandum by Alice Podolny, Chief, Inspections Law Div., Office of Gen. Counsel, file No. HQCOU 90/15 (Mar. 27, 2003), reprinted in 8 Bender’s Immigr. Bull. 931 (May 15, 2003) (distinguishing “period of authorized stay” from “in status”).
See INS General Counsel Opinion No. 91-23, Determination of Date of Final Decision in Denied Cases, CO 103.6-C (Feb. 21, 1991), available at LEXIS, Immigration Library, INS and DOJ Legal Opinions File (last visited June 20, 2004).
See, e.g., Nina Bernstein, 2 Men Charge Abuse in Arrests After 9/11 Attack, N.Y. Times, May 3, 2004.
See Philip Shenon, Report on U.S. Antiterrorism Law alleges Violations of Civil Rights, N.Y. Times, July 21, 2003; Eric Lichtblau, Threats and Responses: Detainees; Treatment of Detained Immigrants Is Under Investigation, N.Y. Times, June 26, 2003.
See also Mark Dow, A Long Record of Abusing Jailed Foreigners in U.S., L.A. Times, June 11, 2004.
Michael Janofsky, 9/11 Panel Calls Policies on Immigration Ineffective, N.Y. Times, Apr. 17, 2004.
Christopher Grimes, US Universities Failed by Visa Process, Financial Times, May 12, 2004, at 11.
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