ALI-ABA Course of Study Immigration Law: Basics and More. April 26-27, 2007 Washington, D.C. Agencies in Transition - Authority and Jurisdiction

Transcription

1 1 ALI-ABA Course of Study Immigration Law: Basics and More Sponsored with the cooperation of the American Immigration Lawyers Association (AILA) April 26-27, 2007 Washington, D.C. Agencies in Transition - Authority and Jurisdiction By Margaret A. Catillaz Harter, Secrest & Emery, LLP Rochester, New York

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3 3 AGENCIES IN TRANSITION - AUTHORITY AND JURISDICTION I. INTRODUCTION By Margaret A. Catillaz 1 On March 1, 2003, the Immigration and Naturalization Service ("INS") ceased to exist as a result of The Homeland Security Act of The functions of the INS have been divided among three separate bureaus within the newly created Department of Homeland Security ("DHS"). The bureaus have now been renamed U.S. Citizenship and Immigration Services ("USCIS"), the U.S. Immigration and Customs Enforcement ("USICE") and U.S. Customs and Border Protection ("USCBP"). Although the INS is now a creature of the past, its historic functions will likely flavor the future of the bureaus into which it has been absorbed. Its imprint will be visible in the statutes, regulations, case law and policy that have shaped it and practitioners should not expect to have the new agency start with a clean slate. Thus, an understanding of both the recently-deceased INS as well as the newborn DHS will be critical for years to come. In addition to the INS/DHS, there are several other federal agencies that directly impact the lives of foreign nationals in the United States. This paper is designed to provide an overview of such agencies and their current (and historic) fundamental responsibilities. Since this is merely an overview, it does not purport to give a detailed description of all units or functions of the involved agencies, but will instead focus on those which are most often encountered. It is recommended that the reader review the pertinent regulations to determine the role of departments not discussed in this paper. 1 Margaret A. Catillaz, Esq. has served as the President of the American Immigration Lawyers Association ( ) and is a partner in the law firm of Harter, Secrest & Emery LLP, with offices located in Rochester, Buffalo and Albany, New York and Naples, Florida. She has been named to Best Lawyers in America under the category of immigration law and she has been named to The International Who s Who of Corporate Immigration Attorneys. She has been practicing immigration law for over 20 years and has been a frequent lecturer both within and outside the United States. This article was updated by Laura Lichter. 2 PL

4 4 II. DEPARTMENT OF HOMELAND SECURITY A. US Citizenship and Immigration Services (USCIS) USCIS now has responsibility for all of the benefits functions previously held by the INS. This includes the adjudication of all applications filed seeking benefits under immigration law, including asylum and refugee applications. Currently all local, field and regional offices, as they existed under the INS and as described below, remain operational in their existing locations. Current information regarding USCIS can be found at its website at B. US Immigration and Customs Enforcement (USICE) USICE is now responsible or the interior enforcement of immigration law. Its primary responsibility is enforcement and investigations, detention, removal and intelligence gathering. It also has responsibility for protecting federal buildings against terrorist threats. It is anticipated that its workforce will include special agents of the former INS and U.S. Customs Service, as well as detention and deportation officers and the INS litigation personnel. Its website is located at C. US Customs and Border Protection (USCBP) USCBP will focus its efforts on the movement of both people and goods across our borders, ensuring consistent inspections procedures and coordinated border enforcement. Its employees will include former employees of the INS, U.S. Customs, the Agricultural Quarantine Inspections and Border Patrol (previously part of the INS). Like the other bureaus, CBP has its own website, which is located at III. IMMIGRATION AND NATURALIZATION SERVICE ( INS ) The INS, previously a part of the Department of Justice and now subsumed into DHS, was responsible for administering and enforcing the Immigration and Nationality Act and all other laws relating to immigration, naturalization and nationality. 8 USC 1551; 8 CFR Part 100. Note that its organizational structure, at least for the time being, is currently retained in large measure during the transition period from DOJ to DHS. Within the INS, several offices most frequently impacted immigration practice. These included:

5 5 A. Office of Programs. This office was responsible for policy development and review as well as integration of the INS enforcement and examination programs. The office had primary responsibility for the planning, oversight, and advancement of programs engaged in interpretation of the immigration and nationality laws. It was also responsible for the development of regulations, including granting and withholding of benefits, border control, detection, apprehension, detention and removal and enforcement of employer sanctions and other provisions of immigration-related law. Additionally, it was responsible for immigration records and for promulgating policy, direction and supervision to the Offices of Enforcement and Examinations. 8 CFR (c)(1). 1. Office of Enforcement. This office was responsible for planning, oversight and advancement of enforcement programs and supervision of the Border Patrol Division, the Investigations Division, the Detention and Deportation Division, the Intelligence Division and the Asset Forfeiture Division. 8 CFR (c)(2). 2. Office of Examinations. This office was responsible for planning, oversight and advancement of examinations programs, for all district and service center records and all records operations, except records policy. It supervised the Adjudications and Nationality Division, the Inspections Division, the Service Center Operations Division, the Records Division and the Administrative Appeals Office. 8 CFR (c)(3). B. Office of Field Operations. This office was responsible for implementing policies related to the INS field operations, including granting and withholding benefits, border control, detection, apprehensions, detention and removal and enforcement of employer sanctions, refugee processing, adjudication of relative applications, fraud and smuggling deterrence. It supervised the Regional Directors and the Director of International Affairs. 8 CFR (d). The territory within which INS officials were located was divided into regions, districts, suboffices and border patrol sectors. 8 CFR Regional Offices. There were three regional offices of the INS located in Burlington,Vermont; (Eastern Regional Office); Dallas, Texas (Central Regional Office); and Laguna Niguel, California (Western Regional Office). Each of these regional offices had jurisdiction over specific district offices and border patrol sectors. See 8 CFR (a). Each Regional Office was responsible for field operations within its respective geographical area and provided direction to and supervision of the district directors and chief patrol agents within its respective region. 8 CFR (g)(2).

6 6 a. The Eastern Regional Office had jurisdiction over the following district offices: Boston, New York, Philadelphia, Baltimore, Miami, Buffalo, Detroit, Newark, Portland (Maine), Cleveland, Washington, D.C., Atlanta, San Juan, Puerto Rico, and New Orleans. It also had jurisdiction over border patrol sectors headquartered in Houlton, Maine; Swanton, Vermont; Ramey, Puerto Rico, Buffalo, New York, New Orleans and Miami (as well as all of the stations situated in those sectors). 8 CFR b. The Central Regional Office had jurisdiction over the following district offices: Chicago, St. Paul, Kansas City, San Antonio, El Paso, Denver, Dallas, Omaha, Helena, Houston, Harlingen. It also had jurisdiction over border patrol sectors headquartered in Grand Forks, N.D.; Havre, Montana; as well as Texas Border Patrols located in El Paso, Marfa, Del Rio, Laredo and McAllen. c. The Western Regional Office had jurisdiction over the following district offices: Seattle, San Francisco, Los Angeles, Honolulu, Phoenix, Portland, Anchorage and San Diego. It had jurisdiction over border patrol sectors headquartered in Spokane and Blaine Washington, ; Livermore, San Diego and El Centro, California and Yuma and Tucson, Arizona. 2. Field Offices. Formerly known as District offices, there are approximately 40 Field offices located throughout the United States as well as some outside the United States. See 8 CFR (b). At present, the district offices continue to operate as in the past, but their future role is open to question. The field office is generally referred to as the local office. Each office has a specific geographic jurisdiction. Throughout the course of the last two decades, the power of the local offices has been steadily diminished. At one time, these offices were the site of most adjudications. Now, virtually all adjudications are conducted at the four regional service centers or the National Benefits Center, for certain family-based applications. Notwithstanding that, the practitioner is well advised to have a good understanding of what the local office in a particular geographic area has developed as local practice and should never assume that what is standard practice in one district office is the same in all others. 3. Suboffices. These offices fall within districts and are generally given limited authority and limited staffing. There are also substantial regional variations in the services offered by these offices. 4. Border Patrol Sectors. These offices are headed by chief patrol agents and were responsible for the enforcement of the immigration law. 8 CFR (d).

7 7 5. Service Centers. There were four service centers of the INS, which continue to operate under USCIS, whose primary function is adjudication of petitions for immigration benefits, including visa petitions, employment-based petitions, and certain family-based petitions. It is critical for the practitioner to know the appropriate jurisdiction for filing petitions, as filing in the wrong jurisdiction can cause delay and can potentially harm the beneficiary. The service centers are located as follows: Texas Service Center in Dallas, Nebraska Service Center located in Lincoln; California Service Center located in Laguna Niguel and Vermont Service Center located in St. Albans. 8 CFR 100.4(e). Jurisdiction is generally based upon the residence of the applicant in family-based cases and is based upon the location of employment in employment-based cases. In limited instances, some employers have secured approval to file their cases in the jurisdiction in which their headquarters or other offices are located. A fifth Service Center will shortly open in Missouri to adjudicate V and K visa petitions and late legalization filings 6. National Benefits Center. The NBC was created in 2003 as a nationwide clearinghouse for family-based adjustment of status applications, including the immigrant relative petition, when filed as a one-step. USCIS is in the process of transferring certain adjudications functions from the Field offices to the Missouri-based NBC. Actual filing procedures (including direct mail, mail to the field office, and in person at the field office) vary by jurisdiction, so check the USCIS website for the most up to date information. NBC conducts background and security checks, issues work authorization and travel documents to those with pending applications, and prepares the file for final adjudication by the Field Office. Note that the four regional service centers continue to have jurisdiction over any I-130 immigrant relative petition if there is no concurrent filing for permanent residence. 1 C. Office of International Affairs. This office was responsible for the U.S. domestic asylum program and the administration of the U.S. immigration law on foreign soil. 8 CFR 100.2((d)(3). Its director provided general guidance and supervision to Foreign Districts, the Asylum Division and the Refugee and Parole Division. 1. Asylum Offices. There are eight asylum offices located throughout the country, each with its own jurisdiction. They are located in Newark, New York, Arlington, Miami, Houston, Chicago, Los Angeles and San Francisco. 8 CFR (f). This function currently is managed by USCIS.

8 8 D. Office of Files and Forms Management. Its title describes its purpose, which includes supervisory responsibility for the Centralized Freedom of Information Act and/ Privacy Act (FOIA/PA) Program. 8 CFR (f)(7). E. Miscellaneous. The chief principal officer of the INS was the Commissioner, the delegee of the United States Attorney General. 8 CFR (a). The General Counsel provided legal advice to the Commissioner and Deputy- Commissioner, prepared legislative reports, assisted in litigation and prepared briefs and other legal memoranda. 8 CFR (a)(1). Regional Counsel reported to this function, as did all INS service attorneys assigned to field offices. IV. EXECUTIVE OFFICE OF IMMIGRATION REVIEW Remaining under the jurisdiction of the Department of Justice, the Executive Office for Immigration Review ( EOIR ) is one of the few former INS functions not taken into DHS. EOIR is responsible for the general supervision of the Board of Immigration Appeals and the Office of the Chief Immigration Judge. Immigration Judges, who preside over the court of first impression in immigration proceedings are responsible for exclusion, deportation, removal and asylum proceedings and such other proceeding which the Attorney General may assign to them. V. OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES Under the jurisdiction of the Department of Justice, this Office continues to be responsible for effectuating the anti-discrimination provisions of the Immigration Reform & control Act of 1986, which prohibits certain unfair immigration related employment practices. See generally 28 CFR Part 44; 28 CFR VI. U.S. DEPARTMENT OF LABOR The most critical role of the U.S. Department of Labor ( DOL ) relating to immigration law is the determination of availability of U.S. workers in the labor certification process and to determine whether the employment of foreign workers will adversely affect wages and working conditions of similarly employed U.S. workers. 20 CFR The DOL has similar responsibilities in connection with certain temporary work categories. 20 CFR This obligation is the responsibility of the Employment and Training Administration ( ETA ) of the DOL. It also has responsibility for receiving and certifying labor condition applications ( LCAs ).8 CFR (a)(1). The DOL is divided into six regions throughout the United States, including Guam and Puerto Rico. 8 CFR The Certifying Officer ( CO ) is the DOL official who makes determinations about whether or not to grant applications for labor certifications. Every Regional Office

9 9 of the DOL has at least one Certifying Officer, and as of this writing, three regions have two Certifying Officers. It is anticipated that eventually, each region will have only one CO. The current regions of the DOL are: I New York and Boston (each with its own CO); II Philadelphia, III Atlanta, IV Dallas and Denver (with the CO located in Dallas), V Chicago and Kansas City (each with its own CO), VI Seattle and San Francisco (each with its own CO). Additionally, the DOL has responsibility for investigating and determining complaints relating to misrepresentation in the LCA process or the failure of the employer to meet a condition specified in the LCA. Such complaints are handled by the Wage and Hour Division of the Employment Standards Administration ( ESA ) of the DOL. 8 CFR (a)(2). VII. STATE WORKFORCE AGENCIES ("SWAs"), FORMERLY KNOWN AS STATE EMPLOYMENT SECURITY AGENCIES ( SESAs ) Each state has an agency with responsibility for oversight of various labor functions. These agencies are known as State Workforce Agencies ("SWAs"), but were referred to as State Employment Security Agencies ("SESAs") by the United States Department of Labor ( DOL ). On a state level, they are known by different names. In New York, for example, the SWA is the New York State Department of Labor; in California, as the EDD and in Massachusetts as the DET. Whatever its local name, its function is the same as it relates to foreigners: to act as the agent of the DOL during the initial states of processing a labor certification case for permanent residence or to determine prevailing wage, if requested by the employer, in connection with the H-1B or TN process. In the permanent process of labor certification, the SWA is the first office that receives the application. Jurisdiction is based on the area of intended employment. It handles prevailing wage determination issues at the outset, oversees recruitment and other preliminary matters. Thereafter, it sends the case to the USDOL for final adjudication. Every SWA has its own filing preferences and each one has different processing times. It is critical to determine the local idiosyncrasies before filing an application for labor certification. With respect to the nonimmigrant process, the SWA s function is limited to determining prevailing wage. Heretofore, the reference to obtaining a SESA has meant that seeking a determination of prevailing wage to use in connection with a Labor Condition Application for use with H-1B or Mexican TN visa. In view of the change in nomenclature, it is anticipated that this will eventually become known as seeking a "SWA".

10 10 VIII. DEPARTMENT OF STATE Among its duties, including conducting international activities in the conduct of foreign affairs, the Department of State ( DOS ) oversees consular offices and embassies throughout the world in virtually all countries, except those with which the U.S. has severed diplomatic relations. DOS has the authority to grant, issue and verify passports for U.S. citizens. 22 CFR 211a. Before the passage of the Homeland Security Act, DOS, through its consular offices, was the sole agency charged with issuing both nonimmigrant and immigrant visas. 22 CFR 40.1(d); 22 CFR DOS also had sole authority to revoke any visas issued. 22 CFR Because the Act vests exclusive authority in the Secretary of Homeland Security to administer all laws, and to issue regulations, relating to the functions of consular officers in the granting or refusal of visas, the relationship between DOS and DHS is currently evolving. A Memorandum of Understanding (MOU) is hoped to clarify the roles and responsibilities of both agencies in the visa process. Although the general procedure for securing a visa has been similar at every consul, local practice has varied considerably. At least until the MOU is developed, one should consult the website of the DOS at and then refer to the individual consular location, as many consuls provide critical information at their individual sites. Now part of the DOS, the United States Information Agency ( USIA ) oversees the Exchange Visitor ( J-1) Program, including acceptance and monitoring of program sponsors, both governmental and private. 22 CFR The Exchange Visitor Program is to increase mutual understanding between the people of the United States and other countries by means of educational and cultural exchange. See generally 22 CFR Part 62; 22 CFR 62.1.