When I was in grade school, I had a teacher who, if one student did something wrong, would hold the entire class in detention. That always struck me as unfair. Yet twenty-five years later, I feel as though immigrants and their lawyers are being treated the same way. We are being punished for the wrongdoings of others.
Two recent examples of the price we pay are: (1) the new PERM “Fraud Rule” and (2) excessive scrutiny and delays by the USCIS with Religious Worker cases.
The Department of Labor calls the new PERM rule: “Final Rule to Reduce the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity of May 17, 2007″ or “The Fraud Rule” for short. Immigration Lawyers refer to it as the “Substitution Plus Rule” because, among other things, the rule prohibits alien substitutions by employers PLUS it imposes a 180 day validity for certified applications PLUS it heavily restricts who pays for what in the labor certification process (in a nut shell, the employer must pay for everything). In spite of the DOL’s goal of minimizing fraud, this rule will have a chilling effect on smaller employers (and as a result, on the foreign nationals they would have hired), who, but for the requirements of new rule, would have been ready, willing and able to hire a foreign national. A lawsuit was being contemplated by AILF and they were seeking plaintiffs who were harmed by the Substitution plus Rule. However, everyone was sidetracked by the Visa Bulletin debacle, so I am not sure what became of the suit. I will look into the status of that and report back soon.
Another area of immigration law that has been affected by the wrongdoings of a few is Religious Workers. There have been cases of religious institutions filing fraudulent cases where the sponsored aliens were brought to the US and violated their status by not working for the petitioning organization. Outright fraud. However, what this has led to, is virtually every religious petition filed is held up while immigration officers physically verify the employment. Moreover, almost all cases receive very long Requests for Additional Evidence (RFE), often requesting documents that were submitted with the originally filed package. Earlier this year, the USCIS was sending out an exhaustive, template RFE for all religious worker cases as a matter of course until they were instructed in a Memo by Headquarters to cease the practice. It is the equivalent of the IRS auditing every single tax return. Is the government’s goal to reduce fraud necessary? Of course it is. However, cases need to be screened to determine the need for the extra delay and scrutiny.