The 2011 Annual Conference of the American Immigration Lawyers Association (AILA) was held in mid-June in San Diego, California. This is one way we keep up to date with the latest developments in U.S. immigration law, to better assist and inform our clients and the broader immigrant community. As expected, this year\'s AILA Conference proved to be a source of information and insight into changing government policies.
Business Immigration: B-1 in lieu of H1B
The visa category of B-1 business visitor, in lieu of H1B, has come under attack recently. It has long been a suspect category, with variable use and availability at different consulates over the years. The U.S. Citizenship and Immigration Services (USCIS) is considering ending this category, following widely publicized misuse by a major Indian-based company. This matter was discussed during the AILA Conference.
Business Immigration: L1B
The past year has seen new problems for L1B intra-company transferee cases. This has had an impact on visa applications based on blanket L-1 approvals, as well as individual L1B petitions filed with the USCIS. Many companies have had significant difficulties with this category, which requires the L1B beneficiary to have specialized knowledge regarding the company, its products, services or the like. While this topic was discussed, no new policies were issued or referenced during the conference. It is clear that this category may be subject to greater scrutiny in the coming year.
Same Sex Marriage
same-sex marriages are not recognized for U.S. immigration benefits. There have been long-standing efforts to challenge this position. Recently, the Obama Administration stated that it would not defend efforts to challenge the constitutionality of the Defense of Marriage Act (DOMA). There are continuing efforts to address this matter, both legislatively and administratively. Marriages in which one spouse is transgender fare better and, in some situations, are recognized for immigration benefits. This continues to be a hot topic area, which likely will continue to evolve.
Prosecutorial Discretion Memo
One of the most important announcements at the conference was made by John Morton, Director of the U.S. Immigration and Customs Enforcement (ICE). He advised that ICE would be issuing an updated memorandum on the topic of prosecutorial discretion. Prosecutorial discretion involves decision making regarding matters of enforcement as to the types of violations that should be pursued, and whether to exercise leniency in certain situations. It allows for appropriate use of limited government resources to focus on certain types of cases, and exercise some overall discretion under particular enforcement scenarios.
This June 17, 2011 memorandum, is entitled \"Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens.The memorandum aims to strike a balance in priorities, as ICE is \"confronted with more administrative violations than its resources can address.\" Thus, it is intended to establish a standard for prosecutorial discretion that meets ICE\'s enforcement priorities, so that the use of personnel, detention space, and other assets can be focused on the removal of foreign nationals who fit within these priorities.
The two business-immigration issues, the B-1 in lieu of H1B and the L1B, are related to each other, as well as being related to the problems faced in H1B adjudications and visa issuance. The current economy and the focus on employer enforcement have brought attention to and criticism of the H1B and L1B categories. These problems are not connected to actual changes in the law. It all relates to changes in policy and adjudications practice. The prosecutorial discretion memorandum is an apparent response to certain hard-line approaches to enforcement, which result in a system clogged with cases, often involving individuals who do not pose a safety or security threat. It is understandable that ICE wants and needs to utilize resources to address high-priority matters and potentially dangerous individuals.