April 7, 2015
From Law360

Jeffrey S. Bell leads Polsinelli PC’s immigration focus and has practiced immigration law for more than 20 years. Bell partners with national and international companies in developing immigration strategic plans. He not only has a thorough understanding of immigration law and practice, but also how immigration issues can impact clients’ businesses. He has been a member of the American Immigration Lawyers Association for more than 20 years.

Q: What is the most challenging case you have worked on and what made it challenging?

Early in my career I received a call from a young woman. Her new husband had been detained by the Immigration and Naturalization Service and was set to be deported at any moment to his native Gambia. The husband had come to the U.S. on a student visa to attend college, but financial problems led him to drop out and work without authorization. When the INS learned of this, the husband was placed into deportation proceedings and ultimately was granted voluntary departure in lieu of a forced deportation.

During the voluntary departure period, the couple married and they mistakenly believed that because the wife was U.S. citizen that he could remain in the U.S. This is a common misconception that people have regarding the immigration law, particularly where individuals represent themselves. The voluntary departure period expired and the INS agents apprehended the husband at his new home.

I was able to speak with the husband from detention and he explained to me his fears of returning to Gambia. Obviously, he did not want to leave his new wife. But his main reason was that his family was politically connected to Gambia's former ruler, who had recently been overthrown in a military coup. The husband’s parents were subject to house arrest and several of his uncles had “disappeared” and he believed his family connections would lead him to be targeted by the new government.

My clients fears became my own, especially since his deportation was imminent. I filed an emergency request for stay of deportation with the INS, which was denied later the same afternoon! I filed a motion to reopen deportation proceedings with the immigration court. I spoke with the district counsel for the INS who, although while sympathetic, refused to join the motion to reopen or otherwise intervene. I was running out of options and time.

My research did point me to one final possibility. With no experience and little confidence, I filed a motion for temporary restraining order against the INS in federal district court, arguing my client raised a viable asylum claim and could not be deported without a hearing on his asylum request. The following morning the judge scheduled an emergency hearing on the motion and, much to my surprise, granted the restraining order without opposition from the government. Later that same day I received a fax — back in those days it was by fax — from the immigration court granting my client’s motion to reopen and rescinding the deportation order. My client was released from INS custody to his wife the following morning. Ultimately, my client adjusted to permanent resident status through his marriage in a short hearing before the same immigration judge who previously ordered his deportation.

This case was challenging from a legal and emotional perspective. To achieve the result for my client I had to quickly analyze various INS statutes, regulations, policies and then even more quickly learn federal court rules and procedures. This case taught me the value of quick decision-making under extremely difficult conditions where somebody’s life or safety might actually be at stake. From the emotional side, I learned to focus on the task at hand. One wrong decision and, well, I tried not to think about that too much. Although my insides were in knots for three days, the lesson learned that I have carried forward to this day is that all clients deserve clear-eyed and level-headed counsel, even in the most trying circumstances.

Q: What aspects of your practice area are in need of reform and why?

Many aspects of the immigration system are broken and in need of reform, but one area in particular cries out for modernization. Our permanent immigration (i.e., green card) system has quotas on the number of immigrant visas to be given each year — 140,000 — and further limits the number to be accorded to the nationals of any one country (7 percent of the total). When the number of individuals from a given country approved for immigrant visas exceeds the quota, those individuals are placed on a waiting list to complete the permanent residence process.

The quotas are written into the Immigration and Nationality Act and can only be changed through legislation. Generally, an employment-based immigrant requires sponsorship by a U.S. employer. The sponsorship process can be arduous and requires an employer to establish it has a job opening that the employer has been unable to fill with a U.S. worker. An employer’s need is now as the company’s ability to grow depends on filling the position.

India and China produce the greatest number of skilled immigrants looking to settle in the U.S. Due to the quotas, Indian and Chinese professionals can wait for years to receive permanent visas. For example, an Indian national with a graduate degree might wait for up to 10 years for a permanent visa. Try explaining to an employer to check back in a decade to fill that open position! The quota system and per country limits artificially limits companies’ ability to expand, which ultimately impacts companies’ ability hire more U.S. workers. This is a cycle we need to break.

The solutions appear simple. We could do away with the employment-based immigration quota as employers are required to test the U.S. labor market before offering the position to an immigrant. We could eliminate the per country limit, which would greatly reduce the wait times for highly skilled immigrants from India and China. Both the Obama administration and Congress seem to recognize the impact the quota system has on employers and various legislative proposals would offer relief — if they are ever adopted.

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