Border Shenanigans

From the Deputy Director

By Joan Channick

The recent revelation that the U.S. Immigration and Naturalization Service sent a Florida flight school confirmation that they had approved student visas for Mohamed Atta and Marwan al-Shehhi—exactly six months after the two terrorists hijacked and crashed airplanes into the World Trade Center—would be a sick joke at the federal agency’s expense if it weren’t true. According to David Johnston of the New York Times, “The mistake was another embarrassing gaffe for an agency that has long been criticized in Congress for sloppy management and inept record keeping and for being unable to control the borders or keep track of foreigners in the United States legally or illegally.”

In the past year, a legislative change designed to address some of the procedural problems at the INS and to generate more revenue for the agency (the INS earns most of its budget through fees rather than through congressional appropriation) has inadvertently created new problems for not-for-profit arts organizations. Effective on June 1, 2001, Congress authorized the collection of a $1,000 “premium processing fee” (to be paid in addition to regular processing fees) for certain categories of employment-related visa applications—including O and P visas, which are used to bring foreign artists and theatre companies to perform in the U.S. An employer who elects to pay the extra $1,000 is guaranteed that the application will be processed within 15 calendar days; applicants also have access to special phone numbers and e-mail addresses to check on the status of their requests. If the INS fails to act within 15 days, they must refund the $1,000 fee and still “process the petition expeditiously.”

In an INS press release, deputy executive associate commissioner Bill Yates promised, “With this program, businesses can rely on INS to meet the demands of today’s fast-paced workplaces. The enhanced revenue from the program will ensure faster service for these businesses without causing delays in the adjudication of other petitions.” The release also stated, “INS estimates that…it will collect approximately $80 million annually from the program. The revenue generated from the program will be used to hire additional staff and make infrastructure improvements. These enhancements will improve INS processing of all petitions.”

The reality, however, has been quite different. Despite the INS’s assurances, the imposition of the premium processing service has demonstrably introduced significant delays for ordinary visa petitioners. Before the new system was implemented, two of the INS’s four regional Service Centers, in Vermont and Nebraska, could process O and P petitions within 5 to 21 days, while the Texas and California centers routinely took 30 to 90 days. Since the introduction of the premium processing service, however, processing time in Vermont now takes 60 to 70 days and the other three centers take 90 to 120 days.

Few not-for-profit theatres can afford a $1,000 premium processing fee. We’ve heard in a number of cases that, in order to get guest artists into the country in time for scheduled productions, theatres have felt compelled to pay the $1,000. Others report that when they’ve called the INS to inquire about slow processing of visa requests, the INS staff has suggested that for speedier service they pay the fee. And there is no enforceable outer window within which the INS must act; the applicant has no recourse even when a non-premium visa-application process drags on for 120 days or more.

There is some logic to a scheme that allows businesses the option to pay a premium fee in exchange for premium service. Certainly, we see such principles operating in health care, education and even mail delivery. Typically, however, people pay premium prices for private services that compete with free or low-cost public services. But in the issuance of visas, it’s one-stop shopping: The federal government is the only provider.

In the April 2001 issue of American Theatre, writer/performer Tim Miller wrote a moving commentary about the problems he and his Australian partner face under U.S. immigration policies, observing that while a heterosexual couple could solve their immigration problems simply by marrying, gay couples have no such option. Miller talked about the possibility that he might have to move to Canada. In response, critic Eric Bentley wrote a letter to the editor suggesting that Miller’s partner simply enter into a “green card marriage,” arguing that it’s done all the time and the chances of getting caught by the INS are slim.

At my insistence, we printed a rather terse response to Bentley’s letter, pointing out that such a marriage is a felony, citing the statute that proscribes such marriages and the substantial fines and jail time that could be incurred. But I must confess that, even as the persnickety lawyer in me insisted that we write such a response so as not to appear to be condoning illegal behavior, I was thinking that the reason Bentley felt free to publish such a suggestion openly was a justifiable lack of faith in the INS’s effectiveness.

The INS faces complex problems in enforcing U.S. immigration policy: balancing the conflicting values of an open society that values personal freedom and intercultural exchange with very real national security needs that require careful scrutiny of every applicant who seeks to enter the country. There is something unconscionable, however, about a government that only provides expeditious public service to those who can afford to pay exorbitant fees.

© - 2006 by Theatre Communications Group, Inc. All rights reserved. No portion of this publication may be reproduced in any form, or by any means, electronic or mechanical, including photocopying, or by any information storage or retrieval system, without written permission from the publisher.