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February 2, 2000 Immigration News Update
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Business
Immigration News Update from True, Walsh & Miller
February 2, 2000
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1. 1, 2, 3,-115,000: Why Can't the INS Count H-1Bs?
- Essential Workers - Will Congress Step Up to the Plate?
- Do Employer Sanctions Have a Future?
- Section 110 and Terrorism: How to Miss the Point
- Border Inspections and INS Reorganization
- Haitians Granted Extension of Work Authorization
1. 1, 2, 3,-115,000: Why Can't the INS Count H-1Bs?
Well, here we are again, just five months into the new fiscal year and already the rumor mills are churning with speculation about when this years' H-1B visas will be exhausted. Once again, employers and their
attorneys are stymied by the seeming inability of the Immigration and Naturalization Service (INS) to provide accurate data. Last November, INS informed Congress that it had miscounted the number of H-1B visas issued in FY 99 and may have issued anywhere from 4500 to 20,000 visas
too many. Following strong letters by Senator Spencer Abraham, and Representative Lamar Smith, Chairmen of the Senate and House Immigration
Subcommittees, the INS retained KPMG to conduct an audit of last fiscal year's count. The INS has indicated it will not release any information about either last year's H-1B count or the current fiscal year's allocation until the results of the audit are completed, sometime in February 2000.
Not only does it seem that INS can't count to 115,000, but the INS
also is unable to provide Congress, the Administration or immigration
advocates with accurate data regarding exactly who uses the H-1B
program. Until recently, the INS did not even track how many H-1B visas
were issued to single employers. (In fact, the INS was forced last
December to retract a June 1999 list of top petitioning companies
because it was wildly inaccurate.) In fact, although the 1998 H-1B law
mandated that INS collect and report to Congress data about the foreign
professionals hired in H-1B status, the agency has yet to finalize a
form to collect such data. Most observers agree that the agency will be
unable to tabulate such information until sometime after October 2000.
There are possible explanations to why the INS has been unable to
accurately count H-1B visas. First, the INS seems not to have taken
seriously its responsibility to count H-1B visa holders until several
years after the cap first was imposed in 1990 and the agency, for the
first time, was required to count individuals who acquired H1-B status.
Prior to that time, no temporary visa category had any caps - the level
of use was determined by market factors - and the INS had no
responsibility for exact reporting. The gross numbers the INS did
compile on the number of cases filed and adjudicated, did not reflect
accurately the number of individuals who held a given status, since it
included petitions for single individuals who changed jobs or extended
their stay. Upon realizing in 1996 that the cap might be reached, the
agency scrambled to double-check its numbers, and in fact, determined it
had double-counted many individuals. Subsequently, the INS has struggled
to figure out how to count individuals using processing systems designed
to count petitions. Further, the INS never adjusted its petition forms
to directly indicate whether a given petition is for an individual
acquiring H-1B status for the first time, or someone who already has
been counted and is merely changing jobs or extending his or her stay.
The above problems contributed to the INS' public announcement last fall
of the agency's incapacity to fulfill its duty to Congress and
petitioners to accurately count H-1B nonimmigrants.
Members of Congress, business immigration advocates, and immigration
attorneys are working with the INS to correct this fiasco. Litigation
on behalf of those who may have been harmed by INS' mismanagement is
being considered. Senator Abraham has sent a strong letter to Attorney
General Janet Reno demanding detailed information regarding the scope of
the KMPG audit and INS' probable errors in determining which petitions
are counted toward the annual cap. Meanwhile, INS has slowed to a crawl
processing of the current year's allocation of H-1B visas (citing "equal
treatment" concerns for petitioners in all parts of the country). Most
expect, based on estimates of the rates of filing, that this year's cap
will be reached earlier than ever before. Several bills have been
introduced that increase or suspend the cap on the category or create
new categories that would alleviate some of the pressure for the limited
H-1B slots. Advocates support efforts to address this situation.
Employers are urged to contact their Members of Congress to impress on
them the need to address legislation that would remedy this situation.
2. Essential Workers: Will Congress Step Up to the Plate?
The last issue of Connect! reported on the Federal Reserve Boards'
report that nationwide tight labor markets could put the brakes on our
booming economy. The Fed especially noted labor shortages for both
entry-level jobs in our economy (those "essential workers" that keep our
country moving) along with "high skill" jobs. These essential workers,
who include everyone from restaurant and hotel service workers to
skilled tradespeople, are in high demand and in short supply in an
economy in which almost everyone who wants to work is already working.
Many employers facing these tight labor markets also face the problem of
a workforce that they suspect may be undocumented. With the
proliferation of false employment authorization documents, employers in
these industries often have a vulnerable and increasingly unstable
workforce. While trying to stay on the right side of the law, these
employers are under increasing pressure to fill openings.
Service sector employer groups have begun lobbying Congress for
relief as part of the Essential Worker Immigration Coalition. While many
employers tout their efforts in welfare-to-work, school-to-work, and
apprenticeship programs, they question the government's restrictions on
hiring foreign-born workers. Current immigration policies significantly
curtail employers' ability to sponsor a foreign-born worker for
authorized status to fill jobs where US workers are unavailable.
While legislation has yet been introduced, several Members of
Congress are interested in hearing from employers about their workforce
issues, possibly with an eye to building support for legislative
efforts. Employers of essential workers should urge their Members of
Congress to "step up to the plate" to keep our economy running, and
allow employers access to these essential workers.
3. Do Employer Sanctions Have a Future?
Employers nationwide are aware of the problems associated with the
1986 Immigration Reform and Control Act, which, for the first time,
imposed monetary and civil sanctions against employers who knowingly
hire undocumented workers. Fearful of the negative impact that
undocumented workers had on the domestic labor force, organized labor
pushed employer sanctions provisions mandating that employers check
their employees' work authorization, supposedly to stop the "job magnet"
for illegal immigration. However, because many Members of Congress and
civil rights advocates feared that these provisions would lead to
discrimination against foreign-looking or sounding employees, the law
also imposed strict limits on employers' ability to verify the
information about their status employees provided to them. These
mandates created an inherent tension for employers: How to make sure
they are hiring only legally authorized workers without asking for too
much documentation from possibly unauthorized employees.
Since its implementation, most agree that the employer verification
system is not working for the following reasons. First, employers
unfamiliar with immigration law are required to try to judge real from
fraudulent documents. Second, with the growth of a huge black market in
counterfeit work authorization documents, obtaining legal-looking
documents is easy thereby limiting the deterrent effect. Finally,
because of the fine line the law creates between employment verification
and non-discrimination, many employers lean too far in either direction,
finding themselves with an undocumented workforce, vulnerable to INS
enforcement action, or discriminating against lawful foreign workers
because of their suspicions. Some unscrupulous employers have used this
difficult situation to justify illegal labor practices, including
calling in INS enforcement on their own workers to halt union
activities. Recent Connect! articles regarding the EEOC guidance on
claims by undocumented workers, and Social Security Administration
concerns with their "no-match" letters highlight these problems.
The current confusing situation has led both employers and some
unions to support repealing employer sanctions. Employers argue that
they should not be made "enforcers" in the federal Government's battle
with illegal immigration; labor advocates argue that making employers
"enforcers" gives them abusive power over their employees. Both sides
agree that the system not only does not do the job it was intended to,
but is actually harmful to employers, employees, and unions.
For their side, immigration restrictionists continue to support
increased enforcement of employer sanctions through national employment
verification systems and nationally-recognized employment identification
documents. Civil rights, libertarian and privacy advocates strongly
oppose these measures.
4. Section 110 and Terrorism: How to Miss the Point
Section 110 of the Illegal Immigration Reform and Responsibility Act
of 1996 (IIRAIRA) requires the INS to design, develop and implement a
brand-new, completely "automated" system to match entry records of
non-citizens coming into the United States with exit-check record. The
provision was little noticed when IIRAIRA passed, but according to
Congressional history it was created to record the number of foreign
nationals who "overstay" their legitimate visas. The law thus originally
amounted to little more than an elaborate paperwork exercise that
recorded peoples' entries and exits. It was not designed as a tool to
deal with terrorists or ferret out false identities presented for entry
or exit; or assist the current inspection process at the borders,
wherein trained men and women of the INS and Customs Service detect
suspicious activity and screen for malefactors. In fact, the automated
nature of the system, the law contemplated actually would decrease the
role of these officers.
Notwithstanding this history, Section 110 supporters have used the
recent arrest in Washington of a suspected Algerian terrorist to urge
support in the media for their position. Proponents cannot dispute that
implementation of a brand-new entry-exit checkpoint system will cause
unbelievably long delays and harm the economy. Instead, they insist
that such a system is necessary to combat terrorism and other
cross-border illegal activity. However, such arguments demonstrate a
lack of understanding of the supposed purpose of Section 110, as well as
the recommendations of law enforcement experts.
By continuing to push Section 110 as a solution to terrorism, illegal entry or drug smuggling, proponents of Section 110 are missing
the point, and in fact may obstruct real solutions including increased
resources for border inspections and border patrol. Such solutions are
central to S.745, the Border Improvement Act, introduced by Senator
Spencer Abraham (R-MI) and Senate colleagues, which removes the
mandatory implementation of Section 110. The companion House bill H.R.
1650, introduced by Representatives Fred Upton (R-MI), John
LaFalce (D-NY) and Henry Bonilla (R-TX), contains the same provisions.
Business leaders concerned about the potential impact of Section 110
on cross-border commerce and tourism should let Members of Congress know
that the latest security threat at our borders is best met by increased
border resources, and not the smokescreen of Section 110.
5. Border Inspections and INS Reorganization
A major issue in the debate over reorganizing the Immigration and
Naturalization Service is how this country treats people who seek entry
to the U.S. Most current Congressional reorganization plans separate
the department that adjudicates applications by would-be immigrants from
the department that deports immigration violators, thereby attempting to
avoid
conflicts between these very different functions. As long as there is a
single person in charge of both functions, proper coordination between
the two, and adequate funding for both, that's the way it should be.
The unanswered question is: Which functions of the INS are adjudications
and which functions are enforcement? The decision about which
department handles admissions will have an enormous impact on millions
of people who annually seek to enter the U.S. and their American
business contacts, friends and family.
Of the reorganization plans currently proposed, H.R. 2528 (sponsored
by Representatives Hal Rogers (R-KY), Lamar Smith (R-TX) and Silvestre
Reyes (D-TX)) would place inspections (the department that deals with
admission decisions) within a new enforcement department. S. 1563,
sponsored by Senators Spencer Abraham (R-MI) and Edward Kennedy (D-MA),
would place inspections in its own office under an Assistant Attorney
General. H.R. 2680, sponsored by Representative Sheila Jackson-Lee
(D-TX), would place inspections within the adjudications department.
The vast majority of people who cross our borders are law-abiding
people with a legitimate right to enter or exit the United States. With
the development of the NAFTA agreement, the increased enrollment of
foreign exchange students, and the
growing number of countries participating in the visa waiver program,
most of what occurs at the border is administrative. In FY99, more than
525 million people crossed our nation's borders. Of these, 98% were
U.S. citizens, permanent residents, or aliens who hold border crossing
cards and commute back and forth each week from Canada or Mexico. The
rest were foreign guests we have invited or who are seeking to enter our
country, often to flee from persecution. Of all the people who sought
to enter our country, only 1/10 of 1% was found to be inadmissible. If
we treat our ports of entry like the front line of a war, the effect
will be longer delays and more complicated processing for the millions
of people who lawfully enter our country every year.
Immigration inspectors have quasi-judicial authority, and they are
called upon daily to both acquire facts and to render a decision on
those facts. Every year hundreds of thousands of people seek to enter
our country with an approved application as a specialty worker, treaty
investor, temporary worker, or a permanent resident with a job waiting
in the United States. Often these cases now get tied up at the border
because the inspecting officer interprets the law differently than the
admissions officer who originally approved the application. These
conflicts can result in delays lasting weeks or months. Any proposal
that would place inspections in enforcement would make the situation
even worse. The solution is to have inspectors in the department that
is focused on objective adjudication and due process - not the agency
dedicated to exercising powers of arrest, detention and deportation.
How inspections are handled in reorganization is an important issue
for businesses. Whether a business depends on tourism or involves
complicated transfers of people, goods and technology across the border,
what happens at the port of entry impact their bottom line. Business
immigration advocates should urge their Members of Congress to support
the free movement of personnel across our borders by insisting that
inspectors be placed in adjudications.
6. Haitians Receive Work Authorization Extension
Many Haitians were granted temporary status in the United States and
subsequently work authorization due to the upheavals in that country.
While the temporary status ended in 1997, President Clinton ordered a
one-year delay of deportation and an extension of their work
authorization. This "delayed enforced departure" or (DED) ended in
December 1998. However,
because a law granting permanent residence to many of these individuals
passed that same year, the INS has continued to grant work authorization
to these individuals so they may pursue their
claims. In December 1999, INS extended this work authorization through
September 30, 2000.
Employers should note that these work authorization "extensions"
have been relayed only by notices in the Federal Register, and Haitian
nationals authorized under these notices may have expired work
authorization documents. For further information about Haitian work
authorization, or work authorization for any other foreign nationals
with temporary work authorization, please contact your immigration
attorney.
For More Information...Connect! is published monthly by the American
Immigration Lawyers Association and distributed to you as a service by
its member attorneys. For answers to any of your immigration questions,
contact Hilary Fraser (htf@millermayer.com), Rosie Mayer
(rma@millermayer.com), or Steve Yale-Loehr
(syl@millermayer.com) at True, Walsh & Miller.
The contents of these web pages are provided for general informational purposes and
do not constitute legal advice for specific cases, which should only be obtained from an
attorney. |
Copyright © 2008 Miller Mayer. Attorneys at Law
The Commons, 202 East State Street, Ithaca, New York 14850
phone: 607-273-4200, fax: 607-272-6694, E-mail: info@millermayer.com |
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