CONNECT!

A Monthly Newsletter on Business Immigration
Volume 1, Number 8, December 1999/January 2000

What’s Connected? CONGRESSIONAL REVIEW 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 SPOTLIGHT:  Border Inspections and INS Reorganization EMPLOYER ALERT:  Haitians Granted Extension of Work Authorization FOR MORE INFORMATION

Happy Holidays!
The editors of Connect! and your immigration attorney wish you a Happy New Year!  This issue, we provide background on the business immigration issues Congress most likely will address after returning from recess in late January.

CONGRESSIONAL REVIEW

1, 2, 3,—115,000: Why Can’t the INS Count H-1Bs?
Well, here we are again, just four 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.

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.

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.   

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.

SPOTLIGHT:  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.

EMPLOYER ALERT:

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.