CONNECT!

A Monthly Newsletter on Business Immigration
Volume 1, Number 7, November 1999

CONGRESSIONAL NEWS

Update on Business Immigration Issues in Congress
Members of Congress raised several priority business immigration issues during the almost concluded first session of the 106th Congress.  However, while little was translated into law, this session did lay the foundation for movement during the second session of Congress, which is scheduled tentatively to begin in mid-to-late January.  H-1B visas, INS Reorganization and Section 110 are issues of pressing interest to businesses and employers.  Representatives and Senators need to hear directly from the employer community about the importance of these issues to them.

H-1B and High Tech Visas
Early this session, Republican leadership signaled that they would not move any H-1B legislation in 1999.  They made that decision notwithstanding the fact that the newly-increased cap on H-1B visas in FY99 would be reached early. (In fact, cases filed after mid-April did not make the cap).  The Administration has yet to indicate any change in their position against increasing the H-1B cap.  We expect that business immigration supporters in both the House and the Senate will look to next session to move legislation that addresses the need for skilled foreign professionals.  

Senator Phil Gramm (R-TX) and Representative David Dreier (R-CA) introduced companion legislation (S. 1440/H.R. 2698) this past summer that would raise the cap on H-1B visas to 200,000 for fiscal years 2000, 2001 and 2002, and would return to 65,000 in FY 2003. The bills also would exempt from the cap H-1B professionals with master’s degrees or higher who receive total compensation of $60,000 or more, and those with bachelor’s degrees or above who are employed at an institution of higher learning.  The bills also would exempt the latter group from the attestation requirements imposed by the 1998 H-1B law.  In October, Senator John McCain (R-AZ) introduced S. 1804 that would suspend the cap through FY2006 and provide for priority processing for graduates from U.S. colleges and universities applying to change to H-1B status.

In addition to the H-1B bills noted above, Representative Zoe Lofgren (D-CA) and Senator Chuck Robb (D-VA) have introduced two bills that create a new T-visa for certain highly skilled foreign nationals educated at American universities. Representative Zoe Lofgren’s H.R. 2687, dubbed the “BRAIN” bill, was introduced in August.  It would create a new nonimmigrant visa, the "T visa", for foreign nationals completing a degree in mathematics, science, engineering or computer science.  The visa would allow these individuals to remain in the U.S. for five years to work in one of those fields. The bill also would authorize the Attorney General to impose a fee of $1,000 to grant nonimmigrant status and a $500 fee to extend the stay of a T nonimmigrant or to authorize a change in employer.  Fees collected would be used to fund a High Tech Education Fund account that would make grants to elementary and secondary school students to foster education in math and science.  In September, Senator Charles Robb (D-VA) introduced his T-visa bill, S. 1645.  Dubbed the “HITEC” Act, Senator Robb’s bill also would establish a five-year pilot program for foreign students graduating from U.S. schools.  However, unlike the Lofgren measure, Robb’s bill only applies to individuals earning advanced degrees, and includes H-1B-type attestations on all employers.  S. 1645 includes similar fees to those in the Lofgren bill.

Congress is likely to address both the H-1B and T visa proposals next session.  We welcome proposals that helpfully increase the availability of H-1B visas and address the current high-tech worker shortage.  Given the attention and controversies this issue generated last year, we encourage the employer community to get involved early to make the case for the need for this legislation. Connect! will keep you informed as the debate continues over skilled foreign professionals.

INS Reorganization
Spurred on by interminable processing delays, endless backlogs and the agency’s consistent inability to get its house in order, Congress is finally turning to the difficult task of restructuring the INS.  Some in Congress even recognize that they have been part of the problem, giving the INS unfunded, complicated, and conflicting mandates. Employers need to closely watch this debate to ensure that business immigration services will be positively impacted. 

There currently are three proposals in the House and the Senate to reform the Immigration and Naturalization Service.  In the House, Representatives Hal Rodgers (R-KY), Lamar Smith (R-TX), and Silvestre Reyes (D-TX), have introduced H.R. 2538.  Representative Sheila Jackson-Lee (R-TX), the Ranking Minority Member on the House Immigration Subcommittee introduced H.R. 2680.  Finally, Senator Spencer Abraham (R-MI) together with his Immigration Subcommittee Ranking Member, Senator Edward Kennedy (D-MA) and Senator Chuck Hagel (R-NE), introduced S. 1563, with Senators Dianne Feinstein (D-CA), Charles Robb (D-VA), and Richard Durbin (D-IL) also signing on. 

All of the bills would separate the services and enforcement duties of the INS.  H.R. 2538 and S. 1563 would create two new agencies in the Department of Justice; H.R. 2680 would create two separate Departments in a new National Immigration Bureau.  All parties are hopeful that the reorganization will help eliminate the interminable delays in processing and conflicting policy stands currently plaguing the INS.  However, there are several major points of disagreement.  The first is over which department will oversee inspections (H.R. 2538 would place inspections in enforcement, H.R. 2680 would have it in adjudications, and S. 1563 would place it in an independent office under an associate attorney general).  By placing inspections under the enforcement arm, difficult judgments about whether a foreign visitor may be admitted to the U.S. could be made by the arm of the INS whose job is to find fraud.  This would mean stricter and more time-consuming inspections, and could result in difficulties for many business travelers.  Even now, many multinational business travelers find that their motives for entering the United States are being subjected to increased scrutiny. 

A second point of disagreement has to do with funding.  In recent years, enforcement has received a huge increase in direct appropriated funds, while the adjudication side, in which business immigration petitions are processed, are almost entirely dependent on user fees, a significant percentage of which Congress has diverted to non-service functions.  Representative Jackson-Lee and Senator Abraham’s bills both include a firewall between funding for adjudications and enforcement and many advocates are calling for additional appropriated funds to support budget of the services function in order to reduce backlogs and processing times.

INS reorganization was not included in final FY 2000 budget negotiations because no consensus was reached.  INS reorganization will be taken up again during the second session of the 106th Congress.  Businesses should encourage their Members of Congress to ensure that any reorganization addresses the need for the effective, efficient and fair processing of business immigration petitions.

Section 110 – Entry/Exit Controls
Early in the spring, Senator Abraham introduced a new bill to repeal Section 110 of the 1996 immigration reform act.  (That section would mandate that the INS, no later than March 31, 2001, create and implement an automated system to track the entry and exit of every foreign national coming to the United States.)  Business, trade, transportation and tourism organizations strongly oppose Section 110 because such a system would effectively close down our land borders with Mexico and Canada, create severe delays at sea ports, and impose new burdens on all business and pleasure travellers.  Senator Abraham’s bill, S. 745, would replace the mandate of Section 110 with a one-year feasibility study.  John Upton (R-MI), Henry Bonilla (R-TX) and John LaFalce (D-NY) introduced a companion bill in the House, H.R. 1650.  To date, neither bill has been marked-up in committee, but both have wide support.  In fact, the Senate has passed a repeal of Section 110 more than five times in the last two years.  Opposition to a repeal has been centered in the House, and led by Representative Lamar Smith (R-TX), who authored this section in 1996, and is chairman of the House Immigration Subcommittee.

The Senate-passed versions of the Commerce, State, Justice Appropriations bill (“CSJ,” the INS funding measure), and the State Department Authorization bill had Section 110 repeals.  However, the repeal was taken out of both bills during House-Senate conferences and last minute negotiations. 

Businesses concerned about the negative impact of Section 110 on trade, tourism and commerce should contact their Members of Congress to urge repeal of this provision.

SPOTLIGHT:  Labor Shortages Cut Across the Economy
Numerous recent government reports and media articles have focused on the leading problem facing many American businesses today: attracting qualified workers of all skill levels.  Many businesses look to immigration as a partial solution to that problem.  Although high-tech companies’ moves to employ temporary foreign professionals have been much in the news, a growing worker shortage involving lesser skilled, more aptly called “essential,” workers, are now making the headlines.  As the Congressional Research Service found, the skill distribution of employment in the year 2005 will mirror that in 1994: while about half of all U.S. jobs will require post-secondary education; the remaining 50% will need a high school diploma or less.  The Bureau of Labor Statistics, in its occupational employment projections for 1996-2006 notes that many occupations requiring lesser skills will add a significant number of jobs in the economy due to their large employment bases.  Some of the highest-growth jobs, in terms of raw numbers (not percentages) are ones requiring only short to moderate on-the-job training, and not long years of formal education.

In its September report on the economy, the Federal Reserve Board noted that there are essential worker job shortages throughout the U.S.  Businesses in such cities as Atlanta, Chicago, Minneapolis and Philadelphia are having trouble finding workers. The Massachusetts tourist industry could not find seasonal help this past summer. The same holds true for retailers in Boston, Kansas City and New York, as well as for manufacturers in Boston and St. Louis. Cleveland-area companies cite shortages of general laborers, entry-level clerks and assembly line production workers. Businesses in Nashville cannot hire enough clerical, sales or customer service workers. Minneapolis banks have teller shortages.

These labor shortages are beginning to hurt the booming American economy. The Fed report notes that manufacturing, retail and temporary firms are raising wages to attract needed workers. In other words: the shortage of workers could be rekindling inflation. If that trend continues, the Fed surely could hike interest rates, thereby slowing or halting our current economic expansion.

Federal Reserve Board Chairman Alan Greenspan put it best when he told Congress this past summer that the U.S. “should be carefully focused on the contribution which skilled people from abroad, unskilled people from abroad . . . can contribute to this country as they have for generation after generation.”  And increasingly, employers are looking to immigrants to fill their jobs.  However, they are finding that immigration policy is a barrier.

Several businesses and business organizations have formed a coalition to address essential worker job shortages.  Companies and organizations representing the hospitality, retail, construction and other industries and both large multinational employers and small business are joining this effort.  For more information about how your company can get involved, contact your immigration attorney, or your business’ national association.

REGULATORY UPDATE

EEOC Issues Enforcement Guidance on Undocumented Workers
The Equal Employment Opportunity Commission (EEOC) has issued enforcement guidance to its offices allowing undocumented workers to pursue discrimination complaints against employers.  Under the guidance, undocumented workers are entitled to the same discrimination protections and remedies as all other workers.

One of the most controversial issues regarding the new guidance has to do with the ability of EEOC to order a company to hire or reinstate an undocumented worker.  EEOC states that if it were to order initial employment of a worker, if the employer knows the worker is ineligible, the worker must satisfy I-9 requirements within an undefined “reasonable time.”  (However, current INS regulations require all employees to fulfill I-9 requirements within 3 days.)  The guidance  also seems to indicate that the employer may be required to re-hire the employee even if it knows the individual is undocumented, but the EEOC has subsequently indicated that this was not the intent.  We await further clarification from the EEOC.

Undocumented workers also may be eligible for back pay and damages.  Quoting case law that says that back pay accrual should be suspended during periods that the worker was “not lawfully entitled to be present and employed,” the EEOC nevertheless concludes that back pay accrual would be suspended only during periods when the worker is out of the country.  Supposedly, the back pay and reinstatement remedies are unavailable in “mixed motive” cases (i.e., where the employer shows that it would not have employed the individual after learning of the person’s undocumented status).  However, attorneys’ fees and costs, as well as injunctive relief, are available in mixed motive cases.

In addition, if an employer appears to have acquired information about a worker’s status after commencement of a complaint and acted on that information, the EEOC will investigate for possible illegal retaliation.

Social Security Administration Addresses “No-Match” Letters
Prompted by calls from confused employers and immigrant rights advocates, the Social Security Administration (SSA) has begun to review its policy of sending letters to employers listing the Social Security Numbers (SSN’s) of employees whose information does not match the SSA database.  Many employers are confused about what these letters mean about their obligations to verify employees’ employment eligibility and incorrectly believe they mean a worker is undocumented.  Many immigrants and employers believe that the SSA is working with INS on enforcement actions and some employers have used these “no-match” or “mismatch” letters to retaliate against union activities at worksites. 

In a recent meeting, SSA officials addressed some of these issues.  While declining to discontinue sending letters to employers, and indicating that they must use any means available to obtain correct information for earnings reporting, agency representatives noted they would review the letters to make sure they do not mislead employers in to thinking they address an individual’s immigration status.  SSA officials also stated that any notification by SSA of a SSN mismatch is not actual notification that a worker may be undocumented, since there are many reasons a mismatch may occur (including clerical error, name change by the employee, or transliteration of non-Roman names).  SSA also has indicated that they would add language explicitly indicating that employees are not required to show employers their Social Security cards. (Such a requirement could violate the document abuse provisions of the Immigration Reform and Control Act of 1986, which both enacted the employer verification program and made it illegal to ask any individual for more or different documents than are necessary to prove employment eligibility.)  Although the new letters are an improvement, they still strongly infer that an employer should attempt to see an employee’s Social Security card to verify information, putting both employers and employees in a delicate situation.

SSA also addressed the perception that notification is equivalent to “constructive knowledge” of undocumented employment (thus requiring an employer to terminate an employee), and that SSA is working with INS on enforcement initiatives against undocumented workers at worksites.  SSA stated emphatically that it is not “cooperating” in INS enforcement actions, and that it does not deem the “no-match” letters as constructive knowledge.  A representative from the Department of Justice office that investigates discrimination complaints also stated that the Social Security letters do not constitute constructive knowledge by themselves, and that employers must be careful when requesting employees’ social security cards. 

Employers are constantly walking a fine line between their obligations to correctly report Social Security information and verify employment eligibility and the strictures meant to prohibit discrimination in carrying out these obligations.  Employers who are caught between this “rock and a hard place” should contact their Members of Congress to urge them to repeal the employer sanctions provisions of law.

Labor Certification – Same Old Game, Same Old Players
Previous Connect! articles have reported on the Department of Labor’s (DOL) proposal in the FY 2000 budget to move administration of the foreign labor certification programs from the Employment and Training Administration (ETA) to the Employment Standards Administration (ESA).  Thanks to the efforts of Senators Spencer Abraham (R-MI), Chair of the Senate Immigration Subcommittee, and Arlen Specter (R-PA), Chair of the Senate Labor, HHS Appropriations Committee, and Representative John Porter (R-IL), Chair of the House Labor, HHS Appropriations Committee this effort was defeated this year.  Many employers opposed this move, arguing that under ESA (which enforces employer compliance) the program would be even more unmanageable than currently.  While rejecting this transfer, both Committees also recognized the need to reform the labor certification programs.  (DOL has proposed an automated labor certification process, known as PERM, to address ongoing concerns about growing backlogs, but has done little to date on this proposal.)  Both Committees directed the agency to take steps to shorten processing times and eliminate backlogs

DOL recently announced that it has moved the Foreign Labor Certification Division within ETA.  Formerly a part of the U.S. Employment Service, under John Beverly, the Division is now part of the Office of Workforce Security (formerly the Unemployment Insurance Organization), headed by Grace Kilbane.  According to DOL, this change will enable the agency to comply with a training bill that was passed last year, and should have no impact on daily operations.

With long backlogs continuing, and even increasing, the Department is coming under increasing pressure to propose a major reengineering of the labor certification programs.  While the PERM program has not received top priority recently, it and other proposed changes are sure to be readdressed in coming months.  Employers should contact their immigration attorney for the latest updates.

 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 more information about the stories in this newsletter, or how to get involved in advocacy on these and other issues, please contact your immigration attorney.