CONNECT!

A Newsletter on Business Immigration July/August 2000

EMPLOYER ALERT:

INS Announces All H-1B Cases for FY2000 Processed

The INS announced in March that it would no longer accept H-1B cases under the FY2000 cap of 115,000, and has been processing the cases received up to that date. On July 25, the INS finally announced that it had approved all 115,000 visas available for the fiscal year. The last cases approved were filed on or before March 17, 2000.  The INS also announced that about 29,500 petitions are on file, to be counted against the FY2001 cap and available as of October 1, 2000. The INS will begin adjudicating those cases in August, in the order they were received.

INS Proposes New H-1B Supplement Form
The INS issued a notice in the Federal Register of a proposed new H Supplement form to the I-129 petition to be used for filing for H-1B status for foreign nationals.  The new H Supplement requires additional information regarding the beneficiary, and will require the beneficiary’s signature.  Only the employer currently is required to sign the form. The new Supplement also repeats many of the questions on the current I-129W form to determine whether the $500 training fee is required for a petition.  The INS is reviewing comments received from the notice, and it is uncertain when petitioners will need to use the new form. Employers should contact their immigration attorney for further updates.

DOL Institutes National LCA Fax Back Number
The Department of Labor has instituted a new nationwide 800 number for faxing H-1B Labor Condition Applications. Although the fax-back system is still optional (employers may still file LCAs via mail or express courier with the DOL Regional Offices), employers are encouraged to fax their LCAs on the machine-readable form to 1-800-397-0478. The certified form should be returned by fax within days. Employers wishing more information about the national fax-back system should contact their immigration attorney.

CONGRESSIONAL NEWS:

H-1B Bills Stalled in Election Year Politics; Supporters Look to September
After returning from their July 4th recess and hearing from constituents back home of the urgent need to pass H-1B legislation, Congress tried to set its agenda for the remaining days of this Congressional year. This task has proven to be difficult in both the Senate and House with regard to many issues, including H-1Bs. In the Senate, Majority Leader Trent Lott (R-MS) and Minority Leader Tom Daschle (D-ND) are going back and forth about the conditions under which they will move S. 2045, the H-1B bill introduced by Senators Orin Hatch (R-UT) and Spencer Abraham (R-MI) that enjoys the support of the employer community. With no agreement achieved, it is unclear when the bill will move, although both parties acknowledge the importance of passing H-1B legislation as soon as possible. Disagreements centered on how to deal with other critically important immigration-related issues that many immigration advocates support:  Central American parity of relief, updating the registry date, and restoring Section 245(i)  (See article in last Connect! on “H-1B Plus”).  American Business for Legal Immigration (ABLI), the coalition of employers and associations supporting increasing the H-1B cap, has sent several letters and made several statements urging Congress to promptly pass H-1B legislation, but the wrangling continues.

Republican leadership in the House also is in a quandary about how to move H-1B legislation and how to help Representative Lamar Smith (R-TX) “save face” on his bill, H.R. 4227, while giving the employer community the substance of the legislation it strongly supports, H.R. 3983, the H-1B bill introduced by Representatives David Dreier (R-CA) and Zoe Lofgren (D-CA). While Majority Leader Richard Armey (R-TX) has indicated that the bill that will go to the floor will be “substantially” the same as the Dreier/Lofgren bill, he also has asked Representative Dreier to work with Representative Smith on possible compromises. Representative Armey also has indicated that he wants to move a “clean” H-1B bill: that is, a bill without immigration amendments. In the meantime, key Democrats in the House are also urging Republican leadership to address NACARA parity and update the registry date. 

Congress did not resolve these issues before departing for their long August recess. With both the House and Senate adjourned until after Labor Day and visiting their districts, employers should let their Members of Congress know of the importance and urgency of passing good H-1B legislation. 

INS Inspections: Welcome Sign or Stop Sign for Foreign Visitors?
Inspection of individuals for admission to the United States at our nation’s borders is a microcosm of the problems and challenges the INS and our country face. INS inspectors currently are charged with both enforcing immigration laws to keep out undesirables and adjudicating applications by legitimate visitors and immigrants. However, the inspections process has failed to fulfill either mission. It has not provided timely and consistent service to millions of people arriving at our borders, including tourists and business representatives. Businesses in the United States have a strong interest in how our government treats business travelers and tourists who seek to enter this country. Our nation will continue to prosper only if our borders remain open and welcoming in a manner that is consistent with national security needs.

The free flow of travel to and within the U.S. is central to the well being of the travel industry and other businesses that compete in a global market. In 1999, the United States had 47 million international visitors. These travelers represent 99 percent of the millions of visitors who come through America's ports of entry presenting no law enforcement problems. These visitors contributed more than $71.1 billion to the U.S. economy on travel-related items (e.g., lodging, meals and entertainment). Their impact on the free flow of business in an increasingly competitive global market cannot be understated.

All of these visitors are admitted by the decisions of individual INS inspectors. If the U.S. is going to continue to attract international visitors, it is imperative that our immigration and customs inspections process be quick, easy and smooth. Immigration inspectors have quasi-judicial authority, and they are called upon daily to both acquire facts and to render a decision on those facts. The business community should be concerned about proposals that would place our immigration inspectors in an enforcement bureau (with a pure enforcement mission). Such a placement would run the risk of eliminating the necessary checks and balances that ensure inspectors do not mistakenly deport or detain legitimate business travelers and international tourists.

Recent incidents along the U.S.-Canada border, the longest undefended border in the world, and one that both countries hail as a tribute to our cooperation and friendship, suggest some of the problems that need to be addressed. Adjudications of applications by business visitors from Canada have been extremely inconsistent at various ports of entry in the North. Attorneys, business travelers and companies have reported to the INS erratic and erroneous denials of entry for TN professionals, business visitors, and L-1 intracompany transferee applications. Business and other leaders discussed these problems at a “pre-meeting” in Seattle last month, during which they set an agenda for the upcoming cross-border talks between Canadian and U.S. officials under the Canada-U.S. Protocol (CUSP). Due to these border problems, along with rejections of Japanese business visitors at the Portland, Oregon airport, Senator Slade Gorton (R-WA) has set up meetings with INS and business officials. In addition, Senators Gorton and Patty Murray (D) and most of the other members of the Washington State congressional delegation sent a letter to INS Commissioner Doris Meissner urging an end to transfers of Northern Border Patrol and INS agents to the southern border and an overall increase in personnel assigned to the northern border.

With regard to the Southern Border, a delegation of human rights activists, religious organizers, community members, and ranchers from Arizona held a press conference on June 27 at the Capital to protest recent vigilante activities in their border communities. The delegation members urged Washington to address the root causes of the immigrant flood, including the failure of the North American Free Trade Agreement (NAFTA) to create more jobs in Mexico or to give labor the same freedom to cross the border as it does capital.

The increase in business travel and the need for freer movement of people across our borders to continue our economic prosperity through tourism, trade and the services of foreign workers demands that the INS work closely with the private sector to ensure that our borders have welcome signs and not stop signs.  

Bills Introduced to Address INS Processing Delays
As reported in prior issues of Connect! many members of Congress concerned by continuing reports of growing backlogs and delays at the INS and are looking at legislative solutions. In May, Senator Dianne Feinstein (D-CA) introduced S. 2586, the Immigration Services and Infrastructure Improvements Act of 2000.   The bill would authorize appropriations for INS backlog reduction, set mandatory minimum processing times for immigration benefit applications, and require INS to report regularly on its progress toward eliminating the backlogs.   On June 29, Representative Zoe Lofgren (D-CA) introduced a nearly identical bill (H.R. 4798) in the House. The Feinstein bill defines a “backlog” as any application pending longer than 180 days, except for H, L, O, and P visa petitions, which shall be pending no longer than 30 days.   The Lofgren bill specifies that any nonimmigrant application pending longer than 30 days and any immigrant application pending longer than 180 days shall be considered “backlogged.”

In addition to these independent bills, both the House and Senate versions of the appropriations bill for the Department of Justice (which includes the Immigration and Naturalization Service) have acknowledged the delays and backlogs and have budgeted some funds, although an insufficient amount, to address the situation. The House appropriations bill, H.R. 4690, is highly critical of the INS, finding that the agency “is overwhelmed with the task of handling its responsibilities, resulting in a broken immigration system,” and cites, among other problems, the growing backlogs in naturalization and other benefits processing. The bill would give the INS an additional $44 million beginning in October to address the backlogs, but allows the Attorney General to divert these funds to enforcement initiatives. The House bill also would allow the INS to collect a $1000 fee on certain business applications for “expedited” processing. Funds collected could go toward infrastructure development and fraud prevention, as well as service improvements. However, the bill does not mandate processing times for non-expedited applications, meaning that other applications could still suffer delays. 

The Senate version of the budget measure would restore Section 245(i), a provision by which foreign nationals in the United States who are eligible for green cards but not currently in a lawful status may adjust to permanent residence by paying a $1000 fee, generating approximately $200 million in annual revenues for the INS. The bill also would appropriate $37 million, again an insufficient amount, for backlog reduction and other service improvements, including specific funds earmarked for replacing expiring green cards, district and service center overtime, installing and upgrading computer equipment, electronic fingerprint machines, planning and implementing a system-wide improvement plan, and printing more copies of INS brochures. The INS cannot deviate from the outlined spending without first notifying the Senate Appropriations Committee. In addition, Senate staffs have indicated their opposition to the expedited processing fee contained in the House bill.

Although proposals to restructure the INS appear to be dead this session, the backlog reduction proposals contained in the Feinstein, Lofgren, and appropriations bills suggest that Congress is beginning to take some responsibility for the agency’s current condition. In recent years, Congress has pumped most appropriations into enforcement, provided insufficient additional money and much attention to naturalization at the expense of other types of cases, and diverted money from adjudications to pay for other INS functions, thereby contributing to the enormous backlogs in almost every area of the agency.   However, Congress needs to appropriate more money to fund adjudications, before the end of this session of Congress, as it seeks, in later Congresses, to help create a restructured INS that is efficient, effective and fair.

Employers frustrated with the long INS delays and backlogs should contact their Senators and Representatives and urge them to increase the level of funding directed to adjudications and support the Feinstein and Lofgren bills so that the agency can fulfill its important mission of servicing INS customers.

SPOTLIGHT:

DISCLAIMER: Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way. This article is copyrighted by and is reprinted with permission from www.ilw.com.

While the shortage of high technology talent threatens to abort our national boom, an equally severe absence of "essential workers" is no less ominous. Most headlines speak of the "new economy's" justifiable reliance on IT expertise. Yet, we would do well to remember that much of what makes America run is neither glamorous nor space age but hard, basic, tedious and fundamental. The 10,000 limit on the "other worker" category imposed by the Immigration Act of 1990 deprives this nation of the essential workers who cook our food, clean our homes, run our machines, care for our aged, mow our lawns, wash our cars, work in hotels and do a whole host of other things whose continued presence add richness and texture to the national mosaic. At a time when Silicon Valley has made expansion of the H-1B cap its top legislative priority, the rest of American business must broaden the national conversation to ensure that equally necessary essential workers are not left behind.

Unemployment nationally is at its lowest point in 30 years, having been at 5% or below since April 1997. 60% of metropolitan areas enjoy unemployment rates of 4% or less; 30% have rates of 30% or less and 5% boast jobless rates of 2% and below. The Bureau of Labor Statistics predicts that by 2006 we will have 10 million more jobs than available workers to fill them. Full employment, once dismissed by skeptics as impossible to achieve, has spread far beyond the frontiers of the information age to the heartland of the old economy. The most recent measure of unemployment in the Kansas City area, taken this past May, was 2.0%. Missouri's jobless rate was 2.6%; Kansas rate was 3.2%. Unemployment throughout the Midwest is well below 5.5%, a figure traditionally used by economists as the functional equivalent of full employment.

That immortal sage Yogi Berra may not have had US immigration policy on his mind when he said, "Predicting is dangerous. Especially when it's about the future." Even so, Yogi most certainly would have agreed with the great French philosopher Auguste Comte's observation that "demography is destiny." The Baby Boomer generation, born 1946-1964, numbers about 70 million. Since 1978, the rate of growth for the US workplace has steadily declined. According to the Bureau of Labor Statistics, from now to 2008, the workforce will grow by only about 1% annually. After 2011, when the first Baby Boomers turn 65, huge numbers of elderly will stop working. Since demographics predict that virtually all US population growth will occur in the Southern, Western and Mountain states, a vastly shrunken workforce everywhere else will present new challenges to employers and exacerbate already tight job markets. Today, the industrial Midwestern heartland is already experiencing the effects of slow population and stagnant workforce growth. As the existing labor pool ages, restaurants, nursing homes, shipyards, factories, offices and countless other employers in the "old economy" need more essential workers. Their continued survival depends in large measure on sustained immigration at higher levels.

Industries that traditionally rely on workers in the 25-40 age bracket are going to find it much tougher to recruit and retain qualified workers in those regions with a stagnant workforce. Making matters worse is the fact that these same employers in the hospitality, construction, industrial and health care fields cannot hope to match the allure or benefits of their high tech counterparts. Firms that now employ older and mainly white non-Hispanics as tool and die makers or mobile heavy equipment mechanics cannot hope to stay in business unless Congress relaxes or removes the artificial limit on essential workers.

The continued existence of this limit has no basis in economic reality. It reflects the entirely false belief that America has too many so-called "unskilled workers" and not enough jobs to go around. Precisely the opposite is the case. While high tech knowledge is obviously the key to future prosperity, the backbone of the American economy remains in the hands of those sectors, such as manufacturing, health care, retail trade, and hospitality, where small to mid-size companies rely on an unskilled workplace pool. We are talking about big bucks here; revenues generated by the lodging industry in 1998 amounted to $93 billion. Today, in the United States, there are 2,950 iron foundries employing over 225,000 people. Metalcasting is essential to every major manufacturing and technology from automobile parts to golf clubs. Casting shipments in 1998 were valued over $25 billion.

No industry can last if it cannot find new workers or keep old ones. Shipyards along the Gulf Coast in Louisiana and Mississippi have seen their orders increase and their workforce shrink while the US Department of Labor approves H-2B Temporary Labor Certifications at a glacial pace. "We either start importing workers or exporting jobs," Deborah A Ray, vice president of Seaport Services Inc., a Pascagoula, Mississippi-based Company that provides temporary workers for shipyards, told a recent immigration seminar. Mississippi companies, hardly a bastion of liberalism, are now making 12-18 requests a week to federal agencies for temporary foreign workers, largely from Canada and Mexico. According to a recent survey of large and small foundries conducted by the National Association of Manufactures, 60% of respondents reported that new hires lacked basic job skills while 46% could not attract enough unskilled workers. At a recent hearing before the Oversight & Investigations Subcommittee of the House Education & Workforce Committee that focused on 21st century worker shortages, representatives of the nursing home industry warned that chronic staff shortages, soaring turnover, high vacancy rates for skilled care providers and dramatically reduced Medicare and Medicaid funding has converged to force a looming Hobson's choice of refusing new admissions, closing facilities, or reducing quality of care. When the Baby Boomers retire, none of these will be legally acceptable or politically palatable.

The answer is to lift the chokehold holding back the necessary immigration of more essential workers. At a Manhattan news conference two weeks ago, William Carroll, former INS District Director in Washington, D.C. made this frank admission: "The system is broken. There is a need for labor in this country. There is a need to fill jobs. Yet there is no system to fill these jobs, except through the undocumented." While Mr. Carroll advocated a general amnesty to fill the empty jobs created by the country's booming economy, a major expansion of the "other worker" employment category is necessary for precisely the same reason. In the weeks to come, when the H-1B cap debate reaches its climax, let us remember that there is another "cap" which should also be raised and for reasons no less compelling.

POINT OF INTEREST . . .

Even though the House passed a permanent extension of the Visa Waiver Program in April, the Senate did not schedule a floor vote before recessing in August. Since the Pilot Program officially expired at the end of April, the INS agreed with the Department of State to issue parole to Visa Waiver country nationals. The agencies recently announced their intention to continue this procedure through September 30. Businesses and organizations dependent on the Visa Waiver program for tourist visitors and business visitors should contact their Senators to urge immediate passage of this important legislation after the Senate returns in early September.