AILA's Connect: Business Immigration
January 2003

Connect! focuses on business immigration issues that top the agenda in our nation’s capital.  This newsletter includes information useful to employers, such as updates on new legislation and regulations that will impact the business community’s access to foreign workers, and articles that will help employers learn about the pitfalls and opportunities of our immigration laws.  By working with members of Congress on these issues, employers can help shape our laws so that they are more responsive to, and respectful of, the business community’s needs and concerns.

IN THIS ISSUE:  LEGISLATIVE UPDATE: Department of Homeland Security Created; 107th Congress: A Legislative Overview; REGULATORY UPDATE: Special Registration Update; Regulatory Activity in Review: 2002; Recent Settlement Sets Tone for Developments in Immigrant Workers’ Rights; SPOTLIGHT: Immigration Reform Supported by a Study on Workforce Contributions of Foreign Labor.

Legislative Update

Regulatory Update

Spotlight




Legislative Update

Department of Homeland Security Created

President Bush, on November 25, signed legislation, (Pub. L. No. 107–296) creating a new Department of Homeland Security, the composition of which will dramatically alter our immigration functions. The new department will impact every aspect of immigration, from the adjudication of visas, the enforcement of immigration law, and the implementation of regulations that affect employers and the daily lives of foreign national workers. 

The President has nominated current Homeland Security Advisor Tom Ridge to lead the new department, and has tapped Gordon English, currently serving as secretary of the Navy, to serve as the Deputy Secretary.  Asa Hutchinson, the administrator of the Drug Enforcement Agency, has been selected to serve as Undersecretary for Border and Transportation Security. Michael Garcia has been named Acting Commissioner of the INS. Mr. Garcia, who was the Assistant Secretary for Export Enforcement at the Department of Commerce, will oversee the INS’s transition into the new Department of Homeland Security.

INS Abolished: The Homeland Security Act formally abolishes the INS, and in its place establishes two bureaus to manage the nation’s immigration functions.  The Bureau of Border Security, which is located within the Directorate of Border and Transportation Security, will include the Border Patrol, and the immigration enforcement functions, defined as: detention and removal, inspections, investigations and intelligence.  The Bureau of Citizenship and Immigration Services will be responsible for all adjudications and naturalization.  The two bureaus are distinct from one another, and are minimally coordinated.  It is unclear how the new structure will allow consistent adjudications both at the border and from the INS service centers, and to what extent the inspections process will be modified. Equally unclear is how immigration functions will be implemented at the local level and how, for example, the former INS district and local offices will operate.

Increase Inter-Agency Communication: The new law also mandates that the Secretary of Homeland Security determine the most effective way to conduct enforcement operations. In making this determination, the Secretary must consult with the Attorney General, the Secretary of State, the Director of the FBI, the Secretary of Labor, Secretary of the Treasury, the Commissioner of Social Security, the Director of the Executive Office for Immigration Review and the heads of State and local law enforcement agencies.  This provision in the new law raises the presumption that agencies’ prior policies of not sharing information about undocumented workers with the INS might very well give way to a more coordinated effort to pursue the enforcement goals of the new bureau, thereby burdening employers with increased immigration enforcement efforts by the various agencies.  Without substantive legislative reform, which would provide relief to thousands of undocumented workers, these policy changes may result in employers experiencing increased instability in their workforce and possibly extensive worker shortages in some sectors of our economy. 

Visa Issuance: The new Homeland Security Act also raises concerns with regard to the granting of visas.  Recent changes in the security policies by the Department of State have given rise to extensive delays in the granting of visas by many consulates.  Under the new law, the visa issuance policies will most likely change again since the Department of Homeland Security will have the authority to administer laws and issue regulations relating to the granting or refusal of visas.  The new department also has the authority to develop programs on homeland security training for consular officers.  Consular officers working for the State Department will still officially issue visas, however, the Department of State will lose most of its authority in the process.  Under the new law, a Department of Homeland Security official could reverse any visa approvals, and consular officers will be required to record detailed information in a database about every visa applicant denied a visa.   Understandably, these changes are expected to slow down the processing time for visas, especially during the transition period, and it is feared that the security enforcement mission of the Department of Homeland Security personnel will create an environment where the visa issuance process is no longer concerned with customer service, nor sympathetic to the needs of business in both obtaining visas quickly for critical personnel or having certainty in the timeframe of the visa issuance process.

Economic Safeguard Provisions: The new Act includes two helpful provisions that, if implemented properly, could help establish businesses’ concerns as factors worthy of consideration within the new department.  The first provision seeks to ensure that the department’s actions do not diminish the overall economic security of the United States, and that the non-security related functions absorbed into the new department are neither diminished nor neglected.  The second provision creates the position of Special Assistant to the Secretary who will be responsible for creating and fostering strategic communications with the private sector. This Special Assistant would create and manage private sector advisory councils to advise the Secretary on homeland security policies, regulations, processes and actions that affect participating industries and associations.

As the implementation of the new department progresses, the changes to the immigration and visa issuance process will become more apparent. It is very important that businesses prepare for some uncertainty and delays regarding immigration issues. Please be sure to contact your AILA attorney to discuss timeframes for importing foreign workers, and planning business meetings and other events that may require the use of international personnel.

107th Congress: A Legislative Overview 

With the 108th Congress just beginning, it is timely to review the major legislation affecting foreign workers that the previous Congress passed and was signed into law.  Employers and foreign workers will be concerned about how these laws are implemented.  It is important that companies understand the new developments brought about by these laws.  Many provide new flexibility and opportunities to certain foreign workers and their dependents, while others will affect the ability of foreign nationals to obtain a visa and enter the United States.  The laws are discussed below in the reverse order in which President Bush signed them into law:

Department of Homeland Security:  (see the previous article entitled, President Signs Homeland Security Legislation)

Department of Justice Appropriations Authorization: On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act,” (Pub. L. No. 107–273). The new law contains several business immigration-related provisions, including:

• Extension of status beyond the six-year limitation for H-1B workers who have labor certification applications pending for at least 365 days. This provision is intended to allow H-1B workers who have already exceeded their six-year limitation to have a new H-1B petition approved so they can apply for an H-1B visa to return from abroad or otherwise re-obtain H-1B status.
  
  
• Extension until 2004 of the “Conrad 20” program, which provides for a waiver of the foreign country residence requirement with respect to international medical graduates. The new law also expands the number of visas available per state from 20 to 30. A recent policy statement by the Department of State clarifies that this expansion permits states that have reached the numerical limitation of 20 requests for 2002 to submit up to 10 additional visa waiver requests retroactive to fiscal year 2002.
  
  
• Modification of the procedures for the EB-5 program to give eligible investors caught by the retroactive application of the INS’s policy changes an opportunity to establish or re-establish EB-5 eligibility. Some general changes to the EB-5 program are also incorporated into this section of the new law.  (For a more thorough review of the business-related immigration provisions in this new law, see the October/November 2002 issue of Connect!,  Vol. 3., No. 2.)

Age-Out Protection: President Bush signed into law the “Child Status Protection Act,” (Pub. L. No. 107–208) on August 6. Passage of this law will provide important protections to children of foreign nationals who are in the process of obtaining their legal permanent residence (Green Card).  Under previous law, a child’s eligibility to receive a visa or be part of his or her parent’s application was based on the child’s age at the time that the foreign national relative petition was approved, not the time the petition was filed. Because of enormous backlogs and processing delays, many children turned 21 before the INS adjudicated the petition. In such cases, the child “aged-out” and was ineligible to receive an immediate relative visa or was no longer considered to be part of the parent’s application. The child’s petition was either automatically moved to a lower preference category or the child was required to submit his or her own petition, resulting in years of delays and possible ineligibility.  For children who are accompanying their parent or following to join on a petition for an immigrant visa as well as children of legal permanent residents, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.
 

Border and Visa Entry Reform: On May 14, the President signed into law the Enhanced Border Security and Visa Entry Reform Act, (Pub. L. No 107–173).  This measure balances this nation’s need to enhance security with our history as a nation of immigrants. Among other provisions, the new law helps provide personnel at the border with the training, staff and funding they need to do the job, authorizes increased staffing and funding at the INS and the State Department, and also provides necessary training for personnel at both agencies.  The law also mandates the sharing of intelligence and law enforcement data with the INS and State Department on a real-time basis so the agencies can identify high-risk individuals who seek to enter our country and requires commercial carriers to submit electronically detailed passenger manifests to the INS before either departing or arriving in the U.S.  The law directs the development of a technologically advanced entry/exit system combined with a database that compiles arrival/departure data.  This system will use machine-readable data and biometrics to facilitate lawful border-crossings. 

Spousal Work Authorization: On January 16, the President signed into law two bills (H.R. 2277; Pub. L. No. 107–124 and H.R. 2278; Pub. L. No. 107–125) allowing spouses of intracompany transferees (L-1A, L-1B), treaty traders, and treaty investors (E-1, E-2) to work in the United States. H.R. 2278 also reduces the required one-year period of prior continuous employment for certain intracompany transferees to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition.

USA PATRIOT Act: On October 26, President Bush signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT) Act of 2001, (Pub. L. No. 107–56). The PATRIOT Act includes provisions that: expand the definition of terrorism for the purposes of inadmissibility and removal, provide for mandatory detention of aliens who the Attorney General suspects have engaged in terrorist activity, and limit judicial review. The law also includes provisions that seek to preserve immigration benefits for the families of victims of the terrorist attacks and others impacted by the attacks.

Regulatory Update

Special Registration Update

The previous issue of Connect! reported on the INS’s newly implemented  National Security Entry-Exit Registration System (NSEERS).  This program requires foreign national nonimmigrants (non-green card holders) who are either from certain countries or who fit certain profiles to register as they enter and depart the United States.  NSEERS also includes a “call-in” component under which the INS requires certain nonimmigrants from specific countries to register at a designated INS office. 

It is very important that foreign workers who are required to register do so and contact an immigration lawyer prior to registering.  Willful failure to register by the deadline can result in deportation and possible future inadmissibility to the United States.

Registration Deadlines: There are three deadlines for call-in registration for the NSEERS program.  Contact your AILA attorney for more detailed information about the registration deadlines, including the individuals required to register under each. 

The December 16, 2002, deadline required male nationals or citizens of Iran, Iraq, Syria, Sudan and Libya to register if they were born on or before November 15, 1986, entered the United States on a nonimmigrant visa on or before September 10, 2002, and remained until at least December 16, 2002. 

The January 10, 2003, deadline affects certain male nationals and citizens from the following 13 countries: Afghanistan, Oman, Algeria, Qatar, Bahrain, Somalia, Eritrea, Tunisia, Lebanon, United Arab Emirates, Morocco, Yemen, North Korea.   Males who were born on or before December 2, 1986, entered the United States on a nonimmigrant visa on or before September 30, 2002, and will remain in the United States until at least January 10, 2003, must register prior to the January deadline.

The February 21, 2003, deadline affects certain male nationals and citizens from Pakistan or Saudi Arabia. (Note: Armenia was originally included but later removed from the list.)   Males who were born on or before January 13, 1987, entered the United States on a nonimmigrant visa on or before September 30, 2002, and will remain in the United States after February 21, 2003, must register prior to the February deadline.

It is important that human resource personnel be aware that this registration process is very time consuming for eligible applicants and is mandated by the federal government.  Additional restrictions apply for program participants who depart from the United States.  Departures must be registered with the INS and can only be made from an official list of pre-approved airports and other ports.  Contact your AILA attorney for a list of the approved exit points prior to making any international travel arrangements for any employee subject to special registration.

Problems with the Program: 
Immigration advocates and members of Congress have attacked the program for being ill conceived as well as wrongly and ineffectively implemented.  The Department of Justice has not given the INS the staff and resources necessary to do its job and has not effectively disseminated information about the program to the public. The paucity of information will make it likely that large numbers of otherwise law-abiding people will not register or will fail to comply with program requirements and, therefore, be considered "per se" guilty of a criminal misdemeanor, deportable, and permanently barred from ever reentering the U.S.   It is just as likely that those individuals who are a threat to national security will not register.  Thus, the program does not make us safer by actually deterring terrorism.  What the program does do is waste the INS’s limited resources on increased administrative costs for processing the registrations and detaining otherwise legal foreign nationals.  Even in the face of such criticism and poor planning, the Department of Justice has given notice that it has no plans to grant an extension on the registration deadlines.  Attorney General Ashcroft also has announced plans to expand the program to cover all foreign nationals over the next two years. 

If you or your employees have any questions about the special registration program, including how to register or how to depart properly from the United States, please contact your AILA attorney.  Additionally, AILA attorneys can provide your business or organization with further materials and information about contacting your members of Congress to express your concerns about this program.

Regulatory Activity in Review: 2002

The regulations issued during the 107th Congressional session have an immediate effect on foreign workers’ ability to obtain visas, enter, and remain in the United States in valid status.  Human resources personnel should therefore expect to receive numerous questions about the scope of these new rules.  The following is a brief overview of some of the more important immigration-related and business immigration-related regulations the INS and other agencies issued during the past year: 
 
DOS Raises Fees for Nonimmigrant Visa Processing:  The State Department raised the machine-readable visa (MRV) fee charged for the processing of a nonimmigrant visa, or a combined nonimmigrant visa and border crossing card application, from $65 to $100, effective November 1.
 
Special Registration: The INS, on August 12, finalized a rule that requires certain nonimmigrants to undergo various registration processes, and imposes sanctions on those who do not follow the processes. (For more information, see the previous article in this issue entitled, Update on Special Registration, and see INS Moving Forward with Special Registration Program, October/November 2002 issue of Connect!, Vol. 3, No. 2).

Change of Address Notification: A July 26 INS proposed rule would require every applicant for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address, within 10 days of the change. In absentia removal orders could flow from failure to so provide.
 
Concurrent Filing: A July 31 INS interim rule provides that an Immigrant Petition for an Alien Worker (Form I-140) and an Adjustment of Status application (Form I-485) may now be filed concurrently when a visa number is immediately available. In addition, eligible individuals with I-140 petitions pending on July 31 may now file the I-485 and associated forms. The rule took effect upon publication.

Proposed PERM Rule on Labor Certification for Permanent Employment: The DOL, on May 6, published the proposed ‘PERM’ rule that would amend the agency’s regulations governing the filing and processing of labor certification applications for permanent employment in the U.S. The rule would also amend the regulations governing an employer’s wage obligation under the H-1B program.  The final PERM rule is expected to be published in April 2003 and to take effect in July. 

Foreign Health Care Workers: An October 11 INS proposed rule would implement a process for the certification of certain foreign health care workers, and would add a requirement that all nonimmigrants coming to the U.S. to work as health care workers, including those seeking change of status, be required to submit a certification.  This rule is not yet in effect.

B-2 Visitors Visa: An April 12 INS proposed rule would eliminate the minimum admission period for B-2 nonimmigrant visitors, reduce the maximum admission period for B-1 and B-2 visitors, and restrict B visitors’ ability to extend stay or change to student status.  This rule is not yet in effect.

Adjustment of Status under LIFE: The INS issued a final rule on June 4, implementing the adjustment of status application procedures under the LIFE Act’s ‘late legalization’ provisions. The rule extends the filing deadline to June 4, 2003, and makes various other changes based on comments received to the interim rule.

S Nonimmigrant Visa: The State Department, on November 4, finalized a rule implementing the ‘S’ nonimmigrant visa program. The S visa category is available to nonimmigrants determined by the Attorney General to have critical and reliable information concerning a criminal organization or enterprise.

Passenger Manifest Requirements: On January 3, 2003, the INS issued a proposed rule requiring all commercial carriers to submit a detailed passenger manifest electronically before either departing from or arriving in the United States.  The information required for each passenger includes: complete name, date of birth, citizenship, sex, passport number and country of issuance, country of residence, U.S. visa information, address while in the U.S; and other necessary information.  The rule took affect January 1, 2003.

Border Crossing Cards: The INS promulgated an interim rule that establishes procedures to terminate the use of current non-biometric border crossing cards (BCCs), eliminates certain former versions of BCCs, and clarifies the validity period of waivers of inadmissibility.  The rule took effect retroactive to October 1.

State and Local Law Enforcement of Civil Violations of Immigration Law: The Justice Department, on July 24, finalized a rule permitting the Attorney General to authorize any state or local law enforcement officer, with the consent of those whose jurisdiction the individual is serving, to perform certain functions related to the enforcement of the immigration laws during the period of a declared “mass influx of aliens.”

Recent Settlement Sets Tone for Developments in Immigrant Workers’ Rights

The Department of Justice (DOJ) and Swift & Company, a division of ConAgra, Inc., agreed to settle a complaint filed against the company regarding allegations of workplace discrimination during the hiring process.  Swift & Company’s plant in Worthington, Minnesota had been charged with engaging in a pattern of citizenship discrimination and unfair documentary practices against “foreign-looking” U.S. citizens and lawful, work-authorized foreign nationals. 

As part of the settlement, Swift & Company will pay $174,0088 in civil penalties, $13, 412 in backpay, enroll its human resources personnel in employment discrimination training, and offer interviews and positions to individual victims.

This settlement underscores the importance for human resources departments and other hiring personnel to be aware of the laws and regulations in place that are designed to protect the rights of foreign workers.  Such awareness is especially important with regard to both the hiring process, and in the context of the receipt of a social security no-match letter.  If your human resources department has any questions regarding these rules and regulations, please be sure to contact your AILA attorney.

Spotlight

Immigration Reform Supported by a Study on Workforce Contributions of Foreign Labor

The Northeastern University Center for Labor Market Studies recently released a report that found that foreign labor was a vital factor in our nation’s economic growth over the past ten years 
Prepared for the National Business Roundtable, the report will contribute to the current debate on our nation’s immigration policy and the need for reform. 

The Need for Immigration Reform: As reported in the last issue of Connect!, employers have long known that our immigration laws are out of sync with our nation’s economic needs and  desperately need reform to allow businesses to hire more essential workers.  These workers are the unskilled or semi-skilled workers employed in all sectors of our economy.  They include restaurant workers, retail clerks, construction workers, manufacturing line workers, hotel service workers, landscape workers, and health care aides.

Currently, there is no legal means by which vitally needed, lesser-skilled foreign nationals can come here to work on a year-round, temporary basis.  The current temporary visa program for individuals at this skill level is limited to employers who can establish that their need for foreign workers is seasonal, a one-time occurrence, or a peak load or intermittent need.  In addition, the availability of green cards for these essential workers is extremely limited, with only 5,000 visas available annually.  The backlog of cases is often over ten years.  Furthermore, many employers report that they find that many of their current workers are undocumented and that there is no procedure available to make them legal. 

Because employers have been unable to find a sufficient number of native-born workers to fill essential worker positions, many have turned to foreign labor to fill positions.  The Department of Labor projects that the demand for these workers is increasing and will rise to new levels during the next ten years, with the number of native-born workers insufficient to meet the need.   Furthermore, because the median age of the native-born workforce is rising and these workers are becoming increasingly more educated, the typical U.S. worker is uninterested in filling lower skilled, lesser-paid positions

Both Republicans and Democrats recognize the need for immigration reform.  Prior to the tragic events of September 11, President Bush and Mexican President Vicente Fox were discussing immigration reform that would “match willing workers with willing employers.” These discussions reportedly focused on reform that included an earned legalization program, an expanded permanent visa program, an enhanced temporary visa program, border control cooperation and economic development in Mexican sending regions. 

While these discussions have stalled, Congress has stepped in. On October 10, 2002, House Minority Leader Richard Gephardt (D-MO) introduced the Earned Adjustment and Family Unification Act of 2002, H.R. 5600.  This legislation includes an earned legalization program for resident workers and college bound students who meet certain requirements, and reductions in the family backlog.  Upon introducing the bill, Representative Gephardt emphasized that the legislation will both enhance our security as well as address the worker shortages that our nation continues to experience. By documenting those who are here and working, we can effectively shrink the haystack of “unknown immigrants” that require investigation by our security enforcement personnel.  Representative Gephardt has also discussed the need for a new temporary worker program as the third component of reform.

These initiatives, along with the efforts of business, labor, and immigration advocates, are helping to promote the need for comprehensive reform.  Such reform would create a mechanism to legally bring in needed workers, enable the workers that are here to regularize their status and promote a legal avenue for family unification.  Such initiatives are not only good for our economy, but also for our nation’s values and our national security. 

Comprehensive legal reform is an issue that is continuing to gain momentum in the legislative arena.  If your company is interested in participating in this debate, or if you have questions about immigration reform, please contact your AILA attorney for more information.

Northeastern University Study: The study itself focused on the economic impact of the new immigrant population from 1990-2001.  Included below are some of the major findings from the report:

• The Great American Job Machine was largely fueled by new immigrant labor, a finding that has received insufficient attention from most economic and labor market analysts.
  
  
• During the 1990s, the civilian labor force grew by only 11.5 percent.  Had it not been for new immigration, the nation’s labor force would have grown by only five percent over the past decade and would have seriously constrained both job growth and economic growth.
  
  
• From 1991-2000, the U.S. economy generated 23.5 million net new jobs, increased the number of employed residents by 17.5 million and lowered the aggregate unemployment rate from 6.8% to 4.0%.  At the same time, the nation admitted roughly 8 million new immigrants who joined the labor force.  According to the report, these immigrants played a crucial role in filling the new and old jobs.
  
  
• The ten states in which new foreign immigration contributed the highest percentage to the resident labor force growth from 1990-2001 include: New York, Rhode Island, Connecticut, Massachusetts, New Jersey, California, Illinois, Hawaii, Maryland, and Florida.
  
  
• From 1991-2000, new immigrants provided the entire labor force growth in the Middle Atlantic and New England states; 72% of the labor force growth in the Pacific states; 45% in the South Atlantic States; 21% in the Rocky Mountain States; and from 14% to 37% in the Central states.
  
  
• Across the nation, 34% of new foreign immigrants who arrived from 1990-2001 were employed as blue-collar workers. These professions include skilled blue-collar positions, assemblers, fabricators, operators, laborers, helpers and cleaners.
  
  
• Service industries, which includes busboys, domestic help, cooks, security guards, nurse assistants, and other essential worker positions accounted for 22% of the new foreign immigrants who arrived between 1990-2001.

****