CONNECT!

A Newsletter on Business Immigration 
February/March 2001 Issue
Vol. 2, No. 1

WHAT'S CONNECTED?

SPECIAL ANALYSIS: THE 2000 ELECTIONS

CONGRESSIONAL NEWS

• Gramm Proposes New Guest Worker Program Following Meeting with Mexican President Fox
• House and Senate Immigration Committees Take Shape
• House Judiciary Lays out Immigration Subcommittee Hearing Agenda

SPOTLIGHT:  Bush and Fox Meet in Mexico; Immigration High on the Agenda

AGENCY NEWS

• DOL's H-1B "December Surprise" Garners Hill Attention
• INS Gets Permission for Premium Processing Fee; Begins Working on Implementation

POINT OF INTEREST . . . Slowdown in Economy Not Reaching Essential Workers

SPECIAL ANALYSIS: THE 2000 ELECTIONS

The 2000 elections were historic in many ways. Who would have guessed that the presidency would not be decided until weeks after elections by the Supreme Court? Who would have guessed that the Senate of the United States would be evenly divided for the first time in its history, or that there would be such a slim margin in the House?

While there is much now we do not know about what this election means, several facts have emerged. We know that this election did not produce a clear mandate for either Party or its agenda. Public sentiment seemed to hold both parties accountable for the partisanship that has gripped Washington for the last several years. Republican control over both Houses of Congress is even more challenged in the 107th Congress than it was in the 106th, with the Senate split 50/50 and the House with only a nine-seat margin. Observers offer differing opinions about whether these close margins will lead to conflict or accommodation. While the early announcement in the Senate of a power-sharing agreement and even representation on the committees was a strong signal of bipartisanship, increasing division over the nomination of John Ashcroft as Attorney General and President Bush's tax cut proposal may erode these gains.

We also know that while immigration issues were not the lightening rod they were in the 1996 elections, immigrant voters played a key part in the elections. According to the Census Bureau, immigrant voters are a growing percentage of the electorate. In 2000, immigrants voted heavily Democratic, especially in the Latino communities. Polling data shows that Republican opposition to the Latino and Immigrant Fairness Act (LIFA) at the end of the 106th Congress hurt both George Bush and Republicans in high profile House races. Republican candidate George W. Bush's outreach to the Hispanic community had been paying off until opposition to LIFA cut into his support among Latinos during the campaign's final days, according to Hispanic Trends, a Miami-based polling and research firm. For example, among foreign-born Latino voters who were naturalized in the 1980s, Governor Bush went from a five-point lead in the week before the election to a 17-point deficit. And in several California House races in which Democrats defeated Republicans, Latino voters constituted from 7% to 38% of the electorate, as were a key swing vote determining the outcomes of those races. Overall, Latinos nationally supported Gore 62%, versus 35% for Bush. The Latino vote was central to Gore victories in California, New York, Pennsylvania, Michigan, Wisconsin, and New Mexico. The Asian-Pacific American vote shows similar trends. A poll conducted by the Asian Pacific American Legal Center in more than a dozen Southern California communities found that 62 % of Asian -Pacific Americans voted for Gore, while 35% voted for Bush. The poll found that in this election 48% were registered Democrats, while 30% were Republicans, versus 36% Democratic and 40% Republican in 1996. The 2000 elections underscore that immigrants vote their interests, that the Hispanic and other immigrant voters are here to stay, and that while this vote is concentrated in the five states with the largest number of electoral votes (California, Texas, New York, Florida, and Illinois), the immigrant vote is significant in other states and in Congressional districts throughout this country.

What else do we know? Public opinion also has become more favorable to immigrants. A survey undertaken for the Service Employees International Union (SEIU) found that a majority of voters believe that immigration is critical to sustaining our country's economic prosperity and that a large part of our nation's success is owed to the diversity that comes with immigration. Immigrants continue to be essential to the American economy. The status of undocumented immigrants in the U.S. was a key issue during the last days of the 106th Congress, and, as indicated above, affected the presidential race. The continuing labor shortages in the U.S., particularly in the unskilled and lesser-skilled occupations concentrated in the services sector, construction, health care and retail, are helping lawmakers rethink the current immigration policy toward this population. 

Finally, we know that the efforts of the immigration restrictionists to make reduced immigration a central issue in the election were not successful, but they will continue. One point must be made very clear. The restrictionists cannot, although they have tried to, take credit for Senator Spencer Abraham's defeat in the Michigan senate race. As Chair of the Senate Immigration Subcommittee, Senator Abraham incurred the wrath of restrictionist groups for his support of legal immigration, including increasing H-1B visas. Restrictionist organizations launched a media campaign in Michigan to attack him for these positions. But in fact, Michigan polls registered increased support for the Senator after their attacks. Senator Abraham was defeated by a combination of union, minority and women's support for Debbie Stabenow, groups that turned out in high numbers to vote. Restrictionists also will continue to try to link immigration negatively to quality-of-life issues that Americans hold dear, like the environment, urban sprawl, and education. However, time and time again, research shows that immigrants are a net positive for the United States, and that without them, our nation would not be the preeminent country it is today.

Immigration will continue to be an important issue this Congress. Already, immigration has been on the front pages with the historic meeting between President Bush and Mexican President Vicente Fox (see article below); new Attorney General John Ashcroft already has discussed restructuring the Immigration and Naturalization Service; and many advocates and lawmakers wish to continue the debates left off at the end of the last Congress. Business immigration advocates have what may be their best opportunity in many years to push for bipartisan initiatives that will improve employment-based immigration in the future. 

CONGRESSIONAL NEWS:

Gramm Proposes New Guest Worker Program Following Meeting with Mexican President Fox

In early January, Senators Phil Gramm (R-TX), Jim Bunning (R-KY), Zell Miller (D-GA), Pete Domenici (R-NM) and Michael Crapo (R-ID) met with newly installed Mexican President Vicente Fox. Following this meeting, Senator Gramm announced that he would introduce legislation creating a new "guest-worker" program, recognizing that undocumented immigrants "are vital to our economy." Creating a new legal guest worker program will "help the economy and dramatically decrease illegal immigration," said Senator Gramm.

Under the Gramm proposal, as outlined by his office, the U.S would create a new temporary visa program for Mexicans that would allow admission to the U.S. to accept jobs for up to one year, after which they would be required to return to their homes in Mexico. The workers would be issued identification cards that would allow employment primarily, but not exclusively, in agriculture and the service sector. Undocumented workers in the United States would be encouraged to participate, and, if enrolled, would be required to return to Mexico at the conclusion of their employment. Employers of these guestworkers would be exempted from paying payroll taxes on their behalf, but instead would fund an emergency health care program, with an IRA-like account. Penalties for employment of undocumented workers would be significantly increased and strictly enforced. 

Business immigration advocates in the Essential Worker Immigration Coalition ("EWIC"), which includes major national associations in the service, hospitality, health care, construction, retail and other industries, have proposed that any solution to the essential worker issue must include new legal immigration avenues for essential workers including long-term nonimmigrant visas, an opportunity for permanent residence to address long-term and permanent needs, and regularization of the status of the current workforce. The Essential Worker issue is taking center stage following the meeting of President Bush and President Fox in February (see article below), and advocates are hopeful that this new climate of discussion will result in positive changes for essential workers and their employers.

House and Senate Immigration Committees Take Shape

Congress is finally putting together its committee rosters for the 107th Congress. The House and Senate Judiciary Committees (which oversee immigration issues) have decided on their rosters, and for the immigration subcommittees, and there have been several changes from last Congress.

House: 

Judiciary: Representative James Sensenbrenner (R-WI) will chair the House Judiciary Committee, taking over from Representative Henry Hyde (R-IL), who was required to step down by Republican Conference term limits. Representative John Conyers (D-MI) will remain as the Ranking Minority Member. Committee members are (new members are in italics): Republicans: Henry J. Hyde, Ill., George W. Gekas, Pa., Howard Coble, N.C., Lamar Smith, Texas, Elton Gallegly, Calif., Robert W. Goodlatte, Va., Steve Chabot, Ohio, Bob Barr, Ga., Bill Jenkins, Tenn., Asa Hutchinson, Ark., Christopher B. Cannon, Utah, Lindsey Graham, S.C., Spencer Bachus, Ala., Joe Scarborough, Fla., John Hostettler, Ind., Mark Green, Wis., Richard "Ric" Keller, Fla., Darrell Issa, Calif., Melissa Hart, Pa., Jeff Flake, Ariz. Democrats: Barney Frank, Mass., Howard L. Berman, Calif., Rick Boucher, Va., Jerrold Nadler, N.Y., Robert C. Scott, Va., Melvin Watt, N.C., Zoe Lofgren, Calif., Sheila Jackson-Lee, Texas, Maxine Waters, Calif., Martin T. Meehan, Mass., Bill Delahunt, Mass., Robert Wexler, Fla., Tammy Baldwin, Wis., Anthony Weiner, N.Y., Adam B. Schiff, Calif.

On January 31, the House Immigration Subcommittee announced its new members. The new Chairman is Representative George Gekas (R-PA), who takes over from Lamar Smith (R-TX) who was term limited. Representative Chris Cannon (R-UT) was named vice-chair. Representative Sheila Jackson-Lee (D-TX) is returning as Ranking Minority Member. The other Republican members of the subcommittee are: Darrell Issa (CA), Melissa Hart (PA) Lamar Smith (TX), Elton Gallegly (CA), and Jeff Flake (AZ). The other Democrats on the subcommittee are: Barney Frank (MA), Howard Berman (CA), Zoe Lofgren (CA) and Marty Meehan (MA). 

Mr. Gekas, upon being named Chairman of the subcommittee, said he would take "the opportunity to review all the basic and more controversial issues that surround immigration into our country." Mr. Gekas said he plans to explore the issues of INS reform, the practice of determining the status of aliens, revising the oath of citizenship with more modern and less legal language, investigating current immigration law enforcement procedures, visa, and illegal entry problems. He also said that he supports H-1B visas, but noted "we must be mindful to strike a balance between helping the business community while retaining jobs for American workers." Mr. Gekas went on to say, "I look forward to the important responsibility with which I have been entrusted in the Immigration Subcommittee. My experience as a lawyer handling immigration cases gives me a unique perspective with the work that needs to be accomplished." Because Mr. Gekas is the son of immigrants, immigration advocates are hopeful that the Subcommittee will adopt a more positive tone regarding immigrants.

Appropriations: The chair of the House Appropriations Committee responsible for the Department of Justice and the INS' budget has changed. Representative Hal Rodgers (R-KY) will no longer chair this committee. (Representative Rogers was one of the authors of an INS reorganization bill introduced last year that many organizations opposed because it lacked the fundamental principles for true reform: separate but coordinated enforcement and adjudication functions, someone in charge with clout, and adequate appropriations to support adjudications.) Stepping into the job is Representative Frank Wolf (R-VA). Representative Wolf has been supportive of business immigration in the past, and is very concerned with refugee and asylee issues.

Senate: 

Judiciary: Under a power-sharing agreement for the Senate worked out between Majority Leader Trent Lott (R-MS) and Minority Leader Tom Daschle (D-ND), for the first time the committee will have an equal number of Democrats and Republicans, but it will continue to be chaired by Senator Orrin Hatch (R-UT). Senators Sam Brownback (R-KS) and Mitch McConnell (R- KY) join the full committee for the Republicans. Senator Maria Cantwell (D-WA) joins for the Democrats. Committee Democrats are (new members are in italics): Patrick J. Leahy, Vt. - ranking member, Edward M. Kennedy, Mass., Joseph R. Biden Jr., Del., Herb Kohl, Wis., Dianne Feinstein, Calif., Russell D. Feingold, Wis., Charles E. Schumer, N.Y., Richard J. Durbin, Ill. ,Maria Cantwell, Wash. Republicans are: Orrin G. Hatch, Utah - chairman, Strom Thurmond, S.C., Charles E. Grassley, Iowa, Arlen Specter, Pa., Jon Kyl, Ariz., Mike DeWine, Ohio, Jeff Sessions, Ala., Sam Brownback, Kan., Mitch McConnell, Ky.
The Committee is set to name Kansas Senator Sam Brownback (R) as the new chair of the Immigration Subcommittee. Senator Brownback takes up the gavel from former Senator Spencer Abraham (R-MI), who, following his defeat in November by Senator Debbie Stabenow (D-MI), has taken the position of Secretary of Energy in the Bush Administration.

Senator Brownback was elected to the Senate in 1996 to fill Bob Dole's seat, which he vacated for his failed presidential bid. The Senator has previously served on the Senate Commerce and Joint Economic committees. He is well known as a conservative in his party on social issues, but has taken positions at odds with the leadership on occasion. On immigration issues, Senator Brownback strongly supports business immigration issues, cosponsoring the H-1B bills in 1998 and 2000. He also cosponsored a bill that would have required the INS to provide a means for employers targeted by Operation Vanguard (the INS initiative targeting undocumented immigrants in the meatpacking industry in the Midwest) to verify the employment eligibility of their employees, or be exempt from penalties under those investigative operations. Senator Brownback also has particular concern for refugees, cosponsoring a bill last year with Senator Patrick Leahy (D-VT) that would have ameliorated the impact of expedited removal on asylum seekers and refugees. He also was the chief sponsor of the International Trafficking Act of 2000, which provided immigration avenues for victims of international trafficking in persons. While a House member, then-Representative Brownback was a key ally of pro-immigration advocates during the 1996 "Split the Bill" campaign, supporting maintaining legal immigration levels.

Senator Brownback's staff has indicated that the Senator intends to lead the Immigration Subcommittee "in the Abraham tradition." Immigration advocates hope that this means a positive tone and attitude toward immigrants and the economic and social contributions they make to the United States.

Appropriations: Senator Judd Gregg (R-NH) will remain the head of the Senate Commerce, State and Justice appropriations subcommittee, and ranking minority member Ernest F. Hollings (D-SC) also is staying on. Senator Gregg has in the past supported repeal of Section 110, and restoration of Section 245(i). He is a staunch critic of the Immigration and Naturalization Service. While recognizing the agency's funding issues, he believes mismanagement results in waste and inefficiency.

House Judiciary Lays out Hearing Agenda on Immigration

Shortly after taking up the chair of the House Judiciary Committee, Representative James Sensenbrenner (R-WI), and Ranking Minority Member John Conyers (D-MI), laid out the agenda for the issues the committee wishes to address in this session. The ambitious agenda included a large section on immigration issues under the jurisdiction of the Immigration and Claims Subcommittee, but was released before Representative George Gekas (R-PA), was named chair of that subcommittee.

The agenda includes the following issues of interest to business immigration advocates:

• INS Management Oversight: The committee will review proposals for restructuring the agency, the immigration agenda of the incoming INS Commissioner (yet to be named) and the progress of the agency on that agenda
  
  
• Legal Immigration Reform: The committee will look at guest worker programs in agriculture and other industries, the labor needs of U.S. employers, and the impact of new programs on U.S. workers and illegal immigration.
  
  
• Oversight of Current Legal Immigration Programs: The committee will examine several existing legal immigration programs and their effectiveness, including the implementation of the immigration programs introduced last Congress by the Legal Immigration and Family Equity ("LIFE") act, and the Investor Visa Program (EB-5). 
  
  
• Illegal Immigration: In addition to other issues relating to illegal immigration, the committee will examine INS' interior enforcement strategy, including its workplace enforcement strategy, the employment eligibility pilot program, labor law protections for undocumented workers, and INS' "Quick Response Teams." The committee will also look overall at relations with Mexico on immigration issues, as a follow up to the meeting between President Bush and Mexican President Vicente Fox.
  
  
• Fraud Issues: Under this title, the committee is set to examine processing of visa petitions and applications by the INS and processing of labor certifications by the Department of Labor. According to the committee, those agencies are "approving family and employment based visa petitions with little examination or investigation of possible fraud and are not personally interviewing the beneficiaries" thus increasing the potential that fraudulent cases are approved.
  
  
• Cultural/Societal Issues: The committee intends to look at the impact of immigration on population growth, sprawl, and the environment, the rate of assimilation of recent immigrants, participation in affirmative action programs by immigrants, and issues of dual nationality.
  
  
• Miscellaneous Issues: The committee will examine many issues "left over" from the last Congress, including NACARA parity, due process issues for immigrants from the 1996 laws, and the status of long-term undocumented immigrants in the United States (registry).

SPOTLIGHT:

Bush and Fox Meet in Mexico--Migration High on the Agenda; US/Mexico Group Issues Recommendations

President Bush made his first trip to visit a foreign head of state by meeting with President Vicente Fox of Mexico on Friday, February 16. Although their meeting was brief, the Presidents announced two initiatives dealing with migration between the two countries: the launch of cabinet-level discussions on the issue of migration and the creation of a high-level working group on border operations. The Secretary of State and Attorney General of the United States and the Secretary of Foreign Relations and the Secretary of the Interior of Mexico will lead these cabinet-level discussions. This binational commission will aim to achieve "short and long-term agreements that will allow us to constructively address migration and labor issues between our two countries." The border working group will "identify specific steps each country can take to improve the efficiency of border operations."

While the two governments did not discuss specific initiatives, many advocates hope the two governments will constructively address long-standing immigration issues, including U.S. enforcement along the Mexican border, the large undocumented population in the U.S. (the majority of which is Mexican) and the ongoing need for workers in the United States. President Fox previously said that he hopes to achieve a relationship between the two countries that would allow for the free flow of people across the border. Mexican officials have called for more humane treatment of border-crossers and an easing of U.S. enforcement efforts on the border, more legal avenues for Mexicans to work in the U.S., and legal protections for undocumented Mexicans already living here. Meanwhile, during the Presidential campaign, Mr. Bush supported increasing temporary visas for agriculture (H-2A) and high-tech (H-1B) workers, but, as President, has not commented on any specific proposals. He has said he does not believe amnesty is the best way to address the problem of illegal immigrants. Neither President Bush nor President Fox endorsed any specific proposals during this trip, including the guest-worker proposal of Senator Phil Gramm (R-TX) (reviewed above). 

In recommendations released to coincide with the meeting in Mexico, a joint U.S.-Mexican Working Group convened by the Carnegie Endowment for International Peace's International Migration Policy Program and the Instituto Tecnológico Autónomo de México's Faculty of International Relations called for a "grand bargain" between the two countries on migration matters. This grand bargain would involve improving the treatment of Mexican migrants through various legalization measures for undocumented Mexicans in the United States, expanding the legal work visas available to migrants, and equalizing the treatment of Mexican citizens under NAFTA immigration provisions. The panel also called for cracking down on immigrant smugglers and preventing dangerous border crossings. The Working Group also recommended that the U.S. freeze additional construction of fences along the Mexican border pending review of its enforcement policies by the new binational commission. Finally, the joint panel recommended a border discussion similar to that announced by President Bush and President Fox. 

Immigrant advocates are hopeful that new dialogues on migration issues can form the basis for real improvements in the ability of immigrants to live and work legally in the U.S. The announcements by the two Presidents also signal the possibility for a new, more positive tone in the continuing immigration debate. 

AGENCY NEWS

DOL's H-1B "December Surprise" Garners Hill Attention

The Department of Labor ("DOL") on December 20 issued its Interim Final Rule governing H-1B labor certifications and implementing provisions of the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA"). Employer groups immediately criticized the regulation for micromanaging employers, and going beyond DOL's authority in the statute. DOL will continue to receive comments on the Interim Final Rule through April 23, 2001.

The original proposed rule was issued in January 1999, and contained very little actual regulatory language. (See the analysis of the proposed rule in the January 1999 issue of Connect!) DOL received 92 comments to its proposed regulations, many of which were extensive in length and detail, from legal organizations, Members of Congress, the Office of Management and Budget, law firms, associations, companies, Federal agencies, labor unions and individuals. The Interim Final Rule covered 150 pages in the Federal Register and introduces many new and complicated compliance and record-keeping procedures for H-1B employers. Most of these new procedures apply to all employers, not just "H-1B dependents," which are defined in the regulation as those with a significant percentage (15% or more for most employers) of H-1B employees. The regulations cover such areas as determining the required wage rate for H-1B employees, adjusting the wage rate for changes in the "actual wage" paid to other similar employees, movement of H-1B employees to different job sites, payment of wages for "nonproductive" time (benching), provision of benefits to H-1B employees, and record keeping requirements for public access or DOL investigations. 

In response to the Interim Final Rule, at least four members of Congress have written to DOL expressing their displeasure with the rule's issuance and the agency's interpretation of its statutory authority. Representative Pete Hoekstra (R-MI), former Chairman of the Oversight and Investigations Subcommittee of the Education and Workforce Committee, wrote to Secretary of Labor Alexis Herman just prior to the publication of the rule stating "this Subcommittee is very concerned that the Department may publish final or interim final regulations without first publishing additional proposed regulations or providing the public with an appropriate opportunity to comment."

Former Senator Spencer Abraham (R-MI), as Chair of the Senate Immigration and Claims Subcommittee, and Senator Bob Graham (D-FL), wrote "[W]e must note that ... on many … issues, DOL has ignored not only the clear language of the legislation but also the contemporaneous statements that Senator Abraham made as chief bill sponsor and negotiator with the Administration prior to the floor consideration of the [ACWIA]." The Senators specifically cite their concerns regarding the regulation's paperwork requirements, DOL's assumption of additional authority to administratively remedy violations (including "make whole" relief), the exclusion of part-time employees from the definition of H-1B "exempt" employees, and the DOL's complex system governing the movement of H-1B professionals. Senator Sam Brownback (R-KS), the new Senate Immigration Subcommittee chair, also recently sent a letter to Labor Secretary Elaine Chao about the regulations.

The business immigration community is reviewing the interim final rule and considering possible responses, especially in light of the Bush Administration's review of federal regulations. Responding to some of these concerns, the Labor Department recently extended the comment period for an additional 60 days. Employers wishing to submit comments on these regulations should contact their immigration attorney for talking points and information. 

INS Gets Permission for Premium Processing Fee; Begins Working on Implementation

The FY 2001 Commerce, State, Justice (CSJ) appropriations law (P.L. 106-553) authorizes the INS to collect a "premium processing fee" of $1,000 on business immigration petitions (I-129s and I-140s) in exchange for expedited service, by which a decision or a request for additional information (RFE) is sent within a certain period. The INS in mid-January held a stakeholders' "focus group" to discuss the agency's implementation of this new fee. INS hopes to begin the program sometime between April 1 and June 30. The INS sold this fee to Congress as a means to address growing case backlogs. Although provisions in the H-1B law also created a new account at INS into which Congress could provide appropriated funds for backlog reduction, no funds were actually allocated to the account for the current fiscal year.

INS officials met with employers, employer associations and individual attorneys to discuss the new program and employers' expectations. Program highlights, as presented by INS, follow:

• Price: $1,000 per petition (above and beyond any other fees). Fee will be refunded if INS does not issue a decision or a request for evidence (RFE) within 15 days of receipt (physical receipt, not fee receipt).
  
  
• Service to be Provided: "Guaranteed" response within 15 days; clock stops when RFE is issued, but once response is provided to INS, a new turn-around period (INS is suggesting 10 days) will begin running.
  
  
• Communications: Program will include some form of enhanced communication with INS for petitioners, such as e-mail, fax and/or separate mailing addresses.
  
  
• Phase-In of Program: Will start with only certain categories of I-129s (probably not H-1Bs because INS has not determined how to deal with either the cap counting issue or the high volume of demand which may initially overwhelm the system). Categories under consideration include Ls, Os, and Ps. INS plans to add I-140s to the program in the future.
  
  
• Existing Expedite Procedures: Will remain in place for case types not included in the premium processing program, and use existing procedures and criteria. Once a case type is added to the program, INS proposes to eliminate any other type of expedite for that case-type outside of the premium processing. Non-profits will continue to be eligible for expedites outside of the premium processing for all types of cases, based on current criteria.
  
  
• Procedures: While still sketchy, the agency proposes to make the program available at all four Service Centers, and will probably develop a new form to collect contact information. A separate check will be required for the expedite fee.
  
  
• Implementation: INS has promised that processing other forms will not suffer due to premium processing, but acknowledges that the expected influx of filings from the recently enacted LIFE legislation will result in increased processing backlogs. 

Participants in the focus group were generally positive toward the idea of premium processing, but did express skepticism about the agency's ability to do all that it promises. Additional concern was raised about the affect the diversion of resources to this program would have on non-expedited business cases and other types of cases currently in the INS backlog. The agency acknowledged that processing of other case types would slow down, but blamed this not on the premium program, but on the additional filings it expects to receive from recently enacted laws. Business immigration advocates will pay close attention to the agency's implementation of this program to ensure that it does not harm other case processing. However, as backlogs continue to pile up, it has become clear that direct appropriations from Congress are necessary to supplement the filing fees in order to get the agency back to processing within real-world time frames.

Copyright © 2001, American Immigration Lawyers Association