Vol. 1, No. 4, March 1999

Both Representative Lamar Smith (R-TX), Chairman of the House Immigration and Claims Subcommittee and Senator Spencer Abraham (R-MI), Chairman of the Senate Immigration Subcommittee, have announced their subcommittee agendas for this session of Congress. Because these subcommittees are the first stop for most legislation dealing with immigration issues, the two Chairmen are key to immigration issues Congress will debate.

In the House, Representative Smith has announced that he will be holding a series of hearings covering many aspects of immigration law. To date, he has held hearings on such issues as detention of criminal and other foreign nationals, and the immigration consequences of Hurricane Mitch. He also has indicated his intention to focus on INS reorganization (reviewed below), the skill levels of immigrants and the immigrant investor program. Other areas Representative Smith's subcommittee will address include: interior enforcement (including worksite enforcement), border control and Section 110 (a proposed new automated entry-exit system at land borders that a major business and trade coalition, Americans for Better Borders, opposes because it would cause chaos for cross-border commerce, trade and tourism).

Besides focusing on specific immigration programs and initiatives, Representative Smith appears to have a broader negative agenda regarding the employment of immigrants in this country. While he asserts that he wishes to shift immigration flows to "help" business meet its needs for more skilled workers, he continues to allege that immigrants in fact displace American workers and impact negatively on low-skilled and minority American workers. Further, in spite of his statements regarding business' need for skilled workers, last year he initially opposed, and then gave only tepid support for, an increase in the H-1B cap (which allowed more skilled workers to enter the country).

In an effort to prove the above allegations, Mr. Smith already has held a hearing on the impact of immigrants on lower-wage workers and minorities. However, it was clear from testimony at that hearing from Stephen Moore of the Cato Institute and the comments of Representative Sheila Jackson-Lee (D-TX), ranking minority member of the subcommittee, that immigration is not the cause of the problems facing low wage workers and minorities, and immigrants should not be made scapegoats.

Representative Smith's position on the negative impact of employment-based immigration is puzzling, given the current economic boom, and recent data that the average skill level of new, legal immigrants has been rising relative to that of the U.S. population. Further, while increasing data show that immigrants from all categories (employment, family, and refugees) benefit the U.S. economy and contribute valuable members to the nation's workforce, Mr. Smith continues to push for restrictions on family-based and other immigration.

On the Senate side, Senator Abraham has indicated that INS reorganization will top his subcommittee's agenda: He plans to move a bill through the Judiciary Committee by August, and has expressed his concern that improvements in the adjudications of benefit applications (including business immigration petitions and applications) not be ignored in the reorganization process. The Senate Judiciary Immigration Subcommittee also will focus on oversight of the implementation of the new H-1B law, and Section 110. Specifics of these hearings are not yet available.

As the primary overseers of the Immigration and Naturalization Service (INS), both the Senate and House Immigration Subcommittees will hold hearings this year on INS reorganization. At the same time, however, Representative Harold Rogers (R-KY), Chairman of the House Appropriations Subcommittee for the Departments of Commerce, State, and Justice and the Judiciary (CSJ), the committee that controls the INS budget, most likely will continue to move his reorganization plan through his committee. During the last Congress, Representative Rogers pushed hard, but failed to get his INS reorganization bill passed and signed into law.

Business would be wise to pay attention to and participate in the debate on INS reorganization. Both are central to ensuring that INS adjudicates benefits in a timely, consistent and fair manner (including nonimmigrant and immigrant petitions for employees), and that adjudications are given equal weight with enforcement. In the recent past, Congress has tended to focus on beefing up INS enforcement, while allowing adjudications to languish. (For example, 80% of recent funding increases to INS have gone to enforcement). Representative Rogers' reorganization bill from last year drew opposition because of its silence on the services function of the INS (the provision of benefits through adjudication of petitions and applications). By focusing exclusively on enforcement, such a proposal would have devastated services.

In order to ensure that INS has some credibility with Congress to push for increased attention to services during the reorganization debate, the agency needs to make immediate, concrete improvements in how the agency processes applications. These improvements include: speeding up processing, eliminating unnecessary filings, and providing for longer validity periods for documents to reduce the need for successive filings. Without these improvements prior to reorganization, any plan would have a much reduced chance for success.

Businesses should weigh in with their members of Congress on the upcoming debates on INS reorganization. Please urge Congress to demonstrate its support for the adjudications function of INS by (1) appropriating adequate funding to ensure timely adjudications; (2) stressing the importance of the timely provision of benefit services when debating any reorganization legislation; and (3) including reasonable deadlines for INS to implement any changes, so that adjudications are not disrupted.

INS just announced that 80,983 H-1B petitions subject to the cap have been approved as of February 28, 1999. This figure includes 19,431 that were approved from May through September 1998 (during the last fiscal year) that count against this year's numbers, as well as 61,552 that have been approved thus far this fiscal year. For the last three months between 10,000-11,000 petitions have been approved each month. Given this rate, available H-1B numbers will be used up before the end of the fiscal year, probably by May if approval levels remain constant at the Service Centers. INS Headquarters has yet to determine how it will handle cases once the cap is reached. Business should contact their Representatives and Senators to tell them of this pending emergency, and ask them to support more H-1B visas this fiscal year.

The Department of Labor (DOL) announced that, effective March 2, 1999, all employers in the Eastern United State will be able to participate in a pilot program testing the automated processing of H-1B Labor Condition Applications (LCAs). The Automated Fax-In/Fax-Out System has been operating in Region III (covering the states of Pennsylvania, Delaware, Maryland and Virginia and the District of Columbia), and has proven successful in significantly reducing the waiting times for LCA approvals and using less DOL resources. Effective March 2, the system will be open to employers and their representatives seeking to employ H-1B nonimmigrants anywhere in the jurisdictions of Regions I, II, III, IV, and V (all states East of the Mississippi, plus Minnesota).

DOL promises that certifiable applications should be faxed back to the sender within seven days. However, many during the initial pilot reported receiving responses back within hours. DOL is hoping to extend this system nationwide in the next several weeks, once the equipment is installed and tested. At that time, employers in the rest of the country will be faxing their applications to San Francisco. A back-up system in Washington, DC also will be available.

As reported in the February 1999 issue of Connect!, the Department of Labor's proposed Fiscal Year 2000 Budget includes a provision to transfer all labor certification programs currently operating within DOL's Employment and Training Administration (ETA), to the Wage and Hour Division of the Employment Standards Administration (ESA). In conjunction with the proposed budget request, DOL recently announced its intention to transform the current labor certification application process (for employer-sponsored immigrants and H-2B temporary workers) into what they present to be a "streamlined" attestation program.

DOL has provided few details about the process, but stated that the new program, dubbed the "PERM" System (for Program Electronic Review Management System), is designed to address major problems of the current system, as viewed by DOL: These problems include a growing workload and backlogs, decreased resources for processing, loss of confidence in the current process, and "sham" recruitment (in which DOL-mandated recruitment does not result in job offers to U.S. workers). The PERM system would use automated computer systems to scan "attestation" forms filed by employers regarding their compliance with all regulatory requirements. A certain percentage of cases would be "audited" for compliance; the rest would be approved. The Department also would engage in "post-admission" enforcement, presumably conducting audits even after the foreign national has received his or her green card. Thus, even employers with "certified" attestations, could not be certain that their cases were, in fact, secure from further investigation and/or revocation.

DOL has not provided any details about the requirements for the "attestations," or the precise criteria for "approval." However, they have indicated that the standards will reflect existing DOL policies, which generally are restrictive. For example, any of the following could trigger further investigation by DOL: the foreign national is already in the job when the application is filed (which is normally the case given the current delays in green card processing); the employer has prior wage or labor standards violations; many foreign nationals in the employer's workforce; the employer has a history of hiring foreign nationals; the employer lists requirements for the job that do not match DOL's criteria; the employer used recruitment sources not recognized by DOL; or DOL believes there to be U.S. workers available in the local market.

Business organizations reacted to this proposal with a mixture of interest and skepticism. While the idea of a streamlined labor certification process is desirable, concerns with the Department's implementation, particularly given its recent proposals in the H-1B attestation program, must temper any enthusiasm. For example, DOL recently proposed in its draft H-1B regulations that employers engage in at least three different types of recruitment for a position, two of which must be "active," i.e.. actively soliciting applications directly from a targeted applicant pool. DOL also would mandate in these regulations that employers create large amounts of detailed paperwork to prove their compliance with the attestations. If implemented in the permanent program, these mandates could actually make the new program more burdensome than the current system.

Particularly troubling in the FY2000 draft budget is the proposal that the authority for and control of these programs would be vested in the investigatory arm of the Department, the Wage and Hour Division. Because the movement from ETA to Wage and Hour is in the Administration's budget proposal that Congress must approve, businesses should contact their Senators and Representatives to alert them to their concerns about this transfer of authority. In addition, businesses are urged to work with their attorneys to advocate for an improved labor certification process. (For more details regarding the proposals in the FY2000 DOL Budget, see the article in the February 1999 issue of Connect!.)

In a recent policy memorandum, the Immigration and Naturalization Service has articulated new priorities for its enforcement efforts within the nation's borders. The agency will be moving away from traditional raids on job sites, emphasizing instead operations against foreign criminals, alien smuggling rings, and fraudulent document shops to counter illegal immigration and reduce the number of undocumented workers in the United States.

These new priorities reflect the agency's commitment to enforcing the nation's immigration laws through nationally-set priorities applied consistently and professionally. INS will more efficiently use its resources in targeted enforcement against the most serious problems: foreign nationals who commit serious crimes in this country, criminal conspiracies to violate our immigration laws, and document counterfeiters whose efforts help evade our employment verification system.

These moves demonstrate INS' attempts to work "smarter" in its ongoing battle against illegal immigration. While border enforcement has increased significantly in recent years in response to Congressional mandates, little additional funding has been geared toward interior enforcement. Further, INS' own experience has shown that raids against employers have been ineffective, and have only caused open hostility toward the agency by businesses, U.S. citizens and immigrant communities impacted by these tactics.

INS's new priorities include developing new cooperative relationships with employers to encourage proper employment eligibility verification and changes in hiring practices. INS proposes to conduct announced audits and surveys, and to enlist employers in identifying illegal immigrants. Employers had complained that worksite raids, INS' most common enforcement tactic in the past, were severely disrupting. Employers indicate that they try hard to comply with employment verification laws, but the complicated system of documents needed, and the prevalence of fraudulent documents mean that many employers are simply unaware of illegal immigrants in their workforce. Workplace raids that robbed employers of half of their workforce in a single afternoon have caused havoc among employers in many areas of the country and in many industries. Further, INS initiatives to work with employers to assist them in identifying illegal immigrants in the workforce and complying with employment verification should also be welcome.

INS critics in Congress have reacted negatively to this news, claiming that INS is abdicating its worksite enforcement mission. However, the INS has stated that work-site enforcement will not end, but it will be emphasized less, since it has not shown itself to be productive.

For more information regarding employers' responsibilities in these areas, contact your immigration attorney.

Two recent studies discuss the skill level of recent legal immigrants and this country's workforce needs for the next century.

In a recent study conducted by the National Bureau of Economic Research (NBER), a group of economists and sociologists report that since the mid-1980's the average skill level of new legal immigrants to the United States has risen relative to the U.S. population. The October 1998 report, entitled "The Changing Skill of New Immigrants to the United States: Recent Trends and Their Determinants," was authored by Guillermina Jasso, of the Department of Sociology, New York University, Mark Rosenszweig of the Department of Economics, University of Pennsylvania, and James P. Smith of RAND, who worked under grants sponsored by the National Institute of Health, the National Science Foundation and the Immigration and Naturalization Service. The study reports that the increase in immigrant's skill levels results from several factors, including changes in immigration law favoring skilled immigrants, and changes in the relative economies of sending countries and the United States. The report further asserts that reductions in legal immigrant flows in response to concerns about declining skill levels could have the opposite result, by reducing higher skilled legal immigrants and encouraging additional lower skilled illegal immigrant flows.

A second report, "The Education/Skill Distribution of Jobs: How is it Changing?" was issued by the Congressional Research Service in August 1997. The report indicates that 2 out of 5 new jobs created between 1994 and 2005 will be for lower-skilled workers, (high school education or less). Further, existing low-skill jobs will require replacement as workers move up the career ladder. Combined, some 14.4 million new and existing jobs will be available for lower-skilled workers, approximately 50% of the total jobs in the economy. The report further states that the share of total jobs held by each skill category is likely to remain unchanged in the next several years. The CRS report also indicates that more openings will be created due to the need to hire workers to vacated existing jobs, rather than because of new job growth. The report concludes: "Employers are expected to continue to need workers from a variety of educational backgrounds for the new jobs that will be created through the early years of the next decade."

The above information comes at a particularly opportune time, as Members of Congress are looking closely at the skill levels of immigrants, both family-sponsored and employment-based, and examining possible changes, such as reducing immigration levels, to more closely meet the needs of employers and the economy. However, with one study indicating that skill levels of immigrants are increasing, and another report indicating the continued need for workers at all skill levels in the economy, together these reports should serve to remind Members of Congress and the business community of the importance of supporting both family- and employment-based immigration of people of all skill levels.

Department of Labor case statistics for Fiscal Year 1998 (ending September 30, 1998):

Permanent Labor Certifications: 115,000 applications pending at the state Job Service offices; 30,000 at the nine Regional Offices; 60,000 new cases were received during the year . Processing times range from 14 months to 4+ years.

H-2A (Temporary Agricultural workers) and H-2B (Temporary Non-Agricultural Workers): about 15,000 total cases processed last fiscal year.

H-1B (Temporary Specialty Occupation Workers): Processed Labor Condition Applications (LCAs) covering about 250,000 jobs.

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.

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