Vol. 1, No. 5, April 1999

Many businesses currently are facing a major dilemma: skilled foreign workers are being forced to leave the country to await their green cards. Most of these workers have been working for their companies for many years and their companies have begun the permanent residence sponsorship process. Many of these workers are in the U.S. on temporary visas, such H-1B or L-1, but their time limit is running out, and, because they happen to be from India or China, they still have to wait several years before a green card is available. This situation is largely the result of "per-country" limits, an annual quota on the total number of employment-based green cards that can be given to nationals of any single foreign country.

Per-country limits originally were imposed on employment-based immigration categories in 1986, as a way to ensure that no single country "gobbled" up all of the available visas. However, the current limit (9800 visas) applies equally to all countries, regardless of their population or emigration history. Further, while India and China have used up their limit the last few years, many smaller countries never use up their quota. Last year, almost 50,000 employment-based visas thus went unused.

Per country limits apply to all employment-based visa categories, including the categories for foreign nationals with extraordinary ability in their field, foreign nationals whose presence in the U.S. is in the "national interest," outstanding professors and researchers, and multinational managers and executives. Because of these limits, individuals whom the INS has determined qualify in one of these categories, the most preferential foreign worker, still must wait many years to get their green cards.

Last year, the Senate attempted to deal with this issue. A provision was included in the H-1B bill that passed the Senate last year that would have allowed countries with backlogs to use visas unused by other countries in the same fiscal year. This provision would have created a relief valve from per-country limits, as long as visas were available. However, the House refused to consider this provision and it was dropped during House and Senate negotiations.

Employers thus are faced with an ongoing dilemma. Many are sending workers to overseas affiliates until their turn in line is reached and they can return to the U.S. with their green cards. Other companies send these workers home and hope that they will not accept other employment from foreign competitors before they can return. In any case, this situation is costing U.S. employers millions of dollars in lost productivity.

Since any solution to this problem requires Congressional action, business should contact their Representatives and Senators and alert them to the seriousness of this situation.

As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Congress enacted a provision (Section 110) that required the INS to implement, by September 30, 1998, an "automated entry-exit system" that would track all foreign nationals coming and going from the United States at all our ports of entry. After business, trade, and tourism organizations, as well as our Canadian and Mexican neighbors, complained that such a system would effectively shut down our northern and southern borders, and the INS admitted it had neither the technology nor resources to implement such a system, Congress last year agreed to delay the implementation for land borders and seaports until March 30, 2001. While the delay was welcome, opponents of Section 110 are still looking for a permanent solution. In March, the fight began anew, with Members of both the House and the Senate introducing bills that would repeal Section 110

Representative John LaFalce (D-NY) and 14 House co-sponsors introduced H.R.1250 in late March. This bill, the "Border Improvement and Immigration Act of 1999," would require implementation of an automated entry-exit system only at airports by October 1, 2001, and would prohibit implementation at any land border or seaport. The bill also would exempt from the system Canadians and others who currently do not need visas, and would require the Attorney General to complete a one-year feasibility study on the possibility of implementing an entry-exit system at land borders and seaports. Finally, the bill would require INS and the Customs Service to assign additional inspectors at land borders during the next three fiscal years.

On March 25, Senator Spencer Abraham (R-MI) introduced, with 22 co-sponsors S.745, the "Border Improvement and Immigration Act of 1999". This bill, identical to the bill that the Senator shepherded to approval last year, also would mandate implementation of an entry-exit system at airports, but would repeal the mandatory implementation date for land borders and sea ports. Like H.R. 1250, this bill would require a feasibility study to determine if the creation of an automated entry-exit system for land borders and seaports is possible and would Canadians and others not required to have visas from the new system. The bill also would require annual reports to Congress on the implementation at airports and that the system be able to identify visa overstayers. Finally, the bill would authorize additional funding for increased immigration inspectors and Customs agents at the Northern and Southern borders as well as resources for improved technology at the borders to fight drug trafficking and terrorism, while facilitating the entry of legitimate trade and commerce.

In addition to these bills, Representatives Fred Upton (R-MI), Henry Bonilla (R-TX) and LaFalce shortly will introduce a counterpart to S. 745 in the House.

Businesses that rely heavily on cross-border trade and tourism should be concerned about the potential implementation of Section 110, and should encourage their Representatives and Senators to co-sponsor this important legislation. For more information about Section 110 and its potential implications, or how to contact Congress, speak with your immigration attorney.

The House Immigration Subcommittee in late March held a hearing to review the "benefits to American workers, businesses, citizens and legal residents of more educated immigrants." Building on his rhetoric from an earlier hearing, Representative Lamar Smith (R-TX), Chair of the Subcommittee, alleged that the continuing admission of lower-skilled immigrants would negatively impact the U.S. economy. Representative Smith appeared to use this hearing to generate support for a high school education requirement for family-based immigration. However, testimony at the hearing from some business community representatives did not endorse the Chairman's claims.

The first panel of witnesses, consisting mostly of academics invited by the Chairman to testify, stressed that the country needs to change its immigration system to favor skilled immigrants. Most supported a "point" system for both family- and employment-based immigration that would reward more points for higher skill levels. However, a business immigration attorney from Texas who represents major companies in that state testified about businesses needs for immigrants of all skill levels. She urged Congress to solve problems in the existing employment-based system, especially eliminating per-country limitations and processing backlogs at both INS and the Department of Labor.

A representative from the U.S. Chamber of Commerce noted that member companies' ongoing workforce needs would include workers at all skill levels, and that the Bureau of Labor Statistics has reported that some of the fastest growing occupations are in jobs that require little or no formal education and minimal training. Joining the Chamber's representative was a representative from the American Electronics Association who testified to the ongoing shortage of high-tech workers. When pressed by Representative Smith to confirm that these jobs all required at least a high-school education, the AEA representative noted that many jobs in the high-tech manufacturing sector do not require a specific educational degree, and that far more important than degrees are the skill sets workers have.

Also testifying at the hearing were two researchers from the Law Library of Congress who reviewed the current "point" based immigration systems in Canada and Australia. In commenting on these presentations, however, Representative Zoe Lofgren (D-CA) noted that the immigration systems of both of those countries are much smaller than that of the U.S., and that both countries' economies currently are in much worse shape than ours. The final witness, an immigration attorney representing manufacturing giant Ingersoll-Rand. testified that her clients also are looking for employees at all skill levels. She noted that an Ingersoll-Rand subsidiary in Texas could not find trained welders. While the subsidiary recruited heavily, and even had started a training school, it still could not hire enough people, but finally found a group of qualified welders in Mexico. However, because the red-tape involved in the immigration process made that option impossible, the subsidiary currently is looking at moving the project overseas. This witness also emphasized the need to deal with problems not in the family-based categories, but in an employment-based immigration system that does not work to the benefit of U.S. employers including eliminating per-country limitations and dealing with the backlogs.

As reported in the last issue of Connect!, Representative Smith asserts that he supports increasing the overall skill level of immigrants coming to this country as a way to help U.S. businesses. However, he has shown reluctance in the past to support increases in employment-based immigration, such as the increase in the H-1B cap. Further, data increasingly shows that while the skills needed to accomplish many current and future jobs will continue to increase, some of the fastest growing and hardest-to-fill jobs in the current economy are at the entry level. Businesses have a stake in continuing to ensure that America's immigration system offers a much-needed supplement to the domestic workforce during periods of severe shortage, such as we are currently experiencing, and should urge their Members of Congress to support a fair and workable business immigration program.

Employers sponsoring foreign nationals for work visas know that INS processing of applications and petitions for various immigration benefits (including temporary work visas, green cards, and naturalization) has slowed to a crawl at almost all of the Immigration and Naturalization Service's (INS') processing locations. This meltdown has led to increasing uncertainty for immigrants and employers as cases are held in limbo for months, if not years. As Congress ponders the INS' latest budget request and various initiatives to restructure the agency, business leaders and employers must make Senators and Representatives aware of the damage that these backlogs are causing.

Recent processing times tell the story. Due to the backlogs and lack of adequate funding, cases are delayed and/or inconsistently processed at the four regional service centers. The times for deciding applications vary widely. For example, petitions for temporary workers (Forms I-129 for all categories) range from two weeks in Vermont to almost six months in California. Petitions for immigrant workers can take from one month in Vermont to almost a year in Texas. This inconsistency results in unfair disparate treatment for employers, depending on their geographic location. In some cases, long delays can result in failure to receive a benefit.

The problem has arisen due to many factors: rapid changes in the immigration laws over the last several years that require the agency to adjust its decision-making quickly; lack of adequate funding to support adjudications functions; recent drastic increases in the number of filings in all categories without any concurrent increase in resources; ongoing technology problems with systems designed to help the agency cope with the increased workload; and agency policies that require more, not less, work on their part. In addition, although the INS has received massive increases in funding and much exposure over the last several years, almost all of this funding and attention has been directed at the agency's enforcement efforts and naturalization adjudications. This emphasis has been to the detriment of the agency's other services mandates.

It is important that businesses who use the immigration system let their Members of Congress know that timely and efficient provision of benefits services is as important as enforcement and naturalization, and demand that Congress turn its attention to these issues.

In the last issue of Connect! we reported that the Department of Labor had opened up its "pilot program" for automated fax-back processing of H-1B Labor Condition Applications (LCAs) to all employers in all regions of the country. However, since the new systems went "on-line" it has been plagued with problems, has been down approximately 60% of the time, and has resulted in more frustration than the system it was designed to replace.

On March 2, the DOL announced that employers in the eastern United States (DOL regions I through IV) could use the automated fax-back system in Philadelphia. The system for the rest of the country, located in San Francisco, was placed "on-line" a couple of weeks later. Almost immediately the two systems were flooded with applications, crashing the computer systems, and requiring use of the in Washington, DC back-up system. However, within days, the DC system was also down, leaving many employers and their representatives in various states of limbo.

The fax-back system employs computers to "read" and approve specially-formatted LCAs. However, the computers have experienced tremendous difficulties. Problems have included everything from simple delay to rejections for no reason, to approvals without necessary certifications. In many cases, applications have simply disappeared into a black hole, never to be heard from again. (DOL has yet to establish a uniform mechanism for checking on an LCA that has been filed.) No one knows if the problems stem from a fundamental flaw in the process or if it can operate under normal capacity but simply broke down under the demands of heavily increased filings in light of the approaching H-1B cap. DOL has stated that it currently has an outside contractor rewriting some of the software used in the procedure to correct the current problems, but it could be a few weeks before that fix is in place.

In the meantime, employers and their attorneys do have some options and guidelines for determining how to go about getting an LCA approved. DOL has reopened the DC backup system to the entire country (202-208-7506). However, given the time-pressure to file H-1B petitions before the cap is reached, employers should back up their efforts by using the traditional filing methods wherever possible.

INS recently reported to Congress that 92,638 H-1B visas had been used through the end of March 1999 (with 19,431 actually approved last year against this year's cap). In spite of legislation passed last year that increased the cap on H-1B visas, businesses once again are faced with the impending exhaustion of this year's H-1B visas. INS currently believes the cap will be reached in May of this year.

INS officials are discussing certain policy decisions about counting the remaining visas, and what to do with cases pending when the cap is reached. These decisions are being made in the next couple of weeks at the highest levels within the agency and in the White House. Some major considerations include: the proper methodology to count the visas under the cap; the impact on areas of the country where H-1B processing has been backlogged; whether pending change of status cases should be adjudicated before the next fiscal year; and the impact of this decision on the ability of those foreign nationals to maintain status.

While most Members of Congress believe that the H-1B "problem" was dealt with last year, most business organizations recognized that without some sort of relief valve, the cap would be hit again this year. The outlook for legislation this year that would increase the H-1B cap is very uphill. However, any success will depend on Congress being alerted to the situation by employers directly affected.

Congressional leaders are continuing to hold hearings on many immigration issues of interest to businesses. While national organizations often testify on behalf of their members at these hearings, many Senators and Representatives try to get witnesses from their home districts to "bring the issue home." If your company has a particular interest in a facet of business immigration, you may be a candidate to testify in Washington. You can make these requests through your Senator or Representative, or through the staffs of the House and Senate Immigration Subcommittees. For more information about how, contact your immigration attorney.

The Department of Labor has stated its intention to publish interim final regulations on the H-1B program by the end of May. The regulation is being drafted within DOL and, once cleared within the Department, will be sent to the Office of Management and Budget for review. Upon publication in the Federal Register, there will be another opportunity for the interested public to comment. Connect! will report on the final rule when it is published.

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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