Vol. 1, No. 6, May 1999

CONGRESSIONAL NEWS

Almost midway through the first session of the 106th Congress, several bills have been introduced that could affect business immigration, including budget proposals from the Immigration and Naturalization Service (INS) and Department of Labor (DOL) that have important implications for business. Business immigration issues also have been the subjects of several Congressional hearings. Here is a review of the ongoing business immigration agenda in Congress and the agencies, and the status of legislation:

• H-1B Visas: Although last year Congress increased the number of available H-1B visas to 115,000, increased demand has resulted in another visa shortage as early as this month. Prospects for another increase this year are slim. Senator Spencer Abraham (R-MI), who championed the bill last year against tough opposition in the House and the White House, faces a difficult reelection in 2000. He has indicated that he will not introduce new legislation unless the Administration indicates its support. However, employers need to alert their Members of Congress to the seriousness of this situation, to help build a foundation for future legislation before the cap returns to 65,000 in 2001.

• Reform of Employment-Based Immigration System: The H-1B visa crisis is a symptom of larger problems with the current employment-based immigration system, which is complicated, cumbersome, and time-consuming for employers to use. While Chairman Lamar Smith (R-TX) has been discussing a major legal immigration reform for several years, he has not yet introduced any legislation. However, he has been holding a series of House hearings during which he has focused on such issues as skewing the immigration system toward higher-skilled immigrants (at the expense of visas for non-professionals and family visas), and ongoing fraud in employment-based temporary visa categories. Business must be pro-active in this debate in order to ensure that any "reforms" of the system adequately address business needs and produce a fair, efficient and workable immigration system, and not result in more complicated bureaucracies.

• INS Reorganization: While no legislation has yet been introduced on INS reorganization, the crisis at INS has been a major topic of discussion on Capitol Hill, both in the Immigration and Appropriations Subcommittees. Continuing problems with INS adjudications and criticism of INS enforcement policies have garnered media attention as well. Senator Abraham has been working on legislation that he hopes to move through Committee by August. In the House, the reorganization charge is expected to be led once again by Representative Harold Rogers (R-TX), Chairman of the Commerce, State, Justice Appropriations Subcommittee. Employers need to make sure that the adjudications of benefits are not adversely effected in any reorganization, and, in fact, are supported by adequate funding and authority.

• Labor Certification and DOL Issues: The President's FY2000 budget for DOL contains a proposal to transfer all foreign labor certification programs (including those for H-1B workers, temporary non-professional workers, agricultural workers, and employer-sponsored green cards) from the Employment and Training Administration (ETA) to the Wage and Hour Division of the Employment Standards Administration. DOL also unveiled a proposal to reform the permanent labor certification program. While the business community is generally supportive of efforts to reform the labor certification program, many also oppose the proposed management shift, which would put DOL's enforcement arm in charge of this adjudications program. Both the House and Senate Appropriations Committees are considering DOL's budget request, which Congress must approve. Employers have been alerting their Representatives and Senators to their concerns with this transfer of authority, and are hoping to defeat it, while obtaining increased funding for the reform of the program under ETA.

• Entry/Exit Controls: Bills have been introduced in both the Houses of Congress would rewrite Section 110 of the 1996 Immigration Reform Act ("IIRAIRA"), which mandated a new automated entry/exit control system at all land borders and sea ports. Legislation signed last year delayed, but did not repeal, the systems' implementation until March 31, 2001. Business and trade organizations oppose this mandate because it would create massive gridlock at our borders with Canada and Mexico and severe delays at our sea ports, harming this country's trade, travel and tourism industries. In March, Senator Abraham introduced S. 745, the Border Improvement Act of 1999, which would replace the mandate of Section 110 with a one-year feasibility study to determine the costs of developing the technology and infrastructure for such a system, and the impact on legitimate cross-border traffic. This bill also authorizes additional resources for INS and Customs inspectors and Border Patrol, to relieve current border congestion and improve detection and apprehension of illegal entrants, drugs and terrorists before they enter the United States. Representatives Jon Upton (R-MI), Henry Bonilla (R-TX) and John LaFalce (D-NY) introduced a companion bill, H.R. 1650, in the House in April, with 44 co-sponsors. While Representative Smith continues to be the major obstacle to Section 110 reform, advocates are hoping that with sufficient support in Congress, this obstacle can be overcome.

• Nurses: Early this year, members of the Illinois Congressional delegation introduced companion bills that would create a new temporary visa category for foreign nurses who will work in health shortage areas throughout the country. S. 455 and HR 441, introduced by Senator Richard Durbin (D-IL) and Representatives Henry Hyde (R-IL) and Bobby Rush (D-IL), respectively, would create a new H-1C category of 500 visas per year, with no more than 50 visas available to each state. The nurses could work only at hospitals located in Health Professional Shortage Areas (mainly inner cities and rural areas), where the hospital has documented that an extreme nurse shortage has hurt its ability to provide services. The hospital would be required to document its steps to recruit and retain U.S. nurses before applying for a visa, and must ensure that the foreign nurses are paid the prevailing wage and are not hurting U.S. nurses' working conditions. The House Judiciary Committee passed the bill last month, but floor action is not yet scheduled. The Senate committees have yet to mark up their bill.

• Agricultural Workers: Under pressure from agricultural employers and support from farm-state Senators, the Senate last year passed a bill that would have reformed the current temporary agricultural worker program. However, legislation stalled in the House in the face of intense opposition from immigrant and labor advocates who criticized the bill for reducing worker protections. While no bills have yet been introduced during this session of Congress, the Senate Immigration Subcommittee held a May hearing on the topic, hoping to reach some compromise.

The last several issues of Connect! have reported on the series of immigration hearings held by House Immigration Subcommittee Chairman Lamar Smith (R-TX). Mr. Smith continued his hearings with one in May focused on issue of nonimmigrant visa fraud, and recently publicized fraud schemes in the H-1B and L-1 visa categories.

In his opening statement, Chairman Smith labeled nonimmigrant visa fraud as yet another means to facilitate illegal immigration to the United States. He especially emphasized fraud in the employment-based H-1B and L-1 categories, highlighting recent cases of fraud in Russian and Chinese L-1 cases and Indian H-1Bs. In the L-1 cases, the fraudulent schemes included attempts by the Russian mafia to use the L-1 visa as a means of channeling drug money to the United States, and attempts by Chinese nationals to set up dummy corporations in order to move to the United States. In the H-1B cases, the fraud involved falsification of educational credentials and experience letters by Indian nationals seeking H-1B visas.

Ranking Minority Member Sheila Jackson-Lee (R-TX), in her opening statement, acknowledged that visa fraud is a serious problem that must be addressed, but emphasized that fraud in the employment-based programs is the exception and not the rule and that, while fraud must be combated, legitimate visa applications should not be discouraged.

Witnesses included representatives from the State Department and Justice Department Offices of the Inspectors General, the INS, the State Department Visa Office, and representatives from the immigration and business communities. The government witnesses generally testified to the potential for fraud in the petition-based nonimmigrant visa categories, especially the H-1B and L-1 categories, and highlighted stories of the recent Chinese and Russian L-1 investigations and Indian H-1B cases. The State Department representatives called for "tightening up" the requirements for those two visa categories, so that "marginally qualified" cases would no longer be a problem. A business immigration attorney testified to the difference between "objective" fraud, such as counterfeiting documents and making documented false statements on a visa application form, and "subjective" fraud, where the "intent" of the applicant is at issue. He also testified that the rate of fraud relative to the total number of applications for visas is very small, and fraud investigation should not get in the way of efficient processing of legitimate cases. This refrain was echoed by another witness from the business community, who advocated that large employers who file many visa cases, and who are rarely involved in fraud, should have a way to have their cases adjudicated expeditiously, without sacrificing the necessary fraud deterrents.

Mr. Smith used the hearing to criticize INS enforcement efforts and to push an overall reform of the system due to fraud. In fact, both Mr. Smith's comments and the tone of the hearing led press reports to emphasize that fraud is rampant. Mr. Smith highlighted an article in The Washington Times that reported on the hearing headlined "Smugglers, criminals abuse visa program" by sending a "Dear Colleague" letter to the House in which he inferred that the fraud was taking numerically limited H-1B visas from legitimate companies.

The Smith hearings support the allegation that business immigration is rife with fraud. Business advocates must educate Congress about the valid uses of these programs and the need of business for workable immigration programs in order to maintain America's global advantage.

INS' new worksite enforcement policies have put many employers on the horns of a dilemma. While most employers seek to comply with the law and try to avoid hiring undocumented workers, the prevalence of fraudulent documents often makes it difficult for employers to know which employees are documented and which are not. In the current environment of extraordinarily low unemployment, the loss of workers that results from INS enforcement activities can mean significant financial losses. While the new INS "employer-friendly" enforcement strategies have drastically reduced the incidences of disruptive and sometimes violent workplace "raids," the new policy of pre-announced inspections is having the same effect – employees leave the job with no notice, and leave the employer in the lurch.

Workers rights groups fear that INS is trying to use employers as its enforcement "agents," by threatening them into investigating their own workforce. Employers are also reluctant to examine their employees too closely for fear of being able to replace undocumented workers. In many cases, the workers themselves decide to leave. In addition, even legal workers are sometimes afraid of the INS investigations, because of horror stories of abuses and erroneous status determinations, as well as the negative picture of government agents in their home countries, that they will flee rather than be "interviewed."

The INS initiative known as "Operation Vanguard" spotlights the problem. In this enforcement operation, the INS has been investigating meatpacking and processing plants in Nebraska and Iowa, which have been magnets for undocumented workers in the past. INS launched its investigation by asking DOL for lists of all companies in Nebraska listed as meatpackers or processors. It then followed up by subpoenaing the employment forms of workers in plants across Nebraska, reviewing approximately 26,000 records, and cross-checking them with Social Security, Department of Motor Vehicles and other federal records. In mid-April, INS investigators met with industry representatives, handing out lists of suspected undocumented workers and requesting interviews with the workers and the employers.

Hispanic groups immediately criticized these "hit lists" and accused the INS of unfairly targeting Hispanic employees. Employers criticized the agency for unfairly targeting their industry and complained that they could not be expected always to know their workers' status. Employers also feared the economic impact to their industry of a long investigation in which many workers were lost. In early May, INS began its interviews at five plants in Nebraska. At one plant, 60% of the persons named on the INS list had left the company's employ before their interviews could take place.

Members of Nebraska's Congressional delegation met together in mid-May to discuss the impact of this operation on the cattle and meatpacking industries and on communities across the state due to the rapid loss of workers. Although INS reports that only one arrest has been made thus far after interviews with several hundred workers, the agency stated that the mass resignations are an indication that the program is working, since its goal is to deter undocumented workers from seeking employment in the meatpacking industry.

The ultimate outcome of Operation Vanguard is uncertain, but a similar operation last year in Washington State's apple industry resulted in thousands of workers being terminated and employers faced with losses in harvesting and packing the apple crop.

The House Immigration Subcommittee will hold an oversight hearing on the Immigration and Naturalization Service's new interior enforcement strategy designed to address illegal immigration problems on May 27, 1999. As reported in previous issues of Connect!, the strategy addresses criminal aliens, alien smugglers, people who use and sell fraudulent documents, workplace practice s involving illegal immigrants, and involvement of local law enforcement. Connect! will report on this hearing in the next issue.

REGULATORY NEWS– Federal Agency Activities

In mid-May, INS informed Congress that 103,753 H-1B visas had been allocated against this year's cap of 115,000. This figure actually represents a slow-down in processing from earlier months – a result of INS's decision in April to stop processing H-1B cases at three of the four Service Centers. The California Service Center (CSC), which had the greatest backlog of cases pending, was allowed to "catch up" to the other service centers, in hopes of an equivalent distribution of the H-1B visas. In early May, INS Headquarters announced that the Nebraska and Texas Service Centers could resume processing, although the Vermont Service Center (which had the smallest pending caseload) is still on hold. At this point, it appears that most cases filed by the first week in April will be able to be decided before the cap is officially reached.

INS is expected to post an announcement in the Federal Register in the next few weeks notifying the public of the expected reaching of the cap, INS policies regarding pending cases, and its counting methodology. This policy has been under review at the agency and in the White House for the last several months, but details have yet to be released.

On the labor front, DOL still is having problems with the fax-back system for Labor Condition Applications (LCAs). Weekly "glitches" are continuing to be uncovered that take down one or both of the two fax lines in Philadelphia and San Francisco. While each bug is eventually resolved (DOL has only one programmer working on this!), significant delays and backlogs have developed.

DOL originally had hoped to have the system operational in time to shift completely away from its old manual processing when the new LCA form was introduced and regulations implementing last year's H-1B law were finalized. However, because of these ongoing problems, DOL will not mandate use of the system in its publication of the interim final regulations on H-1B visas expected in the next month. Connect! will report on the new regulations when they are published.

INS Expands Health Care Worker Certifications: In December 1998, INS published a regulation implementing the certification requirement for health care workers enacted in 1996. However, the rule only addresses nurses. In May, INS amended this regulation to allow the Commission on Graduates of Foreign Nursing Schools to issue the required certifications for physical and occupational therapists as well, approving that organization's commercial "Visa Screen" for use in these occupations.

DOL Publishes Reduction in Recruitment Program for Comment: Although DOL has been operating its Reduction in Recruitment (RIR) and limited review programs in the permanent labor certification process since October 1996, under a recent settlement in a California lawsuit the Department actually has published these programs for comment in the Federal Register. The lawsuit, Lauretta v. Herman, accused the DOL of improperly changing its procedures without public notice and opportunity for comment, as well as providing preferential treatment for RIR cases at the expense of traditional labor certification cases.

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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