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May
2000 Newsletter **U.S.
IMMIGRATION NEWS** May
2000 Published
by: ImmigrationLinks.com,
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***************************************************** The Office of the Vice President Announces an THE
WHITE HOUSE For
Immediate Release STATEMENT BY THE VICE PRESIDENT Today the Administration is sending to Congress legislation that amends section 249 of the Immigration and Nationality Act (INA) to allow qualified long-term migrants who have resided in the United States since 1986 to become lawful permanent residents. The INA registry provision has existed in this country since 1929 and has enabled many long time migrants in the United States to develop substantial ties to this country including the establishment of families, homes, and communities. Despite the fact that the registry has changed several times since 1929, the last time being 1972, many long-time migrants still remain outside mainstream society. I believe that revising the registry date from 1972 to 1986 would not only provide humanitarian relief to many long-term migrants, but also reduce or eliminate the need to continue litigating some of the large class actions still lingering from the 1986 legalization program. I commend leaders in Congress on this issue: Representatives Sheila Jackson Lee (D-TX), Lucille Roybal-Allard (D-CA), and Luis Gutierrez (D-IL) as well as Senators Harry Reid (D-NV) and Edward Kennedy (D-MA). The Administration is committed to the overall fair and even-handed treatment to immigrants with substantial ties to this country. This legislation ensures that they will remain a vital part of our society for years to come. That is why I urge Congress to give this important legislative proposal a prompt and favorable consideration. ********************************************************** Court Overturns Illegal Border Stops Based on
Hispanic Appearance
April 12, 2000San Francisco, CA
– A federal appeals court has ruled that Border Patrol agents may not consider
a driver's Hispanic appearance when deciding whether to stop someone for
suspected smuggling or illegal entry. The 9th U.S. Circuit
Court of Appeals, in a 7-4 ruling, held that because Hispanics make up a large
and growing part of the population, ethnicity should be irrelevant in deciding
whether there is reasonable suspicion to stop them.
Judge Stephen Reinhardt, writing for the majority stated that “stops
based on race or ethnic appearance send the underlying message to all our
citizens that those who are not white are judged by the color of their skin
alone ... that they are in effect assumed to be potential criminals first and
individuals second.” The US Supreme Court
had ruled in 1975 that the Hispanic appearance of a driver or passenger was not
enough, by itself, to justify stopping a vehicle.
However, the court also said ethnic appearance was a factor that an
officer could consider along with others. Tuesday's ruling
came in the case of German Espinoza Montero Camargo and Lorenzo Sanchez Guillen.
The two were in separate cars when they were stopped in October 1996 in El
Centro, about 50 miles north of the Mexican border. Although, the
appeals court ruled that Border Patrol agents improperly considered racial
appearance in deciding to stop the two drivers, it unanimously ruled that agents
still had other valid reasons to confront them - including their tandem U-turns
shortly before reaching the checkpoint. Both the Immigration
Service and federal officials said they were satisfied with the ruling because
it already is the Border Patrol's policy not to make stops solely based on race. **************************************************************** CONNECT! A Monthly Newsletter on Business Immigration
H-1B Cap Reached; INS Requires New Form to Collect H-1B Information The
INS announced in the Federal Register on March 21 that it had enough approved
petitions and cap-subject cases filed at the four Service Centers to reach the
FY 2000 limit of 115,000 new H-1B approvals.
According to the notice, the INS no longer will accept petitions asking
for a date before October 1, 2000. However,
due to pending legislation, the INS has agreed that petitioners who state
“October 1, 2000 or earlier” on the petition form will be eligible for any
new visas made available this year. The
INS also has stated that it will extend the nonimmigrant status of F-1 and J-1
students with pending H-1B change of status petitions.
However, their work authorization will expire with their current
practical training permission. INS
also announced in March that a new Form I-129W must be submitted with all H-1B
petitions, including change of employer and extension of status cases. The INS will use this new form to collect information
required by the 1998 H-1B law, and to determine whether or not the petitioner is
required to pay the $500 “training fee.” All petitions filed after March 30,
2000 must include this new form. Employers
are urged to consult with their immigration attorney about the impact of these
announcements on any pending or future cases.
CONGRESSIONAL NEWS: House Begins H-1B Roller Coaster Ride The
House of Representatives following the Senate lead, took up in March the issue
of increasing the H-1B cap. Representative
Lamar Smith (R-TX), Chairman of the House Immigration Subcommittee, along with
Representatives Tom Campbell (R-CA), Bob Goodlatte (R-VA), and Chris Cannon
(R-UT), introduced H.R. 3814, the Technology Worker Relief Act of 2000.
The employer community strongly denounced this measure which included
provisions that would increase the number of H-1B visas (by only 45,000 visas)
for the current fiscal year alone, but tie this increase to the Department of
Labor issuing final regulations implementing the 1998 H-1B law, thereby holding
the additional visas hostage to bureaucracy.
In addition, in order to apply for the additional visas, an employer must
demonstrate that in the last year it has increased its overall employment of
U.S. workers, its total payroll provisions in the United States, and its median
salary levels. The increased employment and payroll provisions amount to a new
no-layoff attestation on all employers and make no sense in the current business
climate where many companies need to let go of unprofitable departments and
projects, but may still need the particular expertise of an H-1B non-immigrant
in a new project. Other provisions
of the bill included permanent changes to the H-1B program, requiring that H-1B
non-immigrants only work full-time (at least 35 hours per week) and eliminating
experience equivalence to a degree for H-1B beneficiaries. Following
the introduction of the Smith bill, a bi-partisan group of Representatives, led
by David Dreier (R-CA) and Zoe Lofgren (D-CA), introduced H.R. 3983 on March 15.
The Helping to Improve Technology Education and Achievement (or HI-TECH Act) has
strong bi-partisan support from key Representatives, including Dick Armey
(R-TX), the Majority Leader, Tom Davis (R-VA), the chairman of the Republican
Congressional Campaign Committee, and Representative Patrick Kennedy (D-RI),
chairman of the Democratic Congressional Campaign Committee.
Minority Leader Richard Gephardt (D-MO) also has indicated his support
for the measure. H.R. 3983 would:
The
business community immediately hailed this bill as a balanced approach that
would allow for a reasonable increase in the cap while also emphasizing the
continuing need to educate and train U.S. workers for future high-tech
positions. While some proponents
still are concerned about the impact of the increased visa fees on non-profits,
small businesses and state and local governments that are increasingly using the
H-1B program, H.R. 3983 offers the best chance to successfully move an H-1B bill
through the House. In fact, this measure continues to generate bipartisan
support as evidenced by growing a list of co-sponsors from both sides of the
aisle. However,
Chairman Smith is continuing to try to exert his influence.
He recently introduced a “new” version of his H-1B bill, H.R.
4227,and scheduled a markup in the Immigration Subcommittee directly after
introduction. Still named the Technology Worker Temporary Relief Act, the bill
is very similar to the earlier H.R. 3814. While
this new bill would eliminate the H-1B cap through FY 2002, it also would
maintain most of the same restrictive provisions on the use of these visas that
were in his earlier bill: tying additional visa numbers to the INS and
Department of Labor (DOL) issuing regulations from ACWIA; requiring employers to
attest that they have hired more U.S. workers and have a higher total and
average payroll than in the previous year; eliminating part-time H-1Bs and work
experience equivalencies; and requiring employers to have gross assets of at
least $250,000. H.R. 4227 also adds additional poison pills, including requiring
DOL to post on the Internet the name and personal data of all H-1B recipients,
setting a minimum pay of $40,000 for recipients, and eliminating the use of B-1
visas in lieu of H-1Bs. The bill
also would mandate that the State Department count H-1Bs and certify foreign
degrees. Finally, H.R. 4227 would require that all H-1B professionals in
teaching positions demonstrate English language proficiency. In
his opening statement at the subcommittee markup, Representative Smith
reiterated that “there is still no objective, credible study that documents a
shortage of American high-tech workers,” and called for increasing the skill
levels of family-based immigrants. Democratic
members urged Chairman Smith to address other important immigration issues this
year, including granting relief to Central Americans who were bypassed by recent
laws and individuals who were unfairly blocked by the government from applying
for the amnesty program in the mid-eighties.
Other members of the subcommittee urged that agricultural worker issues
be addressed as well. While
Representative Lofgren offered H.R. 3983 as a substitute for the Chairman’s
bill, the amendment was withdrawn on a technicality, and H.R. 4227 was passed by
a voice vote, although many Democrats voted against the bill. Following
the markup, employer groups announced that H.R. 4227 does not respond to the
need for educated professionals because it makes any additional numbers
virtually inaccessible, and reiterated their support of H.R. 3983.
Since Representative Dreier (who is Chairman of the House Rules Committee
-- which functions as the arbiter for how and which bills get to the floor for a
vote) is the original sponsor of
H.R. 3983, employer advocates are hopeful that his bill will be the vehicle that
ultimately passes the House. However,
advocacy is needed to ensure this happens.
Business immigration advocates should urge their Representatives to
co-sponsor H.R. 3983 and pressure House leadership to move that bill to the
floor as soon as possible. Senate H-1B Bill Passes Committee, Heads to Floor The
Senate Judiciary Committee on March 9 marked-up and passed (by a 16-2 vote) S.
2045, the American Competitiveness in the 21st Century Act. S. 2045 is sponsored by Judiciary Committee Chairman Orrin
Hatch (R-UT) and Senator Spencer Abraham (R-MI), among others. The
two Senators voting against the bill were Edward Kennedy (D-MA) and Russ
Feingold (D-WI).
Senate leadership originally hoped to bring the bill to the Senate floor
for a vote the week of April 10, but postponed that schedule when time
constraints prohibited quick consideration before the Easter recess.
However, Majority Leader Trent Lott (R-MI), has stated it will be
scheduled as soon as possible after the Senate reconvenes on April 25. During
debate, the Committee adopted two amendments to the base bill: a Feinsten/Abraham
provision that would redirect H-1B fees to K-12 education and National Science
Foundation-run low-income college scholarship programs; and one offered by
Joseph Biden (D-DE) that would address the so-called “digital divide” by
providing funds to install computers and hire computer trainers at Boys and
Girls Clubs nationwide. Both of
these amendments, and the debate they generated, suggest the importance of
education and training of U.S. workers and the need to retool our education
system. The
Committee also defeated (by a 10-8 vote) a substitute amendment offered by
Senator Kennedy. The substitute,
which the Senator may introduce as a stand-alone bill, would:
Business
advocates should continue to contact their Senators and urge their support for
S. 2045 when it comes to the floor for a vote. House and Senate Poised to Make Visa Waiver Program Permanent On
April 11, the House passed H.R. 3767, the Visa Waiver Permanent Program Act,
introduced in early March by Representatives Smith and Sheila Jackson-Lee
(D-TX). H.R. 3767, which travel and
tourism groups strongly support, makes permanent the Visa Waiver Pilot Program
enacted in 1986. The Visa Waiver
Program allows nationals of designated countries to apply to enter the United
States as temporary visitors for business or pleasure for up to 90 days without
first obtaining a visa from a consular office.
Under this program, which Congress several times has routinely extended,
the Attorney General designates countries to participate based on their
reciprocal treatment to U.S. citizens, low denial rate at consulates for
visitors visas, and low “overstay” rate in the United States for their
nationals. The Visa Waiver Program
hosts about 17 million visitors each year, according to the INS. In
addition to making the program permanent, H.R. 3767 requires the Attorney
General develop an automated system to track the entries and departures of visa
waiver program participants at airports and sea ports, and places increased
restrictions on the ability of the Attorney General to parole inadmissible visa
waiver applicants into the country, absent “compelling reasons in the public
interest or compelling health considerations.” The
Senate Judiciary Committee, by voice vote on April 13, passed its version of the
visa waiver bill, S. 2367. That
measure, sponsored by Senator Spencer Abraham (R-MI), Chairman of the
Immigration Subcommittee, does not contain the provisions of the House bill
relating to entry-exit tracking, parole restrictions, or rescission of a
country’s visa waiver status. The
Senate bill is expected to go to the floor in late April or May. Backlog Reduction Bills Proposed in Congress Fed
up with continuing reports of growing backlogs and delays at the INS, several
Members of Congress are looking at legislative solutions. Senator Dianne
Feinstein (D-CA) has announced that she shortly will introduce a bill to address
the huge backlogs plaguing the INS. The
bill would authorize appropriations
for INS backlog reduction, set mandatory minimum processing times for
immigration benefit applications, and require INS to report regularly on its
progress toward eliminating the backlogs. In
the House, Representative John Conyers (D-MI) also is considering legislation to
address the backlogs, as is Representative Zoe Lofgren (D-CA).
Along with several colleagues from California, Representative Lofgren
held a February hearing in San Jose at
which a dozen witnesses chronicled their frustrations and difficulties dealing
with delays and backlogs at the INS offices in that state. Senator
Feinstein’s bill, and the interest shown by the other Members of Congress,
will send an important message to the INS that immigration customers no longer
will tolerate tremendous backlogs that hurt millions of people seeking to become
U.S. citizens, fleeing political persecution, trying to reunite with their
families, and businesses seeking to employ foreign workers who are needed for
our continued economic growth. This
measure is an important first step in getting the INS to provide quick,
effective and fair adjudication for the millions of people whose applications
have languished in the bureaucracy. While
the bill sends the signal that money is the major problem, it does not actually
appropriate needed funds. For the
past few years, Congress has provided directly appropriated funds to INS
enforcement, while the adjudications branch has been subsisting on user fees –
the funds that people and businesses pay when they file applications. At the same time, Congress has imposed numerous unfunded and
conflicting mandates on the INS for which the agency has paid from the only pot
of money they have access to: the fees paid by applicants for immigration
benefits. Employers
frustrated with the long delays and backlogs at the INS should continue to make
their concerns heard to their Senators and Representatives and urge them to
support constructive measures to reduce processing times and backlogs, and to
appropriate funds to support the important mission of servicing INS customers. SPOTLIGHT:
Immigration Advocates Urge Broader Agenda This Congress As
reported in previous issues of Connect! this year’s elections, the
growing importance of immigrant voters, and the booming economy have contributed
to an increasingly favorable political climate for immigrants and immigration
issues. While opponents of
immigration still abound and wield significant power in Congress, the confluence
of factors already has resulted in organized labor’s shift in policy toward
immigrants and open discussions of such issues as legalization for undocumented
workers. As
illustrated in the recent House Immigration Subcommittee hearing on H-1Bs, there
is a growing desire to broaden the Congressional immigration legislative agenda
this year to include a number of immigration issues that have the support of
family-based, religious and ethnic groups. While not trying to derail the H-1B
bills, many in Congress are hoping that there will be room on this train for
such issues including equity of relief for people from Central America,
restoring Section 245(i), and legalizing currently undocumented workers. The
business community has responded with caution, not wanting to disrupt the
sometimes-fragile bipartisan alliance supporting their H-1B bill, but also
acknowledging that addressing these issues could generate additional support for
final passage of the H-1B bill. Some business organizations, especially those in
the service sector, actively support these measures, arguing that they will both
benefit many of their employees and help address the growing problems of
shortages and a largely undocumented workforce. Whether
or not there ultimately will be room on this or other legislation for these
provisions remains to be seen. However,
what is certain is that these issues, and other pro-immigration agendas, are
likely to continue to force their way into the public debate. Furthermore, the
resolution of many of these issues benefit business.
For example, harsh provisions from the 1996 immigration laws have led to
the deportation of many long-term permanent residents, including valuable
employees, for minor offenses for which they long ago paid their dues. The elimination of Section 245(i) has meant that many
employees, for whom well-meaning employers have filed for green cards, will be
unable to acquire that status because there is no longer any flexibility in the
law. Providing equity of relief to
Central Americans and the ability to legalize status for current undocumented
workers will mean a more stable workforce in those industries increasingly
suffering from shortages and fraudulent documents. These
issues are of concern to business immigration advocates who are urged to add
their voices to those of the immigration communities who are advocating with
Congress for change. INS
Audit Confirms Overissuance of H-1B Visas Last Year In
October 1999, INS informed Congress that it may have issued as many as 20,000
too many H-1B visas in the previous fiscal year.
Following this announcement, the agency contracted with KMPG to conduct
an audit of its counting process and computer systems to determine the extent of
the overissuance, and to make recommendations on ways to improve future counts.
On April 6, the INS made public the results of the audit. Based on its
investigations and a sampling of actual cases, KPMG reported that the INS issued
between 21,888 and 23,285 petitions above last year’s 115,000 cap.
Congressional
critics of the INS have used this report as an excuse to point out the
agency’s ineptitude. Others have
emphasized that the audit did not take into account errors in the methods INS
used to determine which cases were to be counted toward the cap.
In fact, the KPMG report discusses several areas in which the agency’s
current counting methodology is flawed, including inadequate methods for
eliminating multiple petitions filed on behalf of the same beneficiary and for
rescinding approved petitions that are never used.
Employer groups have stated that the overissuance indicates the
“desperate need to increase the number of temporary visas for skilled
professionals.”
************************************************************ Appeals
Court Rules Against Indefinite Detention of Immigrants
April 11, 2000San Francisco—The
9th US Circuit Court of Appeals, in a 3-0 decision held on Monday
that immigration officials cannot hold criminal immigrants indefinitely after
their prison sentences when their home countries won't take them back. The ruling, which
will likely be appealed to the US Supreme Court, affects hundreds of immigrants
in the nine Western states covered by the nation's largest appellate circuit,
and as many as 3,500 such prisoners nationwide. The vast majority of
these prisoners are lawful US permanent residents who committed felonies in this
country, served their sentences, and were then ordered deported under a 1996 law
greatly expanding the types of crimes for which deportation is mandatory. In most cases,
however, they cannot return to their native countries because those countries,
such as Cambodia, Cuba, Vietnam, and Laos refuse to take their citizens back if
they have committed crimes. The Immigration and
Naturalization Service takes the position that it can incarcerate these criminal
aliens indefinitely, if it considers them a threat to society.
The Immigration Service cited a provision of the 1996 law that said
immigrants who cannot be deported within 90 days “may be detained beyond the
removal period.” A federal judge in
Seattle ruled in January that indefinite detention without charges was
unconstitutional. The appeals court, in its ruling said the 1996 law did not
support the Immigration Service’s position.
The court held that the immigrants must be released 90 days after a final
deportation order, and be allowed to remain free under close INS supervision
until their home country reaches an agreement with the United States to accept
its deportees. Two other circuit
courts of appeal have upheld the INS.
Therefore, it is very likely that the government will appeal to the
Supreme Court. ********************************************************* INS Issues Affidavit of Support Instructions A recent Immigration & Naturalization memorandum clarifies several issues relating to I-864 affidavits of support, including the circumstances in which an I-864 is needed, the fact that the sponsor needs to be qualified at the time of approval, not filing, and the types of documentation that are acceptable. Click here for the full memo. ********************************************************** Memo on Asylum Processing
from the Office of the Chief Immigration Judge A recent memorandum was issued from the Office of the Chief
Immigration Judge providing information and guidance on policy and procedures
for asylum request processing. For
the full memo, click here. ********************************************************** For up-to-date information and current immigration news, check our News Page at http://www.immigrationlinks.com/news.htm *********************************************************** Thank you for taking the time to read through this month's mailing. We hope you have picked up at least a few important pointers. Please feel free to send us your immigration-related article that you want us to include in our next monthly mailing. Click here for instructions. Your article will be sent out at the beginning of next month to all of our subscribers, and it can be viewed online by millions of prospective immigration applicants around the world. We would also like to hear from anyone who has had either a positive or negative experience with the US Immigration Service, Immigration Court, or a US Consulate, as we would like to share these thoughts with our readers. Appropriate articles will be published in our monthly newsletters. We do need your name and e-mail address in order to obtain additional information if necessary, however this information will not be disclosed without your specific consent. As mentioned above, there are many proposals currently before Congress that will restore rights and benefits that were taken away under the 1996 law. It is important that everyone contact their Senators and Representatives to let them know that we want fairness and justice when dealing with those seeking to join their family members, or prospective employers, in the United States. With your help, the rights of immigrants and their family members will be greatly enhanced. The entire staff of ImmigrationLinks.com would like to take this opportunity to wish all of you the best in dealing with your immigration case. ****************************************************** How to Subscribe:
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