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AILA
ADVOCACY UPDATE |
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IN THIS ISSUE:
ADDITIONAL
SECTION 245(i) EXTENSION BILLS INS
AND DOL ISSUE PROCEDURES With the April 30 deadline approaching
for filing petitions and labor certification applications to preserve
eligibility under Section 245(i), more members of Congress are
indicating their strong support for an extension by introducing
legislation. Senators
Edward Kennedy (D-MA), Chuck Hagel (R-NE), Chuck Schumer (D-NY), and
Hillary Clinton (D-NY) have introduced S. 778 that would extend the
Section 245(i) deadline for one year, until April 30, 2002. This bill
join two bills already introduced in the House:
H.R. 1242, introduced by Representative Peter King (R-NY) that
would extend the deadline for six months, and H.R. 1195, introduced by
Representative Charles Rangel (D-NY) that would extend the deadline
for one year. Proponents of Section 245(i) acknowledge that an extension will not take place before the April 30 deadline; however, supporters are working to move an extension bill as quickly as possible. Once Congress adopts this extension, we will continue to urge the passage of a permanent restoration of Section 245(i). In the meantime, the April 30 deadline is fast approaching. The Immigration and Naturalization Service (INS) and the Department of Labor (DOL) have sent guidance to their field offices about accommodating last-minute filings. The INS has stated that it will accept for filing any petition that is postmarked by April 30 as meeting the deadline. However, practitioners and applicants are urged to use a delivery service that will provide a record of receipt, and to keep proof of the postmark, in case the agency loses or misplaces a filing. INS also has issued guidance to the field regarding acceptance of skeletal filings to preserve future eligibility: “Immigrant visa petitions may be filed initially without all of the necessary information for the Service to adjudicate the petition. However, a visa petition will not qualify an alien for grandfathering unless the Service can determine, based on the available information, that the petition was approvable when filed.” The Service is not requiring that District Offices remain open until midnight on April 30, believing that the postmark rule may alleviate the need for individuals to file in-person before the deadline. However, a survey of District Offices indicates that most will be open until midnight on April 30. Practitioners and applicants should contact their local INS office to confirm hours of operation. The DOL is not using the postmark rule. In order to preserve eligibility for Section 245(i) adjustment, the local State Employment Service Agency (SESA) must receive an application for labor certification before midnight on April 30. Again, practitioners and applicants are strongly urged to use a delivery method that provides proof of receipt in case the agency loses or misplaces the filing. The DOL has recommended that SESAs, “accommodat[e] last minute submittals by making arrangements for receiving hand delivered applications (walk-ins) and marking the submittals as to the date received.” Practitioners and applicants should verify with their SESA the procedures in place for last-minute filings. With regard to date-stamping, DOL has
reminded the state agencies that all filings received at the office by
midnight on April 30, including cases received in post office boxes
established for receiving filings, must be date-stamped for April 30,
even if the actual stamping occurs several days later. DOL also has
advised state agencies that filings received that are not complete
should be returned to the employer to be completed and the employer
has 45 days to respond before the filing will be rejected.
Furthermore, all filings must have an ETA 750A (Employer) form. Any
filing without this form must be rejected, and will not preserve
eligibility under Section 245(i). SUPREME
COURT HEARS CASES ON 1996 IMMIGRATION LAW As advocates are working with Members
of Congress to reform the harsh 1996 IIRAIRA immigration law, the
Supreme Court on April 24 heard arguments in two cases that focus on
the constitutionality of two aspects of that law.
Decisions on these cases could profoundly affect the rights of
long-term legal permanent residents to remain in the United States and
their right to appeal to the federal courts when the INS tries to
deport them. The two
cases, INS v. St. Cyr and Calcano-Martinez v. INS,
concern the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA). The
law significantly changed the availability of waivers of deportation
for people convicted of even minor crimes, and purported to limit
these noncitizens' access to courts to contest orders of removal. In St. Cyr, the Second Circuit Court of Appeals held that the change in the law could not be applied retroactively, so that a person who pled guilty to a crime before the law changed could still apply for the waiver of deportation under former section 212(c). In Calcano-Martinez, the same
court held that, at a minimum, some federal court review of
deportation orders remained, at a minimum under the federal habeas
corpus statute, 28 U.S.C. 2241, despite the 1996 law's restrictions on
review. The cases affect potentially thousands
of people who were convicted of crimes even decades before the law
changed in 1996. The American Civil Liberties Union Immigrants' Rights
Project represented both St. Cyr and Calcano-Martinez. AILA member,
Lucas Guttentag argued both cases at the Court.
A decision is expected before July. U.S.-MEXICO
RELATIONS TAKES CENTER STAGE Senate Foreign Relations Committee
Chairman Jesse Helms (R-NC), one of the harshest Congressional critics
of Mexico, recently visited that country accompanied by four other
members of the Senate committee:
Senators Joseph Biden (D-DE), Lincoln Chafee (R-RI), John
Ensign (R-V) and Chuck Hagel (R-NE).
During this unprecedented three-day visit, the Senators met
with Mexican President Vicente Fox, Foreign Minister Jorge Castaneda,
and members of the Mexican Senate. The agenda included discussions
about drug policy, trade, and immigration and border control. Senator Helms’ comments about the
trip suggest a change of heart. His
changed views appear to be linked to the rise to power of Mexican
President Vicente Fox, whose election deposed the ruling Institutional
Revolutionary Party (PRI), which had borne the brunt of the
Senator’s wrath. However, the Senator also recognizes the importance
of the Mexican relationship to his home state, where immigrant workers
are critical to key businesses, including tobacco, construction and
poultry, and where the Hispanic population has exploded since the 1990
Census, and now numbering close to 5 percent of the population. The
other Senators making the trip have similar issues in their states. Following the meetings, both Senators
Hagel and Biden suggested that a deal with Mexico on migration issues
is close. According to
Senator Hagel, “significant immigration reform [could happen] during
the next two years.” Senator Biden stated, “We feel very strongly
that we are very close to being able to make an accommodation that
meets the interest of the American government and the Mexican
government.” However, details of what this might entail were not
made public. AILA is encouraged by these on-going
discussions on migration issues with the Mexican government, and we
look forward to working with these Senators and other Members of
Congress to develop workable immigration policies that will benefit
immigrants, their families and the U.S. economy and businesses. SUMMIT OF THE
AMERICAS ADDRESSES IMMIGRATION The nations of North, Central and
South America (excluding Cuba) converged to address trade, human
rights and democratization at the Summit of the Americas.
Immigration was a salient topic at the Summit, held in Quebec
City April 20-22. The Final Declaration, signed by all participating
nations, states: “We recognize the cultural and economic
contributions made by migrants to receiving societies as well as to
their countries of origin. We are committed to ensuring dignified,
humane treatment with appropriate legal protections, defense of human
rights, and safe and healthy labor conditions for migrants. We will
strengthen mechanisms for hemispheric cooperation to address the
legitimate needs of migrants and take effective measures against
trafficking in human beings.” A Plan of Action approved at the
Summit states that participating countries will:
H-1Bs
and the Economy The H-1B visa is a temporary,
nonimmigrant visa used by employers to sponsor foreign nationals in
“specialty occupations” – jobs that require at least a
bachelor’s degree in a related specialty. The category has been used
in the decades since its creation to bring to the United States
talented foreign professionals with specialized skills and knowledge
not generally available in the United States, to meet the needs of
employers for knowledge and experience in overseas markets, and to
fill specific workforce shortages in professional occupations. Over
the last decade, the well-known shortages in the information
technology industry have driven up demand for H-1B professionals.
Congress responded to this demand by increasing the number of
H-1B visas for such professionals in 1998 and 2000.
However, in the last months, a slowdown affecting the IT sector
has led to layoffs and other cutbacks. Some now are asking about the
impact of this slowdown on the demand for H-1B professionals and the
effect on the current H-1B workforce. In general, we believe that the
slowdown is not having a significant impact on demand, and, although
individual H-1B professionals may be laid off, most seem to be finding
new employment. INS’ numbers do not indicate any
significant decline in overall H-1B demand, but recent filings have
slowed. As of March 7, INS reported to Congress it had approved 72,000
H-1Bs against the current FY 2001 cap of 195,000. News reports quote
INS as stating they had an additional 66,000 H-1B cases pending on
that date (an unknown number of which may count toward the cap). This
is higher than the number of visas at the same time last fiscal year:
74,300 approvals and 45,000 pending. However, between January and
February of this year, the number of new filings decreased by 14,000,
from 30,000 in January to 16,000 in February. It is too soon to tell
if this trend will continue or indicates a slowdown. INS has not
released any updated statistics. However, INS’ counting methods are
notoriously inaccurate. In
1999, INS mistakenly issued more H-1Bs than the cap at that time
allowed, and had to hire KMPG to audit their count to determine
exactly how large the overissuance was. (The audit found more than
25,000 visas too many had been issued.) INS has never published its
counting methodology as required by the American Competitiveness in
the 21st Century Act (“AC21”), which was signed into law in
October 2000, and may still be making many of the same mistakes that
led to previous years’ miscounts. Therefore, even with INS’
numbers, the real story may be unknown. Finally,
changes in filing patterns and changes to the annual cap may have
affected this year’s numbers, rather than any effect from the
slowdown. Last year, because the cap was reached early in Fiscal 1999,
INS “carried over” an estimated 30,000 H-1B cases to count against
the FY2000 cap, meaning that as of October 1, the count was already
“in the hole” by that many visas. However, AC21 cleared out the
FY1999 and FY2000 backlog, meaning that the full visa allotment was
available at the beginning of the fiscal year. Therefore, comparisons
of this year’s cap count actually
show demand for the months from October 1 to March to be higher than
last year, since last year’s count included filings from the summer. The 2000 law also removed from the cap
H-1B professionals hired by higher educational institutions, which
normally would begin their major hiring season about now. This could
result in the appearance of lower demand. Also, last year, INS
received the bulk of its filings in January and February as employers
filed before the cap was reached (which happened in March). This year,
the bulk of filings were received in December as employers raced to
file before the education and training fee was increased from $500 to
$1000. Therefore, recent declines in filing rates between January and
February this year cannot accurately be compared to last year to
determine any pattern. With regard to the H-1B professionals
themselves, there is no evidence that H-1Bs are being especially
targeted for layoffs. Businesses are treating foreign professionals as
they treat American workers. If H-1Bs are part of ongoing projects,
they are being retained. If they are part of business operations being
reduced or discontinued, then they may be laid off. Unemployment
figures have not dramatically risen, in spite of layoffs, indicating
that most employees are finding new jobs. However, under the law, temporary
foreign professionals who have been laid off cannot receive welfare
benefits. The H-1B employer is required to pay for transportation
home, if the employee chooses to depart rather than find new
employment. Technically, foreign nationals who are no longer working
for their sponsoring employer immediately fall “out of status” and
can be removed from the United States. However, such removals are not
a priority for INS enforcement. In many cases, if the individual finds
a new sponsoring employer relatively quickly, INS may reinstate their
H-1B status on a discretionary basis. However, this is completely
at the discretion of the INS examiner in the case. INS should revise
its policy to officially provide laid off H-1B employees a reasonable
“grace period” in which to either find new employment or wrap up
their affairs and depart. While it is clear that the slowdown in
the economy has hit the hardest on the IT sector, its impact on H-1B
professionals and the ongoing demand for them, given our continuing
lack of skilled, educated IT professionals, remains to be determined. RECENTLY
INTRODUCED LEGISLATION S.778 A
bill to expand the class of beneficiaries who may apply for adjustment
of status under section 245(i) of the Immigration and Nationality Act
by extending the deadline for classification petition and labor
certification to April 30, 2002. Introduced by Senator Hagel (R-NE)
along with co-sponsors Senator Clinton (D-NY), Senator Durbin (D-IL),
Senator E. Kennedy (D-MA), Senator J. Kerry (D-MA), Senator H. Reid
(D-NV), and Senator Schumer (D-NY) on 04/26/01 and referred to the
Committee on Judiciary. H.R. 1582
A bill to amend
the Immigration and Nationality Act to adjust the status of certain
long-staying alien children, to lower high school drop out rates for
certain immigrant children, and to restore the right of State and
local governments to decide whom they will admit to their State and
local colleges and universities. Introduced by Representative
Gutierrez (D-IL) on 04/25/01 and referred to the Committee on
Judiciary and the Committee on the Education and the Workforce. H.R. 1572 A
bill to amend the Immigration and Nationality Act to provide for legal
permanent resident status for certain undocumented or nonimmigrant
aliens. Introduced by Representative Owens (D-NY) on 04/24/01 and
referred to the Committee on Judiciary. H.R. 1571 A bill to provide for
permanent resident status for any alien orphan physically present in
the United States who is less than 12 years of age and to provide for
deferred enforced departure status for any alien physically present in
the United States who is the natural and legal parent of a child born
in the United States who is less than 18 years of age.
Introduced by Representative Owens (D-NY) on 04/24/01 and
referred to the Committee on Judiciary. H.R. 1563
A bill to assist aliens who were transplanted to the United
States as children in continuing their education and otherwise
integrating into American society. Introduced by Representative
Jackson-Lee (D-TX) on 04/24/01 and referred to the Committee on the
Judiciary. H.R. 1562
A bill to replace the
Immigration and Naturalization Service with the Office of the
Associate Attorney General for Immigration Affairs, the Bureau of
Immigration Services, and the Bureau of Immigration Enforcement, and
for other purposes. Introduced by Jackson-Lee (D-TX) on 04/24/01and
referred to the Committee on Judiciary.
H.R. 1561 Date of Registry and
Legal Amnesty Restoration Act of 2001
A bill to amend the Immigration and Nationality Act with respect to
the record of admission for permanent residence in the case of certain
aliens. Introduced by Jackson-Lee (D-TX) on 04/25/01 and referred to
the Committee on Judiciary. H.R.
1560 Increase in
Numerical Limitation for Asylees Adjustment Act of
2001 A bill to increase
the numerical limitation on the number of asylees whose status may be
adjusted to that of an alien lawfully admitted for permanent
residence. Introduced by Jackson-Lee (D-TX) on 04/24/01 and referred
to the Committee on Judiciary. MEDIA
SPOTLIGHT Washington Post Highlights Social
Security Contributions of Undocumented Workers A Washington Post article
published on Income Tax Day highlights the fact that undocumented
workers pay taxes and contribute to Social Security. For example, the
piece notes that in 1998, the last year for which figures are
available, undocumented workers contributed nearly $4 billion to
Social Security. From 1990-1998, they paid over $20 billion to Social
Security but received no credit for those contributions. The article
underscores the findings of the Social Security Administration, which
estimated that between 1998 and 2002, immigrants were expected to
contribute nearly $500 billion to our nation’s taxpayer-funded
retirement system, and nearly $2 trillion between 1998 and 2072. This article reinforces the comments
of former Census Director Kenneth Prewitt who recently said that the
United States has “got a lot of older people who aren't going to
work and a lot of younger people needed to sustain Medicare, Social
Security and so forth. The only way that pyramid can get moved a
little bit is new younger people coming to the country. So the
pressure's on this country to allow immigrants to come in as
workers.” Members and Staff in
the News David Wenger and Tom Bassett
(Michigan) were quoted in an April 24 Detroit Free Press
article about Section 245(i). Jose Pertierra (Washington,
D.C.) was cited in an April 24 Washington Post article
about a Guatemalan family being deported for missing an immigration
deadline. Lucas Guttentag (Northern California) was
quoted in an April 24 Orange County Register article about oral
arguments before the U.S. Supreme Court. Dennis Muchnicki (Ohio)
was quoted in an April 21 AP Newswires account about the suit
he filed against a County Probate Judge who wrongly required
applicants to have Social Security numbers before he would issue
marriage licenses. Frederic Hite (New England) was
quoted in an April 16 Boston Globe article about the impact of
layoffs on H-1B visa holders. A letter to the editor by Greg
Siskind (Louisiana/Mid-South) about nursing shortages and H-1A
visas was published in the April 16 New York Times. AILA was
mentioned in an April 15 Chicago Sun-Times article about a
lawsuit filed against the INS. Dennis Muchnicki (Ohio)
was quoted in an April 8 Dayton Daily News article about an
Ethiopian refugee facing deportation proceedings. Marcia Needleman (New
York) was quoted in an April 8 New York Times article
about immigrants attending college. Issues in the News Asylum. The Los Angeles
Times ran an April 27 article about one man’s travails while
applying for asylum. The Christian Science Monitor ran an April
24 article about a Turkish woman seeking asylum because she fears
spousal abuse. Associated Press ran an April 15 article about
the INS granting asylum to a Ukrainian security officer who accused
that country’s President of involvement in the killing of a
journalist. Budget. The Houston
Chronicle ran an April 16 article about President Bush proposing
to cut money the federal government pays to house detainees in local
jails. Citizenship. The Chicago
Tribune ran an April 25 about a group of adopted children to be
sworn in as citizens before the Child Citizenship Act granted such
children automatic citizenship. Consumer Protection. The
Chicago Sun-Times ran an April 22 article about a couple suing the
INS for trying to deport victims of notarios and immigration
consultants. Associated Press ran an April 15 article warning
undocumented immigrants of notarios when completing adjustment
applications under Section 245(i). Court Decisions. The New
York Times ran an April 25 article about a U.S. Supreme Court
decision limiting discrimination lawsuits against state entities. The
case involved a Mexican immigrant who sued Georgia because driver’s
license exams were only held in English. Detention. Associated Press ran
an April 17 article about three female detainees on a hunger strike at
a Louisiana jail. Due Process. The New York
Times ran an April 25
article about a Supreme Court oral argument in a case expected to
decide whether the due process and court-stripping provisions of
IIRAIRA are constitutional (similar articles ran in the April 24 Orange
County Register and April 22 Associated
Press). Earned Adjustment. The
Lincoln Journal ran an April 24 article quoting Senator Chuck
Hagel (R-NE) as saying that he supports earned adjustment. The
Arizona Republic ran an April 20 article about moves to grant
visas to long-time residents. Economics. An April 23 article
in USA Today noted that the influx of immigrants into New York
City “has done more to revitalize neighborhoods than any federal
program.” Editorials. The Miami Herald
published an April 17 editorial on INS reorganization that
strongly support AILA’s three criteria for INS reorganization. H-1B Visas. The Chicago
Sun-Times ran an April 22 article about the impact of high-tech
layoffs on H-1B visa holders. The Hindu Times ran an April 19
article about the legal risks posed to companies by the new Department
of Labor regulations. CNET News ran an April 17 article about a
California state court ruling that employers cannot deduct training
costs from H-1B workers who fail to fulfill their contracts. Immigration. The Washington
Post ran an April 25 article about recent immigrants settling in
suburbs. The New York Times ran
an April 18 article about the Lower East Side, home to successive
waves of immigrants during the 1900s, being added to the National
Register of Historic Places. The
Charlotte Observer ran
an April 17 article about a Chinese immigrant named one of the top 20
community college students in the nation, based on academic
performance. The New
York Times ran an April
17 article about immigration information from Ellis Island being put
on the World Wide Web (Associated Press ran a
similar article on April 17). The
Herald (Everett, WA) ran
an April 17 article about a county-published guide to assist
immigrants. The New York
Times ran an April 16
article about Hispanic immigrants in the town of Port Chester (NY). The
New York Times ran an
April 15 article about Latinos being accepted in the political and
cultural mainstream. The
Detroit News ran an
April 11 article about immigrants getting in touch with their native
cultures. INS. Numerous publications ran
articles about The Portland Oregonian winning a Pulitzer Prize
for its investigative series on the INS (April 17 Washington Post,
New York Times, Associated Press). Associated Press ran an
April 17 article about a government audit finding that the INS did not
keep track of hundreds of guns and thousands of computers containing
sensitive information. CNN ran an April 17 article about a
visit by Attorney General Ashcroft to INS headquarters. INS Enforcement. A column in
the April 23 Arizona Republic called Operation Gatekeeper a
case of the federal government “sentencing more immigrants to
death” in the desert. UPI ran an April 17 article about
undocumented immigrants who are traveling into more dangerous
stretches of the Mexican-U.S. desert to avoid the Border Patrol. Mexico. Associated Press ran
an April 19 article about a trip to Mexico by long-time critic Senator
Jesse Helms (R-NC), and the Senator’s praise of President Fox. Section 245(i). “Nightline” ran an April 24 program about Section 245(i). The Detroit Free Press ran an April 24 article about the increase of marriages between undocumented immigrants and U.S. citizens, presumably due to Section 245(i) (similar articles ran in the April 22 Atlanta Journal-Constitution and the April 16 Detroit News). ). Newsday ran an April 22 article describing efforts by members of the New York Congressional delegation and Governor Pataki to extend the Section 245(i) deadline. Newsday also ran an April 17 article about legislation before Congress to extend the provision. |
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Contributors:
Copyright © 2001, American Immigration Lawyers Association
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