APRIL 2004 NEWSLETTER

1.   BILLS ON H-1B AND L NON-IMMIGRANT VISAS

Representative Lamar Smith (R-TX) recently introduced the "American Workforce Improvement and Jobs Protection Act" (H.R. 4166).  Such stipulations include creating a permanent exemption from the H-1B cap for graduates of U.S. universities who have earned a Master's or higher degree; and the exemption will be capped at 20,000 per year. In addition to expanding access to H-1B workers, the bill would also attempt to end the debate over the L visa program by incorporating provisions contained in pending L visa legislation sponsored by Senator Saxby Chambliss (R-GA), namely the "L-1 Visa (Intracompany Transferee) Reform Act of 2003" (S.1635).

This act provides narrow modifications to the L visa category while also recognizing the importance of the L-1 visa to the U.S. economy. The bill targets L-1B visa holders and prevents them from being stationed primarily at the worksite of a third party in cases where they would not be controlled and supervised by the petitioning employer, or where their placement at the third party site was part of an arrangement to provide labor for the third party rather than in connection with their duties involving specialized knowledge specific to the petitioning employer. Additional provisions would reinstate the one-year work requirement for L-1 blanket petitions and require the Department of Homeland Security to maintain statistics on the L program.

In exchange for these benefits, H.R. 4166 would subject U.S. employers to additional fees and attestations. Specifically, the legislation would make permanent the $1,000 H-1B training fee and the non-displacement and recruitment attestations for H-1B-dependent employers, both of which expired at the end of fiscal year (FY) 2003. H.R. 4166 also would impose a new $500 "fraud detection and prevention fee" on H-1B and L applications. In addition to the fees and employer attestations, H.R. 4166 would also make permanent the Department of Labor Investigative authority that sunset at the end of FY 2003.

The provisions and exemptions are based on that fact that higher education graduates will benefit and produce for the U.S. economy, and it would be better for the United States to maintain these individuals within the workforce rather than sending them abroad to competitors.

2.   SERVICE CENTER UPDATE-VCS CALLING

The Vermont Service Center and others have recently started calling H-1B employers to ascertain the nature of the proposed position of job. We understand this is also occurring in other regions. This is an entirely new development.

3.   L-1 USAGE IN LIGHT OF THE H-1B CAP

Persons who were unable to apply for the H1-B visa due to the 65,000 cap can apply for the L-1 visa which is also known as intra-company transferee visa. The purpose of this visa is to give U.S. corporations the ability to bring in top-level managerial or specialized employees into the U.S.A. The Intra-company that is located in the U.S. can be a branch office of a foreign company, or it could be a parent/subsidiary company. In order to establish the parent/subsidiary relationship the company which is developing into a parent company, must own more than 50% shares of the other, and must also be able to control its smaller branches. The employee who is applying for the L-1 must also be an executive, managerial or have specialized knowledge for the parent/subsidiary company for at least one year in the past three years. The employee must also be sponsored by that same.

The Department of State (DOS) is concerned that the inability of persons to obtain H-1B visas will lead to increased fraud and abuse of the L visa and of other categories. There is also a controversial issue with L-1 visa holders; beneficiaries who apply for a petitioning company may enter the U.S. and wind up working for the client company for a higher or lower salary. The DOS acknowledges this issue and confirms that as long as the employee with an L-1 visa is still employed with the petitioning company it should not matter which company is paying him/her, whether it is the petitioning company or the client company, so long as the U.S. company controls the employment. Also, if the L-1 visa holder is working for the client company the person should also be working or performing services with the petitioner's product, this process is called "specialized knowledge".

During the Fiscal Year of 2003, out of the 57,245 L visas issued world wide, 18,124 of them were given to Indian nationals. This shows that India remains the largest user of L visas.

4.   USCIS FEE INCREASE WILL TAKE EFFECT APRIL 30

The final fee regulation indicates that fee increases will be adopted as it was proposed, and will take effect with respect to applications filed on or after April 30, 2004.  The fee to apply for an H-1B and L-1 will increase to $185.

5.   BUSH IMMIGRATION PLAN, RISE IN APPREHENSIONS LINK DENIED

President Bush's guest-worker plan, which is designed to grant temporary legal status to those who are working in the United States with illegal status and to others outside the country if they can show that they have a job offer, has been blamed by the Border Patrol for the increase of illegal immigrants entering the U.S. ever since the time it was proposed. Meanwhile, Robert Bonner, commissioner of U.S. Customs and Border Protection, disputed allegations by Border Patrol union officials.

It has been reported that in San Diego, after Bush announced his plan on January 7, 1994, people attempted to enter the U.S. because of the proposed new work program and 162 people were stopped using fraudulent documents at San Ysidro. The figures also show that according to the latest unofficial report, 112,000 apprehensions of illegal immigrants were reported in February, a 13.1 percent increase over the previous year. There have been repeated increases in apprehensions since October 1.

6.   WHITE HOUSE IRKS SENATORS BY INACTION ON IMMIGRANTS

In January, President Bush and his administration proposed to millions of illegal immigrants a temporary legal status. Presently, Republican and Democratic senators accuse the Bush administration of not doing enough to transform its plans into a legislation that could then be voted into a law.

This legislation is intended to improve our immigration system, which is viewed as being broken. Also, the new legislation would re-establish Bush's credentials as a compassionate conservative, particularly with the Hispanic people, and would inevitably swing such voters.

Administration Officials later announced to the Senate Foreign Relations Committee that the President will most likely not support any other immigration bills pending in Congress; including bipartisan legislation, which would allow legal status for some illegal farm workers and certain group of students.

Republican senators that support Bush's plan, urge prompt action, whereas, other conservative Republicans criticized it as an amnesty for lawbreakers.

7.   FEDERAL COURTS APPROVE SETTLEMENT IN CSS AND LULAC LEGALIZATION CASES

Litigation that began in 1987 has finally come to an end; the Federal courts on January 23, 2004 and February 18, 2004 have legalized and approved settlement agreements in the Catholic Social Services (CSS) and LULAC (or Newman). These lawsuits involved class action claims by individuals who did not apply for legalization under the Immigration Reform and Control Act of 1986 signed by then President Ronald Regan.

Now that the cases have been legalized and settled, it allows individuals who meet certain criteria for Temporary Resident status under the 1986 amnesty program of Section 245A of the Immigration and Nationality Act to apply or reapply.

Individuals that meet the requirements can apply for Status as a Temporary Resident, together with a class membership worksheet.  The application period will start on May 24, 2004, and end on May 23, 2005, for those eligible to apply for 1986 legalization program and were living in the U.S. in an unlawful status prior to 1982.

8.   USCIS REMINDS APPLICANTS FOR ADJUSTMENT OF STATUS TO OBTAIN ADVANCE PAROLE BEFORE TRAVELING ABROAD

U.S. Citizenship and Immigration Service (USCIS) reminds individuals that Advance Parole permission to travel must be obtained before traveling abroad. It is a requirement for individuals with pending cases for: adjustment of status to that of permanent resident, an application for relief under NACARA 203, or an asylum application.

This document allows aliens to travel abroad and re enter United States. Applicants must be approved for Advance Parole before traveling abroad. Individuals that do not obtain travel documents may be faced with the inability to return to United States or the green card being denied or even both unless they qualify for a special waiver.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that if aliens were unlawfully present in the United States before they left the country, those that have obtained Advance Parole could still be barred from obtaining lawful permanent resident status. Aliens who leave United States that were unlawfully present in the U.S. for more than 180 days, but less than one year are inadmissible for three years. In addition, those who are unlawfully present for a year or more, are inadmissible for ten years. Aliens who depart U.S. after being unlawfully present and re enter the country with advance parole may be ineligible to adjust their status unless they receive a special waiver.

9.   MILLIONS MORE TRAVELERS TO U.S TO FACE FINGERPRINTS AND PHOTOS

Officials have announced that due to national security and recent terrorist attacks, potential terrorists will no longer take advantage of coming into the U.S. with little scrutiny. It will now require travelers to be photographed and electronically fingerprinted when they arrive in the United States. Such procedures went into effect on January 5, 2004; and by September 30, 2004, 115 airports and 14 seaports around the nation are expected to participate in this program as well.

This program will include 27 industrialized nations, including: Britain, France, Germany, Spain, Japan and Australia. This program will exclude diplomats, Canadians and Mexicans carrying border cards, which are used for 72-hour visits to U.S. This requirement is also extended to tourists from 22 European countries and Brunei, Singapore, Japan, Australia and New Zealand, whereas, before they could travel to the United States for up to 90 days without a visa.

Some argue that these new regulations will only hurt United States tourism and that other European countries will retaliate. Others explain that after the travelers learn that the digital fingerprinting and photographing typically takes 15 seconds and does not leave visitors with ink stained fingers, the tourists will be willing to undergo the screening.

In some countries retaliation already occurred such as China, Brazil, Holland, and other countries. China announced that it will no longer let Americans apply for last minute visas at Chinese airports and will even require some Americans to go through an interview before receiving tourist visas. Meanwhile, Brazil officials declared that they would also photograph and fingerprint American visitors. Whereas, the Dutch government has announced that they are working on creating new passports with facial recognition technology, which should eliminate the need for American officials to take the fingerprints of European visitors.

Airport and travel executives are also worried that this whole process could also go down hill because it could overwhelm inspectors and result in a slump in the number of international travelers, which plunged after the Sept. 11 attacks and has only recently begun to recover.

10.  ICE EXPANDS PILOT PROJECT TO DETAIN DEPORTABLE ALIENS

U.S. Immigration and Customs Enforcement (ICE) officials have stated that a new Department of Homeland Security (DHS) pilot program will be expanded into Atlanta and Denver.  This program will focus on diminishing the population of illegal immigrants on American streets.

ICE's Office of Detention and Removal Operations (DRO) in Hartford, Connecticut are conducting studies called "Hartford Pilot Program" which are trying to determine the impact of detaining aliens who have been issued final orders of removal. These studies have shown that 94 percent of aliens who are ordered by an immigration judge are removed and the rest of the remaining 6 percent cannot be removed whether due to diplomacy/foreign relations issues.

A General Accounting Office Review concluded in 2001 that only 15 percent of illegal immigrants actually leave the country when the immigration judge does not immediately order their deportation or when these aliens are located and removed by immigration authorities.

The United States is faced with 40,000 non-detained aliens each year that fail to leave after they were granted voluntary departure or when a notice of immediate deportation has been ordered by immigration judge. These aliens are called "absconders", they are allowed to remain at liberty during the immigration hearing process. At the same time, these 400,000 absconders of which 80,000 are estimated as criminals, are added to the backlog who must be then removed from the United States by ICE.

11.  U.S. TAKES STEPS TO TIGHTEN MEXICAN BORDER

Since California, Texas and elsewhere have tightened their borders, an increase of smugglers in Arizona has occurred. As a result, the Department of Homeland Security has proposed a $10 million plan to improve border security, personnel and technology between Arizona and Mexico.

This plan is described as a "major air and ground initiative to help keep out illegal immigrants, drug smugglers and possibly terrorists". It will also include the first use of unmanned aircraft, which will begin its usage in June for Border Patrol. Also drones will be used for the first time in the U.S., other than in trial basis. The unmanned aircraft will allow federal officials to spot crossers along parts of the more than 300 miles of the deserted border in Arizona which are  not patrolled on regular basis.

Federal officials will also add 200 permanent border patrol agents and 60 temporary agents trained in search and rescue operations. Also, helicopters and manned airplanes will create a new interagency network to coordinate the initiative. Seven air conditioned tent complexes will be created to detain immigrants before sending them back home, so that they could appear before the court without risk from their fleeing.    

Border Patrol officials have explained that from October to early March, 200,000 people were detained in Arizona; this illustrates a rise of 34 percent over the same period last year. And seizures of marijuana at the border were up 17 percent. With this increase, immigrant deaths in the desert have also increased by more than 200 of last year. Some died because of heat, execution style shootings, tortures and kidnappings that law enforcement official's blame on human smuggling rings. With this a new concern has arose, if it so easy for illegal immigrants to pass the border than how easy must this be for terrorists?

Some argue that tightening border patrol is not the answer to the problem instead we need to focus on broader economic and political changes, rather than a law enforcement crackdown. But hopefully with these law changes, the conditions will improve.

12.  THE FOREIGN BORN IN THE U.S. LABOR FORCE: NUMBERS AND TRENDS

The Migration Policy Institute has gathered data from census and survey data in regard to the questions that Bush's administration initiative on immigration reform has raised about the participation of the foreign born in the civilian labor market of the United States. The founding's were:

▪  The foreign-born make up 14 percent of the total civilian labor force in the U.S. - Of the 14 percent, 5 percent were naturalized citizens while 9 percent were non-citizens.

▪  The majority of foreign-born workers in the United States are non citizens - of the 20.3 million foreign-born workers in the civilian labor force, 12.7 million or 63 percent were non citizens while 7.6 million or 37 percent were naturalized citizens.

▪  Non-citizens in the labor force are more likely to be unemployed than either naturalized citizens or natives - the percentage of unemployed non-citizens is higher than the percentage of naturalized citizens and natives.

▪  The percentage of foreign born in the civilian labor force increased between 1990 and 2002 - Current Population Survey has found that in 1990 it was 9 percent of foreign born in civilian labor force, whereas, in 2002 the percentage has increased to 14 percent.

▪  The number of foreign born in the labor force increased at a faster rate than the number of natives - it has been shown by Current Population Survey that there is a major increase of foreign born of 76 percent compared to 11 percent of natives.

▪  The number of non-citizens in the labor force increased at a faster rate than the number of naturalized citizens - the Current Population Survey has also revealed growth rate of 86 percent for non-citizens compared with 62 percent for citizens.

13.  ASHCROFT WEIGHS GRANTING OF ASYLUM FOR ABUSED WOMEN

Hope has been reawakened in women's hearts as the Department of Homeland Security proposed changes that will affect battered women in political asylum cases. Attorney General Ashcroft will make the final decision of whether to transform it into a law or regulation. The proposed rules will allow in extreme cases for U.S. to open their doors to women who are fleeing their countries that condone severe domestic abuse, genital mutilation and other forms of acute violence against women.

If these changes are passed into law, women will no longer have to live in horrifying conditions with no escape. No longer will police turn them away by commenting that it's a domestic matter. Women will be able to get help if not from their own authorities, then from the United States by applying for political asylum. Yet, some critics are fearful that the new rules will encourage a flood of frivolous asylum claims from poor women around the world.

Therefore, asylum seekers must demonstrate a well-founded fear of prosecution on account of race, religion, nationality, political opinion or membership in a particular social group. Also, victims of domestic violence seeking asylum should show that the abuse was supported by the legal system or social norm in the country in question.

The proposed changes and rules will also bring the U.S. in line with countries like Britain and Australia, which have already been granting asylum in similar cases. Officials also say that the rules will also give guidance to immigration judges who have been issuing contradictory opinions in dozens of cases.

14.  IMMIGRANTS BEING DETAINED AT NEWARK AIRPORT

Foreign individuals traveling within the U.S. on domestic flights run the risk of being stopped and questioned by CIS and ICE officials.  Earlier this month, more than 40 illegal immigrants on two flights were detained when their planes landed at Newark Liberty International Airport. Four other illegal aliens awaiting the planes' arrivals were arrested and charged with smuggling the immigrants.  The detentions occurred two days after 88 Latin American immigrants, whom were flying in from Los Angeles, were apprehended by customs officials at the airport.

The Bureau of Customs and Border Protection, a division of the U.S. Department of Homeland Security, is unaware if the four men awaiting the flights were connected to the 88 immigrants detained after their Continental Airlines flight landed.  The people held included 36 men, five women and one child. All the immigrants detained were on domestic flights which require that passengers have photo identifications to board but not proof of citizenship.