SEPTEMBER 2003 NEWSLETTER

1. NEW RESTRICTIVE L AND H VISA LEGISLATION INTRODUCED

On July 25, 2003, Senator Christopher Dodd (D-CT) and Representative Nancy Johnson (R-CT) introduced companion legislation in the Senate and House that would provide further restrictions on both the H and L visa categories (S. 1452 and H.R. 2849).  The Dodd and Johnson bills would impose stringent new requirements on all employers who hire H-1B and L-1 workers. The bills accompany two prior bills that were introduced by Rep. John Mica (R-FL) (H.R. 2154) and Rep. Rosa DeLauro (D-CT) (H.R. 2702) on the L category.

Similar to the earlier L-1 legislation, the Dodd and Johnson bills (also referred as the “Dodd-Johnson” bill) mirror the H-1B Labor Condition Application (LCA) process for intra-company transferees by imposing prevailing wage attestation requirements on L-1 employers. The bills also contain the following provisions: (1) a prohibition against the outplacement of workers to second employers where there are indications of employment between the second employer and the worker; (2) a requirement of two years of continuous full-time employment with the employer during the three years prior to L visa intra-company transfer; (4) the elimination of the provision that permits those whom have six months of experience to work under blanket petitions; (5) the requirement that L-1B employers demonstrate attempts to recruit U.S. workers; and (6) the imposition of layoff and non-displacement requirements on all H-1B employers, not merely H-1B dependent employers and willful violators.

Members of Congress are seemingly attempting to superimpose the requirements of the H-1B category on the L visa program. The L-1A classification is clearly different from the H-1B visa; it may only be utilized by managers and executives rather than all levels of professionals.  In addition, the L-1B classification requires the employee to have specialized knowledge that has been obtained as a result of his or her unique pre-existing relationship with a company. For these reasons, a recruitment attestation, for example, arguably would not make sense for an L-1B specialized knowledge transfer.

2. U.S. IMMIGRATION AND OFFSHORING

The Executive Council of the AFL-CIO has already adopted a resolution demanding that Congress act to “reform” the H-1B and L-1 while increasing federal regulation of employers who use them.  As of March 2003, according to India’s National Association of Software and Service Industries (NASSCOM), the number of H-1 visas issued to Indian IT professionals dropped from 77,000 in 2001 to 33,000 in 2002, while the 2003 level is expected to be around 30,000.  Nearly 40,000 Indian H-1B visa holders went home over the past two years as the IT bubble burst in the United States.  While 15,000 L-1 intracompany transferees traveled from India to the United States, this is a fraction of 315,000 L visas issued this past year.  These Indian H-1B engineers paid almost $500 million in income taxes, made a significant social security contribution, and purchased $1.2 billion in goods and services.  In a recent study completed by the global consulting firm of McKinsey & Company, it is certainly true that India software and service exports to the United States in 2003-2004 are expected to be a hefty $8.5 billion and also by offshoring work to India over this same period is estimated at between $10 billion and $11 billion. McKinsey concluded that the aggregate benefit to the American economy from Indian offshoring is a healthy $16.8 billion. The Global Personnel Alliance reports that the L-1 visa program has created 1.5 million jobs in the United States as a result of international investment.

Most companies who have gone to offshoring retain 70% or more of their IT employees.  Since many companies regardless lose 5% through annual attrition, combining planning with offshoring can reduce or eliminate layoffs.

3. H-1B PETITIONS STATISTICS FOR FY 2003

U.S. Citizenship and Immigration Services (USCIS) recently announced that during the three quarters of FY 2002, it approved 56,986 H1-B petitions. This amount will be counted against the annual cap of 195,000 workers. H-1B visas are for specialty occupations, defense workers and fashion models.  USICS also approved 84,534 H-1B petitions for persons who are exempt from the congressionally mandated cap on this visa category for nonimmigrant workers and specialty occupations.  Exempt workers include those who are employed by institutions of higher education, as well as nonprofit and government research organizations. Moreover, 47,813 petitions are pending adjudication, one-third of which would count against the cap if approved. Petitions filed in the third quarter were up 15 percent over the same quarter of FY 2002, and receipts through the first three percent over the same period last year.  The new fiscal year begins on October 1st and the H-1B cap will return to 65,000 from 195,000. Unless congress acts, the overall filing fee will return to $130 from, $1,130—$1,000 represents the “training fee”.

4. ELIMINATION OF H-1B PROGRAM

Brought in on H-1 and L-1 visa programs, these highly skilled professionals are being accused of having taken jobs, which rightfully belonged to American nationals.  Today things have come to such a pass that it is being said the program itself has been abused to provide cheap foreign labor.  The ensuing battle has resulted in the introduction of Representative Thomas Tancredo’s newest bill, H.R. 2688, on July 9, 2003, seeking to eliminate the H-1B program.

5. AUTOMATIC VISA REVALIDATION

An interim rule published in the Federal Register on March 7, 2002, amending the regulation pertaining to Automatic Visa Revalidation that took effect on April 1, 2002, has been declared as a final rule by the Department of State which took effect August 18, 2003.

The interim rule limits the privilege of automatic revalidation of visas in two aspects: (1) the privilege is no longer available to persons who choose to apply for a new visa while traveling temporarily to an area covered by the automatic revalidation privilege; and (2) it is no longer available to nationals of counties that are state sponsors of terrorism, regardless of whether or not such nationals apply for a new visa while outside the United States. In essence, the addition of “applying for a visa while abroad” as a bar against automatic revalidation was undertaken to protect against the possibility that the visa applicant will be found ineligible.  The bar against nationals of countries that have been found to sponsor terrorism was added for the additional reason that such nationals have become subject to heightened standards of review before visa issuance.

6. TALKS ON NYC IMMIGRANT POLICY

For years New York forbade its workers from disclosing information on a person’s immigration status to federal authorities, so as not to discourage illegal immigrants from reporting crimes, seeking medical help or getting other vital services.  But after Congress changed the law, a federal court ruled that the city’s policy was illegal.  In response, Mayor Michael R. Bloomberg issued a new policy effectively replacing the old “don’t tell” one with a new “don’t ask” one in all but a few cases. But the outcry that greeted the decision might be enough to frighten people without Green Cards from seeking city services.  Therefore, Mayor Bloomberg agreed to amend the policy.  So far efforts to find common ground with the City Council have failed.

7. IMMIGRATION REFORMS

The President has recently reaffirmed his commitment to immigration reforms. However, he has not announced a definite agenda.

8. U.S. CLOSES LOOPHOLE IN VISA REQUIREMENTS

The Bush administration has recently announced that it is immediately suspending two visa exemption programs that permit foreign travelers to enter the United States temporarily. These two programs are known as the “Transit Without Visa” and the “International to International.” According to administration officials, such action was motivated by intelligence reports suggesting that the Al Qaeda is planning to exploit the programs in order to hijack passenger planes.  These programs usually permit hundreds of thousands of foreigners to pass through the United States without visas on their way to other countries.

9. DIVERSITY VISA PROGRAM REGISTRATION TURNS ELECTRONIC

The Department of State has recently announced a change in how applicants are to register for the Diversity Visa lottery program. Starting this year (DV 2005), all persons registering for an opportunity to apply for a U.S. immigrant visa under the diversity lottery will have to do so electronically through a designated Internet website.  The Department will no longer accept paper entries or mail-in requests for diversity visa registration.  The Department of State is implementing the new electronic system in order to improve efficiency in the diversity visa petition process and make the process less prone to fraud.  Therefore, such change will make it less vulnerable for persons who may pose threats to the security interests of the United States.  The 60 day registration period will begin November 1st.

10. ASHCROFT BLASTS EFFORTS TO WEAKEN TERRORISM LAW

Attorney General John Ashcroft recently stated that any attempt to strip law enforcement agents of their expanded legal powers could open the way to further terrorist attacks.  His remarks were an acknowledgement of the momentum achieved by opponents of the USA Patriot Act, a law that evolved from the 9/11 attacks, as well as a declaration of the administration’s commitment to preserve and possibly expand law. According to Ashcroft, expanding the powers of federal agents to use wiretaps, surveillance and other investigative methods and to share intelligence information “gives us the technological tools to anticipate, adapt and out-think our terrorist enemy.”  Ashcroft claims that the law had been essential in preventing another terrorist attack in the United States.  However, some members of the Congress and civil liberties groups say the act has given federal agents excessive power to pursue suspected terrorists, threatening the privacy and civil rights of Americans.

The Republican-led House voted overwhelmingly last month to repeal a provision of the law that allows federal authorities to delay the notification of search warrants that have been executed.  Lawmakers have proposed other measures that would scale back surveillance powers and other aspects of the legislation.  More than 150 communities around the country have passed resolutions opposing the law.  Despite adamant denials by the Justice Department and the F.B.I., librarians in numerous cities have complained that government agents may be using their expanded powers to monitor people’s reading habits.  And the A.C.L.U and other civil liberties groups are suing to have parts of the law declared unconstitutional. Justice Department officials said that such critics represented “a small but vocal minority.” Nonetheless, Ashcroft pointed to results of a Fox News poll last month which concluded that registered voters in fact do support the Patriot Act by a ratio of two to one and that 91 percent said the law had not affected their civil rights.

11. ASCHROFT MEMO DISCOURAGES PLEA BARGAINS

The U.S. Department of Justice has released a memo, originally written to all federal prosecutors by Mr. John Aschroft, stating that they “must charge and pursue the most serious, readily provable offenses that are supported by the facts.” He said the consistency demanded of federal judges in sentencing must be matched by a consistency in charging decisions and plea bargaining by prosecutors nationwide.

12. CHANGES WITHIN “GATEWAY” STATES—CENSUS

According to a report issued by the U.S. Census Bureau, the traditional “gateway” states are sending waves of immigrants elsewhere within the Unites States. The report, which measured the movement of foreign-born from 1995 to 2000, found that in addition to the number of immigrants that migrated to California from other states, 237,000 more immigrants moved from California to the rest of the country.  Similarly, in addition to the number of immigrants that had arrived to New York from other states, there were 205,000 more foreign-born New York residents migrating to other states.  Illinois, another gateway, had more immigrants leaving to other states than immigrants that were moving to Illinois. Also, Texas, New Jersey and Florida presently have a net increase of foreign-born residents.

 Moreover, California and New York had a large net increase of their foreign-born population in the five-year period due to a constant supply of new immigrants.  Together, the six states are important as the 2000 census shows, they hold about 21.3 million foreign-born residents.

13. HIGHLIGHTS FOR FISCAL YEAR 2002

• The number of persons granted lawful permanent residence in the fiscal year of 2002 (1,063,732) and fiscal year of 2001 (1,064,318) U.S. were about the same.
• Sixty-three percent (63%) of all legal immigrants were family sponsored, 16 percent were admitted under employment preferences, 12 percent were admitted as refugees or asylees, and 3 percent were admitted under Sections 202 and 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) of 1997.
• The classes of admission with the greatest increases in legal immigration between 2001 and 2002 were parents and spouses of U.S. citizens and refugees.  The category with the largest decrease was the family second preference (spouses and unmarried children of alien residents), due primarily to security checks that affected both INS and Department of State application processing.
• The leading regions of origin of legal immigrants in fiscal year 2002, as in 2001, were North America and Asia. These regions accounted for 38 percent and 32 percent, respectively of all immigrants in 2002.
• In 2002, as in 2001, the leading source country for legal immigrants was Mexico (219,380), India was second (71,105), followed by the People’s Republic of China (61,282), the Philippines (51,308), and Vietnam (33,627).  These 5 countries represented 41 percent of all immigrants in 2002.
• The primary destination states for legal immigrants in 2002, as in every year since 1971, were California (291,216), New York (114,827), Florida (90,819), Texas (88,365), New Jersey (57,721), and Illinois (47,235). Nearly two-thirds (65 percent) of all immigrants in 2002 lived in these six states.
• Ten metropolitan areas were intended residence of 42 percent of all immigrants in 2002.  The leading destinations were Los Angeles—Long Beach, CA, New York, NY, Chicago, IL, Miami, FL, and Washington, DC-MD-VA.

14. LAWMAKERS ATTACK USE OF ANTITORTURE LAW TO BLOCK IMMIGRANTS’ DEPORTATION

Congressional Republicans have recently criticized a four-year-old law that bars the deportation of immigrants, including those with criminal records, who are likely to be tortured once they return to their countries. At a House Immigration Hearing, a Senior Domestic Security official claimed that over the last four years, immigration judges blocked the deportation of 1,700 people whom are likely to face torture if they return to their native land.  Of the 1,700 people, 611 had committed crimes in the United States. In addition, officials stated that immigrants who pose risks to national security and cannot be deported because they face torture in their counties can be detained.  People who do not pose such risks are typically prosecuted for their crimes and released after serving their sentences.  Nonetheless, they can be deported if conditions in their countries improve or if officials receive diplomatic assurances that they will not be tortured.  Several Republicans at the hearing have recently described such safeguards as inadequate and thus proposed changes that would bar criminals and human rights abusers from protection under the anti-torture law. Human rights attorneys claim that such changes would violate international law and therefore suggest that the United States is willing to condone torture in certain instances.  Representative John N. Hostettler, Republican of Indiana, described the protection from deportation as a “disturbing and dangerous loophole” for foreign criminals. Mr. Hostettler said he was particularly concerned about the treatment of human rights violators who had committed crimes in their home countries and were not typically prosecuted here.

15. REQUIRED USE OF MACHINE-READABLE PASSPORTS

A State Department press announcement reminds the public that, as of October 2004, visa waiver entrants must present a machine-readable passport or must obtain a visa to enter. This requirement presently applies to Belgian citizens.

16.  OLD ID CARD GIVES NEW STATUS TO MEXICANS IN U.S.

Recently, the House approved a measure that would authorize the State Department to regulate all consular identification cards issued by Mexico and other countries. Such countries are required to supply the names and addresses of everyone who was issued a card, among other things. Immigrants with the Mexican identification card, known as “matricula consular”, are now being accepted by Indianapolis and seven other Midwestern cities. This The mayors of the Indiana cities of Fort Wayne, identification card has been issued by the Mexican government for more than 100 years to keep track of its citizens in the United States. But across this country, cities and states are increasingly recognizing the card, too, as officials seek ways to identify residents in the aftermath of the terrorist attacks of Sept. 11, 2001, and try to better serve immigrants. However, illegal immigrants who carry the matricula card are still at risk of deportation and are still barred from working by federal law.  They cannot use the card to register to vote, change their immigration status, or obtain Social Security numbers or work permits.  Nonetheless, they often live more freely in cities that recognize the card,  and in several states, possession of a matricula card is the first step toward a driver’s license. East Chicago, Columbus, and Indianapolis announced they would accept the matricula card.  Likewise, the state of Indiana, the cities of Madison, Ind., Cleveland and Columbus in Ohio, and Cincinnati are presently accepting such identification.  Some places have chosen to buck this trend, such as Colorado, New York and New Jersey, and cite the concerns about the cards’ reliability.

Applicants for the card must apply in person at their local consulate and provide supporting documents like birth certificates, Mexican passports, and voting cards.  In March 2002, the Mexican government introduced an advanced matricula card with security features, including invisible coding that can be read only with special detectors.  However, the FBI estimates more than 90 percent of matricula cards belong to an earlier generation that lack such security features.  Officials claim that even the newer card can be forged, along with the supporting documents.  The FBI also warned that Mexico’s outdated databases allow multiple cards to be issued with the same name, address, and photograph.  Mexican officials counter that the older cards are being phased out as people renew their cards.  They say their computer databases will soon be updated and that additional features are in the works.

17. STATE DEPARTMENT CREATES NEW VISA CLASSIFICATIONS FOR BORDER COMMUTER STUDENTS

The State Department has amended its regulations to include two new visa classifications, namely F-3 and M-3. The visa classifications are for citizens and residents of Mexico and Canada who seek to commute into the United State for the purpose of attending an approved educational institution.

The new classifications were created on November 2002 by the enactment of the Border Commuter Student Act of 2002, Pub. L. 107-274. Under the Act, an individual who is a national of Canada or Mexico, maintains an actual residence and place of abode in the country of origin, is enrolled in a full or part-time course of study at an approved educational institution in the United States, and commutes to the institution would be eligible for an F-3 or M-3 student visa. However, family members of border commuter students are not entitled to derivative F-2 or M-2 statUS  Please take note that, similar to foreign students in the F-1 and M-1 visa categories, border commuter students are subject to reporting and record keeping requirements of the Student Exchange Visitor Information System (SEVIS).

18. GOLDEN VENTURE REFUGEES SEEK AMNESTY

Ten years ago, nearly 40 Chinese refugees fled their homeland on the Golden Venture freighter to escape its strict one-child-per-family policy. However, according to a federal immigration officer, the refugees will not be deported while they seek amnesty from Congress. The temporary protection marked a major victory for the 38 refugees who have lived in daily fear of being sent back to China as they apply to become permanent U.S. residents.

19. NEW FREE TRADE AGREEMENTS TO BE IMPLEMENTED

Singapore and Chile have signed free trade agreements (FTAs) with the United States that contain immigration provisions. The new agreements allow 1,400 professionals from Chile and 5,400 professionals from Singapore to enter the United States (The United States—Singapore Free Trade Agreement Implementation Act (H.R. 2739) and the United States-Chile Free Trade Agreement Implementation Act (H.R. 2739)). These country-specific caps, pursuant to the new Free Trade Agreements and based on Chile and Singapore’s previous H-1B usage, come under the overall H-1B program cap.  The annual cap on H-1B visas will revert to 65,000 for FY 2004, which begins on October 1, 2003.

In addition to providing for business visitors, intra-company transferees, and treaty traders and investors consistent with current immigration law and procedure, the FTAs create a new H-1B1 category for the entry of professionals from the two countries, whereby “specialty occupation” will be interpreted in a manner similar to that found in H-1B law and policy. The new classification closely tracks H-1B program qualifications and those admitted under the FTAs will count against the H-1B cap. Note that the Bureau of Citizenship and Immigration Services, The Dept. of State and the Dept. of Labor have not yet indicated how they will administer the H-1B1 program.

20. STUDENT ADJUSTMENT ACT PUSHED

A legislative measure that would grant legal resident status to tens of thousands of young undocumented immigrants on the condition that stay in school or pursue a college education have received bipartisan support in both houses of Congress, local community advocates in New York said. If passed, the Student Adjustment Act, one filed in the Senate and the other in the House, would give legal status to immigrants who are younger than 21 years of age and have lived in the country for at least five continuous years. In addition, the person should be enrolled in or planning to pursue college.