“Posted on AILA InfoNet, Doc. No.03050540 (May 5, 2003).”

Connect! Volume 4, Number 1, April 2003/May 2003 

Volume 4, No. 3 April 2003

Welcome to Connect!

Connect! focuses on business immigration issues that top the agenda in our nation’s capital. This newsletter includes information useful to employers, such as updates on new legislation and regulations that will impact the business community’s access to foreign workers, and articles that will help employers learn about the opportunities and pitfalls in our immigration laws. By working with members of Congress on these issues, employers can help shape our laws so that they are more responsive to, and respectful of, the business community’s needs and concerns.

IN THIS ISSUE

LEGISLATIVE UPDATE

Student Adjustment Bill Offers Students a Chance, Gives U.S. Companies Access to Untapped Talent
Tyson Foods Acquitted of Alien Smuggling Charges
AGENCY UPDATE

H-1B Statistics for FY02 Released
Work Authorization (EAD) Problems: BCIS Needs Direct Congressional Appropriations
Special Registration (NSEERS) Call-in Registration Ends
Ciudad Juarez to Resume Some Third Country Processing
SPOTLIGHT

Border Practices Effect U.S. Businesses

Legislative Update

Student Adjustment Bill Offers Students a Chance, Gives U.S. Companies Access to Untapped Talent

On April 9, Representatives Chris Cannon (R-UT), Howard Berman (D-CA) and Lucille Roybal-Allard (D-CA) introduced the Student Adjustment Act of 2003 (H.R. 1684). This bipartisan legislation will allow immigrant students who have grown up in this country, graduated from high school, and have no criminal record, to go to college, legalize their immigration status and obtain work authorization. This bill would help a new group of well-educated young professionals enter the job market and put their hard-earned talent to use.

H.R. 1684 recognizes the reality that some of our best and brightest students are prevented from reaching their potential because they were brought across the border as young children. Without proper immigration status or the option of in-state tuition, these students cannot work and do not have a chance to attend college. Without the ability to regularize their status or earn a college degree, these hard-working, bright students are unable to join the work force and U.S. companies are denied access to an untapped pool of talent.

The vast majority of these children were brought here by their parents at an age when they had no say in the matter. These children have managed to succeed against all odds and are important members of communities across this nation. They include class valedictorians, straight-A students, and others headed in the right direction.

At this time, the following Republicans have co-sponsored the Student Adjustment Act: Henry Bonilla (R-TX), Lincoln Diaz-Balart (R-FL), Mario Diaz-Balart (R-FL), David Dreier (R-CA), Melissa Hart (R-PA), Peter King (R-NY), Devin Nunes (R-CA), Rick Renzi (R-AZ), Ileana Ros-Lehtinen (R-FL), Chris Shays (R-CT), Chris Smith (R-NJ), Todd Tiahrt (R-KS), Heather Wilson (R-NM), Jerry Weller (R-IL). House Democrats sponsoring the bill include: Calvin Dooley (D-CA), Luis Gutierrez (D-IL), Steny Hoyer (D-MD), Sheila Jackson Lee (D-TX) Jim Matheson (D-UT), Michael McNulty (D-NY), George Miller (D-CA), Ed Pastor (D-AZ), Ciro Rodriguez (D-TX), Linda Sanchez (D-CA), Hilda Solis (D-CA), and David Wu (D-OR).

Please contact your AILA attorney for information on how to work in support of H.R. 1684.

Tyson Foods Acquitted of Alien Smuggling Charges

On March 26, 2003, a federal jury acquitted Tyson Foods, Inc. and three of its managers of all charges related to an alleged conspiracy to import illegal immigrant workers from Mexico and Central America. This closely watched case represented the first time a company this size had been targeted for criminal prosecution on these grounds.

In December 2001, after a three-year INS investigation into the company's hiring practices, a grand jury handed down a 36-count criminal indictment against Tyson Foods and six of its managers. Two of the indicted managers pleaded guilty to conspiracy charges and a third manager fatally shot himself several months after the indictment was handed down. Prosecutors in the case charged that the remaining defendants knowingly employed illegal workers and actively recruited such workers as part of a scheme to meet the company's labor needs and to keep wages depressed. The government sought to seize millions of dollars it claimed Tyson Foods had gained by employing illegal workers. The individual managers faced jail time and fines if convicted. Before the case went to jury, U.S. District Judge R. Allan Edgar dismissed 24 of the 36 counts for lack of evidence. The counts on which the jury deliberated and acquitted involved conspiracy to violate immigration laws, transporting illegal immigrants, and document falsification.

This case highlights the need for comprehensive immigration reform. Businesses cannot find willing U.S. workers to fill many of their low-skilled essential worker positions. Although many foreign nationals are ready and willing to come to the U.S. to fill such positions, there is essentially no visa category under current immigration law that facilitates the matching of willing U.S. employers to foreign national essential workers. This disconnect between local economic conditions and national immigration policy leaves an employment void which must be filled, in many instances, by undocumented immigrants. Such a result plainly is contrary to our national interests. Employers are forced to make difficult subjective determinations about the validity of an applicant’s employment authorization documents and the government is required to waste valuable manpower and resources in trying to enforce ineffective laws. Comprehensive immigration reform involving an earned adjustment for undocumented workers here in the United States and a prospective visa classification for essential workers is necessary to solve this troubling dynamic, as is a reduction in the backlog of people seeking to enter this country to join close family members.

Agency Update

H-1B Statistics for FY02 Released

The Bureau of Citizenship and Immigration Services (BCIS) has released statistics on the number of H-1B petitions filed and approved by the INS for fiscal year (FY) 2002. These numbers reflect H-1B usage during the 2002 economic downturn and will help contribute to the debate over whether H-1B usage is regulated by market forces. Although restrictionist rhetoric has called for the cancellation of the H-1B program, others recognize that the specialty skills and unique knowledge of the H-1B professionals are components necessary to revitalize our economy and continue its vitality.

During FY 2002 (which ended on September 30, 2002), the INS received a total of 215,190 H-1B petitions. The INS approved 197,537 petitions. Of these approved petitions, 103,584 were for initial employment and 79,100 were subject to the congressionally mandated numerical cap. These figures represent a significant drop from the FY 2001 figures. During the FY 2001 economic boom, the INS received 342,035 H-1B petitions, and approved 331,206 petitions, including 201,079 that were subject to the numerical cap.

The significant drop in H-1B petitions filed in FY 2002 demonstrates that H-1B visa usage responds to market forces. During the economic boom, H-1B professionals were needed, to fill vacancies not only in the IT market, but also in non-technology industries such as: education (elementary, secondary and higher); engineering, architectural and related services; scientific research and development; semiconductor and other component manufacturing; medical and surgical hospitals and other related medical services; pharmaceutical and medicine manufacturing; and management, scientific and technical consulting services. Although today’s market has reduced the need to fill shortages in many sectors, specific areas of the economy continue to face shortages of highly skilled professional workers and turn to the H-1B program to fill specialized positions that would otherwise remain vacant.

Today H-1B workers with unique skills and knowledge (for example, special expertise in overseas needs, markets, trends and distribution) still are needed by U.S. companies to develop new products, platforms and programs, enter new markets, and expand their client base. By ensuring that U.S. employers retain access to the H-1B workers they need now and workers they may need in the future, we can provide U.S. companies access to the expertise they need to revive our economy, increase productivity, and create jobs for American workers.

Work Authorization Problems: BCIS Needs Direct Congressional Appropriations

The BCIS, by regulation, is supposed to issue Employment Authorization Documents (EADs) within 90 days. However, many Service Centers are taking well over 90 days to issue EADs due to the resource demands that have resulted from additional security checks that have been added in the last year. This delay, in turn, has led to more work for BCIS at the local level, since those offices are required to issue interim work authorizations if the Service Centers don’t meet the 90-day deadline. Add to this the pressures on those offices from having to divert resources away from adjudicating naturalization and permanent residence applications and the result is a resource crisis for the local BCIS offices. Some, like New York, have responded by limiting the number of EADs they will issue in a given day (which in turn creates lines forming at ridiculously early hours of the morning). Others have responded by adjudicating fewer and fewer applications (or none at all). Overall, the result is a crisis both for BCIS offices and for the people who need work authorization in order to legally earn a living.

Immigration services traditionally have been underfunded, with user fees alone expected to subsidize this important function. AILA long has called for direct congressional appropriations to supplement user fees. Such an appropriation is especially needed today, given the costs of additional security checks. In fact, the BCIS is spending $10 million monthly on security checks. These costs have not been reimbursed and have reached approximately $150 million. Congress needs to recognize the costs of these checks and appropriate sufficient funding so that BCIS can undertake these checks while efficiently and effectively processing applications and petitions.

Special Registration (NSEERS) Call-in Registration Ends

Call-in registration for the National Security Entry-Exit Registration System (NSEERS) ended on April 25. The fourth group subject to call-in consisted of male nonimmigrants from Bangladesh, Egypt, Indonesia, Jordan, and Kuwait.

As of April 2002, the Department of Justice reported that 133,000 foreign nationals from roughly 150 countries have been registered into NSEERS. At the border, 733 foreign nationals were apprehended, and through call-in registration, 108 felons were apprehended as well as 11 suspected terrorists.

Previous issues of Connect! reported on the call-in component of NSEERS which requires certain foreign national nonimmigrants (non-green card holders) to comply with special registration requirements. (Please see the December 2002 /January 2003 issue of Connect! for details on the scope, deadlines and requirements of the registration program.)

Employers should be aware that, although this series of call-in registration has ended, the program is still operational at the borders. (Information about the border, including the Special Registration program, is featured in our “Spotlight” article at the end of this issue.) For more information on special registration, please contact your AILA attorney.

Ciudad Juarez to Resume Some Third Country Processing

Before last November, many foreign nationals who needed to renew their visas before traveling abroad or re-entering the United States would apply for visas at the U.S. Consulate in Ciudad Juarez, Mexico. However, in November, the consulate stopped its practice of providing visa services for third country nationals (“TCNs”). Many foreign workers thus were forced to cancel planned trips abroad, return to their home countries to renew their visas, or find another U.S. Consulate willing to process TCN applications. These new complications often resulted in increased travel and incidental expenses for foreign workers and their companies, especially for companies located close to the southern border.

In April, the U.S. Consulate in Ciudad Juarez announced that it had resumed processing some nonimmigrant visas for TCNs. The consulate will be processing all types of visa renewals for which the initial visa was issued in the home country, as well as for TCN applicants who changed visa categories while in the U.S., with some exceptions.

The U.S. Consulate in Ciudad Juarez generally requires that appointments be made in advance. Please contact your AILA attorney for more information on whether foreign workers are eligible for TCN visa processing.

Spotlight

Border Practices Effect U.S. Businesses

The United States has over 300 ports of entry through which authorized travelers and commercial goods enter the country. In 2001, over 510 trillion people (63% of whom were foreign nationals) and over $135 trillion in imports entered the U.S. through these ports. Given these figures, it is obvious that the efficiency of our ports has a significant implication for most U.S. businesses, particularly those businesses that employ foreign workers, receive funding from foreign investors or provide services to foreign nationals. However, until recently, many employers paid little attention to our nation’s border policies. But now, with delays at ports of entry becoming more commonplace, U.S. companies are finding it harder to bring in necessary foreign workers, international personnel and investors. Conversely, companies are also finding it harder to hold meeting overseas if they employ foreign workers in the U.S. since these workers are having a hard time re-entering the country after business trips. Others are finding that uncertainty at our borders as to whom this country will admit has begun to impact the travel and tourism industries.

Employers are a critical component in ensuring that our government achieves a balance between promoting efficient cross-border travel and protecting our economic security. Employers need to communicate the needs of U.S. business, and what is working and not working, to Congress and the Department of Homeland Security (DHS)—the agency now charged with implementing our border policies. (If you have any questions on how you can learn more about the border practices or communicate your concerns about border delays to the DHS or your members of Congress, please contact your AILA attorney.)

With the creation of the DHS, the Bureau of Customs and Border Protection (BCBP) is now in charge of our nation’s borders and our security at the border and has been restructuring the ports of entry. The bureau already has fused inspections personnel from both the Customs Service and the INS into one common chain of command. While this bureau is developing its priorities and policy objectives, it is very important for employers to be vocal about their interest in our nation’s border policy. Only through an understanding of the border process can employers point out inefficiencies that need to be corrected in order to ensure access to foreign workers and necessary international travelers. When trying to understand the border, the best place to start is with a general overview of the process a foreign national would follow in order to get to and across the border:

Visa Issuance—Most foreign nationals receive their visas from U.S. consular offices abroad. Before they are issued visas, foreign nationals are run through security checks and may be subject to face-to-face interviews with a consular officer to determine visa eligibility. For various reasons, the consular post also may send the foreign national’s information to Washington, D.C. for security clearances by the Department of State (DOS) and other relevant agencies such as the Federal Bureau of Investigation (FBI). Because visas are not issued until the DOS gets an affirmative response from these agencies, long delays for visa issuances have become commonplace.

The visa issuance process previously was solely under the jurisdiction of the DOS. However, with the creation of the DHS, Congress delegated to that new agency the visa issuance policy-making functions, training functions and the authority for overriding a consular officer’s approval of a visa. Currently, the two departments are in the process of creating a memorandum of understanding (MOU) on visa issuance.

Arrival at the Ports of Entry—After a visa is issued, most foreign nationals proceed directly to U.S. ports of entry. However, some overseas points of embarkation are equipped with pre-inspection stations. These facilities, which require international cooperation, allow an investigation of a foreign national to be conducted abroad, without disrupting the flow of people at our national borders.

Once they arrive at the port of entry (either a land port, seaport or airport depending on how the foreign national travels to the United State), foreign nationals must go through primary inspection. Although this inspection may take less than a minute in some cases, low levels of staffing and resources, processing delays and other complications make delays at this stage unpredictable. A foreign national may not have to wait for inspection or may have to wait several hours. At primary inspection, inspectors examine passports and visa documents and run security checks. Based on this primary check, some foreign nationals are allowed to proceed into the U.S. or are sent home (there is no chance for review here if the primary inspector decides against it), while others are sent to secondary inspection for closer scrutiny. The secondary inspection process involves additional interviews, additional document screening, and more security checks through a battery of databases. There is almost always a wait for secondary inspection, which will usually delay the foreign national for several more hours. From here, foreign nationals are allowed to enter the U.S., are detained, or are sent home.

Special Registration at Ports of Entry—As part of the entry process, certain foreign nationals will have to be registered with the National Security Entry Exit Registration System (NSEERS). This system is designed to register and keep track of arriving nonimmigrants from Iran, Iraq, Sudan, and Libya, and certain male nonimmigrants from Pakistan, Saudi Arabia, and Yemen. Other nonimmigrant aliens may be required to register, on a case-by-case basis, if they match current intelligence characteristics or database searches, have made unexplained trips (especially if the countries visited include certain middle Eastern countries or other countries such as North Korea or Cuba), or have previously overstayed their period of admission in the United States. Inspectors also have the authority to register any nonimmigrant at their discretion. Accounts of the registration process at the border indicate that it can take several hours and is very intrusive in nature. The registrant is then responsible for re-registering at an INS office 30 days after entering the country, every year thereafter, and upon departure.

Foreign Workers Who Commute—Many U.S. companies along the northern or southern border employ foreign nationals who commute daily from their homes to the U.S. This international commuter traffic, along with the shipment of goods across national lines, has created congestion at certain land ports. In order to deal with the high volume, some land ports of entry have implemented special technology-based programs that allow low-risk travelers to use special lanes. These technologies are only used in a limited capacity and include the NEXUS and FAST programs along the northern border and SENTRI along the southern border. Although each program differs slightly, they are all based on the same principle: pre-screen and identify low-risk travelers so that they may cross the border without having to go through the traditional inspections process. For example, the NEXUS programs allow applicants to be pre-screened and approved for entry into the U.S. Travelers are given a card containing their personal data and are allowed to cross the border using special dedicated commuter lanes. These lanes are equipped with technology that accesses the information on the card, and presents it to the inspector at the port of entry. This method of pre-clearance has been efficient for those enrolled in the program. However, becoming enrolled in the program is a challenge. It takes a long time to process the application and applications can be denied for very minor customs violations. Due to the stringent nature of the application process, one out of every thirty applications is denied, and no mechanism exists for appealing a denial.

Ports in the Future—In the near future, foreign nationals at the border will be entered into the entry-exit system each time they cross the border. The entry-exit system, as envisioned by Congress, is an efficient automated system that will collect a record of arrival and departure for every alien who arrives and departs the U.S.

The implementation deadlines for the entry-exit system fall into the following three groups:

Airports and seaports-- December 31, 2003
Top 50 high traffic land border ports-- December 31, 2004
Remaining implementation for all other ports-- December 31, 2005
Congress has mandated that the entry-exit system utilize technologies that facilitate the efficient flow of commerce and travel. This provision is extremely important because, as we have seen time and time again, a system that impedes travel across the borders will shut down our borders. For example, the Ambassador Bridge in Detroit handles approximately 30,000 vehicle crossings per day. Experts have testified that taking 30 seconds per car, with only half of the 30,000 cars going through the inspections process, would, in effect, shut down this port of entry—cars would have to wait roughly three days just to enter the U.S.

As the DHS takes on operations at our nation’s border, it has a duty to ensure that its actions respect the balance between our national security and our economic security. One of the department’s seven primary missions is to “[e]nsure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” (See the Homeland Security Act of 2002, (P.L. 107-296)). Given this mandate, the DHS, and the BCBP in particular, must develop the means to use technology and databases, the inspections process, and special programs at our borders to balance efficient legitimate travel and trade with our enhanced security needs. The DHS should emphasize the need to reduce significantly delays and uncertainty in visa processing as that is negatively impacting the activities of U.S. businesses as well as the national economy. The DHS should examine ways to expand the use of pre-inspection stations and authorize pre-clearances for low-risk travelers. Clearing travelers before their voyage to the United States gives inspectors more time to scrutinize each applicant for entry, reduces delays at the border, and provides international travelers with a sense of certainty that they will be admitted into the U.S.