June 2004

News and Commentary written and edited by
Boyd F. Campbell, Attorney at Law and Civil Law Notary

Published exclusively via the World Wide Web since 1994
© 2004, Boyd F. Campbell, All Rights Reserved

In this edition:

Immigration in the News (scroll down)

  CLEAR Act is bad public policy (opinion)
  Immigrants blamed for U.S. environmental problems
  Can you prove you are a U.S. citizen?  Are your 'papers' in order?
  Lawmakers working on compromise immigration plan
  Paying more for worse immigration service

LEAD STORY

Federal mandates against local law enforcement defeated

    By a vote of 262-145, the House defeated the Tancredo amendment, which would have withheld badly needed Homeland Security funds from communities where local governments, police, firefighters, and other officials and employees do not report the immigration status of persons they encounter.
    Had these federal mandates -- strangely and unaccountably championed by conservative Republicans -- directed at local governments passed, they would have cost cities, counties, and towns across America billions of dollars and would not have contributed to homeland security one iota.  In addition, local law enforcement officials and firefighters would be required to report the very people they are trying to protect.  

H-1B visa cap update; change of status for F-1 students

News from the American Immigration Lawyers Association

    On June 18, 2004, the Department of Homeland Security sent to the Office of Management and Budget (OMB) a draft notice titled "Supplemental Information Regarding the H-1B Numerical Limitation for FY 2004 Affecting F Nonimmigrants". This appears to be the long-awaited notice to enable duration-of-status students seeking change of status to H-1B to be regarded as maintaining nonimmigrant status until new H-1B numbers are available in October.
    We do not know right now whether other students and exchange visitors on "duration of status" will be affected by this rule or whether DHS plans to promulgate such a rule.  Also, we do not know whether there will be a remedy for change-of-status applications that have already been denied.
    Note:  OMB generally has up to 90 days to review a notice or regulation, after which it should be either revised, withdrawn or published in the Federal Register. Often, notices that are not regulation changes (which is the case here) will take less than 90 days at OMB.
    Last week (June 9-13), I attended the annual conference of the American Immigration Lawyers Association in Philadelphia, Pennsylvania.  On Saturday morning, June 12, I was on a distinguished panel of lawyers -- Ed Carroll, Martha Schoonover, and Marcine Seid -- who presented information about the basics of the labor and immigration aspects of the H-1B visa process.
    During the conference, we heard from the service center operations director of U.S. Citizenship and Immigration Services, who told us that 16,100 H-1B visas that will count against the 65,000-visa allocation, which will become available on October 1, were approved in April and May.  It is painfully clear that at this rate, there will be no H-1B visas available by the end of November.
    This is just further warning for U.S. employers and foreign nationals alike.  If there is a job that will go to a professional who is a foreign national, and the H-1B visa is appropriate for the foreign national, you should file the visa petition now.

My country, right or wrong

    This morning's paper brings a letter from a friend of mine, a retired Air Force colonel.  We have a lot of retired Air Force colonels in Montgomery, Alabama, because the Air University is here.  I thought this letter was so insightful and so chilling that it deserved to be given wider publication.  It is just one example, but it reflects my strongly held belief, shaped just during the past three years, that the United States -- as a nation -- is way off course and is being poorly served by the current administration and by our federal representatives in Congress.  Here is the letter in its entirety:

    "The U.S. government's refusal to allow Geneva Conventions' POW protection for many of its citizens echoes the denial of our enemies in World War II, Korea and Vietnam to extend the laws of war to American POWs.
    "Crommelin's Thunderbirds tells of Wetumpka [Alabama's] Cdr. Charles L. Crommelin's Carrier Air Group 12 in the Pacific War. In it, Ens. Charles L. Brown, shot down off Japan in 1945, recalled "All of the fliers and submarine men were treated as captives and not prisoners of war. We were informed that the Geneva Convention did not apply to us." They were tortured.
    "In Canton, the Japanese commander beheaded downed U.S. airmen until my wife's father, an OSS officer, clandestinely sent him a box of his favorite Filipino Tacalera cigars which blew up in his face. Decapitations ceased.
    "Joseph Gouldin's Korea: The Untold Story of the War tells how Communist Chinese and North Koreans denied captured U.S. airmen Geneva Convention rights and tortured them to confess falsely to germ warfare bombing.
    "John S. McCain's Faith of My Fathers describes how the North Vietnamese tortured him and his fellow captives, claiming they were not POWs but war criminals.
    "For God's sake, how did America end up in such evil company?"

John H. Napier III (Colonel-USAF-Ret.)
Ramer, Alabama

Anti-business bill threatens L visa program in Congress

    U.S. Rep. Henry Hyde (R-Illinois) introduced the "Save American Jobs Through L Visa Reform Act of 2004" (H.R. 4415) in the House on May 20. This bill would eliminate the L-1B visa category for intracompany transferees, place a numerical cap of 35,000 per fiscal year on the L-1A visa category and strip L visa users of the ability to claim dual intent pursuant to INA Section 214(b). H.R. 4415 also includes a sense of Congress provision that would call for employers to pay L-1 visa holders that greater of the prevailing wage or the actual wage paid for similar employees.
    H.R. 4415 would unnecessarily restrict companies' ability to use the L-1 category.  This is an anti-business bill in stark contrast to the more measured approach of U.S. Sen. Saxby Chambliss (R-Georgia), whose bill (S.1635) would refine current law by prohibiting the use of L-1 visas in simple contract labor arrangements and require the employer to control the essential elements of employment.

Travel carefully if you change employers

    A July 8, 1997, memo from the assistant commissioner of the former Immigration and Naturalization Service (INS), Michael L. Aytes, attempted to clarify the situation where a person with a nonimmigrant, employment-based visa such as H-1B changes employers but remains in H-1B status, and articulated Department of State (DOS) policy as well.
    The issue arises where an alien enters the United States on an H-1B visa employed by “Company A.” After commencing employment, the alien receives a more attractive job offer from “Company B.”  Company B files a new H-1B petition in the alien’s behalf which is approved by the INS.  The alien then begins employment with Company B.   The alien subsequently leaves the United States and then applies for admission as an H-1B nonimmigrant alien to work for Company B presenting the H-1B visa issued to him based on Company A’s petition.
    INS (now Citizenship and Immigration Services) and DOS policy is that, in the case of an H, L, O, or P nonimmigrant visa, the visa remains valid during its validity period regardless of a change in the beneficiary’s employer.  As long as the alien remains in the same nonimmigrant classification, the visa is considered to be valid up until the date of its expiration.  An H, L, O, or P nonimmigrant alien who changes employers in the United States, but remains in the same nonimmigrant classification, may use the previously issued visa to apply for admission to the United States if it is still valid.
    The memo reminded INS officers that H-1B and L-1 nonimmigrant aliens should be admitted for the validity period of the supporting petition, if otherwise admissible.  Officers were reminded not to arbitrarily limit the admission period of an H-1B or L-1 nonimmigrant alien.

U.S.-Canada Cooperation Agreement Signed

    Under Secretary of State for Global Affairs Paula Dobriansky and Canadian Ambassador to the U.S. Michael F. Kergin on June 1 signed an “Agreement for Cooperation in Science and Technology for Critical Infrastructure Protection and Border Security” in Washington, D.C.
    The agreement will enable the United States and Canada to use science and technology (S&T) more effectively in responding to new types of threats. Conceived after the tragic events of 9/11 and underpinned by the “Smart Borders Initiative,” the Agreement creates new mechanisms to help our countries work together to protect common infrastructures and strengthen the security of the common borders.
    Under the Agreement, U.S. and Canadian agencies will be able to conclude technical cooperation agreements more expeditiously. They will be able to carry out exchanges of information, material, and equipment, including classified exchanges. Intellectual property created under the Agreement will be legally protected and shared. A number of such technical arrangements are already under discussion between the U.S. Department of Homeland Security and Canadian agencies. This bilateral Agreement represents a significant new departure for using international science and technology to serve basic security and social interests. Entering into force upon signature, the agreement is legally binding under international law. As an Executive Agreement, Senate approval is not required.
    The Agreement is wide-ranging and permits virtually any kind of useful S&T cooperation related to critical infrastructure protection and border security. By bringing the best minds in both countries together to address common problems, we will not only get better solutions, but the solutions will be compatible with our various systems from the outset and will save resources. The agreement is not restricted to government agencies only.  Private universities and research organizations can also work as participants in government-approved activities.
    The parties will cover the costs of their respective activities under the agreement. They may also agree to share costs, subject to Congressional appropriations. Each side will appoint an Agreement Manager responsible for overall policy direction and an Agreement Supervisor in charge of day-to-day activities.

Bill would have turned doctors, nurses into immigration police

    On May 18, a House bill that would have turned hopsital employees, doctors, and nurses into immigration police by requiring them to verify patients' immigration status was soundly defeated by a vote of 331 to 88.
    H.R. 3722, introduced by Representative Dana Rohrabacher (R-CA), and called the Undocumented Alien Emergency Medical Assistance Amendments of 2004, would have denied hospitals and other health care providers reimbursement for uncompensated emergency care they provide to undocumented immigrants unless they report those immigrants to the Department of Homeland Security (DHS).
    Providers would thus have been required to verify the immigration status of all uninsured patients presenting health care emergencies.  Health care providers would have been required to transmit to DHS information including their patients' financial data, identity of employer, and biometric information.  The Rohrabacher bill was particularly nasty because it would have narrowed the scope of emergency health services available to undocumented persons and make inability to pay medical expenses a basis for removal from the United States.  Employers of undocumented workers whose medical expenses are reimbursed by the federal government would be required to repay the government for those costs.
    This bill was perhaps the most un-American piece of legislation I have ever seen.  It would have jeopardized the health of immigrants and the general public, and caused many thousands, if not millions, of undocumented workers and their children to forego seeking health care for fear of being arrested, detained, and deported from the United States.
    H.R. 3722 would not only have been bad public policy, but it also ran in complete opposition to decades of conservative Republican political philosophy.
    Question:  Why turn local hospital employees, doctors, and nurses into immigration police and distract them from their vital mission of providing patient care?
    Answer:  Federal mandates, brought to you by Republicans.  Apparently Republicans in both houses of Congress believe federal laws should be enacted to make state and local governments pay for immigration control.  This is not the same party my father and I belonged to.  It no longer believes in small government; it believes in big government.  It no longer believes in fiscal responsibility; it believes in new taxes, bigger government, and spendthrift deficits as far as the eye can see.
    I hope I never see a bill this mean and nasty ever again.

Comprehensive immigration reform bill in Congress

    A new, comprehensive, immigration reform bill, introduced in both the House and Senate, proposes to resolve a number of serious problems with a badly broken immigration system in the United States.
    The SOLVE (Safe, Orderly Legal Visas and Enforcement) Act of 2004) proposes to make the federal immigration immigration safe, legal, and orderly, reunite families, reward hard work, respect workers, reduce illegal immigration, and enhance homeland security.  The bill provides for:

    1.  An earned adjustment for people who work hard, pay taxes, and contribute to their communities. This bill gives undocumented people who demonstrate their commitment to this country and its principles the opportunity to obtain permanent residence.  Many have been here for years, are paying taxes, raising families (typically including U.S. citizen and lawful permanent resident spouses and children), and contributing to their communities and the industries in which they work.
    2. New “break-the-mold” worker program.  Current immigration laws do not meet the needs of our economy. This bill creates a new temporary program that would give workers the opportunity to work where they are needed and employers the workforce they need to remain competitive, without displacing U.S. workers.  This program provides legal visas, family unity, full labor rights, labor mobility and a path to permanent residence and citizenship over time. It would diminish significantly future illegal immigration by providing people with a legal avenue to enter the U.S. and return, as many wish, to their home countries, communities, and families.
    3.  Family-backlog reduction. Our family preference immigration system has not been updated in more than a decade, and an increasing number of American families face long periods of separation. This bill reflects the fact that we are a country that values strong families by including provisions that would preserve and strengthen the family preference system.
    4.  Enhanced security measures. This bill includes measures that would reduce crime and enhance our intelligence capacity, enable our law enforcement agencies to focus on terrorists and criminals, and encourage legality at our borders.

Senate considers L visa bill

    On May 6, the Senate Judiciary Committee considered S.1635, the "L-1 Visa (Intracompany Transferee) Reform Act of 2003," introduced by Senator Saxby Chambliss (R-GA). This bill would include reforms to prevent L-1B visaholders from being posted primarily at the worksite of a third party in cases where they would not be controlled or supervised by the petitioning employer, or where their placement at the third party site was part of an arrangement to provide labor for hire.  This arrangement is commonly called a job shop and such abuses prompted congressional involvement in the L visa program.
    I am urging my corporate and small business clients to contact their United States senators and express support for S.1635.

USCIS increases petition, application fees across the board

    Fees for immigration-related petitions and applications increased across the board, effective April 30, 2004.  Most fees increased by an average of $55.  The shocker was the increase in fees for international adoptions:  the fee for an I-600 (Petition to Classify Orphan as an Immediate Relative), or I-600A (Application for Advance Processing of Orphan Petition), $460 to $525.
    A list of commonly filed petitions and applications, along with the former fee and the new fee is set out below:

    I-90 (Application to Replace Permanent Resident Alien Card), $130 to $185
    I-129 (Petition for a Nonimmigrant Worker), $130 to $185
    I-129F (Petition for Alien Fiance(e)), $110 to $165
    I-130 (Petition for Alien Relative), $130 to $185
    I-131 (Application for Travel Document), $110 to $165
    I-140 (Immigrant Petition for Alien Worker), $135 to $190
    I-360 (Petition for Amerasian, Widow(er), or Special Immigrant), $130 to $185
    I-485 (Application to Register Permanent Residence or Adjust Status), $225 to $315
    I-539 (Application to Extend/Change Nonimmigrant Status), $140 to $195
    I-751 (Petition to Remove Conditions on Residence), $145 to $200
    I-765 (Application for Employment Authorization), $120 to $175
    I-824 (Application for Action on an Approved Application or Petition), $140 to $195
    N-400 (Application for Naturalization), $260 to $320
    N-600 (Apploication for Certificate of Citizenship), $185 to $240

    While many groups and individuals protested the new rule-making by USCIS, the agency took no heed and increased the fees anyway.  If you do not like the new fee structure, please write your members of Congress or U.S. senators and demand that Congress make a new, direct appropriation to USCIS so that these fee increases may be rescinded.  USCIS says the increased fees will allow the agency to provide "better service."  All the public has ever wanted from this agency is service, pure and simple, and it has not seen it in more than a quarter-century.  "Better" service is some poor bureaucrat's dream.

Florida bill to license illegal aliens dies

    A bill backed by Florida Governor Jeb Bush that would have allowed illegal immigrants to obtain driver's licenses has been abandoned by its sponsor after law enforcement officials raised security concerns.  Republican State Senator Rudy Garcia said he would propose studying the issue before next year's legislative session begins.
    It was the latest setback to efforts to grant licenses to illegal immigrants.  Four months ago, California Governor Arnold Schwarzenegger repealed a law
that would have allowed about 2 million illegal immigrant drivers there to begin applying for licenses. He cited domestic security concerns as a reason.
    Bush said on April 17 that he would continue to work with law enforcement to try to improve the measure before the next legislative session.  Sheriffs questioned whether other countries can provide acceptable criminal background checks.

Emergency H-2B visa legislation introduced in Congress

    The "Save Summer Act of 2004" (S. 2252/ H.R. 4052) has been introduced in both houses of Congress by multiple sponsors of both parties.  This bill would increase the H-2B cap for Fiscal Year 2004 by 40,000 visas and would require the Department of Homeland Security to make annual and quarterly reports on the use of the H-2B program.  Senators Orrin Hatch and others have also introduced the Summer Operations and Services ("S.O.S") Relief and Reform Act, about which more later.

ICE announces expansion of pilot removal project

    On March 26, 2004, Immigration and Customs Enforcement (ICE) announced expansion of its "Hartford Pilot Project" to Atlanta and Denver as part of its "Endgame" plan. The project involves the detaining of foreign nationals immediately upon Immigration Judge orders of removal at court hearings.  Apparently the Atlanta project will be run much like a similar project in Miami.

DOS issues rule on passports, interviews

    An interim final rule issued by the State Department on March 26, 2004, clarifies that revoked, lost, or stolen passports are invalid. The interim final rule requires specified photographs and personal appearance of all applicants not eligible to apply by mail (including minors under 14, unless specifically waived).

CLEAR Act would cost $9 billion over 5 years

National Immigration Law Center

    The Congressional Budget Office (CBO) has completed a cost estimate for the CLEAR Act.  Although CBO did not directly figure state and local government costs, their analysis includes some mention of these burdens and is helpful on the federal cost side.  While we need to do a more detailed analysis of their findings, here are some highlights:
    The price tag for the federal government would be $9 billion between 2005 and 2009, if everything authorized is appropriated (such as the $1 billion annually for SCAAP).  In the analysis CBO points out that Congress fails to appropriate more than 35% of SCAAP requests annually in its current form, showing how unlikely it is that CLEAR would lead to new resources for state/local governments and police proportionate to the costs of participating.
    Furthermore, SCAAP reimbursement currently requires conviction for a state or local crime.  Since immigration violations are not part of state or local legal codes, it raises the question whether any of the new enforcement could actually be reimbursed for as the bill's drafters envision.  This point was not explored by CBO, and if anyone has greater insight into how this might work we would like to hear from you.
    Regarding the administrative judgment system established in the bill (to award monies to local police departments who take undocumented immigrants into custody and the Department of Homeland Security doesn't come to pick them up), CBO said local governments won't find this cost-effective and likely won't pursue the funds, again undercutting the argument that more money is on the way.  In fact, CBO didn't factor any of these potential reimbursements ($1,000 per incident and then $10,000 if there is a pattern and practice of DHS not picking up undocumented people identified by local police) into the $9 billion federal price tag, because they deemed it so unlikely local governments would try to pursue this money.
    In the legislation, both state/local and federal enforcement of immigration laws would be funded, in part, through a "tax" on visa application fees paid to U.S. Citizenship and Immigration Services.  One-third of these fees would be re-directed to enforcement.  CBO estimates that U.S. CIS could have to raise an additional $1 billion or more a year to pay for this "tax," which could require perhaps a doubling of application fees.  This additional money is not coming out of federal tax coffers, and so may be another hidden cost of the legislation.  Fees are already on the rise as application processing times skyrocket, and forcing immigration benefits applicants to now foot part of the bill for enforcement is a significant statement on the drafters' part.
    Finally, CBO said that the bill does contain intergovernmental mandates that preempt state and local laws, as defined in the Unfunded Mandates Reform Act.
    The CLEAR Act is not only bad public policy, but also runs counter to decades of conservative Republican political philosophy.
    Question:  Why turn local police into immigration police and distract them from their vital mission of protecting lives and property?
    Answer:  Federal mandates.  Republicans in Congress believe that state and local governments should pay for federal immigration reforms and police enforcement.  H.R. 2671 (the CLEAR Act) and Senator Sessions' Homeland Security Enhancement bill (S. 1906) would do just that, costing state and local governments billions of tax dollars, while not increasing homeland security one iota.

H-1B visas exhausted for fiscal year

    On February 17, Citizenship and Immigration Services (CIS) announced that it has received enough H-1B visa petitions to meet this year's cap of 65,000 visas.  CIS will no longer accept H-1B visa petitions for first-time employment.  Current H-1B visaholders who renew their visas or change employers may still file petitions for those purposes.
    Petitions that do not count toward the cap include those that change employers, change the job or duty position, extend the period of the alien's employment in the United States, or allow the H-1B visaholder to work concurrently in a second H-1B position.
    A new allocation of 65,000 H-1B visas will not be available until October 1, 2004.  New petitions, with an employment start date of October 1, 2004, will be accepted beginning on April 1, 2004.

CIS fee increases under fire (see 'Immigration in the News' below)

American Immigration Lawyers Association

    Citizenship and Immigration Services (CIS) of the Department of Homeland Security has announced proposed increases in fees for immigration applications of up to 55 percent each. These fees cover almost all of the agency's expenses. However, at a time when the quality of service is at an historic low, increases of this magnitude are difficult to justify. Processing backlogs have reached crisis proportions, while the agency wastes resources revisiting issues already resolved and harassing honest petitioners with requests for paperwork unrelated to their immigration eligibility. Making matters worse, the public's only available avenue to resolve government errors and problems is a contractor-run 800 number that has proven to be useless to deal with these issues.
    Adding insult to injury, the proposed fee increase would force applicants to pay for these failures. As CIS loses files, errs on more and more applications, and provides no viable avenue to resolve problems, lawsuits to force action have increased. The proposed budget for CIS factors the costs of these suits into the fees by proposing a surcharge to pay for them. The Equal Access to Justice Act mandates that government agencies pay certain costs when they take a substantially unjustified position in litigation. CIS proposes to evade this law by forcing the very people who are harmed by its actions or inaction to pay the costs of the agency's unjustified positions.
    The Department also has announced that it intends to outsource the immigration information officer (IIO) function and factors into the proposed fee increase the cost of conducting an expensive study of this problematic initiative. Despite numerous problems associated with contracting out the deeply flawed 800 number system, the CIS budget would mandate that applicants pay the costs of this study to expand this failed concept to cover all user assistance functions.
    I urge you to write your senators and members of Congress and demand that Congress appropriate funds for CIS.

Seeking examples of denied religious visa cases on appeal

    I am seeking examples of religious worker cases that have been denied by Citizenship and Immigration Services and are on appeal.  Religious visa cases are being denied by CIS based upon a flawed holding that the qualifying religious organization must be a "church."  Neither federal immigration law nor federal regulations make such a requirement.  Under this flawed analysis, no U.S. organization other than a church may hire a religious worker.
    If your religious organization has such a case on appeal, please contact me via e-mail:  CLICK HERE, or write to me at P.O. Box 11032, Montgomery, AL 36111-0032.

State now requires minor passport applicants to appear in person

    To enhance the accurate identification of passport applicants and aid in the prevention of international child abduction and trafficking, the Department of State’s Bureau of Consular Affairs has begun requiring the personal appearance of all minors applying for U.S. passports.  this applies to all regular, official and diplomatic passports for children younger than 14, even if the child has previously been issued a passport.
    Prior to the introduction of this requirement, parents were not routinely required to bring a child younger than 14 with them when they applied on the child’s behalf. Now, when applying for a passport on behalf of a minor younger than 14, parents are required to have their child present and submit documentation of parental relationship and consent, as well as comply with all other documentation requirements for the issuance of a passport.
    The State Department announced that the personal appearance requirement for all minors is a further step toward ensuring the integrity of the passport application process. It said the change would help to verify the identity of minor applicants and aid in the prevention of international child abduction and trafficking.

Alabama senator's bill could cripple Alabama's economy

National Immigration Law Center analysis

    Alabama Senator Jeff Sessions' bill to compel local law enforcement officers to enforce federal immigration laws could have a crippling effect on the economies of agricultural states, such as Alabama.  S. 1906 would compel state and local police to enforce federal civil immigration law, going even further than a similar bill  introduced in the House earlier this year.  If the bill becomes law, any interaction between state or local police and people who look or sound foreign would be fraught with risk, and states would be compelled to spend limited resources trying to decide who is in violation of immigration law, instead of tracking down and arresting rapists, murders, robbers, and other criminals who do us harm.
    The bill’s provisions also would force states to adopt policing policies to enforce federal laws instead of making judgments about what best promotes public safety, which is strangely at odds with the conservative Republican philosophy of preventing the federal government from meddling in state affairs.
    The Homeland Security Enhancement Act (S. 1906) was introduced on November 20, 2003, by Sens. Sessions (R-AL) and Zell Miller (D-GA).  Its counterpart in the House is HR 2671, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act.  The Senate bill reportedly was drafted to meet policy positions and recommendations provided by Kris Kobach, former counsel to Attorney General John Ashcroft and currently Republican candidate for Congress in Kansas.
    Following are among the Senate bill’s key provisions:
    It would criminalize all immigration law violations committed by non–U.S. citizens.  (HR 2671 criminalizes only those violations related to “unlawful presence.”)
    The bill would force states to enforce immigration law by withholding State Criminal Alien Assistance Program (SCAAP) funds, which reimburse states for incarcerating noncitizens, if the states do not repeal policies that limit police enforcement of immigration laws.
    Cash-strapped states would be required to take on these additional responsibilities without receiving additional federal funding.  In contrast to HR 2671, S. 1906 would not provide states with funds obtained via the forced forfeiture of undocumented immigrants’ assets, or from visa processing fees or administrative judgments.    Neither does the bill provide for grants to state and local police agencies to pay for the equipment and technology they would need to enforce federal immigration law.
    The bill would authorize entering specific types of immigration information into the National Crime Information Center (NCIC) database — i.e., records regarding noncitizens who have received final orders of removal, agreed to voluntarily depart the U.S., or overstayed temporary visas.  (HR 2671, in contrast, would not limit the type of immigration violation – related information that could be entered into the NCIC.)
    The bill would require that the federal government acquire enough new detention space to hold 10,000 more individuals in federal custody or at federal expense, and the bill includes new provisions related to state and local facilities maintaining an incarcerated criminal non–U.S. citizen in custody between the time that the individual’s criminal sentence has been served and when the federal government can arrive to take the person into custody.
    The bill would, in effect, require that driver’s licenses issued by states to non–U.S. citizens who are not permanent residents expire when the noncitizen’s authorization to remain in the U.S. expires.  The bill would force the states to adopt such a policy by forbidding federal agencies to accept as identification any driver’s license that does not expire with the nonimmigrant visitor’s authorization to be in the U.S. and by denying highway safety funds to states that issue driver’s licenses to noncitizens who are not in lawful status.
    The bill would narrowly limit the documents that the federal government could accept as identification when providing federal public benefits or services in the U.S.  The only acceptable documents would be (1) those issued by a U.S. or state authority and subject to verification by law enforcement agencies or (2) passports in the possession of people lawfully in the U.S. who are from countries whose nationals are not required to obtain a visa before visiting the U.S. (i.e., nonimmigrant visitors from “visa waiver” countries).  If it became law, this provision would preclude the use for such purposes of a vast array of commonly accepted identity documents issued by countries around the world to their citizens, including passports, consular ID cards, national ID cards, birth certificates, foreign driver’s licenses, and school ID cards.  It would also preclude the use of many nongovernmental documents issued in the U.S. itself, including hospital birth certificates, school ID cards, and church baptismal certificates.
    COMMENT:  If S. 1906 becomes law and is enforced in Alabama, immigrant labor will be deported or leave, thus sending Alabama's agricultural economy into a power dive.  This bill has little -- if anything -- to do with homeland security or national security.  I respectfully suggest that Alabama's junior senator focus on legislation to fight terrorism and leave Alabama's law enforcement communities and immigrant labor alone.

New immigration reform bill filed in Senate

National Immigration Law Center analysis

    On January 21, 2004, Senators Chuck Hagel (R-Nebraska) and Tom Daschle (D-South Dakota) introduced legislation to reform immigration laws (S. 2010).  The bill would:

    1. Provide a mechanism for most currently undocumented workers to earn permanent legal status;
    2. Significantly reduce the waiting time for immigrants coming to join U.S. citizen and legal permanent resident family members; and
    3. Create a new temporary worker program including a path to permanent status for temporary workers who set down roots in the U.S. and choose to stay.

    One serious flaw in S. 2010 is its failure to adequately protect U.S. workers -- including immigrants -- from employers who seek to abuse the new temporary worker program.  For example, the bill leaves in place the damaging Supreme Court decision in Hoffman Plastic Compounds v. NLRB, in which the Court restricted the remedies available to an undocumented worker whose employer violates worker protection laws.
    It is important not to promise worker protections that will not be enforceable or actually available in practice.  S. 2010 relies too heavily on employer attestations and administrative remedies.   It does not permit a worker to go to court to redress a violation.
    Another flaw in S. 2010 is that it leaves a hole in the earned legalization program that could prevent as many as a million or more undocumented immigrants from obtaining legal status, undermining the intention of creating a clean slate under the new rules.  In addition, the bill fails to provide for such needs as English language instruction, basic health care, and economic development to rapidly increase immigrant productivity in the U.S. economy, and to help states and communities adjust to the uneven distribution of needs and opportunities that immigrants provide.
    Despite its flaws, the bill is thoughtfully constructed and its introduction initiates a new phase in the debate for real immigration reform in America.
    Following are some of the highlights of S. 2010.  The bill would:

Title I:  Family Reunification

    Reclassify the spouses and minor children of legal permanent residents (LPR’s) as “immediate relatives” not subject to per-country immigration limits.  It would provide that visas issued to immediate relatives would no longer be counted against the worldwide 480,000 cap for family-based immigration.  And it would make more visas available to other family categories.  According to the authors, State Department data suggests that these changes would eliminate the visa backlog in family immigration categories within about four years.

Title II:  Willing Worker Program

    Modify the current H-2B temporary worker program and create a new H-2C program.  Together the two programs would provide up to 350,000 temporary visas each year, a more than five-fold increase over the current H-2B program visa availability.  The spouse and children of a participating worker would be permitted to accompany the worker, though they would be ineligible to work unless they qualify independently for temporary worker status.   The temporary visas would not be available to undocumented immigrants who have lived illegally in the U.S. for more than 6 months (because the temporary visa applications would have to be made from abroad and undocumented immigrants would be subject to the 3 and 10 year bars).

    A key feature of the new programs — and one which strongly differentiates it from the President’s guestworker plan — is that the employer or the worker’s union would be permitted to petition at any time for a temporary worker to remain in the U.S. permanently.  In addition, after three years of temporary status the worker would not need to rely on the employer because she would be eligible to petition for herself.

Employer requirements and worker protections

    An employer wishing to make use of the program would pay a per-worker fee and would be required to abide by certain regulations designed to protect U.S. workers.  For example, participating employers would be required to attest that they are not involved in a labor dispute, that they have tried and failed to recruit U.S. workers, and that they will pay the prevailing wage to the temporary workers.  S. 2010  provides an administrative complaint procedure for violations of these provisions that could result in a fine against the employer and equitable relief for the aggrieved worker, plus the employer could be barred from participating in the guestworker program for one or more years.  Importantly, though, workers would have no access to court to enforce their rights.
    Temporary workers would be entitled to the full protection of federal, state, and local labor laws enjoyed by other workers and there are some important provisions such as whistleblower protections intended to address the particular vulnerabilities faced by guestworkers who endeavor to enforce these rights.  But unfortunately labor laws are notoriously insufficient to protect all workers in the sectors where immigrant workers are concentrated, and S. 2010 provides no additional resources to improve enforcement of workplace protections such as minimum wage and worker safety.
    Sadly, because labor law enforcement is so ineffective, the only practical solution available to an exploited worker is often to change jobs.  S. 2010 includes a limited implementation of an important feature known as “portability” under which temporary workers would be permitted to change employers without losing their right to remain in the U.S.  Under S. 2010, the new employer would have to meet the qualifications and paperwork requirements for participation in the temporary worker program, and would have to file the same petition as the original employer.  In some cases the worker would also be required to obtain a waiver from the Department of Homeland Security before switching jobs.

Title III:  Earned Adjustment

    Provide legal permanent residence to workers who can show continuous physical presence (other than brief, casual, or innocent absences) for at least five years before the date of introduction, who pay a $1,000 fine, plus fees, and can meet certain other requirements such as payment of taxes, knowledge of English and civics (or enrollment in classes), and clearance of a law enforcement and criminal background check.  To qualify, individuals would also have to prove that they worked during at least three of the five years before introduction, and that they worked at least one year after the bill was enacted.  Exceptions to the work requirement include children under 20, the worker’s spouse, and persons granted humanitarian waivers for such reasons as pregnancy or disability.
    An additional a “transitional worker” program would be available to some undocumented immigrants who do not satisfy the continuous residence and/or work requirements and have worked in the U.S. for at least two of the five years before introduction of the bill.  An apparent drafting error makes the specific requirements necessary to qualify for this provision a little murky.  Upon application, payment of fine and fees and security clearance, whose eligible would be granted a 3-year temporary status and would eventually qualify for permanent residence if they work for at least two years after enactment of the bill.
    Note that depending on how the transitional worker program is interpreted, it is likely that a million or more persons who have been in the U.S. in undocumented status would be unable to qualify for either the earned adjustment or the temporary worker visas.

H-1B visa program in serious trouble

    As readers of the Update know, the number of H-1B visas available for fiscal year 2004, which began October 1, 2003, dropped from 195,000 to 65,000.  Citizenship and Immigration Services has reported H-1B visa issuance and cases for the first quarter of the fiscal year, and the news is very bad.  Based upon its first quarter figures, 43,500 H-1B cases that could count against the 65,000 cap for fiscal year 2004 have been either approved or are in the queue for adjudication.
    For employers, this means that if they want to hire a foreign national employee this year, the H-1B visa petition should be filed now.
    For international students, this means that there will be no H-1B visas available when they graduate in May or June.

Bush proposes temporary work visa program,
notarios quickly began a feeding frenzy nationwide

    On January 7, 2004, President Bush proposed immigration reforms that include a three-year temporary employment visa for both legal and illegal aliens, whether inside or outside of the United States.  But that is all it was: a proposal.  On January 8, 2004, Spanish-speaking notarios (notary public) all over the United States were out in force, telling immigrants that they can get these visas now and stealing money from them through fraud.
    There is no temporary employment visa available for aliens who entered the United States without inspection (i.e., illegally) or who entered legally and overstayed their visas.  I repeat: THERE IS NO VISA AVAILABLE! Notarios (notary public) who are taking money from immigrants in the United States are criminals and should be reported to a local district attorney for prosecution.

What the Bush immigration reform proposal does

    1.  Provides that American employers must make reasonable efforts to find U.S. workers to fill available jobs.
    2.  Provides for temporary worker status to undocumented men and women now employed in the United States and to those in foreign countries who have been offered employment here. The workers under this temporary, three-year visa status must pay a one-time fee to register in the program, abide by the rules, and return home after their period of work expires. There would be an opportunity for visa renewal.
    3.  States that the United States government will work with other countries to allow aliens working in the United States to receive credit in their nations' retirement systems and will support the creation of tax-preferred savings accounts they can collect when they return to their native countries.
    4.   Provides that temporary workers in this visa program will be allowed to travel back and forth between their countries of origin and the United States.
    5.  Provides for a reasonable increase in the annual limit of legal immigrants to benefit those who follow the lawful path to citizenship.
    6.  Provides that the temporary employment visa program should not connect  to a green card or citizenship.  However, it should not prohibit a temporary employment visa participant from obtaining green card status through the existing process. It should not permit undocumented workers to gain an advantage over those who have followed the rules.
    7.  Requires employers to report identifying information about temporary workers who are laid off or fired to the Department of Homeland

    Bush has consistently stated that he is against "blanket amnesty."  According to The Washington Post, Republican officials said the Bush proposal draws on, among other sources, a bill introduced by Sen. John McCain (R-Ariz.).  It would create a Web-based job registry to be run by the Labor Department.  Employers would post job opportunities that would be available first to U.S. workers and then to immigrants, who would be allowed to come under a new, three-year visa for temporary workers.
    Immigration reform was among the centerpieces of Bush’s platform when he ran for president in 2000.  Six days before the Sept. 11 terror attacks, Bush met with Mexican President Vicente Fox to discuss revamping the two countries’ policies and laws concerning illegal immigration.
    Last fall, undocumented workers were again pushed to the political forefront.  There are now three bills in the Senate designed to create a process for workers already here illegally to receive work permits.  Some of the legislation also proposes measures for tighter security at the borders.  Bush has not publicly endorsed any of the bills.
    Because 2004 is an election year, Bush may be using the issue to draw voters in without actually driving legislation through Congress.  The president has tried to court Hispanic voters with the goal of increasing his percentage of the Hispanic vote in the November general election.

Immigration in the News

Clear Act is bad public policy (opinion)

    “[I]n the mid-1990s, Congress authorized the attorney general to enter into cooperative agreements with state and local law enforcement officers to allow the latter to serve as immigration officers.  Respectful of the principles of federalism and separation of powers between federal and state interests, however, such power was and is strictly voluntary and limited.  These precedents, and others, reflect the proper role of the federal government—to enforce federal laws—and the proper responsibility of state and local governments—not to enforce federal laws.  The CLEAR Act would throw this important principle out the window in the name of ‘fighting the war against illegal immigration.’  While this war may be worthwhile, the means of achieving it proposed in the CLEAR Act is not ....
    “Even though, on the surface, and in the words of its sponsors, participation by state and local law enforcement under the CLEAR Act would be ‘voluntary,’ this is more a semantic distinction than a factual reality ....
    “As a practical matter, forcing local law enforcement to pick up the slack for the federal government’s abject failure to use its powers and resources to enforce federal immigration laws, will simply afford the feds another excuse for not doing what they are supposed to have been doing all along.  The United States has never before stood for a national police force.  Now is not the time to take the first tangible steps in that direction; no matter how appealing the reason.” -- Former U.S. Representative Bob Barr (R-Georgia), excerpt from United Press International opinion column, April 30, 2004.

Former embassy employee charged in visa scheme

MIAMI (AP) -- A former employee at the U.S. Embassy in Mexico City is accused of conspiring with a Colombian couple in a visa bribery scheme that allowed dozens of cartel members and leftist guerrillas to get doctored visas.
    Julieta Quiroz, 49, a naturalized U.S. citizen from Nicaragua, is accused of making at least $345,000 for about 180 visa request to enter the United States, according to criminal complaints filed by Assistant U.S. Attorney Larry Bardfeld in Miami federal court.
    She is also accused of conspiring with Colombians Olga Elena Ramirez and her husband, Juan Carlos Ramirez, who allegedly arranged to get some of those visas to traffickers and guerrillas with the Revolutionary Armed Forces of Colombia.
    The three were charged with conspiracy, bribery and visa fraud. Juan Carlos Ramirez also laundered money in Mexico for an unspecified Colombian cocaine cartel, according to a court affidavit.
    The charges are a result of a joint operation between Department of Homeland Security immigration agents and the Department of State's Diplomatic Security investigators.
    Quiroz had resigned from the U.S. State Department before her arrest on Friday, said Stuart Patt, a State Department spokesman.  Her husband, Walter, is an attache at the U.S. Embassy in Nicaragua. -- Excerpt from an article published by The Associated Press, April 7, 2004.

Immigrants blamed for U.S. environmental problems

EDITOR'S NOTE:  I normally do not agree with Texas columnist Molly Ivins, but she is a good writer.  Following is an excerpt from her column published on April 7, 2004.

    One of the weirdest environmental developments of late is the attempt by right-wing anti-immigrant groups to take over the venerable Sierra Club.  The latest fad among these anti-immigrant groups, many of which have ties to disgusting racist groups, is to blame immigrants for our environmental problems.
    I see a lot of Mexican immigrants, and some of them must be illegal, gardening in this country, but I don't know of many who run power plants that spew tons of mercury into the air.  You hardly ever see an illegal Mexican immigrant on a snowmobile in Yellowstone.  Illegal Mesicans are seldom in charge of timber companies that want to clear-cut the national forests.  It's not often that illegal Mexicans run chemical companies that dump toxins into rivers and wetlands.  It's rare to find an illegal Mexican in the Bush administration deciding to end the Superfund cleanup prorgrams or to lower air and water quality standards.  --  Molly Ivins

Lawmakers working on compromise immigration reform plan

WASHINGTON (AP) - Conservatives balking at President Bush's proposal to grant illegal immigrants three-year work permits are floating a counteroffer that would hamper his efforts to woo Hispanic voters in November's election.
    It's a dicey political predicament for the president, one that seems likely to push a final vote on key elements of his plan into 2005, well after the November balloting. Rep. Charlie Norwood, R-Ga., and Sens. Zell Miller, D-Ga., and Jeff Sessions, R-Ala., are conditioning their support for Bush's plan on Congress agreeing to also broaden the power of state and local police to arrest suspected illegal residents.
    "If they don't have this in it, they'll pass that bill over my cold, dead political body," Sessions said of Bush's proposal.
    Sessions, Miller and Norwood say they speak for thousands of conservatives who believe stronger enforcement of immigration laws must accompany any plan that would let illegal immigrants remain in the country legally.  Because federal immigration agents are stretched too thin, they argue, 650,000 local police officers should be given the authority and resources to go after immigrants still undocumented after Bush's plan takes effect. Immigrant advocates say the distrust that would raise between Hispanics and police would erase any political advantage the president might hope to gain.
    "Latinos very much support law enforcement, which is why we think making police officers immigration agents is a terrible idea," said Cecilia Munoz, vice president for policy at the National Council of La Raza.  "If the victim of domestic violence feels she can't be calling police because they might be asking for papers, that's bad for the public safety."
    Many Senate Democrats agree that conditioning the work permits for illegals on deputizing local police to help enforce immigration laws would do more harm than good.
    "Our police officers have gone about the business of protecting their communities, and left the federal government to enforce civil immigration laws," said Vermont Sen. Patrick Leahy, senior Democrat on the Senate Judiciary Committee. "The division of labor makes a great deal of sense, and the burden faced by those who would change it should be awfully high."
    Norwood said his Clear Law Enforcement for the Criminal Alien Removal Act could actually be popular among Latinos because it targets law breakers, particularly those identified as crime suspects in a national computer database.
    "If you got tough with the enforcement of our laws, I honestly believe you would get more votes from the Hispanic community," Norwood said.
    Administration officials are treading carefully on the concept of local enforcement, but supporters of the Norwood and Sessions bills are interpreting some of their recent comments to mean they might be open to the idea.  Questioned by Sessions at a recent hearing, Asa Hutchinson, the Homeland Security Department's undersecretary for border and transportation security, conceded there are not enough federal agents to go after illegal immigrants every time the police call them in.
Hutchinson then pointed out that Bush is asking Congress to double work-site enforcement, detention and removal facilities in the 2005 budget. -- Excerpt from an article published by The Associated Press, March 1, 2004.

    HERE IS OUR WARNING AGAIN:  Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures.  If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer.  If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., at (800) 954-0254.  AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance.  Remember:  INS considers every petition or application filed as a legal case for adjudication.  When people help themselves or others by filling out forms and filing them with INS, they are filing a legal case before an administrative agency of the federal government for adjudication.  If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved.  Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer.  For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer?   Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE

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