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Senate Passes Comprehensive Immigration Reform Bill - Battle to Convince the House of Representatives Continues
Supply of New H-1B Visas for FY07 Starting 1 Oct 06 Will Be Exhausted Soon
The FY06 Cap for H-2B Shortage Workers Was Reached on April 4, 2006; FY07 Remains Open
CIS Reconfigures Service Center Filing Procedure From Geographic to Form-Based Jurisdiction
CIS Announces Expansion of Premium Processing Program to Forms I-140, 539 and 765, Start Date To Be Announced Later at CIS Web Site
Dept of State Permits Early Application for Student Visas During Busy Summer Season
ICE Begins Robust Enforcement of Employer Sanctions Nationwide
Yana Albrecht Joins E&M as Associate Attorney
The Senate passed a much-debated Comprehensive Immigration Reform bill yesterday on a 62/36 vote, following a major push by President Bush in a nationally televised speech on Monday, May 15th. The battle for a significant overhaul in the nation's immigration laws - affecting not only the estimated 12 million aliens in the U.S. without status, but also employers, non-immigrants, and those seeking to immigrate legally - now moves to the House. Conference committee members from both the Senate and the House of Representatives will soon meet to try to hammer out language that is acceptable to a majority of legislators in each body.
In December of 2005, the House passed a draconian, enforcement-only bill which led to widespread protests across the nation. The Senate bill contains provisions to legalize those aliens present in the U.S. without status for more than 5 years [approximately 7 million], and permit those in the U.S. for 2 - 5 years [approx 3 million] to depart briefly and return as guest workers. Those present in the U.S. for less than 2 years and those abroad seeking to fill U.S. shortage jobs may apply for one of 200,000 annual guest worker visas in their home countries. Whether the House and the Senate can reach agreement remains to be seen. It is likely that the bill will be declared dead repeatedly, only to be revived in some form at the 11th hour.
A cornerstone of any successful legislation will be a secure system for verifying the work authorization status of foreigners, coupled with increased worksite enforcement directed at employers.
Overlooked in the debate about "illegal aliens" are the many positive changes for legal workers and their employers, including:
Increase in available H-1B visa numbers for each fiscal year from current 65,000 to 115,000 in the next fiscal year, followed by market-based escalator. Workers with advanced degrees in science, technology, engineering or math will be exempted from the cap.
More visa numbers for employment-based immigrants, potentially ending current backlogs in most if not all employment-based immigrant visa categories.
Increase in Practical Training period for F-1 students from 12 to 24 months.
Creation of a new F-4 Student Visa category for those pursuing degrees in sciences, with an easy path to post-graduate employment and permanent residence.
Among other provisions affecting the healthcare industry, an amendment by Senator Sam Brownback, Republican of Kansas, removes the limit on the number of nurses who can immigrate annually. The emergency allocation of 50,000 immigrant visas recaptured in the spring of 2005 for special EX-3 Schedule A category is expected to run out before the end of calendar year 2006.
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As of May 19, 2006, almost 43,000 petitions for the 65,000 new H-1B visas available for Fiscal Year 2007 [FY07 - starting October 1, 2006] have been filed in the 7 weeks since CIS started accepting petitions on April 1, 2006. Although Comprehensive Immigration Reform may provide additional H-1B visas at some later time in FY07, employers seeking to bring professional workers on board before September 2007 should file NOW, since the visa numbers are likely to run out for the coming year before the end of June 2006.
Citizens of Singapore and Chile enjoy a separate quota, which is available now and which will continue to be available throughout the coming fiscal year. Australians can take advantage of the new E-3 visa, which became operational in the fall of 2005. New H-1B visas will continue to remain available until later in 2006 for graduates of U.S. universities with Masters degrees [or higher]. About a quarter of the 20,000 advanced degree H-1Bs have been used to date. That cap was reached for the current fiscal year on January 17, 2006.
Certain non-profit employers associated with universities [including many hospitals] are exempt from the cap, and may petition for new H-1B employees at any time.
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CIS announced on April 4, 2006 that it had received a sufficient number of new H-2B temporary shortage worker petitions for employment start dates prior to October 1, 2006 to reach the congressionally mandated cap of 66,000. H-2B temporary labor certification applications can be filed with the state workforce agency at least 60 days, but not more than 120 days, before the worker is needed. Applications targeting an October 1, 2006 start date can be filed with the state workforce agency after June 3, 2006. Once the temporary labor certification is approved, approximately 30 to 45 days after filing, form I-129 can then be submitted to the Vermont Service Center (up to six months in advance of the anticipated start date).
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Effective April 1, 2006, geographic jurisdiction by the four regional Service Centers over CIS visa petitions ended. All I-129 non-immigrant worker visa petitions and related applications are now filed at the Vermont Service Center [VSC], while all I-140 immigrant worker petitions are filed at the Nebraska Service Center [NSC]. VSC shares responsibility for the adjudication of I-129 petitions and related applications with the California Service Center [CSC]. NSC shares responsibility for the adjudication of I-140 petitions with the Texas Service Center [TSC]. Concurrent I-140/485 filings go to NSC. Follow-on 485s are to be filed at the Service Center where the approved or pending I-140 was filed [or transferred].
Petitions filed erroneously after April 1 are being forwarded to the correct Service Center. The new system also applies to those I-129 petitions that were previously filed specially at NSC, with these petitions being forwarded to VSC for processing and adjudication.
CSC currently has responsibility for: Initial and Extension: E-1 & E-2; O-1 (except for Major League Sports) and O2; P-1 and P-1S support personnel (for entertainment groups only); P-2 and P-2S support personnel; P-3 and P-3S support personnel; Q1; R1. Extension Only: H-1B (all sub-categories, except for Singapore-Chile Free Trade).
VSC has responsibility for: Initial Only: H-1B (all subcategories). Initial and Extension: E-3 Australian Free Trade; H-1B1 (Singapore Chile Free Trade only); H-2A, H-2B, and H-3; L-1A, L-1B, and L-Blanket; O-1 (for Major League Sports only); P-1 and P-1S (for Major League Sports only); TN-1 and TN-2
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On May 23, 2006, CIS published a Notice in the Federal Register, designating Forms I-140 "Immigrant Petition for Alien Worker," I-539 "Application to Extend/Change Status," and I-765 "Application for Employment Authorization" as eligible for the $1,000 Premium Processing Service that is currently available only for certain non-immigrant visa petitions filed on form I-129. This service is not yet available for the newly designated forms, but the Notice opens the door for CIS to later specify the start date of availability and any other applicable conditions via the CIS web site.
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Summer is a tough time to seek a non-immigrant visa at U.S. consular posts abroad. Demand rises, while consular personnel take advantage of the summer school break to relocate themselves and their families to new assignments. The Dept of State has warned that prospective students should apply for their visas as early as possible, and has extended the period during which student visas may be issued to 120 days before the program start date. In instances where students can anticipate delays in issuance, including delays resulting from Security Advisory Opinion requirements, posts may accept applications for adjudication and processing even before this 120-day period, but may not issue the actual visa until 120 days before the start of studies. Consular Affairs supports the efforts of posts to make visa interviews available to students on a priority basis, and posts have been instructed to continue to expedite student and exchange visitor visa applications, as necessary.
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Following the creation of Immigration and Customs Enforcement in March 2003, ICE initially targeted illegal workers with access to critical infrastructure worksites, and "absconders" who failed to appear for their deportation. More recently, ICE has begun to ramp up efforts to sting the employers of illegal aliens. In the last fiscal year ending September 30, 2005, ICE worksite investigations resulted in 127 criminal convictions and a total of 1,145 arrests, up from 46 criminal convictions and 845 arrests the previous year.
On Nov. 17, 2005, federal agents raided a Wal-Mart construction site in Pennsylvania, arresting 125 workers. This enforcement action followed a 2003 federal investigation of Wal-Mart's subcontracting practices, which resulted in Wal-Mart paying an $11 million settlement.
In April of 2006, Homeland Security Secretary Chertoff announced ICE's first Interior Enforcement Strategy, whose key goal is to build strong worksite enforcement to deter illegal employment. President Bush has requested $41.7 million in new funds to strengthen worksite enforcement efforts starting in October of 2006.
Under the leadership of ICE, Document and Benefit Fraud Task Forces were created in 10 cities in April of 2006, including elements of Departments of Homeland Security, Justice, Labor, State and other agencies. These new units are located in Atlanta, Boston, Dallas, Denver, Detroit, Los Angeles, New York, Newark, Philadelphia, and St. Paul.
A number of high profile arrests of employers followed, hitting the construction, manufacturing, temporary staffing, cleaning and restaurant industries.
On April 11, 2006, a federal indictment in Ohio charged two temporary employment agencies and nine individuals with hiring and harboring illegal aliens; mail and wire fraud; and laundering approximately $5.3 million. HV Connect, Inc., and TN Job Service, Inc. allegedly provided hundreds of illegal alien employees to unwitting companies in Ohio by falsely representing that they were legal.
On April 14, 2006, the operators of three of Baltimore's best-known sushi restaurants - "Kawasaki" - agreed to forfeit more than $1 million and pleaded guilty to criminal charges of conspiracy to commit alien harboring and money laundering.
On April 19, 2006, after a year-long investigation, ICE agents arrested seven current and former managers of IFCO Systems North America Inc, charging them with harboring illegal aliens for financial gain. Based in Houston, IFCO is the largest pallet services company in the United States. ICE agents also apprehended 1,187 of the firm's illegal alien employees at more than 40 IFCO locations nationwide. More than half of IFCO's employees during 2005 had invalid or mismatched Social Security numbers.
On May 2, 2006, Robert Porcisanu, the owner of an Indiana business that performed stucco-related services at construction sites in at least seven Midwest states, was charged with money laundering, harboring illegal aliens, transporting illegal aliens, and false statements. Porcisanu faces as many as 40 years in prison, and ICE is also seeking the forfeiture of $1.4 million.
On May 9th, four construction site supervisors at Fischer Homes, a northern Kentucky construction company, were arrested on charges of harboring 76 illegal immigrants who were working as subcontractors. Later that week, indictments were handed down alleging that Florence-based Progressive Builders and Pratt's Quality Construction conspired with subcontractors to hire undocumented workers. In these actions, the government appears to have taken a very aggressive interpretation of the obligation of a general contractor to police the immigration status of the employees of its subcontractors, and has sought to stretch "constructive knowledge" to the limit.
On May 10th, ICE special agents arrested one of the owners of a Mexican restaurant in St. Joseph, MO following worksite enforcement operations at his Missouri and Iowa restaurants.
On May 12th, ICE announced that Jose Neto, 39, of Allston, MA [an illegal alien from Brazil] was convicted in federal court of knowingly harboring illegal aliens who were working in his cleaning business.
Enforcement in the five states receiving the bulk of new immigrants - California, Texas, New York, Illinois and Florida - was noticeably limited. ICE resources are already stretched thin, and previous heavy-handed enforcement efforts have led to employer alienation rather than cooperation. The current enforcement actions go hand-in-hand with the Administration's effort to secure Comprehensive Immigration Reform, and help undercut the opponents' arguments that no reform is needed, only enforcement of the laws already on the books.
In spite of this trend, however, the vast majority of employment-eligibility verification cases remain in the administrative court system. Under current law, a finding that an employer failed to properly verify an employee's employment eligibility may result in civil fines and penalties ranging from $110 to $1,100 for paperwork violations. If immigration officials find that an employer acted knowingly, the penalties can range from $275 to $11,000 per employee.
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Yana Albrecht, Esq. has joined the San Francisco office of Elliot & Mayock LLP. A native of Ukraine, Ms. Albrecht worked as an immigration paralegal starting in 1999 with Pampanin Law Offices in Cambridge, and later with Greater Boston Legal Services. She graduated from Suffolk University Law School in 2005, where she was on the Dean's List and a member of the Transnational Law Review. Trained as an archeologist, Yana was awarded honors for her thesis entitled "The Historical Significance of the Scythes artifacts from Kamenaya Mogila." She graduated from Zaporozhye State University in 1994, with a double major in History and Foreign Languages.
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