The Reverse Brain Drain
Low visa quotas and delays may be sending highly skilled and entrepreneurial immigrants back home—to work for U.S. competitors
Business Week
By Vivek Wadhwa
August 22, 2007
For the first time in its history, the U.S. faces the prospect of a reverse brain drain. New research by my team at the Pratt School of Engineering at Duke University shows that more than 1 million highly skilled professionals such as engineers, scientists, doctors, researchers, and their families are in line for a yearly allotment of only around 120,000 permanent-resident visas for employment-based principals and their families in the three main employment visa categories (EB-1, EB-2, and EB-3). These individuals entered the country legally to study or to work. They contributed to U.S. economic growth and global competitiveness. Now we've set the stage for them to return to countries such as India and China, where the economies are booming and their skills are in great demand. U.S. businesses large and small stand to lose critical talent, and workers who have gained valuable experience and knowledge of American industry may become potential competitors.
The problem is simple. There aren't enough permanent-resident visas available each year for skilled workers and their families. And there is a limit of fewer than 10,000 visas that can be issued to immigrants from any single country. So countries with the largest populations such as India and China are allocated the same number of visas as Iceland and Mongolia.
Visa Delays Deprive U.S. of Talent
The result is that wait times for employment visas currently stretch from four to six years for immigrants from countries such as India and China, and all indications are that these delays will get longer. Based on a 2003 study of new legal immigrants to the U.S. called the New Immigrant Survey, we estimate that in 2003, about 1 in 3 professionals who had been through the immigration process either planned to leave the U.S. or were uncertain about remaining. Media reports and other anecdotal evidence indicate that many skilled workers have indeed begun to return home.
Much of the current public debate on immigration centers on concerns over low-skilled immigrants entering the U.S. illegally. We do need to develop fair policies to deal with this problem. But skilled immigrants who enter the U.S. legally are a different issue. Professor Richard Devon of Pennsylvania State University estimates that in the U.S. about $200,000 is invested in a child by the time they gain a bachelor's degree in engineering. That means that the U.S. gains billions of dollars in benefit from educated professionals who leave other countries to come here. And we lose billions when they return home. Additionally, we end up training highly skilled workers in our markets, technology, and way of doing business.
Consider this: Earlier research by my team found that more than half of the engineering and technology companies started in Silicon Valley and a quarter of those started nationwide from 1995 to 2006 had immigrant founders. These companies employed 450,000 workers and generated $52 billion in revenue in 2006. Their founders tended to be very highly educated in science, technology, math, and engineering-related disciplines, with 96% of them holding bachelor's degrees and 75% holding master's degrees or PhDs (see BusinessWeek.com, 6/11/07, "Immigrants: Key U.S. Business Founders").
Patents: Evidence of Entrepreneurial Activity
We also uncovered some puzzling data on patent filings. When we analyzed the international patent database maintained by the World Intellectual Property Organization (WIPO), we found that 1 in every 4 patent applications from the U.S. in 2006 listed a foreign national residing in the U.S. as an inventor. This number had increased threefold over an eight-year period and didn't take into account inventors who had become U.S. citizens before applying for a patent.
We realized that these foreign-national inventors were not likely to be from the same immigrant group that was founding high-tech companies. They were likely to be PhD students and employees of U.S. corporations who are in the U.S. on temporary visas. Temporary-visa holders can't easily start their own companies—their visas require them to work full time for the company that sponsored them.
For our new research, we reanalyzed the WIPO patent database to look at which immigrant groups and corporations were applying for the most patents. To understand the foreign-national data, we examined extensive information published by the Homeland Security Dept., the Labor Dept., and the State Dept. We also reviewed the New Immigrant Survey to gain insight into the immigration process and to examine the potential that, even after becoming permanent residents, skilled immigrants might return home.
Here is what we found:
• Foreign nationals contributed to more than half of the international patents filed by companies such as Qualcomm (QCOM) (72%), Merck (MRK) (65%), General Electric (GE) (64%), Siemens (SI) (63%), and Cisco (CSCO) (60%). Their contributions were relatively small at Microsoft (MSFT) (3%) and General Motors (GM) (6%). Surprisingly, 41% of the patents filed by the U.S. government had foreign nationals listed as inventors.
• Foreign nationals contributed to 25.6% of all U.S. international patent applications in 2006, but the numbers were much higher in several states such as New Jersey (37%), California (36%), and Massachusetts (32%).
• In 2006, 16.8% of international patent applications from the U.S. had inventors with Chinese names and 36% of these (or 5.5% of the total) were foreign nationals. Similarly, 13.7% had Indian names and 40% (or 6.2% of the total) were foreign nationals.
• Both Indian and Chinese inventors tended to file most patents in the fields of medicine, pharmaceuticals, semiconductors, and electronics.
Our analysis of the immigration data produced the most startling results.
"Immigration Limbo"
We estimate that, as of Sept. 30, 2006, there were 500,040 individuals in the main employment-based visa categories and an additional 555,044 family members in line for permanent-resident status in the U.S. An additional 126,421 with job offers were waiting abroad. In total, there were 1,181,505 educated and skilled professionals waiting to gain legal permanent-resident status.
In the 2005-06 academic year, there were 259,717 international students in the U.S. There were an additional 38,096 in practical training—many of these are PhD researchers.
One thing is certain: If we wait five years to fix immigration policy, the unskilled workers will still be here, but the skilled workers who are in "immigration limbo" will be long gone. Our loss will be the gain of countries we are increasingly competing with in the new global landscape.
Vivek Wadhwa, the founder of two software companies, is an Executive-in-Residence/Adjunct Professor at Duke University. He is also the co-founder of TiE Carolinas, a networking and mentoring group.
Lawmakers Reviving Push for Immigration Overhaul
By Ben Goad
The Press Enterprise (CA), September 7, 2007
Washington -- Lawmakers seeking to overhaul the nation's immigration policies on Thursday launched a last-ditch effort to revive and pass sweeping legislation, months after a similar effort was pronounced dead.
But even some supporters of a massive bill that would change 16 federal laws that govern immigration issues -- including one of the two lawmakers who introduced the legislation -- acknowledged their tactics could be futile.
Rep. Jeff Flake, R-Ariz., co-author of the bipartisan act, apparently misspoke, referring to the bill in the past tense during testimony before the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law.
He then said he is less than optimistic about the chances of getting the controversial measures, which include a path to citizenship for people in the country illegally, through a sharply divided Congress.
'I know it's unlikely, frankly, and I think that's too bad,' Flake said.
Still, Rep. Joe Baca, D-Rialto, and others spoke in favor of the legislation during a hearing Thursday afternoon before the subcommittee. The legislation aims to tighten border security, increase enforcement of laws against employing illegal immigrants and add a large new guest-worker program that would permit millions of undocumented immigrants to stay and work in the United States and eventually become citizens.
'Congress has a responsibility to deal with our broken immigration system, and we cannot ignore the immigration crisis in hopes it will go away or solve itself,' Baca testified before the panel. 'Congress needs to take action.'
Rep. Luis Gutierrez, D-Ill., who introduced the bill with Flake, is a member of the immigration subcommittee. He was more positive about the chances of passing a reform bill. And Rep. Ray LaHood, R-Ill., a proponent of overhauling the immigration laws, said he hoped Thursday's hearing would jump-start the reform campaign.
Round One
Gutierrez and Flake introduced the bill in March, but it was placed on the back burner, when an unlikely coalition of Republicans and Democrats in the Senate announced the so-called 'grand compromise' -- legislation they felt could pass both houses.
Opponents derided the compromise legislation as a free pass for criminals and demanded that undocumented immigrants be held to the same standards as other immigrants trying to gain entry to the country through the appropriate channels.
Supporters described the initiative as allowing undocumented immigrants to earn their citizenship by paying fines, learning English and returning to their home countries to 'touch back' before re-entering the U.S. legally.
President Bush urged senators to come to an agreement, signaling that he wanted to pass immigration legislation.
In the end, neither side would back down.
The bill died after failing a key test in June when supporters were unable to get enough votes to end debate over the bill, which would have set the stage for a final vote to pass the legislation.
The current bill calls for some of the same things as the compromise legislation that died. Both include a pathway to citizenship for those already here illegally.
Thursday's hearing about the act echoed arguments about the previous effort.
Debate Continues
Both sides debated whether the bill would provide amnesty to the estimated 12 million undocumented immigrants living in the United States.
Rep. Steve King, R-Iowa, said the bill essentially sells citizenship for $2,500 -- the amount of the proposed fines. He derided the touch-back provision as 'a scenic bus ride.'
'I think we need to have this debate but I'd like to have it after the election,' King said.
LaHood lashed back, asserting it would take decades to deport everyone already in the country illegally. He said lawmakers have no choice but to provide 'a legal opportunity to play by the rules' and attain legal status.
The debate endures as the Bush era draws to an end.
Bush's support puts some pressure on conservatives to compromise on the bill. But if a Republican who doesn't support the bill or a Democrat succeeds Bush, what little support the legislation has enjoyed among conservative lawmakers would likely vanish, experts said.
Steven Camarota, director of research for the Center for Immigration Studies, which favors greater enforcement of current immigration laws, and Douglas Rivlin, spokesman for the National Immigration Forum, which supports a path to citizenship, agreed that the passage of smaller, less controversial elements of the bill might be possible.
But Democrats favoring the overhaul said it's all or nothing.
'We need to push comprehensive reform,' Baca said. 'Piecemealing is not the answer.'
According to a report by the Associated Press, http://news.lp.findlaw.com/ap/o/51/09-06-2007/ae3c0014d2391007.html the Ku Klux Klan distributed leaflets in Virginia warning "Mexico is invading the United States and soon will demand we cede the southwestern states to their control, they already wave the flag of Mexico in our faces! They are not here to assimilate, they are here to form their own nation. And unless we get busy right NOW they will succeed!"
Customs Raids Spur Training on Rights
By Maria Sacchetti
The Boston Globe, September 6, 2007
In living rooms, laundromats, and community centers across Massachusetts, immigrant-rights groups are running an underground campaign to teach illegal immigrants to protect themselves from federal agents. Their instructions to the immigrants: Keep their lips sealed and doors shut unless authorities have a warrant.
The grass-roots training sessions, coming in response to recent federal raids through immigrant enclaves from Nantucket to Boston to Springfield, have ignited controversy on all sides.
Federal customs officials criticize the nonprofit groups for aiding anyone in this country illegally and say that agents generally target criminals. But the advocacy groups, worried that the raids are more widespread, say that even illegal immigrants have rights under the Constitution.
'We understand trying to remove violent people,' said Maria Elena Letona, executive director of Centro Presente, a Cambridge-based nonprofit that aids immigrants. 'But in doing so, you end up terrorizing entire communities.'
One steamy night last week in Springfield, a handful of immigrants here illegally from Mexico and Honduras gathered in the sparse kitchen of a tiny apartment. They sat on nylon folding chairs facing a laptop computer that Joel Rodriguez, a trainer for the Alliance to Develop Power, had placed at the edge of the sink.
Their faces tense, they watched a DVD in Spanish that simulated encounters between immigrants and federal officials and police. In one scene, two men wearing jackets emblazoned with 'police' and 'ICE' pounded on the door, shattering a couple's morning coffee.
The couple froze. Through the closed door, the father asked to see the warrant, which the agent slipped underneath the door. After reading the warrant, the father returned it, saying it did not list his name. Rebuffed, the agents left.
After the video, Rodriguez told the immigrants that they should not lie or carry false documents, or run away.
'The best thing you can do is stay silent,' or ask for a lawyer, he said.
Federal immigration officials and others say such training undermines federal immigration law, and worry that the advice could leak to criminals, as well. Mark Krikorian, executive director of the Washington-based Center for Immigration Studies, which favors stricter controls on immigration, called the training 'immoral.'
'It troubles us tremendously,' said Kelly Nantel, press secretary for US Immigration and Customs Enforcement in Washington, maintaining that the agency does not conduct random sweeps for illegal immigrants. 'We would encourage organizations that are engaging in that kind of information distribution to stop.'
Carol Rose, executive director of the ACLU of Massachusetts, said the training sessions are a form of constitutionally protected free speech designed to help families who are unaware of their legal options. Many unauthorized immigrants have applied for legal residency or asylum and are awaiting hearings, she said.
'Having those people know their rights isn't in any way going to give them any safety or comfort,' said Rose, whose group has been doing the training for years.
National grass-roots immigrant groups called for increased training for immigrants at a conference in July, but many groups cannot afford it, said Lee Siu Hin, national coordinator of the National Immigrant Solidarity Network.
In Massachusetts, many nonprofits redoubled their efforts to train immigrants after last week's antigang raids in several Greater Boston cities led to conflicting reports about the detainees. Immigrant advocates said authorities picked up some immigrants without criminal records. Federal officials said they arrested 36 gang members and associates.
Ali Noorani, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition, or MIRA, said the groups support crackdowns on crime, but he was concerned that federal agents were using the raids to question anyone in sight. MIRA has been doing the training for years, but recently saw requests increase dramatically.
'What's happening right now is federal agents are banging on doors and barging into homes and saying I have a warrant for this person but I'm going to ask everybody everything,' Noorani said. 'So we're telling people, 'listen, you've not committed a criminal offense, so unless there is a warrant for you, the government has no reason to enter your home.' '
In coming weeks, groups including Centro Presente, the Chelsea Collaborative, Agencia Alpha, and MIRA are increasing training in Chelsea, Boston, Somerville, and other cities. Last week, dozens of advocates and immigrants flooded a church in East Boston and a gymnasium in Chelsea for PowerPoint presentations on immigrants' rights. On Saturday, Chelsea Collaborative handed packets to people as they lunched in restaurants and washed clothes in East Boston's Maverick Square.
The Alliance to Develop Power, a wide-ranging nonprofit in Springfield involved in affordable housing, union organization, and services for US citizens and immigrants, began training in June after a raid jarred the community.
According to the alliance, federal agents arrived to deport one illegal immigrant but also detained four others, including a couple from Mexico who were driving to pick up their son, who was with baby sitter.
In Springfield, the training sessions are intimate, invitation-only affairs held in immigrants' apartments, because people are afraid to gather in larger groups outside, said alliance director Caroline Murray.
At the end of each session, each trainee receives a packet of fliers outlining their rights and business-size cards to give to federal agents that explain why they decline to speak. The packets include an 'emergency plan' that immigrants can use to arrange child care in case they are arrested.
Edith, a 26-year-old single mother from Mexico, invited the alliance to her Springfield apartment last week because she feared for her 3-month old daughter. The only person she trusts to care for her is 3,000 miles away in Los Angeles, which would be difficult to arrange if she is detained.
'Really, you think it's not going to happen to you,' said Edith, who works for a laundry service and who did not want her full name used.
Jorge, 26, a construction worker from Honduras, said he would like to help police, but doubted that he would open the door for them today because he has too much to lose.
Eight years ago, he clung to the sides of trains to get to the Mexican border, paid $1,500 for a boat ride across the Rio Grande, and then walked four nights to Houston. Eventually he made his way to Massachusetts and later paid $6,000 to smuggle his mother here.
Now he has a wife, two children, and one on the way. He earns $2,000 a month, 10 times what he made in Honduras.
'It's not that I don't trust [the police],' said Jorge. 'If we didn't have the police here, this country would be like our countries. But sometimes the fear of what could happen to me takes over.'
Rules on Hiring Illegal Workers Are Delayed
By Julia Preston
The New York Times, September 1, 2007
A federal judge in San Francisco yesterday temporarily barred the Department of Homeland Security from carrying out new rules to crack down on employers of illegal immigrants, dealing a legal setback to a central part of the Bush administration’s effort to step up enforcement of the immigration laws.
The judge, Maxine M. Chesney of federal court for the Northern District of California, also ordered the Social Security Administration to suspend a mailing, scheduled to begin Wednesday, of some 140,000 letters to employers advising them that some of their employees’ Social Security information did not match the agency’s records. Illegal immigrants often apply for work with false Social Security numbers.
The mailings, known as no-match letters, were going to be accompanied by a two-page notice from the Homeland Security Department advising employers of the new rules, which give them 90 days to fire any employee who cannot show valid Social Security identification or risk civil and even criminal charges for knowingly hiring illegal immigrants. The rules were announced in August and were expected to take effect on Sept. 10. Judge Chesney scheduled a hearing on the matter for Oct. 1.
The ruling came in response to a lawsuit filed Wednesday by the A.F.L.-C.I.O., several California labor groups and the American Civil Liberties Union. The suit argues that because of errors in the Social Security Administration’s database, many American citizen and legal immigrant workers could be dismissed because of the new rules. The suit also claims the rules could lead to discrimination against Hispanic workers.
“We are disappointed by the delay and expect to prevail once the court has the benefit of full briefing and argument,” said Laura Keehner, a spokeswoman for the Department of Homeland Security.
The judge found that the lawsuit raised “serious questions” as to whether both federal agencies had overstepped their authority, and also that delaying the rules would cause less harm than putting them into effect before the court’s review.
The new rules were the centerpiece of a campaign by the administration to show that it would push ahead with tough action against businesses that hired illegal immigrants, even though the broader immigration legislation that President Bush sought died in the Senate in June.
The rules brought an outcry from business and labor groups. On Monday, the Essential Worker Immigration Coalition, which represents major hotel, restaurant, landscaping and meatpacking companies, asked Homeland Security Secretary Michael Chertoff to postpone putting the rules into effect for six months. Its request, in a letter, included 81 questions about aspects of the rules that it said were confusing.
TRO Issued Stopping Implementation of DHS Rule on SSA No-Match
In a suit brought by AFL-CIO, ACLU and NILC, a U.S. District Court in California temporarily restrained DHS from implementing its regulation regarding Social Security no-match letters. AFL-CIO v. Chertoff, No. 07-4472 (N.D.Cal. 8/31/07).
AFL-CIO and ACLU Sue Homeland Security Planned
By Spencer S. Hsu
The Washington Post, August 30, 2007; Page A04
The U.S. Chamber of Commerce and the AFL-CIO this week separately assailed a new White House-backed crackdown on illegal immigration, warning of massive disruptions to the economy and headaches for U.S. citizens if the proposal goes ahead as planned in the coming days.
The Bush administration intends to begin writing to 140,000 employers on Tuesday regarding suspect Social Security numbers used by an estimated 8.7 million workers, as a way of pressuring them to fire illegal immigrants. President Bush disclosed the plan three weeks ago as part of a repackaged, 26-point enforcement program after Congress failed to overhaul U.S. immigration laws this summer.
But leaders of the U.S. Chamber of Commerce and a coalition of trade groups representing the politically influential construction, lodging, farming, meatpacking, restaurant, retail and service industries appealed on Monday to the Department of Homeland Security and the Social Security Administration to postpone the plan's implementation for six months.
Raising the possibility of plant closings, autumn-harvest interruptions and other destabilizing consequences for the U.S. economy, 50 business organization members of the Essential Worker Immigration Coalition signed a letter warning of 'uncertainties, disruptions, and dislocations throughout broad swaths of the workforce,' as well as discrimination against Hispanic and immigrant workers.
Yesterday, the AFL-CIO, the American Civil Liberties Union, the National Immigration Law Center and local labor groups separately asked a federal judge in San Francisco to stop the mass mailing and kill the plan outright. They alleged that the DHS is overstepping its authority to enforce immigration laws and is misapplying the Social Security system in a way that will unfairly penalize law-abiding workers and employers.
The groups said that inaccurate federal databases could sweep U.S. citizens and legal residents into a bureaucratic morass. The Social Security database used to cull suspicious numbers contains erroneous records on 17.8 million people, including 12.7 million native-born U.S. citizens, the Social Security Administration's inspector general reported last year.
'This rule is a new tool to repress workers' rights in the name of phony immigration enforcement,' AFL-CIO President John J. Sweeney said in a statement. The plan 'will cause massive discrimination against anyone who looks or sounds 'foreign,' ' said Lucas Guttentag, director of the ACLU's Immigrants' Rights Project.
In a statement, Department of Homeland Security spokesman Russ Knocke called the lawsuit 'completely without merit, and we intend to fight it vigorously.'
Asked about the business coalition's request for a six-month reprieve, Knocke said: 'The list of signatures tells you why immigration reform has been hard, and why we often face enforcement challenges. Still, we're going to restore public credibility on enforcement.'
The attacks from the left and the right come as Homeland Security Secretary Michael Chertoff warns of 'serious' and 'unhappy consequences' for the sectors of the U.S. economy that depend on illegal labor, explaining that these are the costs of reestablishing voters' confidence.
Administration officials have blamed the congressional defeat of an immigration overhaul package partly on Washington's failure to back up its tough rhetoric on illegal immigration with action, saying that political hypocrisy particularly undermined support among conservative groups.
'Historically, whenever any administration has tried to enforce the laws that are on the books, they have received push back from stakeholders' and from 'the same congressmen who say we need to be tough on immigration,' said Deborah W. Meyers, an analyst at the Migration Policy Institute, a nonpartisan think tank in Washington.
Some experts speculated yesterday that the new enforcement effort might have the dual aim of solidifying Bush's standing among an unhappy part of the Republican Party's base and punishing business groups that did not adequately support the immigration overhaul package.
'I don't know if there's the will for it. Maybe it's too little, too late, but they're trying,' said one congressional lobbyist, who said the administration appears to be trying to build pressure to revive the overhaul plan in Congress. The lobbyist spoke on the condition of anonymity because of the sensitivity of the subject.
Under the new rules, set to take effect on Sept. 14, employers that receive 'no-match' letters have 90 days to resolve discrepancies. If they do not, the DHS may conclude that employers knowingly violated the law by employing illegal workers, opening the door to fines and even criminal arrests.
That approach marks a major change. The Social Security Administration has long sent 'no-match' letters, and it has found that 4 to 10 percent of workers have suspect numbers because of typographical errors, name changes resulting from marriage or multiple surnames, as well as fraud. But, until now, it has not held employers liable.
The problem is greater in some industries. Farm groups estimate that 70 to 90 percent of field workers lack proper documents. Raids at meatpacking plants turn up discrepancies in about 30 percent of workers' documents.
DHS Hid Data From Probers
By Sara A. Carter
The Washington Times, August 24, 2007
Department of Homeland Security administrators — fearing additional scrutiny — concealed from federal investigators information-sharing breakdowns that left the U.S. vulnerable to terrorists, internal DHS memos and e-mails show.
The documents obtained by The Washington Times lay out how officials at U.S. Citizenship and Immigration Services (USCIS) deliberated telling the Inspector General's Office that DHS agencies failed to share data before opting to withhold their concerns.
'We better be ready to provide evidence and name names because this type of statement is the height of the post-9/11 criticisms,' former Citizenship and Immigration Services Chief Council Dea Carpenter noted in an e-mail to officials within her DHS agency last year.
The e-mail preceded the removal of references to information-sharing failures in the mammoth department from the third and final draft of a memorandum Mrs. Carpenter wrote for Inspector General Richard L. Skinner. Mr. Skinner had begun a probe into USCIS information-sharing shortcomings at the request of Sen. Charles E. Grassley, Iowa Republican, who had received numerous complaints of internal problems in the agency.
In the first draft of the March 2006 memorandum, Mrs. Carpenter said: 'We also experience agencies that are unwilling or unable to share all or part of the information they have, notwithstanding ongoing suspicions. Some agencies close out investigations pertaining to suspicious activity but refuse to share the information they have. It is imperative that USCIS receive any and all information so that it can determine whether an individual is eligible for the immigration benefit being sought.'
It noted 'the vulnerabilities caused by law enforcement and intelligence agencies who do not post lookouts of potential threats, or proactively share such information in another manner, so as to ensure we do not grant immigration benefits to persons who pose a threat to national security and/or public safety.'
The Inspector General’s Office never saw the information contained in Mrs. Carpenter's original. The Washington Times obtained all three copies, which include numerous edits annotated in blue.
The documents obtained by the paper come on the heels of an inspector general’s report released two weeks ago that criticized federal agencies for failing to cooperate on terror investigations and highlight concerns that internal squabbling among DHS agencies such as USCIS, Immigration and Customs Enforcement (ICE) and Customs and Border Patrol undermine the main mission the department was created to carry out in the wake of the September 11 attacks.
This month’s inspector-general report said ICE agents avoided cases involving terrorist activities because of disputes with the FBI.
The squabbling between ICE and FBI agents also led to information-sharing failures between ICE and USCIS. The Office of Security and Investigations — the security division of USCIS — requested membership in the national Joint Terrorism Task Force (JTTF) in 2005 but was denied entry despite a favorable response from the FBI.
Former ICE Deputy Assistant Secretary John Clark shunned the idea of USCIS involvement in an e-mail to Robert Divine, who at the time was USCIS acting director, explaining that the agency was having trouble with investigations involving the FBI. In the e-mail, Mr. Clark threatened to pull ICE from participation in any JTTF operation.
'We have experienced, in many different areas and on many different occasions, the FBI pitting the various DHS law enforcement participants against one and other within their' JTTF, Mr. Clark wrote in the e-mail obtained by the paper. 'Much of the work on the JTTF falls outside the terrorism venue, and the FBI uses its excessive reliance on information classification to limit the ability of participating agencies to review the work [of] their personnel inside the JTTFs.'
In March, USCIS Director Emilio Gonzalez stated in written testimony to Congress that information sharing can hinge on the 'personalities of the agents involved' and that those agents may not be forthcoming with national security information requested. Under pressure from Congress, Mr. Gonzalez conceded that the background-check process is failing to detect terrorists who may have entered the country.
The Washington Times disclosed last week a confidential USCIS criminal report that stated that several USCIS employees were accused of aiding Islamic radicals with identification fraud and bribery.
In the final draft of Mrs. Carpenter's memorandum to the inspector general, she states that USCIS' Office of Security and Investigations 'does not have open cases related to allegations of espionage.'
USCIS officials said last week they could not comment on ongoing investigations.
October 2007 Employment-based Immigrant Visa Cutoff Dates Projected
On August 20, 2007, Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department, discussed with AILA Liaison informal projections on employment-based visa availability for the October 2007 Visa Bulletin. Speaking broadly of visa availability in the First and Second Preference categories for all countries, visa availability for October should closely match that seen in the September 2007 Bulletin. In the Employment Third preference categories, the cut-off dates are likely to be similar to those found in the January 2007 Visa Bulletin. For the Other Worker category, expect the cut off date to be 10/01/01. The State Department does not yet have enough data to project Employment Fourth Preference. Expect Employment Fifth Preference to go current for all countries.
Q&A with Vance Winningham
The Oklahoman
Tue August 21, 2007
Business Writer Paula Burkes Erickson
Vance Winningham Today's Q&A is with the founder of Oklahoma's oldest immigration law firm, Winningham & Stein in Oklahoma City.
Q: What new illegal immigration policies has the Department of Homeland Security initiated?
A: (The department) recently announced more than 20 policy initiatives in response to Congress's inability to pass comprehensive immigration reform legislation. The primary initiative expresses an intention to vigorously pursue and prosecute employers of undocumented aliens in an all-out effort to enforce existing civil and criminal penalties.
Q: How will the department implement this new policy of enforcement?
A: By initiating many more investigations and expanding the meaning of "constructive knowledge” for employers of undocumented aliens.This way, an employer who has received a "no match” letter from the Social Security Administration may more readily be determined to be employing an undocumented alien.
Q: What is a "no match” letter?
A: When a worker's Social Security number does not correspond with government records, the SSA sends the employer such a letter informing them of this. (Social Security) issues thousands of these "no match” letters each month. Undoubtedly many, if not most, result from undocumented aliens trying to utilize Social Security numbers that do not belong to them.
Q: What impact might this new policy have on such employers, on their undocumented workers and on the economy in general?
A: It really could have a huge impact. Employers must choose to either terminate all undocumented workers or face a greatly increased risk of criminal prosecution and steep fines. Choosing to terminate the workers will put many employers out of business because there are not enough replacement workers available. Potentially millions of undocumented workers will be unemployable: some will retreat further into the shadows, some will leave the country — if they have the means — and some may turn to crime to support their families. None of these scenarios bode well for our economy, which has recently shown signs of decline or even recession.
Bush Hit Over Jobs for Illegal Workers
By Stephen Dinan
The Washington Time, August 23, 2007
If President Bush is serious about getting tough on U.S. employers who hire illegal aliens, he can start with his own administration, which employs thousands of unauthorized workers, says the top Republican on the House immigration subcommittee.
A 2006 audit showed federal, state and local governments are among the biggest employers of the half-million persons in the U.S. illegally using 'non-work' Social Security numbers — numbers issued legally, but with specific instructions that the holders are not authorized to work in the U.S.
'Let's clean up our own house, let's especially clean up the federal employment of all those working for the federal government,' said Rep. Steve King, Iowa Republican and ranking member of the House Judiciary Committee's immigration subcommittee.
The Social Security Administration used to, but no longer does, issue non-work numbers to legal aliens who were not authorized to work but needed a number to obtain a federal or state benefit or service. Still, hundreds of thousands of those immigrants used the numbers to get a job.
According to the 2006 audit by the Social Security inspector general, 17 of the 100 worst employers using employees with non-work numbers were government agencies: seven federal agencies, seven state agencies and three local governments. That means the government knows who those employees are, but usually does not go after them.
Earlier this month, Homeland Security and Commerce departments announced a new crackdown on illegal entry that includes stricter enforcement against employers. The departments said they will encourage businesses to use E-Verify to check employees' Social Security numbers, and said the federal government will write new rules requiring all private contractors and vendors that do business with it to use E-Verify.
Under current law, neither business nor federal agencies are required to use E-Verify, formerly known as the Basic Pilot Program.
Mr. King said the administration shouldn't wait for new rules to begin checking federal employees against the non-work list.
'There's a lot more they can do, but the federal government's at least got to run their non-work Social Security numbers against their own employee database, and then they've got to require states to do that, and local governments to do that,' he said.
The problem is broader than just federal hiring. The latest figures from the Social Security Administration, reported in March, found 521,426 non-work Social Security numbers had earnings credited to them for work done in 2005 and credited during calendar year 2006.
Social Security provides a list of those numbers to Homeland Security every year, but the department has been reluctant to use them for enforcement, arguing to Congress in testimony last year it would take a significant amount of resources and could distract from national security priorities. Homeland Security also says a high percentage of the non-work numbers turn out to be clerical errors or workers who later obtained authorization.
The inspector general says those cases do occur, but more often than not — about 60 percent of the time — the employees are in fact not authorized to work in the U.S. The audit said for government agencies, the percentage is slightly lower: 44 percent of the government workers identified in their sample were unauthorized for employment in the U.S. The inspector general did not name the 100 worst employers on its list.
The inspector general said as long as workers are using invalid numbers, homeland security is threatened, and said telling employers directly about employees using invalid numbers could help stem the flow of illegal workers.
In a sample of 275 individuals using non-work numbers, the inspector general found two were found to have warrants for deportation already lodged against them. The inspector general said it forwarded that information to Homeland Security for action.
Meanwhile, Rep. Duncan Hunter, California Republican and presidential hopeful, says Mr. Bush is falling behind on construction of the U.S.-Mexico border fence that he signed into law last year.
In a letter to the president, Mr. Hunter said just 17.9 miles of the new double-tier fencing has been constructed as of Aug. 10 — putting the administration off the pace he said it needs to build 392 miles by May 30. All told, he said the fence is supposed to reach 854 miles which, because of the region's geography, will seal off about 700 miles of the U.S.-Mexico border.
The Washington Times reported earlier this month the U.S. Border Patrol sent out a memo calling for agents to volunteer to help build fencing because they are going to fall short of their goal.
Scott Stanzel, a spokesman for the White House, said they are trying to secure the border by adding Border Patrol agents and vehicle barriers. He said there are 100 miles of fencing on the border, and they want a total of 145 miles by September, though those figures include single-tier fencing and fencing that was built in prior years.
EDITOR'S NOTE: The SSA IG report is available on line at
http://www.ssa.gov/oig/ADOBEPDF/A-08-05-15138.pdf
Worker Plan Has No Legal Support
By Lisa Friedman
The Pasadena Star News (CA), August 17, 2007
Washington -- Days after unveiling a major crackdown on businesses that hire illegal immigrants, the Bush administration is now quietly admitting that its most heavily touted weapon in pursuing employers will be virtually useless.
At the heart of the new rules announced last week is toughened Homeland Security enforcement of so-called 'no match' letters - which the Social Security Administration sends to companies when employees have questionable identification numbers.
But Homeland Security officials acknowledged this week that because of a privacy provision in the IRS code, immigration officials will actually have no way of knowing which employers have received 'no-match' letters, which have complied and which have not.
"While we don't get information directly from the Social Security Administration, we do see that we get a lot of tips," DHS spokeswoman Veronica Nun Valdez said. "There are a number of people that do come forward and tell us an employer is not conforming with the law."
In addition to working with informants, Valdez said immigration officials plan to step up investigations and raids, which will likely yield sanctions against violating companies.
But illegal-immigration hardliners said they feel bamboozled.
Many noted that working with tips and increasing raids is nothing new, and they said they had assumed that the government had resolved the long-standing data-sharing issue.
Bob Dane said that without Homeland Security being able to get information directly from the Social Security Administration, the new rules are just 'empty threats.'
"Good God, if they're going to spend money on postage and send out threatening letters, which are long overdue, they need to have some practical enforcement at the end," he said.
Since 1994, the Social Security Administration has sent out the annual letters to companies when a large number of W-2 forms submitted for employees don't match the name or Social Security number the agency has on file.
While there can be several reasons for a 'no match,' activists note it is often a red flag that a worker is an illegal immigrant.
In the past, companies have largely ignored the letters and 'thrown them in the circular file,' as Dane describes it.
But the new immigration rules the White House rolled out last week promised serious changes.
Starting next month, Social Security officials will send out about 140,000 'no match' letters, with about 35,474 going to employers in California.
The envelopes will include a separate letter from Homeland Security officials informing companies that they might be in violation of immigration law and have 90 days to correct the Social Security inconsistencies.
If they do not, the letter warns, the agency could 'determine that you have violated the law by knowingly continuing to employ an unauthorized person.'
A first-offense fine was increased to $2,200 per employee.
Homeland Security Secretary Michael Chertoff proclaimed the move means the agency will 'clamp down on employers who knowingly and willfully violate the law.' Editorial pages across the country proclaimed a new day for immigration enforcement.
Left untouched, however, was section 6103 of the IRS code - a privacy provision the government has long interpreted to mean that Social Security officials are forbidden from sharing tax information with other agencies.
Several members of Congress have tried to amend the provision. Most recently the failed Senate immigration bill, which also would have granted citizenship to millions of illegal immigrants, sought to fix it.
"It would make it a lot easier," Valdez said.
But without that change - like traffic cops with a stack of tickets but no map to the highway - DHS can only ask Social Security officials to insert its warnings into the 'no-match' letters.
"So the most meaningful part of this new initiative may not be so meaningful," said Steven Camarota, research director for the Center of Immigration Studies, which advocates restriction of all immigration.
"That's not surprising," he said. "The administration has never shown a great desire to enforce the law."
Still, leaders with California industries - such as agriculture and food services, which rely heavily on illegal labor - said they aren't taking any chances.
Trade groups that represent the sectors said they have strongly recommended employers follow the new rules, regardless of the government's ability to trace its own threats.
"I think this is viewed as more of a self-enforcing thing," said John Gay, top lobbyist for the National Restaurant Association, which represents about 1.4 million estimated employees in California. "This is another tool in their kit. It's easier to establish a violation with these rules."
Tom Nassif, president of the California Grower's Association, said any 'no-match' letters a company receives will come out during a civil trial if that business is ever cited for immigration violations.
And if the company has not complied, it could face the tough new financial and prison penalties.
"We could be targets for these investigations," he said. "It behooves us to do what we can to follow them."
Nassif said he still believes the new rules will cripple California's $37 billion agricultural industry. About 70 percent of the state's estimated 500,000 farmworkers are illegal immigrants, he said, and he believes most will be fired by fearful employers.
"With that dramatic a loss, I think people stop producing," he said.
Camarota said he suspects the Bush administration hopes the business community, whose division over the recent Senate immigration compromise bill helped lead to its failure, will be galvanized into action by the threat of economic upheaval.
"They don't really want to upset the apple cart, they just want to tip it back and forth and act like they're doing something," Camarota said of the administration's rules.
"What they really want to do is get the business community off the dime."
Nassif agreed but called it a risky gamble with the country's economy.
"I think they want the public to be so damaged and so fearful that they raise a clamor," he said.
But, Nassif added, "This is playing Russian roulette. If that gambit doesn't work, then the blood will continue to flow."
CBP Launches Online Application for Cross-Border Travel Program
New Nexus Online Application Unveiled for Travel Program Members
08/16/2007
Washington, D.C
U.S. Customs and Border Protection announced today that crossborder travelers wishing to apply for Nexus privileges are now able to do so through a new, online application system. Nexus is a popular, joint frequent traveler program with Canada where applicants voluntarily undergo a background check, in-person interview and fingerprinting, and pay a $50 five-year membership fee. Under the new system, individuals may submit an online application and pay the membership fee at www.cbp.gov. (Apply Online for NEXUS and SENTRI).
“We are pleased to continue expanding the Nexus program, not only at new airports throughout 2007 but also by improving the application process itself with this new online flexibility,” said CBP Commissioner W. Ralph Basham. “This program has tremendous benefits for our law enforcement officials as well as travelers, particularly as it has been proposed as an alternative document to a passport under new document requirements, and we want to encourage new members to sign up.”
Once an applicant is notified that they are conditionally approved through their online account, they will need to schedule an appointment, also through their online account, to complete the interview and fingerprint process and to obtain their membership card.
Approved members have access to dedicated commuter lanes, airport kiosks and telephonic marine reporting that allows expedited processing. Key benefits of the new online application system include expediting the entire application and vetting process, and streamlining the processing time for new applicants and renewals. Individuals who have already mailed their application to the Canada Border Services Agency should continue with this process.
First implemented in 2000, the Nexus program has grown to include 15 lanes at 11 locations along the U.S./Canada border, at marine reporting locations border-wide, and at five Canadian airports. The Nexus card has also been proposed as an accepted alternative to a passport under new travel document requirements, slated to go into effect for land and sea crossings as early as summer 2008. Ample advance notice and a robust public information campaign will precede full implementation of this requirement. The Nexus card is also acceptable as an alternative to a passport for air travel, a requirement that went into effect January 23, 2007.
Currently, U.S. and Canadian citizens are not required to present a passport or specific document when seeking to enter or re-enter the United States at land and sea crossings. CBP highly encourages travelers to carry, at minimum, proof of citizenship such as a certified copy of your birth certificate, along with government-issued photo ID, such as a driver’s license.
Summary of the ICE No-Match Regulation
On August 10, 2007, DHS released an advance copy of the final ICE "No-Match" regulation, "Safe Harbor Procedures for Employers Who Receive a No-Match Letter." Publication of the final rule in the Federal Register is expected the week of August 13, 2007. The final rule will become effective 30 days after publication.
The final rule expands the definition of "constructive knowledge" to include the failure to take reasonable steps to address three situations: (1) an employee's request for the employer's sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the Social Security Administration ("SSA"); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.
The final rule includes slight revisions to the June 2006 proposed "safe harbor" protocol in relation to SSA no-match letters and DHS notices, most notably extending from 63 days to 93 days the period of time an employer has to complete reconciliation of information when there is a discrepancy, and promises immunity from a constructive knowledge charge premised on such notices should the employer follow the procedure exactly as stated. While acknowledging that other actions taken by employers may constitute "reasonable steps" in the context of a "total facts and circumstances test," employers who fail to follow the protocol may not have the "safe harbor" from a finding of constructive knowledge in the event of a civil or criminal investigation.
In final form, the "safe harbor" protocol is as follows:
Within 30 days of Receipt of the Notification From the Government
No-Match Letter from SSA: The employer must check its records to determine whether the discrepancy was caused by a clerical error, correct the error with SSA, and verify that the corrected name and social security number now match SSA's records. The rule advises employers to retain a record of the manner, date, and time of such verification. The employer may update the I-9 form relating to the employee or complete a new I-9 (retaining the original), but should not perform a new I-9 verification.
If the employer determines that the SSA no-match is not a result of an error in the employer's records, the employer must promptly request that the employee confirm that the name and social security account number in the employer's records are correct. If the information is incorrect, the employer must make corrections, inform the SSA of the correction and verify a match on the corrected information, and make a record of its actions.
If the employee confirms that the employer's record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA no later than ninety (90) days after the receipt date. The employer is under no legal obligation to advise the employee regarding the means or manner of resolving the discrepancy with the agency.
Notice of discrepancy from DHS: The employer must contact the local DHS office in accordance with the written notice's instructions and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. Note that the specific instructions in the notice may provide less than 30 days for the employer to respond.
Within 93 days of Receipt of Notification From the Government
* If the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of the written communication from either agency, the employer must attempt to reverify the worker's employment eligibility by completing a new I-9 employment verification form. Companies should use the same procedures as when completing an I-9 form at the time of hire, with a few exceptions:
o The employee must complete section one and the employer must complete section two of the new I-9 form within 93 days of receipt of the notice from either SSA or DHS.
o The employer cannot accept any document (or receipt for such a document) referenced in the DHS notification or any document (or receipt) that contains a social security number that is the subject of the SSA no-match letter to establish employment authorization or identity.
o The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.
o The new I-9 form should be retained with the original I-9 form(s).
If the employer cannot verify the employee's work eligibility through completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien. The final rule provides that whether an employer would be found to have constructive knowledge in any particular case will depend on the "totality of relevant circumstances." An employer should not terminate an employee until the process is completed, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee is not eligible for employment in the U.S.
DHS takes the position that applying the safe harbor rule in a uniform manner for all employees whose account numbers or work authorization documents are challenged by the SSA or DHS should not subject an employer to liability for document abuse and/or unlawful discrimination on the basis of national origin and citizenship status.
No "safe harbor" protocol is available where an employee requests employer sponsorship for a labor certification or visa petition and the employee turns out to be unauthorized. Where the request is made by an employee who admits to the employer that he/she is currently unauthorized, or where the request is inconsistent with information provided by the employee in connection with the employment verification process (i.e., a claim of U.S. citizenship or permanent resident status in Part I of the form), the employer may be charged with actual or constructive knowledge of unauthorized status if the employer permits the employee to continue working for the employer.
DPS Tracked Troopers' Encounters with Illegal Immigrants
Agency ends 2-year study amid questions
By Katie Fairbanks
The Dallas Morning News, August 12, 2007
The Department of Public Safety has for two years been quietly tracking how often state troopers come into contact with illegal immigrants. But after receiving questions from The Dallas Morning News, the agency said the study would be discontinued.
Critics allege that some troopers were requiring Hispanic drivers and passengers to show Social Security numbers or immigration papers during traffic stops to gather data for the study.
The Highway Patrol Division began keeping its informal statewide tallies in June 2005, just as the immigration issue boiled over nationally. The regional reports were compiled, totaled and turned over to the Highway Patrol chief each month.
Immigration advocates say they don't see how the DPS could have gathered the information legally. Under Texas law, sworn officers with no special immigration training have no authority to make arrests for civil immigration violations. Being an illegal immigrant is not itself a criminal act. Instead, most illegal immigrants are guilty of a federal civil offense known as 'unlawful presence.'
State troopers either violated the law by asking about immigration status, 'which they're not supposed to be doing, or they're racially profiling based on the way somebody looks,' said Luis Figueroa, a San Antonio attorney with the Mexican American Legal Defense and Educational Fund.
The original intent of the study was to get an idea of the state's immigration situation, according to the DPS. The reports have not been publicized and were discovered through an open records request by the News.
'The perception was that the contacts with illegal immigrants were increasing, but there was no record baseline available,' Tom Vinger, a DPS spokesman, said last week.
In a written statement, Mr. Vinger said that the 'gathering of this data was designed to be a temporary snapshot of the situation. This has been accomplished and the numbers are inconclusive. DPS management has made the decision to discontinue the gathering of this information.'
He would not say who in management first ordered the study, or who ordered it to end. He also did not give details on why the state police were interested in the information or how the information would ever be used.
Under the DPS study, troopers documented the number of stops that involved illegal immigrants; the number of them released with no action; the number of them released to immigration authorities; and the number jailed. The study showed that the total number of contacts trended down slightly, while the number of those people jailed or turned over to immigration officials stayed fairly constant. The DPS said officers encountered nearly 49,500 illegal immigrants during the two years.
Mr. Vinger declined to speculate how officers determined whether someone was an illegal immigrant. There were no specific rules under the informal study, he said.
The determination of immigration status is left to federal authorities, and racial profiling is against DPS policies, he said. 'These reports don't change that fact,' he said. 'I wouldn't read too much into these numbers. It's an unscientific gathering of information.'
Fernando Garcia, executive director of the Border Network for Human Rights in El Paso, alleged that some DPS officers have been asking Hispanic drivers for Social Security numbers or immigration papers to determine immigration status.
'We're receiving about 10 reports a month where state troopers are stopping people for minor traffic violations and then [they] do this,' he said. 'They're not only keeping track of it, but in our opinion, they are enforcing federal immigration law. There is no policy regarding that, and they are not trained to do that. We believe it is wrong.'
If people can't produce papers proving they are legally in the U.S., they are then held for immigration officials, he said.
The pro-immigration community is suspicious about why the DPS compiled the reports and how troopers determined who is illegally in the country, Mr. Garcia said.
'At this point, it is very difficult to believe that they need the information – especially right now in this anti-immigrant climate,' he said. 'There is concern about this. They are sending their own message to our community that the function of DPS is enforcing immigration law.'
Even though the DPS says the study is over, the legal defense and educational fund would be interested to know why it began, how it was executed and why it was stopped, Mr. Figueroa said.
'We're concerned that they will pick it up again at a later point,' he said.
The study's results weren't regularly provided outside DPS, although a couple of legislators asked for details, according to the DPS.
Katherine Cesinger, a spokeswoman for Gov. Rick Perry, said that the governor's office was not aware of the study and had never requested copies of the results. But she added that any time law enforcement officials investigating a crime come into contact with someone believed to be here illegally, that person should be referred to immigration officials.
'I'm not saying [state troopers] should be asking this, but if they're tracking this and then do nothing about it, it doesn't measure up,' Ms. Cesinger said the day before DPS decided to halt the study.
Keeping track of contacts with illegal immigrants is new for local law enforcement divisions. When it does occur, observers say the data is usually kept under wraps to avoid the intense debate that can follow the issue.
'Neither the feds [nor] most of the states say they track. They don't want to know or they're reluctant to give the information out,' said Mark Krikorian, executive director for the Center for Immigration Studies, a conservative think tank. 'We've found it extraordinarily difficult to get information out of anybody.'
The study by Texas troopers was similar to how the Arizona Department of Public Safety records encounters between state police and illegal immigrants.
'This has been an enormous issue in Arizona for several years now. That's why we started collecting that data,' said Bart Graves, a spokesman for the Arizona DPS, which has gathered numbers since 2003 and shares the results with other law enforcement agencies.
'It helps make the case for more federal assistance,' he said. 'It shows the huge problem in Arizona.'
State police in New Mexico and California do not track them, officials with those departments say. They and other law enforcement divisions say they don't do so because crime victims and witnesses could become afraid to speak up in fear of being turned over to immigration officials and deported.
'We've encouraged law enforcement not be involved in immigration,' said Mr. Figueroa with the legal defense and educational fund. 'In the past, they tried to keep their distance for fear of losing hard-earned trust in the communities they protect.'
Today, law enforcement is becoming far more involved. For instance, police and sheriff's departments participated in hunting down cross-border criminals during some statewide investigations, including one last year known as 'Operation Wrangler.' Immigration officials set up 'deportation and removal' sites during the multi-department maneuvers.
Also, many jails today have introduced policies in which officers inform federal authorities about people they believe are here illegally. This has been done, in part, to get federal funds that can help defray costs of incarcerating illegal immigrants. 'The blurring of the lines is getting much greater as this issue gets more controversial,' Mr. Figueroa said.
'We believe there should be a clear division between the enforcement of immigration law between federal and state,' he said 'State and local should only be involved in the enforcement of criminal activities. The majority of immigrants have not committed criminal activities; they've only violated the civil provisions of immigration law.'
DHS New Rules on Illegal Workers Stir Fears
By Jerry Hirsch and Kimi Yoshino
Los Angeles Times, August 4, 2007
A planned federal crackdown on the hiring of undocumented workers has sparked fears that farmers will be left without workers to pick crops, restaurants without cooks and dishwashers, and small businesses without a ready source of casual labor.
The new rules also are likely to reduce employment in the construction, janitorial and landscaping industries, analysts say.
'It is going to be very difficult on this industry,' said Paul Simonds, spokesman for Irvine-based Western Growers, whose members grow and pack about 90% of the produce and nuts produced in California.
The Department of Homeland Security is about to issue new regulations on how businesses must respond when informed that there are discrepancies in a worker's tax records. Many businesses simply ignore such notices now, but under the new rules, employees would have a limited time to contact the Social Security Administration to correct the information. If they do not, employers must fire the worker or face fines.
The rule would transfer more responsibility for enforcement to companies -- part of a Homeland Security effort to break through what some officials say is complacency in the corporate world about illegal workers.
Industries claiming that the rules will undermine the economy are using 'scare tactics' to fight the plan, said Russ Knocke, a Homeland Security spokesman.
'Are they suggesting that we should not enforce the law?' Knocke asked. 'We have been tough about this, and we are going to be even tougher. There are employers who have gamed the system for years, and the regulations are going to fix that.'
Western Growers, which also represents the majority of Arizona farmers, plans to meet with Homeland Security officials Monday to get a better assessment of how the regulations will affect agriculture.
Marc Grossman, spokesman for United Farm Workers of America, believes the rules will be catastrophic for agriculture workers and farms.
'If you were going to fire everyone whose Social Security numbers were not in order, you will lose a majority of the workforce . . . as much as 90% depending on the area,' Grossman said.
He said that was why the UFW and farm groups had supported the AgJobs legislation that's stalled in Congress.
If passed, that two-part bill would make falsely documented agricultural workers eligible for a 'blue card' if they can demonstrate that they have worked in domestic agriculture for at least 150 workdays over the previous two years. The blue card would entitle the worker to temporary legal resident status, and holders would have to pass criminal background checks. The second part of the legislation would simplify and expand a guest worker program for agriculture.
Meanwhile, the planned Homeland Security regulations also have spooked the restaurant industry, which has nearly 13 million workers and is one of the largest private employers in the U.S.
'We still would like Congress to be the one that sets immigration policy,' said John Gay, senior vice president of the National Restaurant Assn.
The trade group believes the new regulations should be part of 'a broader solution' that would deal with the status of the undocumented workforce and ensure a supply of workers in what Gay characterized as an increasingly tight labor market for restaurants.
'We fear that this will result in the industry having to let workers go. It will have a bigger impact in certain areas like California, Texas and Florida than in others,' Gay said. California has at least 2.5 million illegal immigrants, the Pew Hispanic Center estimates.
Small-business groups also are protesting the rules, saying that it puts the burden of enforcing immigration on the tiniest companies.
'Yes, we need to get a handle on this issue, but you can't expect small-biz owners . . . to be border police. It's just an extremely difficult position to put small businesses in, ' said Todd McCracken, president of the National Small Business Assn., which represents 65,000 firms.
Recently, more employers have been using the Department of Homeland Security's Basic Pilot program, which enables them to check the validity of Social Security numbers online. As long as the name and the Social Security number are legitimate, the system will indicate that the person is authorized to work. However, law enforcement agencies have reported that undocumented workers are increasingly using stolen Social Security numbers to outmaneuver the system.
Scott Hauge, president of the trade group Small Business California, said a rule requiring workers to be fired if they can't quickly reconcile discrepancies could expose companies to new liabilities.
'If things don't get worked out in a couple months, we're just supposed to fire someone?' Hauge asked. 'What happens if the data is wrong and you fire them? Does that open you up to a wrongful-termination suit?'
Knocke, the Homeland Security spokesman, disagreed. 'If employers act in good faith and make an effort to comply with the law, there will be a safe harbor provision for them,' he said.
Businesses should not be surprised by the new enforcement initiative, Bush administration officials said. The government has been sending out the 'no-match' letters to employers since 1979.
'There's nothing different with the letter,' said Mark Hinkle of the Social Security Administration. 'What is different is an upcoming Homeland Security regulation that will be clarifying what businesses need to do if they receive a no-match letter.'
No-match letters may be sent when there are inconsistencies between a worker's tax forms and records -- such as an individual's birth date or name spelling -- that the Social Security Administration has on file.
In 2005, the administration sent 8.1 million letters to workers at their home addresses, asking them to resolve differences. About 1.5 million letters were mailed to the workers' place of employment when no home address was available.
For businesses that had more than 10 employees with discrepancies in their record, a third type of letter is mailed. Last year, the administration mailed 138,000 of those letters to employers, Hinkle said. This year, they anticipate a slight uptick to 140,000.
With the Homeland Security crackdown, Hinkle said the agency was expecting 'some increase' in phone calls and foot traffic at its 1,300 offices across the country. 'We really don't have a projection,' Hinkle said. 'We handle millions of phone calls and millions of visitors and millions of claims a year. So we'll deal with it as it occurs.'
Although many employers have still to learn the details of the regulations, the major trade groups protesting the action expect Homeland Security to act soon despite industry objections.
'It seems inevitable,' Gay said.
Illegal-immigrant Crackdown Looms
By Nicole Gaouette
Los Angeles Times, August 3, 2007
Washington -- With the failure of immigration legislation in Congress this year, federal officials are planning a new crackdown on illegal immigrants that would force businesses to fire them or face stiff penalties. But the effort also could cause serious headaches for millions of U.S. citizens.
In the coming days, the Department of Homeland Security is expected to issue a rule outlining how businesses must respond when they receive notice that there are discrepancies in a worker's tax records.
Many businesses simply ignore such notices now. Under the new rules, employees would have a limited time to contact the Social Security Administration to correct the information, or face termination.
The rule would transfer more responsibility for enforcement to companies — part of a Homeland Security effort to break through the complacency that some officials say the corporate world has about illegal workers.
The initiative follows warnings by Homeland Security Secretary Michael Chertoff that his department would toughen enforcement if efforts to overhaul the flawed immigration system failed. The discrepancies detected in Social Security employment records can sometimes flag illegal workers on the job.
However, the planned crackdown has provoked concern because many of the errors are benign: misspellings or incorrect birthdates in records of citizens or legal immigrants. There are errors in the records of an estimated 12.7 million U.S. citizens alone, and workers rushing to correct these discrepancies could swamp Social Security offices, much as new travel regulations have paralyzed government passport facilities this year.
And businesses are complaining about bearing the burden of enforcing a flawed immigration system.
Despite such opposition, the Bush administration is pressing forward. Officials say the new rule will provide clarity for companies that have said they didn't know what to do when the Social Security Administration sent letters indicating inconsistencies in a worker's records. The administration also sees these 'no-match' letters as a way to target illegal immigrants and employers of those who make up Social Security numbers or use other people's.
'Last year, out of 250 million wage reports that the SSA received, as many as 10% belonged to employees whose name doesn't match their Social Security records,' said Homeland Security spokesman Russ Knocke. 'That doesn't necessarily indicate a modest clerical error; it's indicative of a broader, widespread problem. The rule fixes that and tells employers there are no more excuses.'
In the last two years, Homeland Security has focused increasingly on work-site enforcement — raiding factories and prosecuting employers in criminal court. In June, Chertoff said his agency would not slow down.
'We're going to continue to bring criminal cases against employers in record numbers,' he warned. 'Some of those employers are going to be very unhappy. They're going to say, 'It's unfair.' But in order to regain credibility with the American people that has been squandered over 30 years, we're going to have to be tough.'
In 2005, the latest year for which figures are available, the Social Security Administration sent 8.1 million letters to workers at their home addresses, asking them to resolve differences between the information Social Security has on file and what is shown on their employers' W-2 forms. If no home address is available, the letter is sent to the worker's company. The agency sent 1.5 million of these letters in 2005. Officials will also write to a business if it has more than 10 employees who trigger a no-match.
In a December 2006 study to examine the accuracy of Homeland Security's existing program of voluntary employer verification, Social Security's inspector general estimated that 17.8 million records on file had inconsistencies, including those of 12.7 million native-born citizens, 250,000 foreign-born citizens and 4.8 million noncitizens — a category for legal immigrants.
When businesses ignored the letters in the past, little would happen. The Homeland Security rule is expected to give companies a few weeks to check whether the inconsistency is in their records. If it is not, the companies will have to give workers a few months to resolve the problem with Social Security. If the workers do not, the companies must fire them or face fines. The rule, expected today or early next week, could be enacted immediately or after a period of 30 or 60 days.
Laura Reiff, a co-chair of the Business Immigration & Compliance Group at Greenberg Traurig, a Washington law firm, predicts it will trigger 'a massive sea change in how employers deal with no-match letters.' Her firm tried unsuccessfully to delay implementation of the rule during recent debate on a Homeland Security spending bill.
'My real fear is that we'll see lots of terminations and a lot of people displaced, maybe some of them going into the underground economy,' she said. 'Lawfully work-authorized people may also be terminated.'
Timothy Sparapani, legislative counsel with the American Civil Liberties Union, noted the millions of no-match letters that Social Security sends every year and was skeptical about Homeland Security's ability to follow through. 'I don't know where they're going to get the workforce to do it,' he said.
Immigrants rights groups were also concerned.
'With comprehensive immigration reform failed, this is an attempt to deal with the problem administratively, but doing this without comprehensive reform is just setting up a failed system,' said Tyler Moran of the National Immigration Law Center. 'This rule will have an enormous impact on the economy, and it's not just undocumented immigrants.
'We're going to see a lot of collateral damage.'
In Increments, Senate Revisits Immigration Bill
By Julia Preston
The New York Times, August 3, 2007
Washington -- When a broad immigration bill failed in the Senate in June after a vitriolic national debate, many legislators said the issue was dead, perhaps until President Bush left office. But already some of the less contentious pieces of the bill are returning to life.
Last week, the Senate approved $3 billion for border security as part of a Homeland Security Department spending bill. Democrats and Republicans have also begun laying ground for a bill to create a new temporary immigrant worker program for agriculture.
Another bill, also with bipartisan support, would give a path to citizenship to high school graduates who are illegal immigrants if they complete two years of college or military service. Senator Richard J. Durbin, Democrat of Illinois and a sponsor of the bill, attached it as an amendment to the military authorization legislation that the Senate last month put off until September. Mr. Durbin said he would seek to move it again then.
The agriculture and student measures “have a decent chance of passing this Congress because they have strong champions, broad bipartisan support and they have been around for a long time,” said Frank Sharry, executive director of the National Immigration Forum, which supported the broad bill. But he cautioned that they would have to overcome a “toxic” atmosphere on immigration in the wake of the defeated bill.
The college bill attracted renewed interest this week because of Juan Sebastian Gomez, a student who just graduated with honors from Killian Senior High School in Miami. On July 25, immigration agents in Florida detained Mr. Gomez, 18, his brother and his parents, all illegal immigrants from Colombia, and prepared to deport them. Immigration officials delayed the deportation on Wednesday after a group of Mr. Gomez’s high school friends roused support in South Florida and then flew to Washington to pound on doors.
The friends pointed to Mr. Gomez’s academic record — a near-perfect 3.96 grade-point average — and top scores on 11 Advanced Placement exams. They said he should not be punished for his illegal status because his parents brought him to the United States when he was 2.
The sweeping Senate immigration bill, which included a path to citizenship for illegal immigrants, was defeated by opponents who said it would reward knowing lawbreakers and the employers who hired them. But many legislators, including some who opposed the broader bill, see the student measure differently because it would benefit immigrant teenagers who are illegal only because of decisions their parents made when the children were young.
“It’s unfair to make these young people pay for the sins of their parents,” Mr. Durbin said.
The Migration Policy Institute, a nonpartisan research organization in Washington, says nearly a million immigrant students across the country could gain legal status under the bill, whose backers call it the Dream Act.
While the bill’s prospects seem favorable in the Senate, the outlook is not as bright in the House.
“We call it the Nightmare Act,” said Representative Brian P. Bilbray, a Republican from California who leads the Immigration Reform Caucus in the House. “We’re giving status to immigrants based on the fact they are here illegally. It really sends a mixed signal to both legal and illegal immigrants.”
Support has also re-emerged for the agricultural bill as labor shortages have hampered harvests this summer in states like California, Michigan and North Carolina. The bill’s supporters include growers, the United Farm Workers, conservative Republicans like Senator Larry E. Craig of Idaho, and Senator Dianne Feinstein, Democrat of California.
The bill would expand and streamline the existing agricultural guest-worker program and offer legal status to illegal immigrants who are experienced farmworkers. At least 70 percent of the workers in agriculture are illegal immigrants, says the Agriculture Coalition for Immigration Reform, a national trade group.
The bill’s supporters say they are looking for ways to bring it to a vote before the year’s end. In one effort last week, during the debate on financing the Department of Homeland Security, Senator Edward M. Kennedy, Democrat of Massachusetts, sought a vote on an amendment that would combine the agricultural bill and the illegal immigrant student measure, but he did not succeed.
Mr. Gomez’s case has given Washington a vivid illustration of the issues behind the illegal immigrant student measure.
An affable teenager who attracted friends at Killian High by tutoring classmates in subjects as diverse as European history and biochemistry, Mr. Gomez seemed likely to be an exceptional college candidate. A volunteer at a neighborhood homeless shelter, he often did his schoolwork on the computers of friends because his parents could not afford one.
Mr. Gomez’s parents, Liliana and José Gomez, brought him and his brother, Alejandro, who is a year older than Juan, to the United States from Colombia on tourist visas in 1990. The parents stayed and started a small catering business in Miami, and the boys went to public school.
Barbara Gonzalez, a spokeswoman for Immigration and Customs Enforcement, said Mr. Gomez’s parents applied for legal status but were denied in 2002. They have been facing deportation orders since then.
Mr. Gomez, barred from applying for financial aid because of his illegal status, enrolled in a Miami community college for the fall.
“All I’m hearing now is that I’m Colombian, but I’ve never really been there,” Mr. Gomez said in a telephone interview from Miami. He said he had no memories of the country where he was born and does not speak articulate Spanish. “They are taking me from my home in America,” he said.
The family was arrested as part of a nationwide immigration agency operation to track down immigrants scheduled for deportation, agency officials said.
From the vehicle that took Mr. Gomez to an immigration detention center, he made furtive cellphone calls to his high school friends. They opened a site on Facebook to signal his plight and contacted the news media.
A week later, Mr. Gomez’s site had more than 2,000 members and seven of his friends were working the hallways on Capitol Hill.
In interviews here, friends recalled Mr. Gomez’s spurring them through a three-day sleepless marathon of studying for an Advanced Placement exam in world history.
“I truly see Juan pursuing a career that does America good,” said Andrew Dubbin, 17, a junior at Killian. “He could do anything. He’s just genuinely smart and sociable.”
On Monday, Representative Lincoln Diaz-Balart, Republican of Florida, offered a private bill to the House Judiciary Committee asking for legal resident status for Mr. Gomez and his brother. Representative Ileana Ros-Lehtinen, Republican of Florida, delivered an appeal for the brothers to the White House, and Senator Bill Nelson, Democrat of Florida, called immigration authorities.
On Wednesday, officials stayed the family’s deportation and released them for 45 days to give Congress time to consider their bill, Ms. Gonzalez, the immigration agency spokeswoman, said.
On Friday, Representative Zoe Lofgren, Democrat of California and chairwoman of the House Judiciary immigration subcommittee, will hold a meeting to consider private bills for three other illegal immigrant students facing deportation.
Ms. Lofgren said she hoped to take up Mr. Gomez’s bill after the August recess.
Administration Readying Crackdown on Employers
By Suzanne Gamboa and Anabelle Garay
The Associated Press, August 2, 2007
Washington (AP) -- Employers across the country are preparing to fire workers with questionable Social Security numbers to avoid getting snagged in a Bush administration crackdown on illegal immigrants.
The Department of Homeland Security is expected to make public soon new rules for employers notified when their worker's name or Social Security number was flagged by the Social Security Administration.
The rule, as initially drafted, requires employers to fire people who can't be verified as a legal worker and can't resolve within 60 days why the name or Social Security number on their W-2 doesn't match the government's database.
Employers who don't comply could face fines of $250 to $10,000 per illegal worker and incident.
'There's a lot of fear and anxiety about what this rule is going to mean, particularly in the agricultural sector,' said Craig Regelbrugge, spokesman for the American Nursery and Landscape Association and co-chairman of the Agriculture Coalition for Immigration Reform.
The Social Security Administration has sent 'no match' letters to workers and their employers notifying them of the information discrepancies for years. Its goal has been to make sure money withheld from a person's paycheck is credited to the correct worker.
The letters are not shared with other government agencies because of privacy laws.
Although employers are prohibited by law from hiring illegal workers, their responsibilities with the letters have generally ended with notifying the workers of the discrepancies and leaving it to them to deal with it.
Many employers have been warned by attorneys to be careful not to fire a worker because they got a letter, because the no match could be the result of a typo in a name or number, a computer error, a name change that wasn't reported after marriage or other reasons.
But those who don't comply with the new rule could be deemed as knowingly hiring an illegal worker.
The Homeland Security Department says the new rule provides guidance to employers on how to deal with workers who receive no match letters and give those who comply 'safe harbor' if illegal workers are found at their business in an investigation or raid, said Russ Knocke, Homeland Security department spokesman.
U.S. Immigration and Customs Enforcement, a division of the Homeland Security Department, 'is going to be tough and aggressive in the enforcement of the law,' Knocke said. 'You are going to see more work site cases. And no more excuses.'
The administration trotted out the stepped-up enforcement plan last summer, but put it on hold while the Senate debated an immigration reform bill.
That bill would have granted a chance at legal status for the estimated 11 million to 12 million illegal immigrants in the country and created a temporary worker program. It also would have required employers to verify the status of all their workers.
After the bill collapsed in Congress, employers started bracing for the tougher rule.
'Congress didn't act. They didn't do what they needed to do on comprehensive immigration reform. Now there's going to be some pain to pay, and Congress is not going to feel the pain right away, it's the communities (of employees) and that's a real shame,' said Laura Reiff, co-chairwoman of the Essential Workers Immigration Coalition, a national group of business and trade associations.
For Mark Chamblee, the stricter rule could mean losing some of his 28 workers at his East Texas nursery in Tyler.
Chamblee suspects a few of his workers could have trouble with their Social Security numbers and said he will fire them if the problems aren't resolved.
'Of course, it would add to the workload for the other workers,' he said. 'It would reduce our production and our output. Not all of our demand would be met on our products. Operating costs would go up.'
Ray Atkinson, a spokesman for Pilgrim's Pride Corp., confirmed the country's largest chicken processing company recently let go employees at two Texas plants, as first reported in the Fort Worth Star-Telegram.
The company's policy 'for some time now' has been to terminate employees who can't clear up discrepancies, Atkinson said.
'We're all very cautious and we're all very nervous,' Chamblee said.
Senator Specter Prepares New Immigration Bill
By Elana Schor
The Hill, July 27, 2007
The Senate Judiciary Committee’s senior Republican said on Thursday that he is on the verge of offering a new immigration reform package, making significant changes that could win over recalcitrant members from both parties.
Sen. Arlen Specter (Pa.), who accompanied President Bush Thursday on his visit to Pennsylvania, said he has spoken to Bush and the two Cabinet members who have led immigration talks about his new bill. Specter also told reporters that he has spoken to most senators involved in this spring’s failed “grand bargain,” outlining his plan and appealing for a restart to the arduous immigration debate.
“I’m ready to unveil it now,” Specter said. “I’ve got letters to the 100 senators on my desk.”
Specter explained the new measure would omit the controversial “Z visa” program, which would have given the nation’s 12 million illegal immigrants a path to citizenship. Removing the Z visa would offer conservatives less opening to tag the bill as “amnesty.” But he would leave intact the family reunification standard that this spring’s defunct immigration bill partially replaced with a skills-based system.
The lone change in the status of the 12 million, Specter said, would be removing their status as fugitives from justice, an attempt to diminish their incentive to remain outside the system and in fear of deportation.
Specter added that he already has met with “stakeholders” from outside groups involved in the complex immigration debate, and he plans to hold more sit-downs next week. Offering green cards to immigrants seeking employment in the high-tech industry is under consideration, he said.
'We want them ... looking over their shoulders all the time,' said Marlene Nelson, 63, a member of the Minnesota Coalition for Immigration Reduction, among scores of such groups pushing for more enforcement.
Advocates for illegal immigrants characterize the arrests as a necessary 'low' that could revive a legalization movement.
'There are a lot of people who don't want to see people treated badly, but there's a need for them to see that,' said Kelly, predicting it would strengthen citizenship drives. 'That kind of fear as a motivator, that needs to be ramped up and that needs to be tapped.'
Among the glistening Minnesota lakes that remind him of his native El Salvador, Nixon Muñoz, 36, believed his family was safe.
In 1990, Muñoz, a former government soldier who won political asylum after fleeing his civil-war-ravaged country, moved from Los Angeles after learning there were plenty of jobs in Minnesota. Working as a machinist for a box manufacturer, he met a shy Mexican woman visiting on a tourist visa to attend a wedding.
The couple fell in love and married; Sara Muñoz's visa expired as the two planned for a family and the home they eventually bought outside Minneapolis. They had three daughters and a son, and then came Edwin, now 4, who is autistic. Sara Muñoz cared for him between shifts at a local dry-cleaning company.
'It was a nice life,' Nixon Muñoz said. 'We were very content.'
That changed last month. Arriving from the grocery with his children, Muñoz said, he saw his terrified wife handcuffed in front of their home. With the family in tears, she was taken away and, eventually, deported to Mexico, where she tries to parent her children through long-distance calls.
The couple's eldest daughter, Joanna, 14, has stepped in as a mother figure. She cooks, cleans and tries to comfort Edwin when he calls for his mother at night.
Activists in training
The impact such arrests and deportation have on the estimated 5 million children of illegal immigrants in the United States is troubling, said Randy Capps, a researcher at the Urban Institute in Washington who has been studying the aftermath of raids in several states.
Many of these children are likely to grow up harboring resentment against law enforcement. Others will have psychological problems, he said.
Such worries have fueled the reaction to the arrest of Juana Reyes, 52, a soft-spoken activist from Mexico known for her work helping new immigrants. Arrested July 9, Reyes is inside a county jail in Elk River, one of some 26,500 illegal immigrants imprisoned nationwide on a given day, according to a recent report by the federal Government Accountability Office. Reyes is awaiting deportation.
Reyes' daughter, Betty Reyes, 9, tries to shrug off the experience. Occasionally, however, the facade crumbles and she will not let anyone answer the door, friends and family said.
Her experience has inspired plans for a 'children's march' in the neighborhood clustered near a row of Mexican restaurants and shops that began sprouting along the Lake Street business corridor in the 1990s.
'We're training the children now to become activists,' said Mariano Espinoza, director of the Minnesota Immigrant Freedom Network. 'They are going to take this movement to the next level.'
Inside his office in Austin, organizer Victor Contreras longed for such optimism. Since a raid last month when federal agents pulled some 20 immigrants from their homes and others in which hundreds more were captured in neighboring towns, 'the community is consumed by fear,' Contreras said. 'Nobody wants to open their doors.'
Some evidence of that could be heard two doors away, at the public library. Inside a meeting room, about 20 longtime residents harangued Austin Mayor Tom Stiehm, who won his job last fall on an immigration-enforcement platform.
Many in the room pinned the steady arrival of mostly Mexican immigrants to Austin on a yearlong strike at Hormel during the mid-1980s, when the company known best for making Spam broke the local union.
Well-paying union jobs were given to immigrants willing to work cheaply, residents said. That sparked a transformation now seen along Main Street, where Hormel's Spam Museum sits a short distance from the Mi Tierra restaurant and several other Mexican-themed businesses.
'What are you going to do about it, Tom?' one resident shouted, complaining with others about crime, overcrowded housing and the formation of a non-English-speaking society.
Shrugging, Stiehm promised to make arrests in cases of welfare fraud and other crimes. 'I'm going to go after the lawbreakers and leave the families alone, the ones that want to be a part of Austin,' the mayor said. 'You can't just get rid of them all. If you did, we'd lose 7,000 people, we'd be closing down our schools.'
USCIS Announces Revised Processing Procedures for Adjustment of Status Applications
July 17, 2007
Contact: Office of Communications
U.S. Citizenship and Immigration Services (USCIS) announced that, beginning immediately, it will accept employment-based applications to adjust status (Form I-485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107.
USCIS will accept applications filed not later than August 17, 2007.
On July 2, 2007, USCIS announced that it would not accept any additional employment-based applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining employment visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn.
“The public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review,” said Emilio Gonzalez, USCIS Director. “I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations.”
USCIS’s announcement today allows anyone who was eligible to apply under Visa Bulletin No. 107 a full month’s time to do so. Applications already properly filed with USCIS will also be accepted. The current fee schedule will apply to all applications filed under Visa Bulletin No. 107 through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will apply to all other applications filed on or after July 30, 2007).
-USCIS
Details Leaking Out on July Visa Chart Fiasco Show Extraordinary and Legally Questionable Steps by U.S.C.I.S. to Exhaust Visa Numbers to Protect Fee Hike Collections
by Alan Lee, Esq.
More details came to light today as the New York Times reported that immigration officials said that employees were put to work both days last weekend at service centers in Texas and Nebraska, and that 25,000 applications were processed in the final 48 hours before Monday's deadline. The newspaper also reported that security clearances required by the FBI in some cases were not entirely completed, but the agency approved applications when it was certain that the process would be completed very shortly.
The actions of U.S.C.I.S. are highly reminiscent of its handling of naturalization applications which were granted during the Clinton Administration without completed security checks, and caused an uproar by Republicans that persons with criminal backgrounds were being approved. In this period after 9/11, such actions by the agency take on even greater significance as failure to obtain complete security clearances can endanger the national security of the country. It should be noted that the U.S.C.I.S. routinely defers adjudication on approximately 10% of its cases because of lack of FBI clearance, and has a standard message to inquirers that "Once the file has been cleared by the FBI, the file will be adjudicated. The Service has no control over how long it takes the FBI to clear the case." Some applicants have unsuccessfully pleaded and attempted to go through all channels beseeching the agency to approve their cases for over four years when security has not completely cleared. So it is difficult to understand U.S.C.I.S.'s sudden desire to approve cases which have not been entirely cleared by the FBI.
The New York Times article also reveals that since 2000, a total of 182,694 work based visas had not been given out because U.S.C.I.S. had fallen behind in processing applications. This means that given the statutory authority to approve 140,000 numbers per year, the agency in the seven years has averaged 113,901 completed cases per year, or 9,492 approvals per month. The Department of State also released figures consistent with these rates of approval in its July 2, 2007, notice to U.S.C.I.S., "Authorizations for Employment Cases", comparing CIS requests for visa numbers during June and the first few days of July with 66,425 requests during the first eight months of the fiscal year, or a rate of 8,303 requests per month. For the agency to complete enough cases so that the Department of State could say that sudden backlog reduction efforts by Citizenship and Immigration Services offices during the past month had resulted in the use of almost 60,000 employment numbers constitutes a phenomenon attributable solely to overtime work at the service centers during the last weekend and the cutting of corners on security as seen in the New York Times article.
The article also states that U.S.C.I.S. officials said that they were surprised by the Department of State's action, and that they immediately advised the Department that they had already finished approving enough applications to use 60,000 visas of those offered. It also quoted Michael Aytes, director of domestic policy operations, as stating that the agency already had more than enough applications and that it expected to complete them in time to use the visa numbers. The first assertion if accurately quoted is legally incorrect as U.S.C.I.S. contacted the Department of State before or as soon as the visa chart was released, at which time the cases were not approved as cases by law are not approvable until all steps including security clearances have been completed. The second assertion by Mr. Aytes is irrelevant as the number of cases U.S.C.I.S. is holding has no impact on the visa chart since the Department of State only allocates visa numbers when U.S.C.I.S. finishes the cases and requests visa numbers. Thus even if U.S.C.I.S. is holding 2 million employment based cases, the visa bulletin can still be open if U.S.C.I.S. has not completed the cases and requested visa numbers.
In addition, even if U.S.C.I.S. had more than enough cases and expected to approve them in time for use during this fiscal year, what was the rush in approving so many cases since it had until September 30th (the end of the government fiscal year) to use up all the numbers? In other times, the agency would have welcomed extra revenues from individuals who could file I-485 adjustment of status cases. The rush to use the numbers by the end of the month and to rollup the welcome mat can only be attributed to U.S.C.I.S. anger that all the applicants filing in July would be beating the U.S.C.I.S. fee hike on July 30th which will raise fees for a typical family of four from $1,605 to $4,105, an increase of $2,500, or 255%. The author has conjectured that the amount at stake is at least $250 million. Ibid.
As the fallout continues over what must now be termed a scandal, one can only hope that reasonable minds can reverse course as further details only promise to make the episode look uglier and promote further firestorms of criticism.
Study: Immigrants add $222M to Arizona
By Brady McCombs
The Arizona Daily Star (Tucson), July 13, 2007
Immigrants are a $222 million fiscal gain for Arizona and their departure would result in a $29 billion annual loss in economic output, according to a study released by the UA.
The annual tax revenue generated by immigrant labor, $1.64 billion, outweighed estimated fiscal costs, $1.41 billion, for a net gain of $222.6 million, researchers concluded after analyzing figures from 2004. Immigrants accounted for nearly $44 billion, or 12 percent, of the state's economic output, resulting in 399,000 full-time-equivalent jobs, the study found.
The analysis, released this week, was intended to increase the understanding of the economic impact of immigration in Arizona, said Judith Gans, the study's author and immigration-policy program manager at the University of Arizona's Udall Center for Studies in Public Policy. The 1 1/2-year study was funded by the Thomas R. Brown Foundation in Tucson, which funds academic research and promotes education about the economy.
"The more we have good data about what's at stake, the more calmly we can look at this issue," said Gans. "By focusing so much on security in some squares, it's easy to ignore what it might cost us economically."
While one national immigration analyst applauded the study, another criticized its methodology.
It didn't adequately calculate all costs associated with immigrants, and thus, is a gross deception, said Steve Camarota, director of research for the Center for Immigration Studies, a Washington-based organization that advocates for slowing immigration.
"It doesn't answer the important question: What's the balance?" Camarota said. "Is it a good deal for us?"
Gans and her team of researchers arrived at their estimated fiscal impact from immigrants by examining the costs incurred by:
* The state's English Language Learner education in schools — $544 million.
* Uncompensated care costs at hospitals associated with immigrants — $134.4 million.
* Cost to the Arizona Health Care Cost Containment System incurred by immigrants — $641.9 million.
* Incarceration costs to the Arizona Department of Corrections — $90.9 million.
They should have included costs for such services as police, fire, road maintenance, parks, bridges, libraries and building inspectors, Camarota said. With immigrants accounting for 14 percent of Arizona's 5.7 million population in 2004, it's only logical their presence would put a drain on those services, too, he said.
"They assume that it's zero," Camarota said. "That doesn't make any sense."
The study recognizes that it doesn't capture all costs associated with illegal immigration, but Gans defends the methodology, saying they chose to measure the most significant costs clearly tied to state services affected by those here illegally.
Even if the study had included extra costs for some of the services mentioned by Camarota, the net gain would remain because the costs to hospitals is likely overstated, and the tax revenues generated by consumer spending by immigrants — estimated at $775 million — was left out to be conservative, she said.
The study represents a solid piece of research that confirms findings from analyses in Texas, North Carolina and South Carolina, said Daniel Griswold, director of the Center for Trade Policy Studies at the Cato Institute, a Washington, D.C.-based libertarian public-policy research foundation.
"They all come to the same conclusion: Immigration in general, including low-skilled immigrants, are a significant economic benefit to their resident states," Griswold said. "The Arizona study, like others done before it, shows that much of the claims of people who oppose low-skilled immigration are wildly exaggerated."
The study wasn't able to break down its evaluation directly to illegal immigrants, rather using the noncitizen-immigrant category tracked by the Census. The study assumed the majority of noncitizens are here illegally and they share many characteristics with legal noncitizens. Of the 619,818 noncitizens in Arizona in 2004, about 450,000 to 500,000 are estimated to be illegal immigrants.
Using the figures from the study, the estimated fiscal costs associated with noncitizen immigrants, $1.092 billion, outweigh the total tax revenue attributed to noncitizen immigrants, $1.08 billion, for a net loss of $12 million. That would sway back to a fiscal gain if the study included the tax revenue generated by consumer spending from that group, estimated at $318.6 million.
The study also estimated what the losses would be if the immigrant segment of the work force were eliminated in the following industries:
* Construction — a 15 percent reduction in work force would result in the loss of $6.56 billion in output.
* Manufacturing — a 10 percent reduction in work force would result in the loss of $3.77 billion in output.
* Service sectors — a 16 percent reduction in work force would result in the loss of $2.48 billion in output.
* Agriculture — a 15 percent reduction in work force would result in the loss of $600 million in output.
"This study confirms that it is not only impractical, but undesirable to somehow chase these immigrants back across the border," Griswold said.
EDITOR'S NOTE: The Arizona University report is available on line at
http://udallcenter.arizona.edu/programs/immigration/immigrants_in_arizona.html
Some migrants feel 'tricked' by delay in green card filing
A State Department offer to expedite green cards was withdrawn, infuriating workers.
By Monica Hatcher and Alfonso Chardy
The Miami Herald, July 12, 2007
When the U.S. government announced last month it would begin processing all employment-based green cards on July 2, software engineer Luis Montalvo went into overdrive. Within days, Montalvo and wife Clara, of Pembroke Pines, had secured documents from their native Colombia to meet the filing deadline.
Tens of thousands of foreign nationals across the country did the same -- upending their lives, rushing to get required medical exams.
But the State Department, which regulates the flow of green cards, has slammed shut the filing window almost as abruptly as it had been opened. Now, no applications will be processed until Oct. 1, a State Department spokesman said. Only then will the long waits resume.
Officials from State and U.S. Citizenship and Immigration Services say the reason is a failure to reduce backlogs in green card processing for skilled workers such as engineers, teachers and physicians.
"We feel great frustration," said Montalvo, who has been working for a company in Broward County on a temporary business visa for the past three years. "But we also feel tricked."
`CRUELEST THING'
The about-face astonished immigration lawyers and other advocates of foreign business professionals. They call the situation a crisis.
"This was the cruelest thing . . . immigration has ever done," said Tammy Fox-Isicoff, a Miami immigration lawyer who said hundreds of her clients rushed to file. "I had so many people crying, including myself. Crying out of frustration because they've waited so long and spent thousands and thousands of dollars."
High demand for employer-sponsored visas along with chronic backlogs at Citizenship and Immigration Services, which processes green card applications, have forced many professionals to wait years to apply.
Applicants for the limited number of green cards available annually receive a "priority date" establishing their place in line. Dates vary depending on country of origin and skill.
Each month the State Department sets priority dates in its Visa Bulletin, indicating who can submit applications. Applicants like Montalvo closely track the bulletins to see if their priority date is listed.
The June bulletin, the last before immediate processing was offered and then retracted July 2, listed priority dates between two years and six years ago.
ANNUAL QUOTA
The current situation began June 12, when the State Department announced it would eliminate the long waiting periods last week.
The only problem: By law, the department is limited to issuing roughly 140,000 business-sponsored immigrant visas per year. By the time July 2 rolled around, the quota was filled, requiring the rejection of further applications until the next fiscal year starts Oct. 1.
Immigration lawyers familiar with the process speculated that Citizenship and Immigration Services, which shares responsibility with the State Department for allocating green cards, did not properly advise the State Department that the annual quota was nearing completion.
The State Department acts as a gatekeeper of sorts, ensuring there is an adequate number of applications in the pipeline so that all green cards will be used.
It sets priority dates based on estimates of how many applications might be filed and how quickly it is able to process them.
Edgar Vasquez, a State Department spokesman, said the decision to eliminate all wait times was made because it appeared in May and June that Citizenship and Immigration Services might allow 60,000 remaining green cards to go unused.
"Our [role] is to ensure that all available visa numbers for the fiscal year are used -- period," Vasquez said.
Apparently, however, Citizenship and Immigration Services sped the process considerably in the weeks following the June 12 announcement, which led to all of the green cards being issued even before the end of the year.
UNUSED CARDS
Generally, thousands of green cards aren't used each year because of chronic processing backlogs, despite hundreds of thousands of people waiting for permanent residency. Since 1992, more than half a million cards have gone unused. Only half of all lost green cards are available for recapture in future years.
Last year, 10,296 green cards went unused.
Citizenship and Immigration Services would not say how the apparent miscommunication occurred with the State Department.
Caught in the middle, however, are people like Igor Golovanevskey, a Canadian citizen and vice president of a Broward-based engineering and construction firm.
He hoped to apply before his son became an adult under immigration law and could not be included in the family's application. Now the well is dry, at least until October, and he fears his son may never get to South Florida.
"He might have to stay in Canada, and it'll take him another seven years to get here to work or study," Golovanevskey said. "It is terrible."
Max Becker, a private banker from Mexico City who works for a Miami-based brokerage firm, said he lost thousands of dollars on a cruise vacation he canceled to be on U.S. soil -- as required by law -- to apply. He had to visit the doctor three times to complete the required medical exam and scramble to get an original birth certificate from Mexico City, as well as gather other paperwork.
"To be honest, at some point you think, should I go home? You don't know if you are welcome or not," a frustrated Becker said.
Immigration lawyers say they are similarly at a loss.
"No one has any idea what is going on," said Robert Sheldon, Golovanevskey's attorney. "I don't know what to advise my clients. Nobody does. Not even the government, it seems."
Last week, the American Immigration Lawyers Association announced it was preparing a class-action lawsuit against the government.
Congresswoman Lofgren on Visa Bulletin Debacle
For Immediate Release: July 11, 2007
CONTACT: Pedro Ribeiro
202-225-3072, pedro.ribeiro@mail.house.gov
Washington, D.C. - Representative Zoe Lofgren (D-San Jose) today sent a letter to Secretary of Homeland Security Chertoff requesting "all correspondence, e-mails, memoranda, notes, field guidance or other documentation relating to the issuance" of the "Update to July Visa Availability" on July 2, 2007. The letter contains thirteen separate questions and requests for information relevant to the issuance of the updated Visa Bulletin.
"The Department's unprecedented decision to reject adjustment of status applications has caused needless hardship and disruption to countless immigrants," noted Rep. Zoe Lofgren. "It has also come to my attention that USCIS began returning visa numbers to the State Department as early as Thursday, July 5, 2007, due to their inability to review applications effectively. The Department of Homeland Security has once again demonstrated its inability to complete even its core missions. This debacle demonstrates the need for more transparency and oversight of the department's operations and procedures."
The full text of the letter is included below:
July 11, 2007
The Honorable Michael Chertoff
Secretary
U.S. Department of Homeland Security
Washington, DC 20528
Dear Secretary Chertoff:
On July 2, 2007, the Department of State (DOS) issued an "Update to July Visa Availability," which the Department of Homeland Security (DHS) apparently relied on to suspend its acceptance of adjustment of status applications based on employment-based immigrant petitions. DOS and DHS acted on these matters despite my request that the agencies provide the Subcommittee with certain information before taking such actions.
At no point since my letter to you dated July 2, 2007, have I received any information in writing from the Department. Given this failure, I am now requesting that you provide to me, within three days of the date of this letter, the following information:
1. All correspondence, e-mails, memoranda, notes, field guidance or other documentation relating to the issuance of or the Department of Homeland Security's actions regarding the July Visa Bulletin, which made all employment-based immigrant visa categories (except the "other worker" category) current. The term "Department of Homeland Security" includes DHS or any component thereof.
2. All e-mails, correspondence, memoranda, notes, field guidance or other documentation relating to the issuance of or the Department of Homeland Security's actions regarding the "Update to July Visa Availability" issued on July 2, 2007. The term "Department of Homeland Security" includes DHS or any component thereof.
3. All correspondence, e-mails, memoranda, notes, field guidance or other documentation between the Department of Homeland Security, the Department of State, the Department of Justice and/or the Federal Bureau of Investigation relating to the availability of visa numbers for the month of July 2007, the issuance of or the Department of Homeland Security's actions regarding the "Update to July Visa Availability" issued on July 2, 2007, the processing of security or name checks in connection with visa number requests through the end of FY 2007, and/or the determination to suspend or reject the acceptance of adjustment of status applications. The terms "Department of Homeland Security," "Department of State," "Department of Justice" and "Federal Bureau of Investigation" include DHS, DOS, DOJ, FBI or any components of those agencies.
4. A detailed description of any existing or proposed understanding, arrangement and/or agreement between DHS (or any component thereof, including, but not limited to, U.S. Citizenship and Immigration Services) and the FBI (or any component thereof) relating to name checks or other security checks conducted with respect to immigration applications or petitions.
5. A detailed description of how DHS and/or the FBI expect the processes for such name or security checks to change through the end of FY 2007, and, in particular, within the month of July 2007.
6. A detailed description, including, but not limited to, a statistical tallying, of all employment-based immigration cases, petitions, applications or other files for which DHS (or any component thereof, including, but not limited to USCIS) requested a visa number between May 2007 and July 2, 2007, inclusive, for which any name or security check was pending, uncompleted or otherwise awaiting action on a security or name check. (Hereinafter, such cases will be referred to as cases for which visa numbers were "pre-requested.")
7. The specific legal authority on which DHS (or any component thereof, including, but not limited to, USCIS) relied to "pre-request" visa numbers for cases, applications, petitions or other files for which security or name checks were pending, uncompleted or otherwise awaiting action. The response to this question shall include copies of the specific legal authority, including statutory provisions, regulations, field manuals, policy memoranda, policy guidance or other documentation relied upon, as well as the date or dates on which such authority was last revised or issued, the substance of any revision and the original text that was revised.
8. Any and all correspondence, e-mails, memoranda, field guidance, notes or other documentation discussing or referencing the agency's decision to "pre-request" visa numbers for which security or name checks were pending, uncompleted or otherwise awaiting action.
9. Any and all field guidance, e-mails, correspondence, memoranda, notes or other documentation discussing or referencing the agency's plans, policies or other proposed or expected actions in the event security or name checks for cases, applications, petitions or other files for which the agency "pre-requested" visa numbers are not or do not get completed during July 2007 or the remainder of FY 2007, including, but not limited to, whether the agency has proposed or intends to return, or has discussed returning, visa numbers for such cases to DOS.
10. Any and all correspondence, e-mails, memoranda, notes or other documentation between DHS (including any component thereof, including, but not limited to, USCIS) and DOS regarding the availability of visa numbers for June 2007, July 2007, or any remaining month of FY 2007, including, but not limited to, the anticipated numbers available during such months, the expected or anticipated usage of or requests for such numbers and/or the update, revision, restatement or alteration of the July Visa Bulletin.
11. Any and all records or other documentation (with a summary for ease of analysis) regarding historic patterns of overtime ordered for work on weekends, including specifically the weekend leading up to July 2, 2007, and the reasons in each case that prompted the overtime, for the past three years.
12. Any and all records or other documentation (with a summary for ease of analysis) regarding historic patterns of adjudication of adjustment of status cases, including a breakout for adjustment of status cases based on employment-based immigrant petitions, on a monthly basis for the past three years.
13. Any and all records, analyses, spreadsheets, related e-mails, memoranda, correspondence or other documentation evaluating the potential financial effects to DHS (or any component thereof, including, but not limited to USCIS) if adjustment of status cases eligible for filing under the initial July 2007 Visa Bulletin were filed before, on or after July 30, 2007.
Thank you for your immediate consideration of this very important matter.
Sincerely,
Zoe Lofgren
Chairwoman
Subcommittee on Immigration, Citizenship,
Refugees, Border Security & International Law
cc: Secretary Condoleezza Rice, U.S. Department of State
Congresswoman Zoe Lofgren is serving her seventh term in Congress representing most of the City of San Jose and Santa Clara County. She serves as Chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. She also Chairs the House Administration Subcommittee on Elections and serves on the House Homeland Security Committee. Congresswoman Lofgren is Chair of the California Democratic Congressional Delegation consisting of 34 Democratic members of the U.S. House of Representatives from California.
Uncertainty as Arizona Immigrants Await Crackdown
By Tim Gaynor
Reuters, July 10, 2007
Phoenix (Reuters) -- Guatemalan illegal immigrant Gladys sat down last week with her three daughters to draw up a business card for a cleaning service she plans to set up.
She has 15 years experience scrubbing and vacuuming offices and private homes in and around Phoenix and hopes that having her own firm will get herself and her clients out of a bind.
'This way I will be able to work for myself and the patrones (employers) won't get into trouble under the new law,' she told Reuters. 'It's a good solution for everyone.'
The domestic worker is among tens of thousands of immigrants in Arizona wondering how to respond to a pending crackdown on undocumented workers since the defeat of an immigration bill in the U.S. Senate last month.
Days after the plan that sought to offer 12 million illegal immigrants a path out of the shadows failed, Arizona Gov. Janet Napolitano signed a state law targeting businesses employing illegal workers.
Under the measure, due to come into effect in January, first offenders can have their business licenses temporarily revoked, while second-time violators would lose their license all together.
Some undocumented immigrants like Gladys said they are hoping to circumvent or avoid the new law by using documents including state driver's licenses and Social Security cards to register as self employed or set up small companies to enable them to carry on working without jeopardizing employers.
Others living in the shadows in the southwest border state say they are planning to join relatives in neighboring states such as California or simply return to their home country as the clampdown looms.
'I have no rights to anything here anymore, so I'm going back to Mexico,' Diana, a homemaker from Chihuahua said as she waited in line with her two children for advice at an immigrants' welfare center in Phoenix.
UNCERTAINTY FOR ALL
Arizona is the first U.S. state to take action to enforce immigration laws since Congress' decision to drop comprehensive legislation on immigration in June.
After signing the law last week, Napolitano raised concerns about what she said was 'woefully' inadequate funding for enforcement in Arizona, where some quarter of a million people are thought to be illegal immigrants.
Some employers, meanwhile, have slammed the plan, which they say threatens to make local businesses uncompetitive and places an unfair onus on employers to enforce the law.
'It is really unfair as it is placing a burden on the backs of local employers in the state who are being asked to solve a problem that should be tackled by the federal government,' said Ann Seiden, director of communication at the Arizona Chamber of Commerce and Industry.
As thousands of undocumented immigrants decide whether to leave the state or to stay on and take their chances with a variety of schemes to avoid or circumvent the law, activists said the only certainty is uncertainty.
'I cannot tell anyone that 'you will be safe if you do this (or that)," said Elias Bermudez, the founder of Immigrants Without Borders advocacy group in Phoenix.
'There is no safe haven in a situation where there is a hurricane blowing through our state. That was the intent and the spirit of the law, and it has accomplished' that end, he added.
Microsoft Moves North
Los Angeles Times Editorial
July 10, 2007
Unable to meet its hiring needs because of U.S. immigration policy, the software company is opening an office in Vancouver
MICROSOFT CORP. is expanding in the Pacific Northwest, hiring several hundred software wizards to help develop new products. Instead of landing at the Redmond, Wash., mother ship, however, the new workers will toil in Vancouver, British Columbia. Here's why, according to the company's news release: "The Vancouver area is a global gateway with a diverse population, is close to Microsoft's corporate offices in Redmond and allows the company to recruit and retain highly skilled people affected by immigration issues in the U.S."
Consider it just the latest in a series of monuments to the United States' botched immigration policy, as well as a reminder of the Senate's recent failure to pass a comprehensive fix despite bipartisan support. High-tech companies are so frustrated by the limits on visas for skilled labor that they're not just opening offices in India and China to recruit local talent. They're also putting facilities in places like Vancouver for prized recruits from around the world — many of them trained at U.S. universities — who cannot work here.
The demand for H-1B visas for high-skilled immigrants has become so much greater than the supply that almost twice as many applications arrived in a single day as there were slots available for the year — 65,000, plus 20,000 for those with advanced degrees from U.S. schools. Other countries, by contrast, are starting to make it easier for skilled workers to immigrate. That's because they're focusing on the benefits those employees can bring to their economies, not the competition they present to native labor.
Many of these immigrants become the innovators and entrepreneurs who create companies, employ more people and create wealth. Just look at the U.S. experience — about 25% of all venture-capital-backed start-ups here were launched or co-founded by foreign nationals, including Yahoo, Google and EBay. The same benefits come from talented U.S. workers too, but not enough of them are pursuing science, math and engineering careers to fill the voracious demand at Microsoft and other high-tech powerhouses. A comprehensive fix to U.S. immigration policy is overdue, but failing that, Congress should at least adopt a more sensible approach to H-1B visas.
2006 DHS-OIG Assessment of ICE's Detention and Removal of Illegal Aliens
This April 2006 report by the Department of Homeland Security Office of Inspector General (complete report attached) assesses DHS' Immigration and Customs Enforcement program for detaining and removing illegal aliens apprehended in the United States and at ports of entry. It is based on interviews with employees and officials of relevant agencies and institutions, direct observations, and a review of applicable documents. Please download it HERE.
State Department Notice to USCIS Regarding EB Visa Availability
URGENT URGENT URGENT
July 2, 2007
TO : CIS Section 245 ADJUDICATIONS
FROM : Immigrant Visa Control
SUBJECT : Authoriirations for Employment CASES
Effective Monday July 2, 2007 there will be no further authorizations in response to requests for Employment-based preference cases. All numbers available to these categories under the FY-2007 annual numerical limitation have been made available. Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation.
The above action is a direct result of the sudden backlog reduction efforts of CIS offices during June and the first few days of July. During this short time period over 60,000 requests have been received and authorized. This is in comparison to the 66,425 CIS requests which were authorized during the first eight months of the fiscal year.
Please be sure that this information is passed to all personnel involved in the process of obtaining visa authorizations from the Visa Office for Section 245 cases.
Should You File Your Employment-based Adjustment of Status Application (Despite the Revision of the July Visa Bulletin)?
The Immigration Service (USCIS) announced last Monday, July 2nd, that it is rejecting all employment-based adjustment of status applications where the priority date was not current under the revised visa bulletin (see USCIS's announcement which is attached to this email). As a result, USCIS Service Center Operations advised the American Immigration Lawyers Association (AILA) that it will be rejecting ALL employment-based adjustment of status applications beginning July 2nd.
This action raises the question, should you go ahead and try to file your employment-based adjustment application(s) any way? This is a decision each applicant must make considering the followings:
The American Immigration Law Foundation's (AILF) Legal Action Center is preparing to litigate. Plaintiffs and class members whose applications were rejected or returned would have the strongest legal claims and have the strongest claims to benefit from a favorable result. Some case law indicates that where an applicant or their attorney did not go ahead and try to apply or permitted the agency to "front desk" an application (turned the applicant away without evidence they had applied) those beneficiaries were not eligible for any remedies the court might order later.
Please advise your attorney immediately if you want to attempt to file your adjustment applications. Such applications will presumably be returned by the USCIS (along with the filing fee checks) based on their attached announcement. This would, however, be evidence that an attempt to file was made and could possibly qualify you for any relief a court might grant in the future.
Rep. Lofgren Issues Statement on Updated Visa Bulletin
July 3, 2007
Washington, D.C. – Representative Zoe Lofgren (D-San Jose) today issued the following statement in response to the State Department’s update of the July Visa Bulletin and the subsequent rejection of applications for adjustment of status by the U.S. Citizenship and Immigration Services (USCIS).
I’m deeply concerned by today’s updating of the July Visa Bulletin by the Departments of State and Homeland Security. By taking this unprecedented mid-month update, the Departments of State and Homeland Security have seriously undermined the stability and predictability of U.S. immigration law. Thousands of individuals and businesses rely on the monthly bulletins to prepare and plan for the submission of applications. In addition, thousands of dollars in legal fees and other application related expenses are incurred in preparation for filing applications based on the these monthly bulletins.
This update sets a terrible precedent, and undermines our nation’s efforts to foster legal and orderly immigration.
Rep. Lofgren recently sent Secretaries Rice and Chertoff letters asking them to reconsider any mid-month updates of the July Visa Bulletin.
Update on Rejection of June “Other Worker” Adjustment Applications and What This Means for July
Rejection of "Other Worker" Adjustments
USCIS has confirmed to the American Immigration Lawyers Association (AILA) liaison that it will continue to reject all "Other Worker" (EW) I-485 applications in June, even if they have priority dates prior to October 1, 2001, the cut-off date in the State Department Visa Bulletin for June 2007. USCIS has informed AILA that the Visa Office at DOS advised USCIS that the visa allocation in the "Other Worker" (EW) category was exhausted on or about June 5, 2007. USCIS is treating that advisory from DOS as a determination that there is no longer an "immigrant visa … immediately available" under INA §245(a)(3). The USCIS implemented the rejection policy shortly after receiving the advisory from DOS, though no public notice of that policy was ever made.
AILA believes that the rejection policy is contrary to the regulation at 8 CFR §245.1(g)(1), and has urged USCIS to reverse this policy. USCIS continues to refuse to do so. A copy of the memo by the USCIS Liaison Committee to USCIS is attached.
What Does This Mean for Employment-Based Cases Filed in July?
The impact of the rejection policy on adjustment filings in July, when all employment-based categories except EW are "current" according to the July Visa Bulletin, is of concern. Sources in USCIS have told AILA that approximately 40,000 visas remain in all employment-based categories, other than EW, for FY2007, and that the USCIS alone has far more than that number of adjustment applications in the backlog queue that are ready for approval. The State Department will also be allocating visas to applicants abroad. Thus, it is possible that limits will be reached within a short period in July. The exact date has not been predicted.
AILA members should be aware that USCIS has not finalized policy on accepting and processing of I-485 applications in visa categories in which allocation is exhausted in a month in which the current Visa Bulletin shows visa availability. At this time, however, it is possible that, based on the treatment of EW I-485s in June, USCIS may again reject employment-based adjustment applications mid-month, even though the Visa Bulletin shows visa availability. ."
Medical Examinations
Because of reports in some locations of lengthy delays in obtaining appointments with authorized physicians for medical examinations, many members have asked if USCIS will accept adjustment applications in July and later without the medical examination report in the initial filing packet. USCIS has refused to agree to accept the package without the medical examination report. Members are cautioned that a medical examination report is considered "initial evidence," and the absence of the report from an adjustment of status application can result in rejection of the application, RFE, or denial of the application under the April 17, 2007, USCIS regulation "Removal of the Standardized Request for Evidence Processing Timeframe" (72 Fed. Reg. 19100, April 17, 2007
USCIS Announces Temporary Suspension I-140 Premium Processing
USCIS announced the temporary suspension of premium processing service for Form I-140, immigrant petition for alien worker, in accordance with 8 CFR 103.2(f)(2), lasting for 30 days beginning on July 2, 2007 and ending on August 1, 2007.
The Senate fell short of the 60 votes required to close the debate on immigration reform, forcing Senate Majority Leader Harry Reid to pull the bill from the floor.
Senator Reid thanked his fellow Senators for their patience & the willingness of many to work across party lines.
For more information, read CNN's News Article:
http://www.cnn.com/2007/POLITICS/06/28/immigration.congress/index.html
Immigration Bill Advances in Senate
By Julie Hirschfeld Davis
The Associated Press, June 26, 2007
Washington (AP) -- The Senate voted Tuesday to jump-start a stalled immigration measure to legalize millions of unlawful immigrants.
President Bush said the bill offered a 'historic opportunity for Congress to act,' and appeared optimistic about its passage by week's end.
The pivotal test-vote was 64-35 to revive the divisive legislation. It still faces formidable obstacles in the Senate, including bitter opposition by GOP conservatives and attempts by some waverers in both parties to revise its key elements.
Supporters needed 60 votes to scale procedural hurdles and return to the bill. A similar test-vote earlier this month found just 45 supporters, only seven of them Republicans.
Tuesday's outcome was far from conclusive, however. The measure still must overcome another make-or-break vote as early as Thursday that will also require the backing of 60 senators, and there is no guarantee that it will ultimately attract even the simple majority it needs to pass.
The Senate was preparing to begin voting as early as Tuesday afternoon on some two dozen amendments that have the potential to either sap its support or draw new backers.
Republicans and Democrats alike are deeply conflicted over the measure, which also creates a temporary worker program, strengthens border security and institutes a new system for weeding out illegal immigrants from workplaces.
Bush has mounted an unusually personal effort to defuse Republican opposition to the bill, appearing at a Senate party lunch earlier this month and dispatching two Cabinet secretaries to take up near-constant residence on Capitol Hill to push the compromise.
He called the measure a deal worthy of support. 'In a good piece of legislation like this, and a difficult piece of legislation like this, one side doesn't get everything they want,' he told business leaders and representatives of religious, Hispanic and agricultural communities earlier Tuesday. 'It's a careful compromise.'
Sen. Edward M. Kennedy, D-Mass., an architect of the measure, sounded a similar tone. 'This may not be perfect, but it is the best opportunity we have to do something significant and substantial, and I believe that the bill is good,' he said.
Still, after a chaotic several weeks in which the measure survived several near-death experiences, it remained buffeted by intraparty squabbles.
As senators were preparing for the showdown vote Tuesday morning, House Republicans meeting privately on the other side of the Capitol were plotting to register their opposition through a party resolution. The measure never saw a vote for procedural reasons, but an attempt to kill it failed overwhelmingly, signaling deep GOP skepticism.
'It's clear there's a large number of the House Republicans who have serious concerns with the Senate bill,' said Rep. John Boehner, R-Ohio, the minority leader.
Department of State Upgrades Security of Proof of Passport Application
Washington, DC
June 21, 2007
The Department has strengthened security standards for access to the proof of passport application that some Americans are temporarily using to enter and re-enter the United States from points in the Western Hemisphere. To control access to the proof of application, the locator number alone will no longer allow access to the proof of application. This change was recommended by a member of the public and will further safeguard passport customers’ personal information, while allowing them to obtain the data they need to meet recently-instituted flexibility in documentation requirements for travel to the Western Hemisphere by air.
To obtain the required proof that they have a pending passport application, travelers must go to http://travel.state.gov , and provide their last name, date of birth, and the last four digits of their social security number to verify their identity. The temporary flexibility, which allows Americans to return from air travel within the Western Hemisphere by presenting government-issued identification and proof of a pending U.S application for a U.S. passport, was announced by the Departments of State and Homeland Security on June 8, and will remain in effect until September 30, 2007. In the meantime, the Department of State has committed to process the record number of passport applications received, and to reduce the passport application turnaround time, all to serve the travel needs of Americans.