Copland and Brenner

Table of Contents

1. Over: H-2B Cap Reached for first half of FY2009
2. ....Bridge....
3. Troubled Water: ICE Enforcement Update

1. Over: H-2B Cap Reached for first half of FY2009

   On July 30, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009 (FY2009). In its announcement (which can be viewed on the agency’s web site at www.uscis.gov, and clicking on the link to Press Room), USCIS advised that July 29, 2008 was the final receipt date for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2009.

   In keeping with past practice, USCIS will reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2009 that arrive after July 29, 2008.
   The agency will apply a computer-generated random selection process to all petitions that are subject to the cap and received on July 29, 2008, select the number of petitions needed to meet the cap, and reject all those not selected. Since the petitions that are not selected in this process have not been accepted by the agency for adjudication, USCIS will return any accompanying filing fee.

   As background, and as explained on the USCIS web site, the H-2B numerical limit, or quota, set by Congress per fiscal year is 66,000. “The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.” The annual numerical limitation of 66,000 was divided into two halves by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). Accordingly, 33,000 H-2B visas are available during the first half of any federal fiscal year, which runs from October 1 – March 30. The balance become available for the period of April 1 – September 30, the second half of the fiscal year.

   It should be noted that petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. Therefore, USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the United States; change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay.

2. ....Bridge....

   The fact that the H-2B quota – and the H-1B quota – are regularly exhausted months before the visas will become available may not be directly relevant to many. However, it is representative of the broken U.S. immigration system and a clear indicator that businesses may not legally employ the hundreds of thousands of foreign workers they need even in these beleaguered economic times. This factor, among others in our complex system, encourages illegal immigration and employment verification violations by workers and employers, leading to the constant churn of unlawful entries, overstays, unauthorized employment, and enforcement efforts.

3. Troubled Water: ICE Enforcement Update

   In performing its role in the system, U.S. Immigration and Customs Enforcement (“ICE”) has been very busy. While the recent Postville, Iowa raids and court proceedings have been roundly criticized, enforcement efforts are continuing apace. ICE issued several news releases last month alerting the public to its successes: on July 16, it announced that “[o]ne current and one former top executive for a franchisee that owns 11 McDonald’s restaurants in and around Reno, Nev., and the corporation itself pleaded guilty in federal court in Las Vegas today to federal felony immigration offenses for encouraging illegal aliens to reside in the United States.” Those charges stemmed from an investigation that began in March 2007, following reports of identity theft and allegations that the company knowingly hired illegal alien workers. In executing federal search warrants about nine months later, “agents encountered 58 illegal aliens who were working illegally at the McDonald’s restaurants.”

   On July 21, ICE issued another update, this time involving agents who executed nine federal search warrants at an apartment complex in Waipahu, Hawaii. The agents arrested “43 aliens employed by The Farms, on administrative immigration violations.” All were reportedly “males and citizens of Mexico,” and removal proceedings have been initiated in each case. In connection with the search, “the U.S. Attorney for the District of Hawaii is determining whether to file criminal charges in cases where evidence suggests the aliens provided fraudulent information in order to obtain employment.”

   In yet another highly publicized enforcement action, ICE announced on July 23 that it had “administratively arrested 58 restaurant employees on immigration violations after executing federal search warrants at eight Casa Fiesta restaurants throughout northern Ohio.” All those arrested are stated as being citizens of Mexico; 54 are male and four are female. “Three of the women were released on their own recognizance on humanitarian grounds.” Thus far in fiscal year 2008, “ICE has made 949 criminal arrests in connection with worksite enforcement investigations. Of those, 105 involve owners, managers, supervisors or human resources employees who face charges ranging from harboring to knowingly hiring illegal aliens. In addition to the criminal arrests, ICE has made more than 3,500 administrative arrests for immigration violations during worksite investigations in that same time frame. Last year, ICE made more than 4,900 arrests in worksite enforcement cases, including 863 involving criminal violations. Furthermore, in fiscal year 2007, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments as a result of worksite related enforcement actions.”

   Not content to rely on its own efforts, ICE issued a news release on July 31, seeking to involve a whole new segment of the population in its enforcement efforts: illegal aliens themselves. In its news release, the agency announced the launch of a pilot program called “Scheduled Departure,” which will begin next week in five cities (Santa Ana and San Diego, California; Phoenix; Chicago; and Charlotte). “The program allows fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate their removal with ICE.” The program “will run from Aug. 5 to Aug. 22 and may be expanded as ICE continues to evaluate the pilot.”

   Julie L. Myers, Homeland Security Assistant Secretary for ICE, is quoted in the release as stating, “This program addresses concerns raised by aliens, community groups, and immigration attorneys who say ICE unnecessarily disrupts families while enforcing the law. By participating in the Scheduled Departure Program, those who have had their day in court and have been ordered to leave the country have an opportunity to comply with the law and gain control of how their families are affected by their removal.”

   As described further in the release, and quoting at length with emphasis added: “[p]articipation in the program ends the risk of sudden arrest and detention for certain non-criminal fugitives. Those with families can particularly benefit from this program. It allows qualifying aliens to make removal arrangements without being held in custody, which will ease their transition and minimize the impact of their removal on their loved ones. In addition, ICE will allow eligible participants to arrange for their families to depart together, should they so desire. Non-criminal fugitive aliens who live in or around Santa Ana, Calif., San Diego, Phoenix, Chicago and Charlotte can visit their local ICE Offices of Detention and Removal Operations to discuss their departure plans.”

   “Prior to the launch of this pilot program, most fugitive aliens would have been considered to be a flight risk and so would have remained in custody until their removal. By coming forward and participating in the program, ICE will no longer consider the alien to be a flight risk.”

   “There are approximately 572,000 ICE fugitives in the United States, including 457,000 who do not have criminal histories. An ICE fugitive is defined as an alien who has failed to depart the United States based upon a final order of removal, deportation, or exclusion from a U.S. immigration judge,
   or who has failed to report to ICE after receiving notice to do so. Only non-criminal fugitive aliens are eligible for the program and will be screened by an ICE officer when reporting to verify status. ICE officers will update immigration databases, and explain supervision requirements to eligible aliens. Aliens who qualify would be allowed to remain in the community with a reporting requirement or an electronic monitoring device. Since all situations are unique, an ICE officer will notify the alien of the next steps to take for removal.”

   “Aliens who are able to provide for their own removal would have the flexibility to make their own travel arrangements within a 90-day time period. ICE will work with eligible aliens who are not able to provide for their travel ; however, ICE will maintain control and schedule the travel arrangements in these specific cases.”

   “ ICE will allow eligible participants to arrange for their families to depart together. U.S. citizens or aliens with a legal immigration status cannot be removed by ICE from the United States; however the relatives of the non-criminal fugitive alien being removed are welcome to make their own travel arrangements to depart at or around the same time, if they choose to join their relative. These are personal decisions made by each individual family. ”

   “The agency recognizes there are those less inclined to accept the intentions of such a compassionately conceived enforcement initiative , but remains committed to providing sensible alternatives that balance the welfare of the individuals and families in question with its clear obligation to uphold the law.”

   “The Scheduled Departure Program will not alter a participant’s immigration status or provide any immigration benefit . The program is not a form of voluntary departure or voluntary return. Participants will continue to have a final order of removal, deportation or exclusion.”

   “Aliens who have not previously been encountered by immigration officials or who have criminal records, or are determined to be a danger to the community are not eligible for this program and may be arrested and taken into custody if they report to ICE .”

   “Next week, a series of print and radio ads in several languages will highlight the program in the pilot locations. Additional information will be also available on www.ice.gov and via a hotline staffed by ICE personnel. Aliens are also encouraged to speak with their consular officials, community groups, or attorneys if they have other questions.”

   Notwithstanding the caveat in the July 31 news release, we anticipate that press coverage, if not the information dispensed by agency personnel, will cause mass confusion as to whether “Scheduled Departure” is, in fact, some sort of amnesty program. The program, we believe, is likely to result in at least some aliens losing any opportunity of presenting legitimate cases for relief from deportation, as provided under the Immigration and Nationality Act. While the agency casts the program as “compassionately conceived,” it is more appropriately described as mastery of George Orwell’s doublethink: “to be conscious of complete truthfulness while telling carefully-constructed lies.” Deportation is still deportation, as a rose is a rose, by any other name.