Copland and Brenner

Table of Contents

1. Doh! U.S. Immigration Laws "Complex" and May Hinder Missions of DHS
2. H-1B Update
3. Department of Labor Clarifies

1. Doh! U.S. Immigration Laws "Complex" and May Hinder Missions of DHS

   On July 28, 2005, the Congressional Research Service issued a memorandum to the House of Representatives Committee on the Judiciary concerning “Enforcing Immigration Law: Issues of Complexity.” The focus is largely upon enforcement operations involving the ports of entry at U.S. borders, authority for which falls under the jurisdiction of U.S. Customs and Border Protection (“CBP”). Since March 2003, CBP officers are responsible for inspecting not only the human beings seeking admission, but handling customs and agricultural import matters at ports of entry as well. The memorandum references a number of sources including case law, testimony before Congress, and legal treatises in its observations.

   One author is cited for the notion that, “[1]n its eagerness to unify the agencies and gain efficiencies, CBP may have inadvertently minimized the complexity of the various bodies of law and regulation and the value of specialized expertise.” “Inconsistencies and variations in inspectors’ understanding and application of immigration law were reportedly common before the attacks of September 11,” and to some, “the merger of enforcement responsibilities into CBP has – in some instances – exacerbated the inconsistencies.”

   Among the broader issues involving interior enforcement (U.S. Immigration and Customs Enforcement) and benefits (U.S. Citizenship and Immigration Services), views noted in the memorandum include the following:

   - “a lawyer is often the only person who could thread the labyrinth” of the immigration laws
   - “the statutory scheme defining and delimiting the rights of aliens is exceedingly complex”
   - “every immigration benefit has its own set of rules, regulations, and procedures. Many are complex and time-consuming to adjudicate. Some are so difficult to process that specialists must handle them.”
   - U.S. Citizenship and Immigration Services is “saddled with administering what my legal friends tell me is the most complicated set of laws in the nation. I am told it beats the tax code….each application we receive seems to be slightly or largely different from the other.” (this from Eduardo Aguirre, the former director of USCIS)
   - “immigration officials must be familiar with 24 major nonimmigrant visa categories, and 70 specific types of nonimmigrant visas.”
   - likewise, the variety of documents – “240 different types of valid drivers licenses and 50,000 versions of birth certificates – that immigration officials are exposed to also creates challenges”
   - administrative review within the Executive Office for Immigration Review involves a large backlog of cases, “which an American Bar Association report suggests resulted from an increased caseload and the complexity of the legal issues presented,” including “massive changes in immigration law between 1996 and 2002.”

   Mission Creep: The Agency Vs. the Union

   There appears to be a major disconnect between the official CBP position regarding its multiple responsibilities, and that expressed by the union for the officers fulfilling them. The official CBP position is that the so-called “one-stop process” involving the entire import/passenger process will be a “force-multiplier” that will “maximize efficiency and streamline processes that support the facilitation of lawful travel and trade.” The agency states that “while the CBP Officer will indeed need broader knowledge to do the job, the additional material is not more difficult or more complex to apply.” (“One Face at the Border” – Questions and Answers ).
   An alternative view is expressed by T.J. Bonner, President of the National Border Patrol Council (“NBPC”). The NBPC is the union representing the “front-line” border patrol officers, and is part of the American Federation of Government Employees (“AFGE”), which in turn is affiliated with the struggling AFL-CIO. Mr. Bonner is quoted in the July 28 memorandum as stating that the 9/11 attacks and subsequent reorganization of all border entry matters within that agency “will ultimately result in a workforce composed of ‘jacks of all trades, but masters of none.’”

   But there is more to the views of the NBPC, as is made clear by various postings on the union’s web site (www.afge.org). In a July 13 release, Mr. Bonner is quoted as saying: “Our borders are out of control,” and characterizes DHS Secretary Chertoff’s support for the President’s temporary worker program as “a repackaging of old ineffectual ideas” focused upon “business interests who clamor for an endless supply of cheap, exploitable labor.”

   One report on the site complains about the “hardships” involved in a mandatory four-month training programs in Georgia, noting that one officer’s wedding plans will require him to “report to training, dash back up to Royal Oak for the weekend to get married, then return to Georgia immediately.” Yet another report discusses “a sharply worded attack” against the federal government by NBPC, in which it lambasted an investigation “that implicated dozens of Border Patrol agents in a kickback scheme” as a “witch hunt and miscarriage of justice.”

   The AFGE web site also contains links to a border patrol officer’s story, titled Why the Border Patrol Can’t Do Its Job . The article decries “the 57,000 cars that were stolen by illegals in Phoenix last year,” and “the Dream Act, H-1B and L-1 visas that have cost Americans over one million jobs.” “Anchor babies,” the diversity visa program, “chain migration,” and “Spanish speakers” whose culture says “it’s okay to go out and get drunk and ruin others property” are other evils associated with the alleged “20 million illegal aliens” that are the subject of the officer’s vitriol.

   No doubt, the views espoused on the union’s web site cannot and do not speak for every individual border officer. However, it is somewhat astonishing that such bunkum manifests the expressed institutional positions of the people charged with implementing U.S. immigration laws at our ports of entry. It should be small wonder that the immigration bar has grown tremendously over the past several years, to “thread the labyrinth” of U.S. immigration laws in spite of profoundly harsh provisions that would seem to suit the NBPC just fine.

2. H-1B Update

   USCIS recently posted cap count information on its web site regarding H-1B and H-2B nonimmigrant visas. As of July 31, 2005 there were 21,252 cases approved toward the fiscal year 2006 worldwide total of 58,200. For those wondering why the worldwide total is not 65,000, note that the 58,200 subtracts the 6,800 reserved specifically under free trade agreements (“FTA’s) to Chili and Singapore. Unused numbers from those 6,800 will become available for “general use” only on the first day of FY2007, which will be October 1, 2006 .

   Of the 20,000 additional advanced degree H-1B visas made available for FY2005, 9,358 have been used with 792 in the pipeline. Thus, approximately 10,000 are still available through September 30, 2005. For FY2006, there is already a total of 7,884 approved and pending cases toward the 20,000 cap.

   In the H-2B category, there is a total of 16,684 approved and pending cases toward the 35,000 additional visas made available for FY2005 in late May. For FY2006, only 389 cases have been approved or were pending as of July 25.

3. Department of Labor Clarifies

   By notice published July 19 in the Federal Register , the Department of Labor (“DOL”) clarified filing locations and procedures for the H-1B, H-2B, PERM and new E-3 visa program. The notice is found at http://www.access.gpo.gov/su_docs/fedreg/a050719c.html. The notice, says the Department of Labor, is intended to provide a “convenient, one-stop reference on program-specific filing requirements.” The notice was effective immediately. It will be updated and published in the Federal Register and posted on the agency’s web site going forward.

   Highlights of the recent rule include:

   H-1B and H-1B1 (Chile and Singapore FTA’s): Labor condition applications may be filed electronically, by facsimile or via U.S. mail. (Note that a separate proposed rule would require electronic filing for most cases). Form 9035 is available online at http://www.lca.doleta.gov.

   H-1B seventh year extensions: In all cases, employers are asked to email inquiries to the Backlog Elimination Center where their permanent labor certification case is pending. For the Philadelphia office, the email address is h1b7yr@phi.dflc.us. For Dallas, it is h1b7yr@dal.dflc.us. To see when a case has been or will be shipped by the State Workforce Agency (“SWA”) to the appropriate Center, employers may go to http://atlas.doleta.gov/foreign/times.asp.

   H-2B temporary nonagricultural program: Employers must continue to file Form ETA 750A with the SWA serving the area of intended employment. Effective July 18, once the SWA has reviewed an application it will be forwarded to the Atlanta or Chicago National Processing Center (“NPC”). State designations for the NPCs are set forth in the rule. Separate provisions apply to boilermakers, entertainers, logging and professional team sports.

   H-2A temporary agricultural program: Effective August 1, employers will file their original H-2A applications directly with the appropriate NPC in Atlanta or Chicago. A copy of the application must simultaneously be filed with the appropriate SWA. The SWAs will continue handling their current responsibilities regarding prevailing wage/prevailing practice surveys, recruitment of domestic workers, and housing inspections. The SWAs will coordinate all activities for processing of H-2A cases with the NPC for their jurisdiction.

   E-3 professional workers: The Emergency Supplemental Appropriations Act of May 11 established a new nonimmigrant visa category for Australian professionals. 10,500 visas will be available each fiscal year for Australian nationals seeking temporary work in “specialty occupations” as defined in the H-1B context. While involved federal agencies sort out “the specific parameters of the program and how the program will be administered,” employers seeking to utilize the new category are instructed to use Form ETA 9035 and print at the top of each page, in blue or black ink, “E-3 – Australia – to be processed.” The 9035 should be filed with the DOL national office at the address noted in the rule.

   Pre-PERM labor certification cases: Applications filed under regulations in effect until March 28, 2005 are being processed at one of two Backlog Reduction Centers (one in Dallas, one in Philadelphia). A display of the SWA shipping schedule for forwarding to the appropriate Center (again, on a jurisdictional basis depending on state) is found on the DOL web site at http://atlas.doleta.gov/foreign/times.asp.

   Non-PERM, new labor certification applications: For applications involving professional team sports, must continue to use pre-March 29 procedures and file their applications using the “old” labor certification application, Form ETA 750. We note that for Schedule A applications, for shortage occupations including nurses and physical therapists, one Form 9089 must be filed directly with USCIS along with Form I-140 and supporting documents.

   PERM cases: Information for filing under PERM, and a list of FAQs, may be found at http://atlas.doleta.gov/foreign.

   We will continue to update our readers with PERM, and other, developments. After all, DHS complexities have nothing over the DOL.