LEGISLATIVE UPDATE
Vol. 5, No.1, January 26, 2001

ADVOCACY IN THE 107TH CONGRESS

Pro-immigration advocates are working in a new and ever changing environment to promote our agenda.  They face a new Administration and Congress, both controlled by Republicans and both in the process of organizing themselves for the current session, with the Senate divided 50-50 under an unprecedented power sharing agreement.    

While the 107th Congress convened in early January and started to organize itself, it quickly recessed, returning late in the month.  However, other than confirmation hearings and some organizational meetings, Congress will not really begin its work until early February. The Bush Administration has just arrived and is having to contend with the consequences of some controversial nominations, most notably that of John Ashcroft, the former Republican Senator from Missouri, for Attorney General. As the Administration begins to articulate its priorities, many wonder if gridlock or accommodation will rule Washington, most notably the relationships between the new Administration and Republican Congressional leadership, Democratic leadership and the Administration, and Congressional Democrats and Republicans.

With regard to immigration, the Bush Administration largely has been silent on the range of issues that top the agenda of the pro-immigration community.  We know that the President, as a candidate, generally did not get into specifics on immigration, usually speaking in generalities about immigration and immigrants. He was stunningly silent during last session’s debate on the Latino and Immigrant Fairness Act but supported good H-1B and INS reorganization legislation. Many of us wonder if President Bush will translate his pro-immigrant rhetoric into positive, concrete policies. The President’s selection of an Immigration and Naturalization Service (INS) Commissioner will be an important indicator of his positions on issues that top our agenda such as due process, adjudications, and enforcement.  

Many advocates were not heartened by the nomination of former Senator Ashcroft to be Attorney General.  While his immigration record is limited and he did support H-1B visas, he voted against an amendment to eliminate expedited removal.  Furthermore, his civil rights record suggests a lack of sympathy for due process reform.

And then there is Linda Chavez, President’s Bush’s first nominee to head the Department of Labor.  Her nomination went down in the glare of her association with an undocumented immigrant.  While most of the media and Members of Congress focused on the specifics of the case itself, with several notably restrictionist Members of Congress defending Chavez’s “compassion,” a small segment of the media chose to focus on the need to change the law to eliminate the criminalization of this kind of conduct and the fact that this country is dependent on undocumented labor, and the need to create new mechanisms to allow “essential” workers to enter this country legally.  

What immigration issues move into the 107th Congress will depend to a large degree on Congressional Republican leadership. During the last Congressional session, leadership took many of their cues from their restrictionist wing (lead by Representative Lamar Smith (R-TX) and Senator Phil Gramm (R-TX)) and opposed the Latino and Immigrant Fairness Act (LIFA), which the White House, most Congressional Democrats, and the pro-immigration community strongly supported.  However, in contrast to past strategies of simply blocking reforms, Republican leadership not only opposed a pro-immigration effort but also countered with their own, limited proposal, the Legal Immigration and Family Equity Act (LIFE). The resulting legislation that Congress passed and the President signed into law, will help about 700,000 people.  However, left out are other equally deserving people:  those from Central America seeking equity of relief and others fleeing civil strife; others who would have been eligible for an updated registry date of 1986, and still others seeking due process relief.  In addition, the final compromise did not permanently restore Section 245(i) but, rather, grandfathered it for an additional four months, to April 30, 2001.  

While Congress was debating the LIFE/LIFA issue, a coalition came together to support a compromise agricultural worker bill that both modified the H-2A program and included an adjustment of status provision.  The agricultural industry and farm worker supporters (lead by Representative Howard Berman D-CA) supported this compromise that was not included in last Congress’ final budget deal due Senator Gramm’s opposition.  The Senator opposes the adjustment aspect of the measure and has developed a guest worker program that does not include any permanent status provisions.  The Senator will face much opposition as he tries to move this provision though Congress.   

Before Republican leadership will determine their high priority issues, they will name the chairs of the Senate and House Immigration Subcommittees. While we know that Representative Jim Sensenbrenner (R-WI), no friend of immigration, will head the House Judiciary Committee, names mentioned most frequently for House Subcommittee chair are Representatives Bob Barr (R-GA), Steve Chabot (R-OH) and Chris Cannon (R-UT).  Senator Orrin Hatch will continue to chair the Senate Judiciary Committee. A possible Senate Subcommittee chair is Senator Sam Brownback (R-KS) who, as a Representative in 1996, helped lead the effort in support of legal immigration. 

Confusion and Anxiety Grow with Delay in Implementation of the LIFE Act

While the Legal Immigration and Family Equity Act (LIFE Act) became law on December 21, INS and Department of State (DOS) have yet to issue any details or regulations about the new law implementation. INS is advising the public that it is moving as quickly as possible to develop application procedures for immigration benefits created by the LIFE Act, and has indicated it would inform the public as procedures are finalized.  In the meantime, the widespread, but mistaken, belief that the new law is an amnesty has caused growing confusion and anxiety in immigrant communities. 

The temporary reinstatement of Section 245(i) is one of the provisions of the LIFE Act. Section 245(i) is not an amnesty for all persons unlawfully in the US.   It benefits only those who are out of status and residing in the U.S. who have the requisite family or employer relationship, are otherwise eligible for an immigrant visa, and are barred currently from adjusting their status in this country. It allows such persons to adjust their status here rather than having to return to their home countries to acquire their visa, and there face the likelihood of the three and ten year bars.

To preserve eligibility to file for adjustment of status under Section 245(i), an individual must be the beneficiary of an immigrant visa petition (Form I-130, Form I-140 or Form I-360) or an application for labor certification filed by April 30, 2001. If the petition or application was filed after January 14, 1998, the beneficiary must demonstrate physical presence in the United States on December 21, 2000.  Although the deadline for filing these applications is quickly approaching, INS has yet to indicate how it will interpret this new physical presence requirement. 

The LIFE Act also creates a new nonimmigrant visa category, the "V" visa and expands the current "K" visa category.  The new “V” visa is available only to the spouses and minor children of legal permanent residents who filed a family based petition before December 21, 2000, and have been waiting more than 3 years for the approval of the petition or an available visa.  The new “K” visa will allow the spouses and minority children of U.S. citizens who are waiting outside of the U.S. for the approval of a visa petition to enter legally and obtain work authorization during the delay in their process.  INS has said that it cannot process applications for these two visa categories until application and adjudication procedures are finalized.  In its public advisory, INS has noted that it is consulting with the DOS and hopes to issue guidelines on these new visas by early spring. 

Another aspect of the LIFE Act is the part of that law pertaining to late legalization applicants.  The LIFE Act allows certain members of three specific class action lawsuits against the INS (CSS, LULAC, and Zambrano) to apply directly for permanent residence under the slightly modified terms of the original 1986 legalization program.  Eligible applicants will be required to submit an application for adjustment of status within one year of the date on which the Attorney General issues final regulations.  The LIFE Act requires Attorney General to issue those regulations no later than March 21, 2001 (120 days after the law was enacted).  However, the INS has not indicated whether it will meet this deadline.

Persons who have concerns about their eligibility for LIFE Act benefits should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals.

House and Senate Immigration Committees Still Undecided; Chairs Up for Grabs

In addition to the lengthy election battle and the ceremonies surrounding the inauguration, Congress has turned to conducting hearings on President Bush’s cabinet nominees, and putting together its committee rosters for the 107th Congress. Both the House and Senate Judiciary Committees (which oversee immigration issues) still need to name members to the full committee, and neither the House nor Senate has issued rosters for their immigration subcommittees. However, some assignments have been made.

House:  Representative James Sensenbrenner (R-WI) will chair the House Judiciary Committee.  Republican Committee members are (new members are in italics): Henry J. Hyde, Ill., George W. Gekas, Pa., Howard Coble, N.C., Lamar Smith, Texas, Elton Gallegly, Calif., Robert W. Goodlatte, Va., Steve Chabot, Ohio, Bob Barr, Ga., Bill Jenkins, Tenn., Asa Hutchinson, Ark., Christopher B. Cannon, Utah, Lindsey Graham, S.C., Spencer Bachus, Ala., Joe Scarborough, Fla., John Hostettler, Ind., Mark Green, Wis., Richard "Ric" Keller, Fla., Darrell Issa, Calif., Melissa Hart, Pa., Jeff Flake, Ariz.  The Democrats have yet to name their committee members, but Representative John Conyers (D-MI) will remain as the Ranking Minority Member. Chairman Sensenbrenner has not been supportive of AILA’s positions on most immigration matters, although he supported the final H-1B increase. Neither the House Immigration Subcommittee chair nor the members have yet to be named.  At last report, three members were in the running to chair the subcommittee: Bob Barr (R-GA), Steve Chabot (R-OH), and Chris Cannon (R-UT).

The chairman of the House Appropriations Committee responsible for the Department of Justice and the INS’ budget has changed.  Representative Hal Rodgers (R-KY) will no longer chair this committee. (Representative Rogers was one of the authors of an INS reorganization bill introduced last year that AILA and other organizations opposed because it lacked the fundamental principles for true reform: separate but coordinate the enforcement and adjudication functions, put someone in charge with clout, and provide adequate appropriations to support adjudications.) Stepping into the job is Representative Frank Wolf (R-VA). Representative Wolf has been supportive of business immigration, but has not supported AILA’s other priorities.

Senate: While Senate Democrats have named their committee assignments, the Republicans have yet to do so formally. However, we know that Senator Orrin Hatch (R-UT) will return as chair of the Senate Judiciary Committee and Senators Sam Brownback (R-KS) and Mitch McConnell (R- KY) most likely will join the full committee. Committee Democrats are (new members are in italics): Patrick J. Leahy, Vt. - ranking member, Edward M. Kennedy, Mass., Joseph R. Biden Jr., Del., Herb Kohl, Wis., Dianne Feinstein, Calif., Russell D. Feingold, Wis., Charles E. Schumer, N.Y., Richard J. Durbin, Ill. ,Maria Cantwell, Wash.  With the defeat of Spencer Abraham (R-MI) by Debbie Stabenow, the chair of the Immigration Subcommittee is up for grabs.  Senator Brownback has been cited as a possible new chair, although some reports say that the subcommittee may be abolished, with immigration issues dealt with at the full committee level. If the subcommittee continues, Senator Kennedy will remain as Ranking Minority member. Senator Judd Gregg (R-NH) will remain the chair of the Senate Commerce, State and Justice  appropriations subcommittee.

President Bush on Immigrants

In his inaugural address, President Bush mentioned the role of immigrants in U.S. society. The President said: “America has never been united by blood or birth or soil. We are bound by ideals that move us beyond our backgrounds, lift us above our interests and teach us what it means to be citizens. Every child must be taught these principles. Every citizen must uphold them. And every immigrant, by embracing these ideals, makes our country more, not less, American.”

The President also indirectly touched on the concepts of justice and fairness, which are at the heart of the debate about the overly harsh provisions of IIRAIRA. President Bush said America’s promise is “that everyone belongs, that everyone deserves a chance, that no insignificant person was ever born,” and that “America, at its best, is compassionate.” The President also made a “solemn pledge” to “work to build a single nation of justice and opportunity.”

Bush Administration Delays Clinton Regulations for Review

Shortly after President Bush took office, his administration took steps to initiate a review of last-minute regulations drafted by the Clinton White House. In a memorandum to all heads of Executive Departments and Agencies, White House Chief of Staff Andrew Card announced a hold on all new and pending regulations to allow new Bush appointees or their designates time to review them. Covered under this memorandum are all proposed or final regulations not yet published in the Federal Register, and regulations published but not yet effective. In the latter case, the effective date is to be postponed for at least 60 days to allow for review.

The order does not affect the new H-1B regulations published by the Department of Labor, which became effective January 19, 2001. However, other pending regulations are affected, including DOL’s labor certification "RIR conversion" regulation, INS’ anticipated regulation on concurrent I-140 and adjustment filings, the asylum regulation reversing Matter of R-A-. EOIR has indicated that it does not believe that the final Soriano regulation is affected by the memorandum.

While it is not clear whether the new  Administration will object to any of these regulations, the delay will undoubtedly cause difficulties for those who were awaiting the relief these regulations may have granted.

DOL’s “December Surprise” Garners Hill Attention

The Department of Labor (“DOL”) on December 20 issued its Interim Final Rule governing H-1B labor certifications and implementing provisions of the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”). The original proposed rule was issued in January 1999, and contained very little actual regulatory language. The majority of the proposal was explanatory language in the preamble, which listed alternative implementation ideas the agency was considering. DOL received 92 comments to its proposed regulations, many of which were extensive in length and detail, from AILA, Members of Congress, the Office of Management and Budget, law firms, associations, companies, Federal agencies, labor unions and individuals.

In response to the Interim Final Rule, at least two members of Congress have written to DOL expressing their displeasure with the rule’s issuance and the agency’s interpretation of its statutory authority. Representative Pete Hoekstra (R-MI), former Chairman of the Oversight and Investigations Subcommittee of the Education and Workforce Committee, wrote to Secretary of Labor Alexis Herman just prior to the publication of the rule stating “this Subcommittee is very concerned that the Department may publish final or interim final regulations without first publishing additional proposed regulations or providing the public with an appropriate opportunity to comment.”

Former Senator Spencer Abraham (R-MI), as Chair of the Senate Immigration and Claims Subcommittee, and Senator Bob Graham (D-FL), wrote “[W]e must note that ... on many … issues, DOL has ignored not only the clear language of the legislation but also the contemporaneous statements that Senator Abraham made as chief  bill sponsor and negotiator with the Administration prior to the floor consideration of the [ACWIA].”  The Senators specifically cite their concerns regarding the regulation’s paperwork requirements, DOL’s assumption of additional authority to administratively remedy violations (including “make whole” relief), the exclusion of part-time employees from the definition of H-1B “exempt” employees, and the DOL’s complex system governing the movement of H-1B professionals.

Gramm Proposes New Guest Worker Program Following Meeting with Mexican President Fox

In early January, Senators Phil Gramm (R-TX), Jim Bunning (R-KY), Zell Miller (D-GA), Pete Domenici (R-NM) and Michael Crapo (R-ID) met with newly installed Mexican President Vicente Fox. Following this meeting, Senator Gramm announced that he would introduce legislation creating a new “guest-worker” program, recognizing that undocumented immigrants “are vital to our economy.” Creating a new legal guest worker program will “help the economy and dramatically decrease illegal immigration,” said Senator Gramm.

Under the Gramm proposal, which was yet to be put into legislative language the U.S would create a new temporary visa program for Mexicans that would allow admission to the U.S. to accept jobs for up to one year, after which they would be required to return to their homes in Mexico. The workers would be issued identification cards for employment primarily, but not exclusively, in agriculture and the service sector. Undocumented workers in the United States would be encouraged to participate, and, if enrolled, would be required to return to Mexico at the conclusion of their employment. Employers of these guestworkers would be exempted from paying payroll taxes on their behalf, but instead would fund an emergency health care program, with an IRA-like account. Penalties for employment of undocumented workers would be significantly increased and strictly enforced. 

INS Holds Focus Group on Premium Processing Fee

The FY 2001 Commerce, State, Justice (CSJ) appropriations bill authorized the INS to collect a “premium processing fee” of $1,000 on business immigration petitions (I-129s and I-140s) in exchange for expedited service, by which a decision or a request for additional information (RFE) is sent within a certain period. The INS in mid-January held a stakeholders’ “focus group” to discuss the agency’s implementation of this new fee. INS hopes to begin the program sometime between April 1 and June 30. The INS sold this fee to Congress as a means to address growing case backlogs. (Although provisions in the H-1B law also created a new account at INS into which Congress could provide appropriated funds for backlog reduction, no funds were actually allocated to the account for the current fiscal year.)

INS officials met with representatives from Lobbyists, employers, employer associations and individual attorneys to discuss the new program and employers’ expectations. Program highlights, as presented by INS, follow:

U.S. Supreme Court Agrees to Hear Cases on Judicial Review and Retroactivity of IIRAIRA

While the 106th Congress failed to enact due process reform, the Supreme Court has agreed to hear two cases concerning the right to judicial review of removal orders and whether AEDPA and IIRAIRA eliminated eligibility for 212(c) relief retroactively.  The Court’s ultimate decision could widely impact the ability of noncitizens to seek review of removal orders in federal courts.

The two cases are St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) and Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000).  In Calcano-Martinez, the Second Circuit held that, while the permanent judicial review provisions of IIRIRA had stripped the courts of appeals of jurisdiction to hear petitions for review of final removal orders, the law had not removed the federal courts’ habeas corpus jurisdiction.  Therefore, noncitizens ordered removed could obtain review of those orders in federal district court. In St. Cyr, the same panel of the Second Circuit held that AEDPA and IIRIRA had not eliminated eligibility for a 212(c) waiver of deportation for a person who pled guilty before the effective dates of the statutes. The American Civil Liberties Union is counsel in both cases.  The cases will be briefed in February, March and April. Oral argument is expected to be held in April.  The Supreme Court may decide the cases by July.

The Ninth Circuit Court of Appeals Issues Ruling on Retroactivity of IIRIRA

A new Ninth Circuit ruling in Castro-Cortez v. INS (case no. 99-70267) , holds that immigrants who illegally reentered the United States prior to the enactment of IIRIRA are entitled to lawyers and a hearing before being deported a second time. The decision puts strict limits on the April 1997 INS regulations that allow an immigration officer to order immediate deportation after determining that the immigrant was previously deported and had again entered the U.S. illegally. The Court specifically held that the regulations are constitutionally questionable and cannot be applied to immigrants who re-entered the country before April 1997. The Ninth Circuit decision could affect as many as 11,000 immigrants.