LEGISLATIVE UPDATE Vol.4, No. 7

RECESS REMINDER

The July 4 Congressional recess is just around the corner. Be sure to make appointments to meet with your Senators and Representative while they are home. Given the upcoming November elections, this is a crucial time to get together with Members of Congress. Taking a sympathetic client can be helpful, and remember to leave a packet of information behind for reference!

With broad support among both Democrats and Republicans for increasing the cap on H-1Bs, most Hill-watchers presumed that speedy passage of H-1B legislation this Congressional session was a given. With the up-coming election and the increasing clout of immigrant communities, observers expected that other high priority immigration issues would be addressed as well. However, election-year partisan bickering has brought both the House and Senate to a standstill on a range of issues, including H-1Bs. Both parties are trying to use the H-1B issue to court the high-tech industry, an important battleground for campaign contributions this election year. In addition, both parties are blaming the other for stalling the bill over what Lobbyists view as other must-pass immigration issues, including the restoration of Section 245(i), updating the registry date, and granting NACARA “parity.”

Lobbyists have urged Congress this session to pass good H-1B bills (S. 2045 and H.R. 3983) as well as pass these other “plus” measures that would help ensure our nation’s continued economic growth and correct for past government mistakes. Additionally, central to this Congress’ pre-adjournment must-do agenda is fixing the excesses of the 1996 immigration laws: due process, retroactivity, waivers, expedited removal, and secret evidence.

In the Senate, a vote on S. 2045, the Hatch/Abraham H-1B bill (which Lobbyists strongly support), may take place after the July 4th recess. Senate Republican and Democratic leadership continue to wrangle over the rules that will govern the floor debate on the bill, including how many amendments to allow. Although Hill sources report that Majority Leader Trent Lott (R-MS) and Minority Leader Tom Daschle (D-SD) recently have held discussions aimed at reaching an agreement, none is yet in sight. Central to these discussions is how to deal with the H-1B Plus issues.

In the House, Republican Leadership has allowed H.R. 4227, the H-1B bill introduced by Representative Lamar Smith (R-TX), to pass through Committee, even though Lobbyists and the business community strongly oppose this measure due to its onerous new restrictions on the H-1B program. The bill AILA supports, H.R. 3983, sponsored by House Rules Committee Chairman David Dreier (R-CA) and Representative Zoe Lofgren (D-CA), has been stalled partly because some Republican Leaders believe the bill has “too many Democrats” supporting it. While Republican Leadership has indicated concern about the H-1B “plus” issues, they still need to decide which H-1B bill they will support and seek to move through the House: the Smith bill (H.R. 4227) which the business community opposes or the Dreier/Lofgren bill, introduced by one of their own, which has business support.

Some breaking of the ice in the House may be occurring. House Majority Leader Richard Armey (R-TX) recently stated to the press that he expects that the House will move on H-1B legislation “very, very soon, right after the [July 4] recess.” He previously commented that although H.R. 4227 is the bill that will come to the floor, it will be in number only, since he expects it to be amended to “resemble” H.R. 3983.

Lobbyists encourage attorneys and their clients to contact their Senators and Representatives to urge them to support good H-1B legislation as well as restore Section 245(i), pass NACARA parity, update the registry date, and fix the excesses of IIRAIRA.

Representative Bill McCollum (R-FL) Attempts to Push a Hasty Reorganization of the Immigration Court System

Representative Bill McCollum (R-FL) is trying to breathe life into H.R. 185, a bill he introduced early last year that would create a new United States Immigration Court under Article I of the Constitution. The court would be divided into an Appellate Division and a Trial Division, and all judges would be appointed for a 15-year term. Representative McCollum has indicated he may seek to move the bill this session by attaching it to other legislation, possibly INS reorganization. Representative McCollum has introduced this bill several times in past Congresses, yet has made little effort after these earlier introductions to move his measure. Congress also never has held any hearings to analyze and discuss the important issues that this bill raises.

Representative McCollum’s office has indicated that the purpose of the bill is to create a more independent and professional immigration court system. Lobbyists support this goal, but H.R.185 does not achieve this end and would hurt people seeking justice before this court. Lobbyists, the American Civil Liberties Union (ACLU), and others have expressed strong opposition to the bill because, among other provisions, it would:

Limit jurisdiction of the trial courts: Because H.R. 185 would allow an immigration judge to consider only a narrow range of cases and relief, the immigration court envisioned in this bill would continue to defer to the INS for the adjudication of certain types of relief. To create a truly independent immigration court, an immigration judge must have the jurisdiction to consider any relief that is available under the INA, and must have concurrent authority with any District Director.

Limit judicial review to the Court of Appeals for the Federal Circuit: Restricting all immigration appeals to the Federal Circuit (in Washington, DC) would not only make the appeals process more difficult and expensive, but undermine the integrity of the process. H.R.185's provision providing for judicial review only in the Federal Circuit Court of Appeals essentially would wipe out all of the case law that has developed over the past forty years in the separate circuits, and would deprive the U.S. Supreme Court of the benefits of decisions from the different circuits. Moreover, the Federal Circuit Court is ill equipped to handle the number or types of cases that it would be required to handle. Because the Federal Circuit's principal jurisdiction is over patents and contract claims against the federal government, this court lacks any expertise in immigration law or the myriad issues that arise in immigration or asylum cases.

Limit access to counsel: Many immigrants, who often have a hard time finding counsel for federal appeals anyway, would be deprived of access to court because it would be difficult to find attorneys willing to file a federal district appeal. Lawyers from all over the country would be required to travel to Washington to appeal decisions. This requirement clearly would limit the number of attorneys willing to undertake appeals, and many immigrants with meritorious cases would be unable to pursue their cases because of the substantial costs involved. The consequences would be dire because of the importance of federal review: the federal courts have issued a number of important immigration decisions that corrected INS errors.

Create unconstitutional limits on a person’s rights to appeal: H.R. 185 provides for appeal to the Federal Court of Appeals by writ of certiorari. The court would have discretion whether or not to hear a case, thereby depriving immigrants of judicial review altogether whenever the court declines to hear a case. Lobbyists believe that the absence of a right to judicial review in an Article III court violates the constitution.

On Tuesday, June 27, the House Judiciary Committee was scheduled to mark-up H.R. 3918, the ill-conceived INS reorganization bill sponsored by Representatives Hal Rogers (R-KY), Lamar Smith (R-TX), and Silvestre Reyes (D-TX). The mark-up was postponed with no explanation, with the date of future mark-up unclear. The decision to postpone came one day after Republican presidential candidate George W. Bush announced that he supports an INS reorganization plan identical to S. 1563 introduced by Senators Spencer Abraham (R-MI) and Edward Kennedy (D-MA). (For details, see article below.) Lobbyists and coalition allies strongly support S. 1563 because it meets all of our criteria for INS reform: someone in charge with clout; separation, but coordination, of the enforcement and adjudication functions; and adequate funding for both functions. In contrast, H.R. 3918 meets none of these criteria.

Additionally, Lobbyists and coalition partners have been meeting with the Administration to determine whether all parties could support a consensus INS reorganization reform proposal. While much agreement was achieved, the biggest sticking point is inspections. The Administration continues to insist that inspections be housed in the enforcement side of a reorganized bureau. Lobbyists along with coalition partners, views inspections as an adjudications function.

While Lobbyists and their allies continue to try to block House movement on H.R. 3918, we also are encouraging Senator Abraham to mark-up S. 1563 in the Senate Immigration Subcommittee to send the signal that the Senate has a stake in this issue. Lobbyists also support a Senate subcommittee mark-up as a way to help prevent the passage of H.R. 3918 and pave the way for passage of efficient, effective and fair reform during this or the next session of Congress.

In a June 26 speech before the League of United Latin American Citizens (LULAC), Texas Governor and presumptive Republican presidential candidate George W. Bush offered to date some of his most specific comments on immigration, focusing on both INS reorganization and allowing spouses and minor children of permanent residents to visit their families in the U.S.

With regard to INS reorganization, Governor Bush supported separating the enforcement and adjudications functions into two agencies, and appointing a single person to supervise both functions. While Governor Bush declined to publicly endorse either the INS reform measure sponsored by Senators Abraham (R-MI) and Kennedy (D-MA), which Lobbyists support, or the ill-crafted bill introduced by Representatives Hal Rodgers (R-KY) and Lamar Smith (R-TX), which Lobbyists strongly oppose, a Bush spokesman said, "There are no differences between the Governor's bill and Senator Abraham's bill."

Governor Bush also has indicated that he would change INS policy to allows spouses and minor children of legal permanent residents to apply for visitor visas while their immigration applications are pending. His statement notes that "he will reverse the presumption that such family members will violate their terms of admission, and will encourage family reunification for legal immigrants."

AILA is seeking further details about both proposals. We also are urging Governor Bush to speak out in support of both good H-1B legislation and other issues that would help ensure our nation's continued economic growth and correct for past government mistakes and misdeeds: restoration of Section 245(i), NACARA parity, updating the registry date, and fixing the excesses of IIRAIRA. Until Governor Bush addresses these issues, the question remains about who speaks for the Republican Party on immigration: Governor Bush or Representative Lamar Smith?

The House is set soon to vote on H.R. 4690, the FY 2001 budget bill for the Departments of Commerce, State and Justice (including the INS). Across the Capitol, the Senate has yet to address its CSJ appropriation measure: customarily the House moves appropriations bills first. The House and Senate will then meet to resolve their differences. Given anticipated disagreements, the CSJ bill may be the subject of late-in-the session negotiations.

H.R. 4690 is highly critical of the INS. It finds that the INS “is overwhelmed with the task of handling its responsibilities, resulting in a broken immigration system,” and criticizes the agency for failing to make any progress on significant problems. Problem areas identified include: the lack of border control, the failure to keep up with detention needs that has resulted in last minute requests for additional resources for detention space, the lack of interior enforcement, and backlogs in naturalization and other benefits. While acknowledging that a lack of resources “has jeopardized the agency’s ability and effectiveness in controlling illegal immigration and providing timely service to those seeking admission under the legal immigration system,” the House believes that this lack of adequate resources “is no longer an acceptable response to INS’ inability to adequately address its mission responsibilities.” H.R. 4690 also would:

Because the House has approved one version of the Department of Labor budget, and the Senate is set to approve another, differences will have to be resolved either through a conference or during the anticipated omnibus appropriations negotiations. In S. 2553, the Senate expressed its concern about “the current state of the permanent labor certification program.” Specifically, the Senate indicated it “wants to ensure that no further delays are encountered in the processing of applications” and, as a result, increased the Employment and Training Administration’s budget by $5 million, and directed ETA to “work diligently” to improve the backlog. The Senate also restored $1.772 million to ensure that ETA has sufficient staff to handle labor certifications. For its part, the House restored nearly $5.5 million to ETA for funding SESA backlog reductions, explaining that it “does not believe that the Department’s new foreign labor certification streamlining system will be in place by October 1, 2000.” Therefore, continued SESA participation would be necessary in the next fiscal year. Additionally, the House froze funding for DOL’s labor certification programs at current FY 00 levels.

As an important first-step to deal with the crisis of INS processing delays, Representative Zoe Lofgren (D-CA) introduced H.R. 4798 on June 29. This bill would create a separate capital account for money that INS must use for backlog reduction and process improvements. The bill also calls for the account to be funded by direct Congressional appropriations, rather than the current practice of INS reliance on user fees. Lofgren’s bill is nearly identical to S. 2586, recently introduced by Senator Dianne Feinstein (D-CA). However, Representative Lofgren’s bill would define a “backlog” as any non-immigrant application that has been pending for longer than 30 days, and any immigrant application that has been pending for longer than 90 days. Senator Feinstein’s bill defines “backlog” as any application pending longer than 180 days, with the exception of petitions regarding H, L, O, and P visas, which shall be pending no longer than 30 days.

Lobbyists support both S. 2586 and H.R. 4798. These bills recognize that many of the processing delays are Congress’ responsibility. In recent years, Congress has pumped funds into enforcement, provided insufficient additional money and much attention to naturalization, and diverted money from adjudications to pay for nonadjudicatory functions, thereby contributing to the enormous backlogs in almost every area of the agency.

On June 15, President Clinton signed into law H.R. 4489, the INS Data Management Improvement Act (Public Law No. 106-215). Passage of this law represents the first positive reform of IIRAIRA since its enactment in 1996 and the first major defeat on this issue for Representative Lamar Smith. This law effectively replaces Section 110 of IIRAIRA, which would have required the INS to create and implement new automated entry and exit controls at all ports of entry. The new law instead mandates that the INS create a centralized database to organize and coordinate entry and exit data currently collected at ports of entry. The bill also creates a new public-private task force that will review the system and current border practices and provide recommendations for improvements.

We attribute this victory to the many Lobbyists, attorneys, and their cliens who worked tirelessly over the last four years to repeal Section 110.

The House Immigration Subcommittee finally turned its attention on June 29 to the Religious Worker Immigrant Visa, currently set to expire on June 30. The House’s relative inaction stands in contrast to Senate’s activity on S. 2406, the Mother Theresa Religious Worker Act, introduced by Senator Abraham. The Senate Judiciary Committee on June 8 passed this measure by voice vote, thereby clearing it for floor action.

House Immigration Subcommittee Chairman Lamar Smith, bowing to pressure from religious organizations and Judiciary Committee Chairman Henry Hyde (R-IL), held a June 29 oversight hearing on INS’ administration of the religious worker programs. However, instead of looking at the reasons for making the religious worker program permanent, Chairman Smith focused on perceived fraud and abuse of the current program and argued for a more limited extension.

Witnesses from the State Department, INS and the Government Accounting Office support the program’s extension and report little fraud. However, both INS and State Department witnesses called for tightening program requirements. In addition, under questioning from Chairman Smith, a representative from the State Department supported granting immigrant religious workers only conditional residence for a period of time. Some Subcommittee members indicated opposition to some of these proposals. AILA supports S. 2406 as well as H.R. 1871, introduced early this year by Representative Zoe Lofgren, the companion bill to the Senate’s S. 2406, which also would make the program permanent.

Also on June 29, the House Immigration Subcommittee approved H.R. 2883, the Adopted Orphans Citizenship Act, introduced by Representative Smith in September 1999. The bill would grant citizenship to foreign-born children adopted by U.S. citizens, after first having been admitted as a permanent resident. The Senate passed an identical bill, S. 1485, in October 1999. While the bill passed without amendment, Representative Lofgren commended a different bill, H.R. 3667, introduced by Representative William Delahunt (D-MA), which has a provision that would retroactively grant citizenship to individuals who already have turned 18, and indicated that amendments may be offered at the full Committee markup.

A Congressionally appointed national terrorism commission recently issued its final report, which includes two immigration-related recommendations. The first calls for a computerized database to track foreign students on F and J visas. According to commission members, this database would allow the government to determine if a student changes his or her major, and also would help track people who overstay their visas. Lobbyists believe that this tracking requirement is unnecessary, given the existing INS database, CIPRIS (Coordinated Interagency Partnership Regulating International Students). In the past, Lobbyists have expressed concerns that this tracking system could infringe on students’ privacy, thereby raising constitutional issues. The commission’s other major recommendation rejects the use of secret evidence against immigrants and legal permanent residents. Rather, the commission endorses the “cleared counsel” model used for permanent residents in the Alien Terrorist Removal Court.

Two new studies by the Federal Reserve reaffirm that immigrants are helping fuel America’s current and unprecedented economic boom. The first, the latest Commentary on Current Economic Conditions by Federal Reserve District (better known as the Beige Book) reports that continued labor shortages across the United States are affecting all sectors of the economy. These worker shortages are beginning to curtail business expansion plans and to cut into profits. But more importantly, the Fed notes, “…this [worker] shortage would be far worse if not for a heavy influx of immigrant workers.” The second study, published by the Federal Reserve Bank of Dallas in the May-June issue of Southwest Economy, finds:

Members and Staff in the News: A number of members –Ron Klasko, Lance Nagel, Ralph Donabed, Daryl Buffenstein, Warren Leiden, Harry Joe, and Dennis Mukai- were featured in a June 28 National Law Journal article about changes in the immigration law practice. Daniel Kanstroom was quoted in a June 26 Boston Globe article about fears that the INS is discriminating in its deportation policies. An op-ed article about business immigration written by Scott Wright was published in the June 25 issue of the Minneapolis Star-Tribune. Jose Pertierra was quoted in a June 24 article about the Elian Gonzalez case in Newsday (he also appeared on a CNN program about the same topic that was broadcast on June 1). Ira Rubinstein was mentioned in an article about H-1B visas that was published in the June 19 issue of The New Republic. A piece about immigration attorneys under fire published in the June 18 Ft. Lauderdale Sun-Sentinel mentioned Jorge Rivera. Donna Lipinski, Carlina Tapia-Ruano, Emilia Bunelos and Jose Pertierra were quoted in a June 16 EFE article about the AILA Annual Conference. Donna Lipinski was quoted in a June 15 article about essential workers that appeared in The Denver Post. A letter to the editor written by Cheryl Lenz-Calvo was printed in the June 11 Chicago Tribune. An article about H-1B visas in the June 11 Dallas Morning News quoted Warren Leiden. A June 2 article about the Elian Gonzalez case published in The New York Times quoted David Abraham. The Associated Press quoted Jonathan Montag in an article about a 9^th Circuit decision that affects immigrants who use false Social Security cards. Peter Larrabee was quoted in a May 28 Chicago Tribune article about H-1B visas. Robert Shivers was cited in a May 21 San Antonio Express-News column on the Elian Gonzalez case.

Economics. The May-June issue of Southwest Economy, published by the Federal Reserve Bank of Dallas, contained an article saying that increased immigration could ensure that labor shortages don’t stall the current economic expansion. The Seattle Times ran a four-part series starting June 18 about immigrants working in the U.S. A June 14 column in The Idaho Statesman noted that the U.S. needs temporary work permits. An article in the June 1 Asbury Park Press reported that immigrant workers are easing the labor crunch.

Editorials. The Houston Chronicle contained a June 17 editorial saying that Republicans have a small window of opportunity to capture the Hispanic vote. On May 22, The Washington Post endorsed raising the H-1B cap. The San Jose Mercury-News came out in support of raising the cap in its May 30 issue.

H-1B Visas. A June 14 dispatch from The Associated Press reported on measures to raise the cap. In an article published June 12, the St. Louis Post-Dispatch noted a study on high-tech labor shortages. The Electronic Engineer Times ran a June 12 article about anti-H-1B forces. Computerworld reported June 10 about the IT labor shortage. The June 10 issue of The Atlanta Journal-Constitution carried an article about efforts by high-tech executives to move an H-1B measure. A June 7 article in The Boston Globe focused on the H-1B “crisis” in New England. TechWebNews ran a June 6 article about the founders of Intel and Microsoft calling on Congress to increase the H-1B cap. The San Francisco Chronicle reported May 23 that the “Battle against H-1B Visas Increase Is Underwhelming.”

INS. The Washington Post and The Associated Press reported June 27 on an INS plan to train Border Patrol agents in lifesaving techniques, in an effort to reduce immigrant deaths along the Mexican border. The Dallas Morning News ran a June 6 article about the INS barring an adoptee from entering the U.S. after she aged out on a visa obtained in Mexico. Numerous newspapers, including The Washington Post and The New York Times reported on the May 31 conviction for spying for Cuba of a senior INS official. In a May 31 dispatch, The Associated Press reported on the case of identical twin sisters who presented the same documents when they applied for citizenship; one was approved, the other was not. The May 21 issue of The Los Angeles Times noted that the Border Patrol is investigating an incident where an alleged smuggler was posted with a sign stating, “ I Support Our Border Patrol.” An article in the May 19 Washington Times said the INS is defending the practice by some Arizona ranchers of detaining immigrants.

INS Reorganization. Numerous newspapers carried reports about Texas Governor and presumptive Republican presidential nominee George W. Bush’s comments on INS reorganization (New York Times, Washington Post, Washington Times, Associated Press, San Antonio Express-News, Boston Globe, June 27).

IIRAIRA. The Boston Globe reported June 26 that the INS disproportionately deports minorities using IIRAIRA. The Newark Star-Ledger contained a June 18 article about Cuban “lifers.” The June 16 edition of All Things Considered contained a report about indefinite detainees. The Chicago Sun-Times ran a June 1 article about the INS dropping expedited removal proceedings against a four-year-old Jamaican girl who an Immigration Inspector suspected had a fake visa. After much criticism, The Associated Press reported June 1 that the INS was housing detained travelers at an Oregon hotel, rather than a detention facility. A June 1 article in The Washington Post examined the case of an Iranian woman being detained by the INS on charges of associating with terrorists. The Austin American-Statesman ran a May 30 article about IIRAIRA denying college scholarships to students without green cards. Another article about “lifers” ran in the May 30 issue of The Seattle Post-Intelligencer.

Naturalization. The June 27 Chicago Tribune carried a report about a naturalization ceremony for 115 children.

Politics. Despite recent remarks by Texas Governor Bush, The Associated Press reported June 26 that many immigrants are reluctant to support Republican candidates. The Atlanta Journal-Constitution ran a June 18 article about immigrants strengthening labor’s political clout. The Detroit Free Press noted June 13 that immigration is a crossover issue for voters. An article in the May 30 Chicago Tribune reported on the AFL-CIO’s endorsement of amnesty. Patrick Buchanan supports a guest-worker program, according to a May 22 report from The Associated Press.

Restrictionists. The Seattle Times noted June 26 that the primary force behind the Coalition for the Future American Worker, which opposes raising the H-1B cap, are anti-immigrant groups and activists. An anti-immigrant billboard has appeared in Phoenix, according to the May 19 Arizona Republic.

Secret Evidence. The Associated Press, Atlanta Journal-Constitution, New York Times, ABP News and other news outlets carried May 24 reports about a House Judiciary Committee hearing on a bill that would bar the use of secret evidence during INS proceedings.

Section 110. The May 19 deal to abandon Section 110 was reported by many news outlets, including The Associated Press.

Did You Know?

Every year $6 billion in money orders, personal checks, and cash is sent to Mexico from relatives living in the U.S. to provide food, clothing, and other support. Workers from Mexico are estimated to wire $350 a month to family back home.