AILA Protests INS Worksite Raid

February 1, 2000

Mr. Michael Pearson

Executive Associate Commissioner for Field Operations
Immigration and Naturalization Service
425 I St. NW, 7^thFloor
Washington, DC 20536

Dear Mr. Pearson:

As you may know, INS recently conducted a workplace enforcement action at Randolph Air Force Base in San Antonio, Texas, in which 40 individuals were taken from the site in handcuffs and detained.   It appears that the action was based on the fact that the individuals had been beneficiaries of H-1B petitions filed by employers located in Houston, and that amended petitions had not been filed to reflect the employees’ temporary assignments at the Air Force Base in San Antonio.  AILA is deeply troubled by this action in several respects:

• As discussed below, the placement of the employees at the San Antonio site is fully permissible under current law.  Thus, there was no violation on which to base an enforcement action.
• The INS, by working with the Department of Labor in this matter, was actively participating in the violation of the court injunction in National Association of Manufacturers v. Department of Labor (“NAM”), and thus acted illegally.  This is explained below.
• Even if there was a violation, the alleged acts were by the employers, not the employees, who were working in accordance with the terms of their status.
• The INS, since the enforcement action, has been preventing the employees from working, thus forcing their employers to violate the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), and robbing the employees of their legitimate ability to support themselves and their families.
• A significant number of the detained individuals were permanent residents or held valid employment authorization documents.  Eyewitnesses maintain that INS officials targeted individuals for detention based on Indian ethnicity, rather than on their immigration status.
• Inappropriate and possibly slanderous charges were made to the press that the individuals and their employers had engaged in fraud.

Based on the information that has been made available to AILA, this action was taken without legal basis.  Our understanding is that the employers are computer consulting companies that had filed H-1B petitions referencing their headquarters’ addresses as the base of employment.  As is the practice of consulting companies (whether they use U.S. workers, foreign workers, or both), the individuals were employed and then placed at the sites of clients that had contracted with the consulting companies to provide the requested services.  Such companies rarely know, at the time the individual is employed, what client contracts the employee will work on, since these contracts are by their nature temporary and each consulting company usually has multiple client contracts.

This problem is exacerbated in the H-1B context by the extreme length of time that it takes INS to adjudicate a petition, with the result that some contracts will have ended and others begun by the time the H-1B employee actually obtains the status to work.  For this reason, the companies quite properly state their own addresses as the place of employment, since the individuals are actually employed from these locations and the employer cannot be certain of which clients each employee will serve, once INS finally adjudicates the petition.  Our understanding in these particular cases is that the Air Force contracts are mostly 90 days in duration, with no assurance of renewal from one 90-day period to the next.  Thus, these assignments to the San Antonio sites were, by their very nature, temporary.  Since the combined processing time of the Department of Labor and the INS for a labor condition application and H-1B petition currently is, and often has been, well in excess of 90 days, it would have been false and misleading for the employers to cite the Air Force Base as the place of employment because there is no assurance that the employee would actually serve that contract.  There is every assurance, however, that the employee will be employed by the employer.  Hence, the petition must state the employer’s address as the place of employment in such a circumstance.  Any other approach could amount to fraud.

For these reasons, the employers had no alternative but to file the initial petitions under their own addresses.  The question then becomes whether the employers were under an obligation to file an amended petition.  The answer is clearly no.  INS has historically tied any obligation to amend a petition to add a new work site to the necessity for a new labor condition application under Department of Labor rules.[1] The Department of Labor’s “temporary placement time limit” rules were invalidated in 1996 under the NAM decision, leaving no requirement for a new labor condition application when an employee is assigned to a temporary work site.  Thus, under long-standing INS policy, no amended petitions were required. 

Therefore, neither employees nor employers had committed any violations, and the enforcement action was without legal basis.  Indeed, the NAM decision permanently enjoined the Department of Labor “and all persons in active participation with them” from implementing or enforcing the temporary placement rules.  As we understand that the investigation underlying this enforcement action was conducted in conjunction with the Department of Labor, it appears that the INS has been acting unlawfully in this action.

AILA therefore urges that proceedings in these matters be discontinued, and the INS issue a press release correcting itself with respect to the unfounded charges of fraud.

In addition, we urge that no further enforcement actions be conducted that relate to this subject unless and until clear guidance is issued so that all parties—employers, employees, attorneys, INS investigators and INS adjudicators—understand the state of the law on this topic.

We look forward to your response.

Sincerely,

Denyse Sabagh
Chair, AILA/INS Enforcement Liaison Committee

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FOOTNOTE

[1] See, e.g., Memorandum by T. Alexander Aleinikoff, August 21, 1996, HQ 70/6.2.8-P, stating that “the mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition.”  The memorandum goes on to state that an amended petition must be filed “in a situation where the beneficiary’s place of employment changes subsequent to the approval of the petition and the change invalidates the supporting labor condition application.” (Emphasis added.)  Under the NAM decision, which struck down DOL “temporary placement” rules requiring a new labor condition application after 90 days, a change of location would  not invalidate a supporting labor condition application.