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From proposals to "legalize"
millions of workers from Mexico, to new laws increasing visa
numbers for highly-educated immigrants, to post-September 11
plans to tighten the security of the visa process and to make
America's borders more secure, immigration law changes have been
very much in the news during the past year.
Most recently, the U.S. has moved to dramatically tighten controls
on suspected terrorists by enacting the USA PATRIOT Act on October
26, 2001.1 The focus of this article is
the other major changes in U.S. immigration law during the past
year, especially the new "American Competitiveness in the
21st Century Act."2
"Immigration is not a problem to be solved, it is a sign
of a confident and successful nation." With these words
President George W. Bush set the tone for the immigration policies
of the new administration in his speech on Ellis Island on July
10, 2001.3
Why this strong support for immigration? Certainly American economic
self-interest is a powerful factor. Citing Federal Reserve Chairman
Alan Greenspan's positive views on a liberal immigration policy,
a recent article in Foreign Affairs noted "the need
to consider this basic fact: immigration has been a key element
in making the U.S. economy the envy of the world. It is in America's
interest to keep it that way."4
Specifically, "a booming economy has made immigrant labor
a coveted commodity," asserts a recent National Report in
the New York Times 5. The nationwide
surge in the need for high-skilled workers is even stronger in
Minnesota than in the rest of the country. Indeed, both Minnesota's
state economist and the state demographer described Minnesota's
growing worker shortage problems in detail in the lead article
in The Economic Report to the Governor, entitled "Looking
Beyond 2000: Will There Be Enough Workers?"6
According to the authors of the article, Thomas Stinson and R.
Thomas Gillaspy, labor shortages are a critical factor in the
future health of the Minnesota economy. To meet this challenge,
Minnesota will need to "rely increasingly on our ability
to attract migrants from other states or other areas of the world."
In October 2000, Minnesota and the U.S. took a giant step toward
the globalization of the high-skill and high-tech workforce.
A new immigration law, appropriately entitled the "American
Competitiveness in the 21st Century Act" (now nicknamed
"AC21") put Congress on record in favor of dramatically
increasing the numbers of highly educated and highly skilled
immigrant workers. 7 The new law mandates
much faster processing times for most work visas. All of the
changes in the law should make it easier for employers to further
internationalize their payrolls in the U.S.
Highly Skilled Especially
Benefit
The new law will primarily benefit employers actively recruiting
workers who can meet the qualifications of the "H-1 specialty
occupation" category.8 The H-1 category
has for many years been the most commonly used work visa for
newly hired international workers. Business executives and managers,
healthcare professionals, teachers, engineers, scientific and
technical workers, as well as computer and information technology
professionals are included among the many occupations that may
qualify for the H-1 category.
Several leading Minnesota employers including the University
of Minnesota, Analysts International Corporation and IBM have
been among the top sponsors of H-1 workers in recent years.9
To qualify as an "H-1 specialty occupation", the position
must require the completion of a U.S. four-year university degree
or its equivalent and the sponsored worker must actually have
a U.S. bachelor's or higher degree or a foreign equivalent. An
acceptable combination of appropriate education and work experience
may also qualify.
While many of the provisions of the new law will benefit all
categories of employment-based immigration, the "H-1 specialty
occupation" category has received the most attention. The
H-1 category has been dramatically improved in three ways:
The annual quota numbers have dramatically increased. From
an original quota of 65,000 new H-1 workers per year first established
in 1990, the quota numbers were increased to 115,000 per year
in 1998 and further increased in 2000 to 195,000 new H-1 workers
per year. 10 Since an H-1 work status
is now valid for up to six years or more, the new law could result
in the employment of more than one million H-1 workers in total
on U.S. payrolls by 2004.
The completely new concept of "H-1 portability" is
now part of U.S. law.11 This new feature
will allow many H-1 workers to change employers instantly when
a new employer properly files a new H-1 petition with the Immigration
and Naturalization Service (INS). Under the previous law a new
employer often had to wait for four months or more for the final
INS approval of the H-1 petition before the newly hired H-1 worker
could begin work.
In another H-1 innovation, the U.S. has created unprecedented
categories of "overtime H-1s".12
Under these new rules many H-1 workers who have pending "greencard"
sponsorship applications and who have reached their six-year
limit may stay in the U.S. as H-1 workers for as long as it takes
the INS to complete processing of their permanent residence cases.
The benefited groups include H-1 workers who are prevented from
getting their "greencards" because of government processing
delays exceeding 365 days as well as H-1 workers who are unable
to obtain "greencards" because of per country quota
limits. (Note: Per country quota limits have been a growing problem
in recent years especially for nationals of India and China.)
In another sweeping innovation that could effectively turn
many employment-based immigrant workers into "free agents"
(even before their permanent residence cases are approved), AC21
has introduced a new option for many sponsored workers to change
employers while their permanent residence cases are still
pending.13
Currently, complete processing of an employment-based permanent
residence case may take two to three years or longer from commencement
to final approval. The new law allows most employment-based immigrants
to switch to a new employer if their permanent residence applications
have been pending for more than 180 days. Essentially the sponsored
worker becomes a "free agent" eligible to work for
any employer in the U.S. so long as the offered employment is
in the "same or a similar occupational classification"
as the original application. It remains to be seen how future
INS or Department of Labor regulations may attempt to restrict
this generous statutory mandate.
New Premium Processing
One of the innovations that Congress has created to address
the INS backlogs could greatly benefit most employment-based
applicants. The 2001 INS budget legislation authorizes the agency
for the first time to allow employers to pay extra fees to obtain
faster processing of work visa cases.14
Employers have the option to pay a premium processing charge
of $1,000 for each worker in addition to the usual fee and be
assured that the INS will make a final decision on each case
in 15 days or less.
Since this new expedited processing system began in the summer
of 2001, processing times for many work visas have improved dramatically.
Many cases that used to take four months or more, can now be
done in two weeks or less.
It is important to note that all of these new immigration benefits
are targeted primarily at workers who have at least a four-year
university education. There is little in the new law that will
facilitate temporary or permanent work visa issuance for lesser-skilled
workers. Employers who need help with positions that do not require
at least two years of occupation-specific training or education
continue to struggle with the cumbersome and largely unsatisfactory
H-2B "Temporary Worker" and permanent "Other Worker"
classifications.15
Emerging Trends
While Congress has attempted to ease the way for high-tech
and high-skill workers, some parts of the U.S. immigration bureaucracy
are not yet supportive of this new "immigration friendly"
posture. The U.S. Department of Labor (DOL) in particular seems
out of step with congressional intent. In December 2000, the
DOL published new complex and troubling regulations governing
an employer's compliance responsibilities under the H-1 rules.16 The new DOL rules will complicate H-1 compliance
for some employers, especially those with a high percentage of
H-1 workers (so-called "H-1 dependent employers"),
but are not expected to severely encumber the H-1 system for
most employers.
Much unfinished immigration business is still on the U.S. legislative
agenda. In coming months, Congress is expected to take up the
subject of reform and restructuring of the burgeoning U.S. immigration
bureaucracy, possibly splitting the INS into two different agencies.
The leading proposal would create a new Immigration Services
Agency focused solely on immigration services and benefits (work
permits, "greencards," visa petitions, etc.). Meanwhile,
all immigration enforcement activities (deportation, detention,
fraud investigation, border control and employer sanctions compliance)
would be consolidated into a new Immigration Enforcement Agency.
Also on the legislative agenda are bills to facilitate the migration
of lesser-skilled workers, especially from Mexico, as well as
proposals for a generous "legalization or amnesty"
for thousands of undocumented workers who currently work in the
U.S. illegally. Immigration politics and policies continue to
make strange bedfellows. As noted in a recent New York Times
article, "Mr. Bush's election signified the ascension of
the pro-immigrant wing of the Republican Party. . . ."17 At the same time, "After years of viewing
immigrants as a threat, competing for jobs and depressing wage
levels, the A.F.L.-C.I.O. last year called for amnesty for all
illegal workers, seeing immigrants as potential union members."18
The U.S. now has a president who was elected by a minority of
the American voters, and a national legislature that is almost
exactly balanced between Republicans and Democrats. Increasingly,
recent immigrants are being courted by both parties as a key
electoral constituency.
To this delicately balanced political mix, add the hard economic
facts of growing labor shortages driven by the ineluctable demographics
of a steadily aging population and a long-term high growth economy
and it is a good bet that immigration politics and immigration
legislation will stay at the forefront of American public policy
for years to come. Further changes in the U.S. immigration system
are likely in the early years of the 21st Century. |
Scott M. Borene is chair of the MSBA Immigration Section.
He leads the 12-person Immigration Law Group of Minneapolis-based
Borene Law Firm, P.A., and serves as a director of the American
Immigration Lawyers Association. |
