USWorkVisa.com News Archive
for November, 2007

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New Rule Triggered Lawsuit.

The lawsuit was triggered by the Bush administration’s Aug. 10 announcement that SSA would be altering how it sends out no-match letters. According to the new rule, SSA would include language in the letter explaining there was possible liability under immigration laws. In addition, SSA planned to include a general letter from DHS explaining the liability as well as describing a “safe harbor provision” meant to protect employers who attempted to comply with the letter ( 155 DLR AA-1, 8/13/07).

Although DHS was not going to have access to the names of employers sent the no-match letters, the new rule would treat the receipt of the letter as evidence that the employer had “constructive knowledge” that an immigration violation was taking place.

The final rule was challenged in the U.S. District Court for the Northern District of California by a coalition of immigrant rights, organized labor, and civil liberties groups led by the AFL-CIO, the American Civil Liberties Union, and the National Immigration Law Center. The U.S. Chamber of Commerce and other business groups later joined the litigation.

SSA had planned to send out no-match letters containing warnings from DHS regarding immigration law liability beginning Sept. 4, even before the final rule was to be implemented. That plan was derailed, however, when Judge Maxine Chesney of the Northern District of California Aug. 31 issued a temporary restraining order preventing the letters from being sent ( 171 DLR A-2, 9/5/07).

After the delay prompted by Chesney’s order and then Judge Charles Breyer’s Oct. 10 grant of a preliminary injunction, Hinkle said that SSA believed it was running out of time to rewrite the notice and expect employers to correct wage data.

Nine Million Employees Checked Each Year.

Each year, the SSA sends letters to some 138,000 employers pointing out discrepancies between data sent to SSA by employers and the information already available in the SSA database. Hinkle said the letters involve as many as 9 million employees each year who may have provided incorrect Social Security data. SSA has sent out the letters since 1994.

The letters are usually sent out in “batches” starting in March or April, Hinkle said, and employers are asked to correct data. Anticipating the final rule from DHS, he said SSA last spring sent out no employer letters based on the 2006 tax year but that some workers did receive personal notices as part of SSA’s efforts.

SSA uses the no-match letters as a way of informing employers that there is a problem with the W-2 information provided to SSA. Those problems can be due to the wrong name being put on the form, an error in reporting the Social Security number, or other errors that can occur on the employer’s part.

Until this year, SSA has said that the no-match letters were designed to correct information and not meant to serve as an worksite immigration enforcement tool. SSA has opposed permitting DHS to have access to the names of employers who receive the letters because it says the letters are designed to correct data, not create liability.

SSA Argued Potential Harm.

In arguments to the federal court on whether a preliminary injunction should be granted, SSA joined with DHS in arguing that SSA would be harmed if they were unable to send out no-match letters for this tax year because it would mean that there would be a large batch of information that would not be corrected.

In addition, SSA argued to the federal court that pushing back the date it could send the no-match letters would conflict with SSA’s busiest time period — the season from January to March when W-2 forms are sent out — and therefore burden the agency. In its brief to the court, the government argued the failure to send out the no-match letters would “frustrate the purpose of providing notice to employers that their employees’ Social Security earnings are not being credited to their accounts.”

Breyer, however, was unconvinced and pointed out that the injunction did not bar SSA from sending out its letters and instead barred it from including the DHS liability language.

“[T]he plaintiffs have not requested a preliminary injunction precluding SSA from sending out its traditional no-match letters for tax purposes, as the agency has for over a decade,” Breyer said, adding “SSA has acknowledged that it could remove the DHS insert and related language from its mailing in 30 days.”

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Michael Aytes, USCIS’s Associate Director for Domestic Operations, was quoted in the Report as noting that USCIS received over 2.5 million applications during July and August, including 300,000 employment-based adjustment applications. “It could take years to process all of the applications and issue all the visas,” Mr. Aytes said. The Report noted that applicants have some protection in the form of more portability for their current visas, allowing them to change jobs more easily. Mr. Aytes said that USCIS is considering some streamlining measures to speed things up, including the possibility of handling specific industries within a single USCIS office that is familiar with the unique demands of that industry, similar to what has already been done for sports teams.

Mr. Aytes also said that USCIS doesn’t want a repeat of last year’s H-1B debacle, where the H-1B numerical limit for fiscal year 2008 was met the first day applications were received, resulting in a lot of wasted time on preparing and processing applications that went nowhere. “While there was a significant use of resources by USCIS, I am even more concerned about the time and effort used [by employers] in preparing the applications,” he said. USCIS is considering a pre-registration option that would allow the filing of a more limited application, with the remaining portions to be filed if the applicant succeeds. Mr. Aytes added that he wants “to do everything I can to dissuade” employers from filing multiple petitions for one worker based on different criteria.

Meanwhile, the Visa Bulletin for November 2007 reports that there has been no forward movement of the employment cut-off dates. “The reason for this is that it is still too early to see what impact the movement of the cut-off dates toward the end of FY 2007 may have on demand,” the Department noted. Depending on the rate of demand being received from USCIS offices for adjustment of status cases, some forward movement of dates may be possible for December. The Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3827.html.

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The proposed renewable EU blue card would allow workers to live and work in an EU nation for three years after an application process taking three months, and would allow them to bring their immediate families. Technology companies are likely to invest and expand wherever it is easier for tech employees to work, Mr. Hoffman said, noting that “[t]he competition for talent is truly global.” Hoffman said that “if the U.S. immigration policy continues on this path, what choice do we have” but to begin looking elsewhere to expand its options.

A recent graduate of Cornell University who has accepted a postdoctoral stint at the National Institutes of Health commented, “I certainly can’t put my life on hold for another 5 to 10 years waiting for a green card, and most definitely cannot live permanently in this toxic anti-immigrant environment.” Another said, “I have recently been transferred to the USA by my company. I can see the red tape and the 10-year wait to get a green card. I don’t have the patience or inclination to stay past my initial visa when I can work anywhere in Europe by virtue of my EU passport. The red tape here, and the abrasiveness towards foreigners in general, make this an unattractive place to be.”

Leonard Lynn, a professor of management policy at Case Western Reserve University, and Harold Salzman, a sociologist and senior research associate at the Urban Institute in Washington, D.C., recently authored “The Real Global Technology Challenge” for Change magazine. They recently asked a class of 80 engineering and science graduates in India how many wanted to go to the U.S. A decade ago, the authors said, almost every hand would have gone up. But now, nobody raised their hand. “Why go to the U.S. when all the opportunity is in India?” the Indian graduates suggested. The authors also noted that Chinese managers they met who had received U.S. degrees were choosing to return to China rather than stay in the U.S., as they had previously planned to do, because opportunities in China were becoming more appealing.

The authors believe that the U.S. is “no longer the universally preferred home for the global technology elite,” observing that increasing numbers of scientists and engineers who were educated and have built successful careers in the U.S. are returning to China, India, and other countries, and that many in the younger generation are simply not coming to the U.S. in the first place. Noting these trends, the authors note that “the policy and technology communities are sounding the alarm about an impending U.S. fall from scientific and technological dominance.” The declining appeal of science and engineering for American students is compounding the problem, the authors argue, while the numbers of engineers and scientists trained in China and India continue to rise. A summary of this article is available at http://www.heldref.org/change/feas1.php.

Meanwhile, the British Council and Migration Policy Group, leading a consortium of 25 organizations, has launched a Web site, the Migrant Integration Policy Index (MIPEX), which measures policies to integrate migrants in 25 European Union (EU) Member States and three non-EU countries. MIPEX, which is co-financed by the EU, uses over 100 policy indicators to create a multi-dimensional picture of migrants’ opportunities to participate in European societies. MIPEX covers six policy areas that shape a migrant’s journey to full citizenship: labor market access, family reunion, long-term residence, political participation, access to nationality, and anti-discrimination. The site includes country profiles and an interactive mapping and charting function.

Over the coming months, the MIPEX Group will host a series of “launch debates” in various European cities. Information on the debates is available at http://www.integrationindex.eu/events/. MIPEX, and abridged versions of the study, will be available in a number of languages, including English, French, Spanish, German and Polish. MIPEX is available at http://www.integrationindex.eu/.

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H-1 nonimmigrants affected by this rule include those under the H-1B classification for specialty occupation workers and the H-1C classification for certain registered nurses. L-1 nonimmigrants affected by this rule include those under the L-1A classification for certain intracompany transferees who are managers or executives, and the L-1B classification for specialized knowledge workers. Dependents of affected H-1s and L-1s, who are admitted as H-4s and L-2s, are also relieved of the receipt requirement.

USCIS also noted that H-1 and L-1 nonimmigrants (and their H-4 or L-2 dependents) are now exempt from the advance parole requirement. Previously, they were required to present a receipt for their adjustment application at the time of readmission to the U.S. following foreign travel. The final rule eliminates the “unnecessary burden” of presenting this receipt, USCIS said, because the information in the receipt is in USCIS databases available to immigration inspectors and adjudicators. Upon application for readmission to the U.S., they still must provide evidence to a U.S. Customs and Border Protection (CBP) Inspector at the port of entry that they are:
? Still eligible for H-1 or L-1 status,
? Coming to resume employment with the same employer for whom they were previously employed, and
? In possession of a valid H-1 or L-1 visa, if required.
In the case of H-4 or L-2 dependents, the spouse or parent through whom they received their H-4 or L-2 status must meet the above requirements and the dependent must remain eligible for admission in H-4 or L-2 classification.

The full text of the final rule is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-21506.pdf.

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