Is The U.S. Immigration System Broken?

Wednesday, October 1, 2008 - 01:00

Editor: Immigration policies of the U.S. as compared with Great Britain and Canada have a different philosophy - other nations are motivated to encourage immigration based more on the contribution the new arrival can make to national economic and scientific growth whereas the U.S. has a different philosophy. The testament to this is the small number of H-1Bs admitted each year. Would you discuss how our policy has evolved - its advantages and disadvantages?

Dunn: We've allowed reactionary elements to control the debate in the U.S. We are losing talent to other countries because shortsightedness has taken over. For example, it could take a scientist from India 10 years to become a permanent resident of the United States versus just a few months to a few years if they applied for the same status in Canada. Given the huge disparity in time, an Indian national has no choice but to emigrate to Canada. The shortfalls of our immigration system are hurting our healthcare system and many other sectors of our society.

Also, historically, U.S. immigration quotas have weighed heavily in favor of family categories versus employment-based categories. Approximately 15 percent of visas are slotted for employment-based immigration. That amount is unrealistic. We need to increase our employment-based quotas to match the actual needs of the workforce.

Editor: Where do things currently stand with regard to the 65,000 annual quota of H-1Bs allowed for 2008? What is the backlog?

Dunn: H-1B visas are subject to strict annual numerical limitations, which are well below the demand for these visas. Currently, the annual quota for H-1B visas is only 65,000. However, 6,800 of the 65,000 available H-1B numbers are set aside for Singaporeans and Chileans, which means that foreign nationals from countries other than Singapore and Chile must compete for only 58,200 visa numbers. An extra 20,000 H-1B visa numbers are available for foreign nationals who have earned a Master's degree or higher from a U.S. university.

Employers may begin filing H-1B petitions with an effective date of October 1 on April 1, and can continue to file petitions until the visa numbers have been exhausted. Over the last several years, demand for H-1B visa numbers has grown, and the quota has been reached faster and faster each year. This trend peaked this year when the United States Citizenship and Immigration Services (" USCIS") received approximately 160,000 H-1B petitions (on the very first day that H-1B filings were accepted).

With close to three times as many H-1B visa petitions on their hands as available H-1B visa numbers, USCIS used a computerized, random-selection lottery system to select 65,000 of the 133,000 H-1B visa petitions filed. This process was extremely frustrating for employers, who spent a great deal of time and money only to find out that their petitions were not selected in the lottery. At this point, employers have to wait until April 1, 2009, which is when the window next opens to file H-1Bs.

Editor: What positions have the presidential candidates taken on this vital issue?

Dunn: We expect major immigration reform over the next couple of years from either candidate. Essentially, both candidates have consistently supported legalization programs and increasing our immigration visas. McCain was a sponsor of the McCain-Kennedy bill, which was a leading legalization bill. Over the last six months he has had to distance himself from the bill as the debate over immigration has become heated. Regardless, both candidates appear ready to reform the system.

Editor: What are realistic alternatives to H-1B status? What are the prospects for Comprehensive Immigration Reform?

Dunn: The employer should take time to explore sponsorship through other nonimmigrant classifications, such as the H-1B1 (specific to Singaporean and Chilean nationals), TN (specific to Canadian and Mexican nationals), E-3 (specific to Australian nationals), O-1 (for persons of extraordinary ability), E-1 & E-2 (open to a wide number of nationals; one of the critical keys is that the company is foreign-owned and the employee is of the same nationality as the company ownership), and L-1 (intracompany transfer of a professional who holds a managerial or specialized knowledge position).

The Senate passed a comprehensive immigration reform bill last year, but because we have been in an election cycle for the last 2 years, it ended up that the topic became too radioactive an issue for Congress to move forward on it. Now that the Senate and House are controlled by the same party and the next president appears inclined to support immigration reform, the prospect for comprehensive immigration reform is high.

Editor: Please explain Perm Labor Certification. How is it working?

Dunn: The filing of a labor certification is typically the first step in the process for someone pursuing a green card through his employer. The labor certification is a test of the labor market to determine whether there are any qualified U.S. applicants who meet the minimum requirements for the position offered. It does not matter if the foreign national is better qualified than any U.S. applicant, so long as the U.S. applicant satisfies the bare minimum educational, experience, and special knowledge requirements of the job. In recent years, the normal labor certification process had become so lengthy and onerous that the Department of Labor (DOL) decided in 2005 to devise a new system for processing applications. That system, called Program Electronic Review Management (PERM), made substantial changes to the way applications are processed, but not to basic eligibility criteria. PERM is an attestation and audit system under which employers seeking permanent labor certification conduct recruitment prior to filing the labor certification application. Under PERM, applications are filed with the DOL online. Most application are approved within four to six months time after filing.

The DOL's processing of PERM cases has improved considerably since its inception. At the beginning, the system was plagued with computer glitches and the system would incorrectly issue denials of perfectly filed cases. The DOL has since made the filing of a case much more user-friendly. Having said that, once a case is filed there remains no opportunity to cure even the most minimal of defects. An applicant needs to be extremely cautious that his case was prepared in accordance with the DOL's strict requirements.

By far the largest problem with the PERM system has been the inconsistencies in the audits. Since the PERM application is computer-based, the DOL has the facility to turn on triggers that will cause a case to automatically be audited. The DOL does not share with the public what those triggers are, but, for sure, if one requires knowledge of a specific foreign language, then that case will be audited. Recently, there has been a huge spike in audits where the minimum requirements for a case exceeded the assigned Standard Vocational Preparation (SVP) level. The SVP level defines the maximum amount of education and experience that an employer can set for the position. The problem is that the DOL's findings are often contrary to real world requirements, and employers filing under PERM often find their requirements above those set by the DOL. So, if the audit trigger for SVP is turned on and the requirements exceed those of the DOL, the case will be audited. This is the situation we now find ourselves in.

Editor: What has triggered so many audits? Have the audits resulted in a fair appraisal of the illegal immigrant work force? (E.g. the Swift case)?

Dunn: This past year, the DHS has raided businesses all over the country. Clearly the government has stepped up its efforts to enforce our immigration laws. The current mindset of the government was best crystallized in an article penned by Julie Myers, Director of the Immigration Customs Enforcement. Ms. Myers's article appeared a few months back in a Kansas City newspaper, and she aptly titled her article, "No More Slaps on the Wrist for Work-Site Violations." In her article, Ms. Myers was very proud of the fact that ICE worksite investigations have significantly increased from just 25 cases in 2002 to nearly 500 in 2006, and that criminal arrests stemming from those violations have dramatically increased from about 700 in 2002 to approximately 3,700 in 2006. Ms. Myers also made it clear that investigations and arrests were being conducted at prominent businesses throughout the country, and then concluded the article with the following warning: "No employer, regardless of industry or location, will be immune from complying with the nation's laws." Make no mistake, with this warning and the recent slew of raids, arrests, and criminal indictments against employers for worksite violations, employers are on the frontline of the government's efforts to stop illegal immigration.

ICE has made headlining raids at large companies throughout the country. The targets of the raids have been mainly in the food processing, manufacturing and agricultural industries. The raids have charged management with harboring illegal immigrants and knowingly hiring illegal aliens. One raid at a meat-processing plant in Iowa ended with over 80 employees pleading guilty to felonies and serving jail time and management under indictment. These types of raids are unprecedented; the planning of which takes ICE many months to conduct. With arraignments and guilty pleas occurring within just hours of the arrests, many groups have argued that the speed at which the prosecution takes place is unjust.

In addition, the USCIS Fraud Detection Unit has become active in randomly auditing cases. The USCIS, which is the agency that adjudicates employment-based immigration cases, has been requested that it be allowed to make on-site meetings with employers regarding cases that are pending or have been approved by the Agency. The USCIS is targeting employers of every size, including Wall Street/financial companies. Typically, business with the USCIS is only conducted by paper. In this show of stepped up enforcement, the USCIS is conducting interviews with the employer and employees involved in a case to assess the accuracy of the submitted documents. The forms signed by employers are often under the penalty of perjury, so clearly the stakes involved in the interview are high. Though there is an air of informality in the USCIS approach, it is highly recommended that counsel prepare employers for the interview and be present when it takes place.

Editor: How effective has the new E-Verify program been? Please explain how it works and what drawbacks there are to using the system.Dunn: E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

E-Verify is free and voluntary and works by allowing participating employers to electronically compare employee information taken from Form I-9 (the paper-based employee verification form used for all new hires) against more than 425 million records in SSA's database and 60 million in DHS immigration databases. Results are returned in seconds.

We believe that E-verify will become mandatory for all 7 million U.S. employers in the future. It is the centerpiece of virtually every immigration enforcement bill and is increasingly viewed as an essential part of the solution to our immigration crisis. In order to encourage more employers to sign up for E-Verify, USCIS is now offering this incentive of permitting certain employees to have an additional 17 months Optional Practical Training (OPT).

But participation in E-verify has significant drawbacks. One disadvantage is that, by participating, an employer must be willing to permit DHS and SSA to make periodic visits onsite to review E-verify records. Another is exposure to fines for failure to take action on results.

Editor: Please explain the three categories: EB-1, EB-2 and EB-3.

Dunn: The EB-1 Extraordinary Ability category is intended for "that small percentage [of individuals] who have risen to the very top of their fields of endeavor. This is a difficult test, requiring the individual to demonstrate evidence of receipt of a major internationally recognized award, or to satisfy at least three of ten listed criteria. The EB-1 is also available to outstanding professors and researchers and multinational executives and managers. The EB-2 is for persons of Exceptional Ability in the Sciences, Arts, or Business, and Advanced degree professionals. The EB-3 is for Bachelor degree Holders and Skilled workers.

Given current quotas, the EB-3 category is completely unavailable and the EB-2 category is significantly backlogged for Indian and Chinese nationals.

Editor: How well is the present answer to the immigration problem working with the proposed 2,000 mile wall along the U.S.-Mexican border, greater enforcement action against illegal aliens and the proposed guest worker program?

Dunn: The creation of a fence along the border was clearly a political ploy to stem the criticism that our borders are broken. There is little evidence to suggest that the fence has done anything to secure our borders and to stem the flow of illegals coming to the U.S. Putting up a fence has been a huge expense; the monies could be better applied toward fixing our broken immigration system.

Editor: What are your suggestions for simplifying our entire immigration structure?

Dunn: In terms of simplifying our immigration structure, we should review the DOL's role in the process. While we absolutely need to ensure that our immigration policies protect the U.S. labor market, the DOL's involvement in the review process unnecessarily complicates the review of immigration applications. The application process should fall under the authority of one government entity. This brings me to the possibility of having a modified point system as a basis for assessing immigration applications. Any point system should have a component that requires linkage to a specific employer and a test of the labor market. This way the U.S. economy is protected and the country secures the talent that we need.

Please email the interviewee at mdunn@kramerlevin.com with questions about this interview.