H.R. 4437 – Enforcement Only Immigration Bill in the House of Representatives
As of the writing of this newsletter, it appears that a bill criminalizing unlawful presence and removing due process safeguards will be voted on soon in the House of Representatives. More than the several other immigration bills recently introduced in Congress, this bill is receiving the lion’s share of media attention because its provisions are so harsh and because it appears likely to be passed in the House. Nonetheless, the provisions of H.R. 4437 are not likely to pass in the Senate, or should that happen, to be signed into law by the President.
As many persons who regularly interact with the immigration authorities know, it is not unusual for the Department of Homeland Security to make mistakes in adjudicating immigration petitions and application and in issuing immigration documents with incorrect expiration dates, including the I-94 cards which control the status of most foreign workers. While increased enforcement of the nation’s immigration laws is a priority for both the House and the Senate, the Senate is unlikely to pass a law of such harshness in disregard of the social and economic realities in the United States. Also, the President is not likely to sign an enforcement-only bill as he has publicly stated his commitment to implementing some kind of guest worker program to provide a path for persons to enter the U.S. legally to perform jobs for which it is not possible to obtain a legal work status under the current system.
While affirming their strong desire to implement comprehensive immigration reform to address the multiple problems with the current immigration system, 13 House members including Zoe Lofgren, John Conyers, and Sheila Jackson Lee have issued a 21 page statement explaining their opposition to H.R. 4437. The thrust of their argument is that using the limited resources of the Department of Homeland Security to chase down laborers and service workers would divert attention away from its core mission of protecting the U.S. against terrorists. Further, adding an additional 8,000 beds in jails next year for immigration violators will not do much to address the present situation in which approximately 11 million persons are in the U.S. without proper documents. They also explain that 17 pieces of legislation to crack down on immigration violators have become law in the last two decades, with approximately 10 laws enacted since 1995, and two this year alone (the intelligence reform bill and REAL ID.) The last two decades of enforcement specific focus, without moving to establish a more workable process for obtaining a legal work status, have resulted in illegal immigration reaching its highest level ever. While there is a high probability that U.S. immigration law will undergo a significant change in the near future, H.R. 4437 in its present form is not likely to be the law ultimately implemented.
The quota of 20,000 H-1B numbers for foreign workers who have obtain a Master’s or higher degree at a U.S. institution will likely be exhausted in the next few business days. Once this happens, no new H-1B visas can be requested prior to April 1, 2006, with the soonest effective work authorization date of October 1, 2006. The H-1B cap only affects persons who have not previously been granted lawful H-1B status or who have been outside of the U.S. for a year or more after previously obtaining H-1B status. It does not affect persons requesting an extension of their present H-1B status or persons who are transferring their present H-1B status to a new employer.
The waiting time to obtain a visa appointment at consulates abroad is currently averaging several weeks. The most recent wait times for an appointment can be found here. HR personnel may want to advise foreign workers traveling abroad to check the wait times PRIOR to departing the U.S. in order to prevent an extended absence from their work here in the U.S. It is possible for the foreign worker to minimize his or her wait outside of the U.S. by scheduling an appointment prior to departing the U.S. Additional information on specific processing procedures at consulates worldwide can be found at: http://usembassy.state.gov.
Cases filed under the pre-PERM processes of RIR or traditional track are currently pending at the Backlog Elimination Centers (BEC) of the Department of Labor (DOL) in either Dallas or Philadelphia. The DOL changed the name of the centers to the Backlog Elimination Centers as the former name of Backlog Reduction Centers sounded as if the DOL might make some progress in reducing their backlog of 330,000 cases but would never be able to eliminate it. In order to demonstrate the strength of their resolve and provide some encouragement to persons who have been waiting as long as 4 years for an answer, the BEC name was adopted.
The DOL has completed its inventory review and the initial data entry on all cases currently pending at the BECs. The DOL estimates that full data entry should be completed on all cases by June of 2006 and it also hopes that by that date it will have made contact with the sponsoring employers through 45-day letters for all traditional and RIR cases currently pending. The previous target date for completing all of the 45-day letters was December 31 of 2005. The 45-day letter is the BEC’s initial contact with the sponsoring employer. The purpose of the letter is to confirm that the case is still being actively pursued. If a response is not received by the DOL within 45 days of sending the letter, the case will be deemed abandoned and closed.