SISKIND'S IMMIGRATION BULLETIN - 12/98 (4/6) - Articles 15-24

[Gregory Siskind, Attorney at Law]

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15. IMMIGRATION AND NATURALIZATION SERVICE RELEASES RULE ON EXEMPTION FROM
NEW $500 FEE IN H-1B CASES 

The Immigration and Naturalization Service has issued its first regulation
implementing provisions of the American Competitiveness and Workplace
Improvement Act of 1998, the new H-1B law signed in October. The interim
rule implements the new $500 H-1B fee, it establishes guidelines to
determine if a sponsoring employer is eligible for an exemption from the
fee and it amends the H-1B regulations to reflect the new numerical limits
on the issuance of H-1B classification.

The new $500 fee was created to provide a fund for the Department of Labor
and the National Science Foundation to enhance "job training, low income
scholarships, grants for mathematics, engineering, or science enrichment
courses, systematic reform activities and administration and enforcement of
the H-1B programs." The INS will get 1.5% of the fee back to help offset
their expenses in processing H-1B cases.

The fee went into effect for certain applications filed after December 1,
1998 and will continue for all applications received until September 30,
2001. The fee will be collected for the following three types of cases:

- an initial grant of H-1B status
- an extension of stay for individuals currently in H-1B status (only for
the first extension request by an employer)
- authorization for a change in employment for individuals currently in
H-1B status

The INS notes that the limit to charging the fee for the first extension
request is specific to the employer. So, for example, Employer A files for
an extension and pays the fee, the employee switches to Employer B who pays
the fee at the time of the filing of the change of status application and
then Employer B would again have to pay the fee if it applies for an extension.

Amendment applications do not need to be accompanied by the $500 fee unless
they are also requesting an extension.

Employers can pay the normal $110 fee and the special $500 fee in one check
(though note that earlier in this issue we report that the Service Centers
will accept two checks). The alien H-1B beneficiary may not pay the fee so
if the check for the new fee is on the alien's checking account, the INS
will reject it. 

The following two types of organizations are exempt from the $500 fee:

- institutions of higher education or related or affiliated nonprofit
entities and
- nonprofit or governmental research organizations

The INS uses the same definition of "institution of higher education"
included in Section 101(a) of the Higher Education Act of 1965. Nonprofit
affiliates will include hospitals and medical or research institutions
connected or associated with universities through shared ownership, control
by the same board or federation operated by a university, or attached to a
university as a member, branch, cooperative, or subsidiary.

A "nonprofit or governmental research organization" includes entities
primarily engaged in basic research and/or applied research or a US
government entity whose primary mission is the performance or promotion of
basic research and/or applied research.

Employers exempt from the $500 fee must submit the new Form I-129W with
their applications for H-1B workers. Along with the I-129W, the employer
must submit proof that it is exempt based on the requirements noted above.

Look for further regulations to come within the next few months on other
requirements in the new law like revisions to the Labor Condition
Application attestations, new penalties and new rules on prevailing wage
calculations.

________________________________________________


16. GUEST COLUMN: INS RULE ON NEW H-1B FEE MISREADS THE STATUTE

On November 30th, the INS published an interim rule implementing, inter 
alia, the recently passed H1B bill's provision mandating the imposition of 
a $500 fee for most H1B petitions (see 63 FR 65657 et seq., November 30, 
1998). Attorneys may want to note an interesting and little noticed point 
in a part of the INS's comments in the Federal Register. This may help
attorneys in some cases from sending in an un-necessary $500 fee. 

The rule adds, inter alia, 8 CFR 214.2(h)(19), which reads, in part, as
follows: 

"(19) Additional fee for filing certain H-1B petitions - (i) A United 
States employer ... who files a Form I-129, or or after December 1, 1998,
and before October 1, 2001, must include the additional fee ... if the
petition if filed for any of the following purposes: 
(A) An initial grant of H-1B status ...; 
(B) An initial extension of stay ...; or 
(C) Authorization for a change in employment, as provided in paragraph 
(h)(2)(i)(D) of this section..."

In the supplementary information to this interim rule, the INS answers the
question: "Who Is Required to Pay This Fee?" as follows: "The new $500
filing fee must be paid by United States employers when they file H-1B
petitions on or after December 1, 1998, and before October 1, 2001, for any
of the following purposes: 

(1) an initial grant of H-1B status under section 101(a)(15)(H)(i)(b) of 
the INA; 

(2) an extension of stay for individuals currently in H-1B status; or 

(3) authorization for a change in employment for individuals currently in 
H-1B status. 

All United States employers seeking authorization for a change in
employment (e.g., a change from one specialty occupation to another
specialty occupation) for an H-1B nonimmigrant must pay the additional $500
fee..."

What's wrong with this? A surprising amount. The INS is confusing 
employMENT and employERS. These are two totally distinct words in the
statute, and in the regs (and ofcourse, in common sense). Let us analyze
the issue and study its impact on when the new $500 should *not* be paid.

The new section 8 CFR 214.2(h)(19)(C) refers to a change in employMENT as
provided in 8 CFR 214.2(h)(2)(i)(D). However, 8 CFR 214.2(h)(2)(i)(D) reads
as follows: "(D) Change of employers. If the alien is in the United States
and seeks to change employers, the prospective new employer must file a
petition on Form I-129 requesting classification and extension of the
alien's stay in the United States. If the new petition is approved, the
extension of stay may be granted for the validity of the approved petition.
The validity of the petition and the alien's extension of stay shall
conform to the limits on the alien's temporary stay that are prescribed in
paragraph (h)(13) of this section. The alien is not authorized to begin the
employment with the new petitioner until the petition is approved. An H-1A
nonimmigrant alien may not change employers." 

In other words, 8 CFR 214.2(h)(2)(i)(D) refers to employERS, and *not*
employMENT. Thus, the new 8 CFR 214.2(h)(19)(C) is to be read as referring
*only* to a change in employERS.

Indeed the statute bears out this interpretation. The new H1B bill provides
(Section 414(a)) that: " ... The Attorney General shall impose a fee on an
employer ... filing ... a petition ... (i) initially to grant an alien
nonimmigrant status ... (ii) to extend the stay of an alien having such a
status (unless the employer previously has obtained an extension for such
alien); or (iii) to obtain authorization for an alien having such status to
change employers..." The statute is clear - it refers solely to employERS,
not to employMENT.

Thus both the actual text of the new interim rule (read with its reference
to 8 CFR 214.2(h)(2)(i)(D)), and the actual text of the statute both say
that a fee is required only when the alien changes employERS, not when the
alien changes employMENT. 

This stands in marked contrast to the INS example in the supplementary
information accompanying the rule that a change in employment where the new
fee must be paid occurs when the alien changes "from one specialty
occupation to another specialty occupation". When such change in occupation
occurs with the same employer, and where an initial extension of stay in
not sought, a $500 fee NEED NOT be paid to the INS. In practice, such a
situation would most often arise when the alien is promoted, or otherwise
moved within the same company's organization, and an amended H1B petition
is filed.

Attorneys may thus want to avoid the mistake of sending in an unnecessary 
$500 fee on the basis of the mistaken example in the supplementary
information provided by the INS. Since the regulation is open for comment
until January 29, 1998, attorneys may want to send in this point as a
comment for the INS to correct when it issues the final rule.


________________________________________________


17. IMMIGRATION COMMITTEE CHAIR REVISES HISTORY OF H-1B BILL

Rep. Lamar Smith (R-TX) submitted some comments for the record on the H1B
bill that Congress passed in October. A portion of his remarks is a cause
for concern. Mr. Smith says: "However, it should be remembered that a
majority of the members of the House that day either voted in favor of the
Watt amendment or against H.R. 3736 on final passage (or both)." He also
says: "It is clear that the members - constituting a majority of the House
- who voted for the Watt amendment or against final passage were very
concerned..." (both the above quotes were printed in the Congressional
Record - Extensions of Remarks on November 12th, 1998 page E2323). The
actual votes in the House were 242 to 177 *against* the Watt Amendment and
288 to 133 *for* the final bill. Obviously, Mr. Smith's contention that a
"majority" of the House was for the Watt amendment or against the final
bill is not true. Moreover, this statement was not made on the spur of the
moment on the House floor (which might justify a misstatement). These
comments were part of "Extensions of Remarks", that is, they were prepared
in advance, and submitted in writing to the Official Reporter of the House.
It is to be hoped that Mr. Smith will correct this error of fact in a
future Congressional Record issue.

________________________________________________

18. VISA SPOTLIGHT: EB-1 MULTINATIONAL EXECUTIVES AND MANAGERS

Permanent residency is available in the EB-1-3 category for executives and
managers coming to work in the US for an employer that is related to a
company the applicant worked for prior to entering the US. The category is
very similar to the L-1 intracompany transfer non-immigrant category,
though there are some important differences.

There are a number of requirements to qualify in this category. 

First, the applicant must be continuously employed abroad for one year of
the last three for a parent, affiliate, or subsidiary of a US employer. The
employer may be a company or other legal entity including a profit,
non-profit, religious, or charitable organization. It does not matter if
the company is incorporated or not. Any time spent working in the US will
not count toward
the one year of required employment, though time spent in the US will not
be considered to have disrupted the continuity of employment abroad. It is
possible to use a combination of part-time employment for affiliated
companies under certain circumstances. 

Second, the applicant must be coming to work for the same employer as the
foreign employer or the US affiliate, parent, or subsidiary. The US and the
foreign firm must have common majority ownership, or, where there is less
than majority ownership, common control by the same person or entity.
Ownership by a common group of owners where no owner has control or a
majority interest can cause a problem if each individual owner does not own
the approximately the same amount of both the US and the foreign company.
This problem can sometimes be worked around if the owners have set up a
voting agreement to ensure that there are not different groups controlling
the foreign firm and the US firm. 

Third, the applicant must be coming as a manager or executive (note that
unlike the L-1 visa, "specialized knowledge" employees do not qualify in
this EB-1 category and those whose experience abroad is as a specialized
knowledge worker will not qualify even if they are coming over to work as a
manager or executive). 

An "executive is one who directs the management of the company or a major
part or function of the organization. Typical executive positions are
presidents, vice-presidents and controller. An executive is expected to
have a supervisory role in the company (either over personnel or a
function) and would not include people who are primarily performing the
specific tasks of production or providing service to customers. A "manager"
directs the organization, a department, or a function of the organization.
Like executives, a qualifying manager will not be overseeing the primary
performance of a task. Exceptions apply when a manager or executive is
coming to open a new office. 

Persons coming to open up a new office in the US will not be eligible for
EB-1 status until the new office has operated for more than a year (there
does not appear any basis in the law for this, but the INS requires it in
its implementing regulations). 

The EB-1-3 green card is attractive because it is fast, there is no labor
certification required, the INS has less leeway to deny if the applicant
meets all the regulatory requirements and one without a university
education or massive amounts of money can still qualify.

________________________________________________

19. NIGERIAN WOMAN'S ASYLUM CASE TO TEST NEW US LAW IMPLEMENTING UN TORTURE
TREATY 

Virginia Anikwata, a Nigerian woman who has lived in the United States
since 1986 is fighting deportation on the basis of the United Nations
Convention Against Torture.  The United States ratified this treaty in
1996, and in October of this year Congress passed a law providing automatic
protection against deportation for those who file claims under the Convention.

Ms. Anikwata's claim is that if she is forced to return to Nigeria, her
daughter, an 11 year old American citizen, will be subjected to female
"circumcision," or female genital mutilation.

Ms. Anikwata has been fighting deportation for 10 years, since her husband,
also a Nigerian, who was in the U.S. on a student visa, died of cancer.
She first raised her current claim in May of 1998 after she was jailed by
the INS for illegal residing in the US.  Earlier in the year her attempt to
have her case reopened failed because the Immigration Court questioned why
she waited so long to bring the claim.  As her lawyer points out, because
the Convention was not ratified until 1996, it could not be a basis for a
claim before then.

In 1996, a woman from Togo was given asylum on the basis of fear of genital
mutilation if forced to return.  One of the issues facing Ms. Anikwata is
whether a parent can assert this protection on behalf of a child.

The practice of female genital mutilation is widespread.  According to the
State Department the rate is as high as 50% in Nigeria.  In 1997 three UN
agencies called for an end to the practice, and Amnesty International calls
it "one of the most alarming manifestation of violence against women."
________________________________________________

20. IMMIGRANT DETENTION CENTER GUARDS FIRED AFTER ESCAPES

Two guards at a Colorado detention center were fired and another quit after
an investigation into the flow of illegal drugs and other contraband into
the center.  The facility is operated by Florida-based Wackenhut Corporation.

The investigation began after the escape of three prisoners in May of 1997.
 When caught, the detainees said guards had helped them in making their
escape.   

Wackenhut fully cooperated with the investigation, which included the use
of drug-sniffing dogs.  While authorities have not been able to uncover
sufficient evidence to prosecute any of the guards, the investigation is
still continuing.  Authorities are careful to stress they do not believe
smuggling was widespread.

The INS has contracted with Wackenhut since 1987 to run the Colorado
detention center.  The contract was renewed during the investigation, but
negotiations did include several tense moments in which some detainees were
removed from the Colorado center.

________________________________________________

21. SEVERAL IMMIGRANT SMUGGLING OPERATIONS BROKEN UP BY OFFICIALS

In New Jersey, two crew members of a cargo ship were convicted of smuggling
illegal Chinese immigrants into the U.S. from South America.  The smuggling
operation was discovered in May when 23 Chinese men were found wandering
the streets.  The two men convicted are both Koreans.

In New York, a smuggling ring that has transported more than 3600 Chinese
immigrants into the U.S. from Canada over the past two years has been
broken up with the arrests of over 35 people and the indictment of 12
others.  The members of the ring, mostly Chinese nationals and members of
the Mohawk Indian tribe, transported the immigrants across the border
through a Mohawk reservation.  This area of upstate New York is lightly
patrolled, and is geographically perfect for smuggling operations.  The
break-up of the ring was the result of the combined efforts of American and
Canadian authorities.

In Miami and Dallas, the largest alien smuggling ring in U.S. history was
broken up after the indictments and arrests of two key figures.  Over the
past three years, the ring brought in more than 10,000 illegal immigrants
and bought in almost $200 million for those running it.  

The arrests were the result of Operation Keep and Seek, the first INS
investigation involving the use of wiretaps, as authorized by Section 201
of the Illegal Immigration and Immigrant Responsibility Act of 1996.  Other
agencies involved were the FBI, the IRS, the U.S. Post Office, the U.S.
Customs Service and the State Department.

Most of the immigrants were from India, but nationals from Afghanistan,
Pakistan, and Syria were among others smuggled into the U.S.  The average
cost to the alien was about $20,000.  The route most often followed was to
ship the aliens from India to Moscow, then to Cuba, and from Cuba to the
Bahamas, where they were flown or boated into Miami.  Another common route
was from Cuba to Ecuador, from where the aliens would be driven through
Mexico to the southern U.S.  

The ring was motivated by the desire of some employers "who want cheap
labor and fearful workers who could be easily manipulated," said Attorney
General Janet Reno.  This desire is indeed widespread, with immigrants
brought in through this ring found in 38 states at over 1000 work sites.

The investigation is continuing, and the INS plans on targeting the
employers who used the illegal immigrant workers.
________________________________________________


22. ANOTHER HUNGER STRIKE AT IMMIGRATION DETENTION CENTER

In California, one hundred twenty Central Americans due to be deported
began a hunger strike when their deportation was delayed.  The detainees
were upset by further delay in returning home to see their families
following the destruction of Hurricane Mitch.

After a few days, two of the hunger strikers needed medical attention.
When officials attempted to remove them, the other detainees attempted to
prevent the removal.  In response, officials put the facility into a
lockdown and called for reinforcements from local law enforcement departments.

The sick detainees were treated and returned to detention that same day.
The Lockdown was also lifted the same day.

The delay in deportation was caused by the temporary inability of the
Central American countries to accept the detainees because of the damage
caused by Hurricane Mitch.

________________________________________________


23. FLORIDA, FEDERAL GOVERNMENT REACH DEAL ON CRIMINAL ALIENS

The government of Florida is exchanging thirty Mariel Cubans convicted of
murder and other violent felonies since arriving in American and currently
incarcerated in Florida with the federal government for thirty non-violent
federal offenders.  Most of the Mariel Cubans are serving life sentences,
whereas the prisoners they were exchanged for are serving much shorter terms.  

The end result of this arrangement is that Florida will save about $130,000
a year, for a total of about ten million dollars.  

The impetus for this deal was the immigration crisis during the summer of
1994 in which as many as 2000 people a day attempted to cross from Cuba to
Florida.  The then governor of Florida, Lawton Chiles (who died a few weeks
ago), felt the federal government was not dealing with the problem of
illegal immigration in an effective manner.  One of the new rules his
administration created called for the deportation of non-violent offenders
to reduce the burden on the state prison system.  The new plan is likewise
designed to reduce that burden.

Florida has twice attempted to sue the federal government to reclaim money
it has expended on dealing with illegal immigration.  Although both suits
were rejected, they have increased the focus on illegal immigration.
According to the special counsel for Gov. Chiles, illegal immigration is "a
national problem, and the cost relating to that national problem should not
be borne by Florida taxpayers alone."

________________________________________________


24. INS AND LABOR DEPARTMENT REACH DEAL TO CRACK DOWN ON EMPLOYERS OF
UNDOCUMENTED WORKERS

Both the INS and the Department of Labor deal with employment issues.  But
while these agencies have overlapping jurisdiction, the two have often
failed to cooperate. The two agencies recently released a memorandum of
understanding that is intended to mark a change.

In recognition that one of the primary motivations for illegal immigration
is employment, the memorandum stresses the need to reduce the economic
incentives of using unauthorized workers.  It is the duty of the INS to
enforce sanctions against employers who use illegal workers, but without
the aid of the Department of Labor it is difficult for the INS to discover
all violations.
 
The memorandum requires both agencies to cooperate in coordinating
enforcement efforts.  One of the primary changes under the new
understanding is that immigrant workers will be free to report complaints
about labor violations to the Department of Labor, and the Department will
no longer refer the matter to the INS unless it concerns serious violations
by the employer. No inquiry will be made by the DOL into the employee's
immigration status.  This should make immigrant workers more willing to
come forward with information about substandard working conditions and
employers who use illegal labor.

Both agencies hope the new understanding will allow them to focus their
"efforts on the source of illegal immigration, that is, those employers who
lure illegal workers into this country, pay them less than legal workers,
and maintain substandard, often intimidating working environments" says INS
Commissioner Doris Meissner.