SISKIND'S IMMIGRATION BULLETIN - 02/99 (3/7) - Articles 13-14

[Gregory Siskind, Attorney at Law]

[Note: Many readers have reported not receiving part 3 of the newsletter so
we are sending it again. Apologies if you are getting this for a second
time. Also, next month we will be switching the newsletter to its own
server. Apparently, problems we have had with parts not being received by
everyone is due to the sheer size of our subscriber list - about 20,000.
With the change taking place this month we hope that such problems will end.]

This is part 3 of a 7 part document. This newsletter is never sent out
unsolicited and is only sent to people who have subscribed. UNSUBSCRIBE
instructions can be found at http://www.visalaw.com/subscribe2.html. The
complete newsletter will also be posted shortly at
http://www.visalaw.com/bulletin/ if you do not receive each part. Please do not
send requests to resend individual parts.

13. HEARD ON THE STREET - H-1B, LABOR CERTIFICATION DEVELOPMENTS

The INS reports that the pace of H-1B usage for the current fiscal year is
moving at a fast pace and it is extremely likely that, like the last two
years, there will be a period of time when visas are not available.

As of January 31, 1999, 70,471 H-1B petitions had been approved for fiscal
year 1999.  The FY99 cap is 115,000.  This total includes the 19,431
petitions counted toward 1999 that were approved between May 11,1998 (when
last year's cap was reached) and October 1, 1999 (when the new fiscal year
began). 

Thus far, the INS has not reported on the effect of the new $500 fee on the
number of filings.  Because the INS expects filings to at least temporarily
decrease after the DOL issues interim final regulations implementing the
H-1B program, the agency cannot now make an accurate prediction about
whether or when this year's cap may be reached.

Congress enacted the American Competitiveness and Workforce Improvement Act
(ACWIA) last year to increase the H-1B cap for the next three fiscal years;
in FY99 and FY00 the cap is 115,000, in FY01 the cap is 107,500, after
which time the annual cap will return to 65,000.  In passing the law
Congress did not consider the predicted use of the program, and it is
entirely possible that this years cap of 115,000 may be reached within the
next few months.

Siskind, Susser, Haas & Devine has received reports, however, from reliable
sources that there has been a recent and massive surge in the number of
H-1B visas filed largely as a result of mass filings for Indian technology
workers by recruiting and consulting firms. While concrete numbers are not
available, if these reports are true, it is entirely conceivable that all
numbers will be used up possibly as early as the beginning of May - earlier
than in 1998 when only 65,000 visa were available.

****

Major changes may be coming in the way labor certification cases are
handled. Two seismic developments are in the works. First, the DOL is
planning on a massive effort to clear the huge backlog of cases nationally
and is expecting to approve half of the pending cases in the next several
months. Second, the DOL is expected to gut a major aspect of GAL-97 largely
in response to a lawsuit the agency is fighting which challenges the
process by which GAL-97 was adopted. One key process that is expected to go
is the requirement that in normal labor certification cases, if special
requirements are listed in Box 15, then the case is automatically referred
to the regional DOL office for clearance before advertising instructions
may be granted. DOL places the lowest priority on these referrals and
someone can find themselves waiting for a year or more just to clear up
this question. The DOL now plans to change this and allow applicants to
advertise without the prior clearance from the regional DOL or the State
Employment Security Agency. 


****

While the DOL is getting ready to roll out automated "one minute" labor
condition application processing in H-1B cases, one of the busiest Regional
DOL offices in the country - San Francisco - has not been processing LCAs
in several weeks. A computer glitch is to blame and a restart date is not
yet known. 


_______________________________________


14. INS SCRAPS PLAN TO BEGIN RELEASING NONVIOLENT CRIMINAL ALIENS

Last fall, the INS was mandated by Congress to detain aliens with
convictions for aggravated felonies. The INS vocally complained at the time
that it did not have the resources to meet this requirement, but the agency
indicated it would comply. 

In early February, the INS announced that it was planning to release
certain detained aliens. The INS announcement came under fire from
immigration hardliners in Congress and on February 17th, the agency
announced it had set aside the planned releases. Elton Gallegly (R-CA) and
Lamar Smith (R-TX) led the charge, holding a press conference condemning
the INS' initial plans claiming the failure to detain the aliens would pose
a threat to communities. 

The American Immigration Lawyers Association in turn offered harsh
criticism of Gallegly and Smith:

"By demagaguing the issue and raising fears about public safety,
Representatives Smith and Gallegly conveniently sidestep the fact that it
was Congress that failed to enact a rational detention policy that would
allow the INS to detain the most serious criminal offenders. It was
Congress that took away INS' discretion to release to families and
communities persons who pose no threat whatsoever-refugees awaiting their
asylum hearings and persons with minor, nonviolent, victimless convictions
who are awaiting their day in court to have their deportation cases heard.
Thus, it is Congress that has disabled the INS by taking away from the
agency its ability to detain and remove those persons who pose the greatest
risk to our communities.

"Congress, by imposing a wildly irrational mandatory detention order as
part of its 1996 immigration law, guaranteed that INS would be set up for
failure. The persons who currently fill the vast majority of limited INS
detention beds are people with American families and part of American
communities. They have every reason to appear in court and seek resolution
of their immigration cases. They pose no threat to society, nor do they
have any reason to abscond. 

"Congress should cease pointing the finger at a beleaguered agency and take
responsibility. Congress should enact a reasonable set of guidelines so
that those who do not need to be detained are not incarcerated at the
taxpayers expense, and so the public is truly protected." 

The INS' concerns about overcrowding certainly have factual support.
Overcrowding at some INS detention facilities in the Eastern Region has
become so bad that the agency is preparing to release 1,500 nonviolent
criminals in an attempt to ease the situation.  Detainees will be chosen
for release on a case by case basis.

Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act,
the INS is supposed to detain and deport all immigrants convicted of crimes
in the U.S.  The Eastern Region has funding and space to detain only 5,434
people, yet there are currently over 6,500 detainees in Eastern Region
facilities.  The Krome Detention Center in Miami is typical of the
overcrowding.  Although the facility was designed for 400 detainees, it
regularly houses over 500 people.  

Nationwide the number of immigrants in detention is over 16,000, triple the
number in detention prior to the 1996 law.  Most of these people are
awaiting deportation.  Some of them are Cubans, who, because of the lack of
relations between the U.S. and Cuba, cannot be deported.  Under the current
law, these people are subject to indefinite detention.  As Representative
Lincoln Diaz-Balart (R-Florida) said, the 1996 law has failed to consider
the "reality of the Cuban situation," and that the current practice of
indefinite detention "is a violation of elemental human rights."

The Service had hoped that the proposed release would ease the situation
until they can obtain additional funding.  Despite the increases in funding
for each of the past five years, with a record high of $3.95 billion in
1999, the new mandatory detention and deportation of all immigrants who are
convicted of criminal offenses enacted by IIRAIRA have put unforeseen
pressures on the Service.