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On December 16, 2005, the House of Representatives voted to require employers to verify the status of workers either by "telephone or other electronic media."  Civil penalties for paperwork violations would increase significantly under the bill.  Employer participation in the Basic Pilot employment verification program, which matches names against DHS databases, would become mandatory two years after enactment.  The employment verification provisions are contained in title VII of H.R. 4437, the "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005."  The House also voted to eliminate the diversity visa lottery which allows 50,000 applicants to be chosen for permanent resident status randomly. 

The American Civil Liberties Union, the Republican Liberty Caucus, and other groups, including various privacy advocacy organizations, are opposing provisions of the bill that would expand the Basic Pilot program.  In a letter sent to House representatives, the groups noted that the Basic Pilot program currently is used by 3,600 employers.  Expanding it to all 8.4 million U.S. employers would pose serious technical obstacles in addition to raising privacy issues and risks of identity and document fraud. The groups said:  "The system will need to verify the work eligibility of all 146 million people currently employed in the United States, plus 54 million new hires each year.  We have already seen, in its current limited usage, the widespread inaccuracies in the data used by Basic Pilot.  One in every ten employees must be manually verified by Department of Homeland Security staff after the automatic system fails to match the individual to the necessary data.  This rate of failure, multiplied to all employers and all employees in the U.S., will have real consequences for hundreds of thousands of Americans.  People could lose their jobs and others will be needlessly denied employment every year."  The Government Accountability Office estimated that such an employment verification system would cost $11.7 billion annually, the groups noted.

The U.S. Chamber of Commerce and other business groups oppose these changes because the timetable is too fast and relies upon flawed pilot programs. The U.S. Chamber said it “support[s] the concept of a workable verification system as part of a comprehensive reform package, but new laws that simply place more burdens on employers through worksite enforcement alone are not the answer.”  Only about 5,000 of the nation's approximately seven million employers use Basic Pilot, which at present only has the capability to check persons who are in the immigration database but excludes U.S. citizens and persons who claim to be.  "As a result, the elephant in the room is the inability of employers to verify all employees’ work eligibility," said Angelo Paparelli.

The Senate is expected to take up these and other immigration measures in the near future.  Several major immigration reform provisions may be considered, including reforming the visa system to address backlogs and other problems; a guest worker program to provide temporary work authorization to certain undocumented workers; earned legalization for undocumented workers already in the U.S.; and enhanced enforcement at the border, in the workplace, and in the courts. 

Among other things, H.R. 4437 also would create a new federal crime of “unlawful presence,” Stephen Yale-Loehr noted.  If this provision were to become law, all of the estimated 11 million noncitizens currently in the U.S. without immigration status would commit a felony by remaining.  For more on these issues, see "Immigration Reform: Restrictionists Win in the House," by Stanley Mailman and Stephen Yale-Loehr, New York Law Journal, December 28, 2005.

Dan Kowalski commented that the Bush administration is not offering fundamental solutions to the structural flaws in the U.S. immigration system:  "[President Bush is] not talking about that at all," he said.  "The reason we have 11 million here illegally is because they don't fit into any box in our system.  It's not because they want to break the laws."  See "Bush's Immigration Reform Push Takes Different Tone," Austin American Statesman, November 30, 2005.

In other action, Congress did not include in the Deficit Omnibus Reconciliation Act the employment-based immigration provisions approved overwhelmingly by the Senate.  Those provisions, which called for more work visas in high-tech and specialty fields, would have generated an estimated $300 million in additional federal revenues by increasing fees.  Specifically, the provisions would have added 30,000 H-1B visa numbers each year and increased fees for those visas.  In addition, the provisions would have raised fees and increased employment-based visa numbers by 90,000.  Also dropped was a plan to increase the L-1 intracompany transferee fee.

Sandy Boyd, vice president for the National Association of Manufacturers, told the Associated Press that "there is a real global competition for this work and for these employees, and the question is not whether the work is going to get done, it's where is the work going to get done.  We've missed a real opportunity by not ensuring the work would be done here."

3. Immigrant Visa Backlogs Decline for China, India

Immigrant visa backlogs for employment-based applicants born in China and India have declined substantially over the past three months, but the backlogs still range from 30 months for the India EB-1 (Extraordinary Ability) category to over six years for the India EB-3 (Professional and Skilled Worker) category.  Also, the worldwide EB-3 backlog for countries other than China, India, Mexico, and the Philippines remains at almost five years.  The worldwide EB-1 and EB-2 (Professionals with Advanced Degree) categories, however, continue to be current with no cut-off dates.

The Department of State reported that applicant demand for immigrant visa numbers may be expected to increase following rapid advances in cut-off dates.  "This could cause cut-off date movement to be sporadic, and eventually slow or stop later in the fiscal year," the Department noted in its December Visa Bulletin (see http://travel.state.gov/visa/frvi/bulletin/bulletin_2744.html).  The January Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2757.html.

The Internal Revenue Service (IRS) announced new rules effective January 1, 2006, for determining the amount of income tax employers must withhold from wages paid for services performed by nonresident foreign workers within the U.S.  The notice also provides new rules for use by nonresidents in completing Form W-4 (Employee's Withholding Allowance Certificate).  The IRS said it made the changes because certain nonresidents were experiencing over-withholding of income tax on their wages.  For details, see http://www.irs.gov/pub/irs-drop/n-05-76.pdf.

·        Stephen Yale-Loehr recently co-wrote "Immigration Reform: Restrictionists Win in the House," which was published in the New York Law Journal on December 28, 2005.  For more on that topic, see article #4 in this issue.

·        A declining number of international students and an increasingly inhospitable attitude toward foreign students and workers is robbing the U.S. of high-skilled knowledge workers, said a group of over 50 leaders participating in a Forum sponsored by the University of California at Irvine and the Merage Foundations.  The group said the United States must change its laws and policies to compete successfully in global markets, and that American universities must do more to showcase U.S. educational opportunities to attract an increasing share of the world's top science students for the country's economy and to maintain its status as a global leader in innovation.

The number of foreign students enrolled in the U.S. dropped by 4,605, or 13.5 percent, between 2001 and 2003.  In 2003-2004, the number of international graduate students in science and engineering dropped 35 percent, while the number of students in life sciences and physical sciences dropped 24 and 26 percent, respectively.  The report identified several causes for the decreases: (1) longstanding immigration policies (stingy visa number caps and laws focusing less on proven academic talent and more on the outmoded concern that visa applicants return after graduation to their home countries); (2) long delays in conducting post-9/11 security clearances; (3) anti-American feelings; (4) declines in federal research grants and state resources that have resulted in fewer scholarships, fellowships and post-doctoral awards; and (5) active campaigns by foreign universities and governments in Europe, Australia, Canada, and Asia to lure international students. 

Angelo A. Paparelli, a participant in the Forum, said that structural impediments in the immigration laws, such as the legal burden imposed on students to prove they will go home after graduating and skimpy numerical limits on work visas and employment-based permanent residents, are hurting the nation's ability to meet its need for scientists and engineers. "America's immigration policies have always been highly politicized, making it difficult to devise laws that truly promote the nation's economic interests," he said. "Unfortunately, we may have waited too long to pass enlightened business immigration laws that allow the U.S. to maintain its competitive lead in the global economy."

Paparelli advocates a move toward a more "reality-based" approach that emphasizes the nation's economic interests over politics.  He also said the country needs to improve the performance of bureaucrats who control the visa, residence, and citizenship system in order to encourage foreign citizens who study here to remain permanently after graduation.  "As a first step, we must take a common-sense approach that expands the number of employment-based visas and increases or better yet eliminates H-1B work visa quotas," he said.  If the U.S. does that, it will "enjoy the wondrous contributions of highly talented foreign students and professionals who are vital to our economic future."

For more information on this topic, the Forum, and the report, see http://www.meragefoundations.com/papers.htm.