Author: Austin Fragomen

Austin T. Fragomen Jr., a member of the Board of Governors of the American Immigration Lawyers Association and editor-in-chief of Immigration Law Report, shares his perspective on the just-enacted changes to U.S. immigration policy.

Just hours before the 104th Congress drew to a close on September 30, 1996, Congress passed, and President Bill Clinton signed, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The final movement toward passage of the bill began on September 24 when House and Senate Republicans agreed to drop from the immigration bill the Gallegly amendment, a provision that would have allowed states to deny public education to illegal immigrants. On September 25, the House approved the revised bill by a vote of 305 to 123, but before the Senate could vote on it, the administration demanded additional changes.

Clinton, who had threatened to veto the bill if it included the Gallegly amendment, insisted that several other provisions which he considered unfair to legal immigrants be dropped. One provision required that an immigrant sponsor earn 140 percent of the poverty level ($21,788 for a family of four) to bring a spouse or minor children into the United States and 200 percent of the poverty level ($31,200 for a family of four) to bring in parents, siblings or adult children. Another provision allowed the government to deport legal immigrants who used more than 12 months of public assistance, including Medicaid, English classes and child care, over a seven-year period. And another provision denied legal immigrants federally funded HIV and AIDS treatments.

The compromise. Working through the night on September 27, Senate negotiators agreed to drop or modify these provisions, although they wouldn’t agree to remove the entire section of the bill that restricts benefits to legal aliens and sets income requirements for sponsors. Instead, they reached a compromise: A sponsor need only earn 125 percent of the federal poverty level. If the sponsor, who must be the petitioner, can’t meet the income requirement, another individual may accept joint or several liability with the sponsor. Of the provisions that were retained, one allows states to be reimbursed by the federal government for the emergency Medicaid costs of illegal immigrants, and another allows battered immigrant spouses and children to receive public assistance.

As predicted, the provisions relating to changes in the H-1B — or skilled professional nonimmigrant worker visa — and labor condition application process (which would have required employers to attest that no U.S. workers with similar qualifications and experience in a specific occupation were laid off in the six months prior to the filing of the labor condition application and wouldn’t be laid off in the 90 days following, or to pay the H-1B worker 110 percent of the laid-off worker’s wages) weren’t included in the final bill. Instead, the 1996 Act focuses on illegal immigration reform and, despite all of the compromises, includes some of the toughest measures ever taken against illegal immigration.

The impact. The 1996 Act, though characterized as a tough approach to illegal immigration, does contain a number of provisions likely to have a dramatic impact on all foreign visitors, including businesspersons. For example, the act provides that any alien who, whether before or after September 30, 1996, is lawfully admitted in nonimmigrant status and remains in the United States even one day longer than the period of authorized stay may no longer use the visa with which he or she originally entered the United States to re-enter the United States. Such an alien isn’t eligible for further non-immigrant visa issuance except in the country of the alien’s nationality.

In addition, non-immigrants who overstay their visas for an aggregate of 180 to 365 days will be penalized by a three-year period of exclusion, during which they will be ineligible to receive immigrant or nonimmigrant visas. Non-immigrants who overstay their visas for an aggregate of more than 365 days will be subject to a 10-year period of exclusion.

Currently, persons who violated status are permitted to adjust to permanent resident status by paying a fee. That provision, however, will expire on September 30, 1997, after which an alien can’t adjust status if he or she is currently (or previously has been) out of status. Any period of time spent by the alien in the United States while out of status — even one day — can bar the alien from eligibility for adjustment of status. This rule applies not only to aliens who are currently out of status but also to aliens who have been out of status at any time “since entry.”

Prior to passage of this law, exceptions to this bar were made for immediate relatives of U.S. citizens and when the alien’s failure to maintain status was a “technical violation” that wasn’t the alien’s fault. The new law seems to bar the adjustment of status of immediate relatives of U.S. citizens who have failed, at any time, to maintain lawful status while they were in nonimmigrant status in the United States, and of non-immigrants who have failed to maintain status as a result of technical violations.

The new law requires employment-based adjustment applicants to be in lawful nonimmigrant status at the time of the adjustment filing; therefore, technical violations won’t be excused under the new law. In addition, the act renders all persons who have violated the terms of their nonimmigrant stay ineligible for adjustment regardless of their status as immediate relatives of U.S. citizens and regardless of the severity of the violation.

Employment eligibility. Several provisions are of particular importance to U.S. employers. Beginning September 30, 1996, an employer who makes a “good faith” effort to comply with the employment verification requirements at the time of hiring a new employee will be considered to have complied with those requirements “notwithstanding a technical or procedural failure” to meet one of the requirements. To benefit from this provision, the employer must have corrected the failure voluntarily within 10 business days after the basis for the failure has been pointed out and explained to the employer by the INS or another enforcement agency. An employer who has engaged in a pattern or practice of knowingly hiring unauthorized aliens is barred from claiming good-faith compliance.

Also effective September 30, 1996, is a provision which mandates that an unfair immigration-related employment practice may be found in the case of document abuse only if the employer’s request for more documents, or its refusal to honor tendered documents, is done with the intent to discriminate. Prior to this amendment, it merely needed to be shown that the employer had committed one of the actions with regard to acceptance of I-9 documents in order to hold that employer liable for civil fines; “intent” wasn’t required.

The 1996 Act also reduces the list of acceptable documents that may be presented by new employees to verify their identity and employment eligibility. The attorney general must put the revised list of acceptable documents into effect no later than September 30, 1997.

The 1996 Act establishes three pilot programs to test electronic verification of employment eligibility through government databases. These programs, the “basic” program, the “citizen attestation” program and the “machine readable” program, must be implemented by September 30, 1997, and are to last four years, unless Congress extends them. The attorney general must establish a confirmation system that responds to inquiries about the identity and employment eligibility of individuals through a toll-free telephone line or other toll-free media. Participation in any of these programs is voluntary for most employers.

Expect changes ahead. Despite the effect this bill may have on legal immigration and the business community, rest assured that the battle isn’t yet over. The Republicans have retained control of Congress and will, in all likelihood, revive the debate that began nearly two years ago. With illegal immigration reform out of the way, Congress’s efforts will almost certainly be focused on revamping the legal immigration system, which could mean a resurrection of Rep. Lamar Smith’s proposals to limit family-based immigration to the nuclear family; to reduce numbers for employment-based immigration as well as making the system more restrictive; and to help protect the U.S. labor market from excessive numbers of H-1B workers, among others.

Not since 1965 and the abolition of the national origins quota system has there been as comprehensive and serious a debate of U.S. immigration policy as the one in which Congress currently is embroiled.

The debate began in 1995, when Sen. Alan K. Simpson (R-Wyo.), Chairman of the Senate Immigration Subcommittee, proposed sweeping changes to immigration policy. The changes included imposing an employment eligibility verification system based on secure documents—like enhanced tamper-proof Social Security cards—and a provision to curtail the availability of benefits to illegal aliens and legal immigrants.

Almost simultaneously, Rep. Lamar Smith (R-Texas), Chairman of the House Immigration Sub-committee, also undertook immigration reform. He not only proposed employer sanctions and limitation of benefits, but also supported a dramatic curtailment of the procedural due process rights of illegal and legal aliens with criminal convictions.

Employment-related revisions proposed.
Of significance to the business community was Smith’s proposal to revise the legal immigration system. He proposed limiting family-based immigration, reducing numbers for employment-based immigration and generally making the system more restrictive. In addition, Smith introduced an H-1B (skilled professional nonimmigrant)worker protection provision.

Simpson then introduced a legal immigration bill that would have a more serious adverse impact on the business community. This bill included many of the same changes called for in the House bill and also established foreign experience requirements for immigrants and H-1B non-immigrants; limited the duration of stay of H and L nonimmigrant workers (intracompany transferees); imposed a fee on the gross earnings of H-1B workers and labor certification applicants to fund retraining of American workers; and required a gradual reduction in reliance on H-1B workers.

The business community mobilized, forming American Business for Legal Immigration (ABLI), a Washington, D.C.-based lobbying group that represents a number of associations and employers, and commissions academic studies to support its position. In an effort to stymie the progress of these radical provisions, the business community concentrated on educating the press and members of Congress about the threat posed by such provisions.

Focusing first on the House bill, the goal was to have the most egregious business-related provisions deleted; and by the time the full House voted on it, most of them were. For the Senate bill, the strategy was to convince the Senate to consider legal and illegal immigration separately, splitting the existing bill into two. The theory was the two issues are unrelated, and the enforcement concerns would color objective consideration of legal immigration reform.

Spearheaded by Sen. Spencer Abraham (R-Mich.) and supported by Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), an array of disparate groups—including businesses, the American Immigration Lawyers Association, ethnic/religious groups and the Christian Coalition—successfully worked together to split the bill.

The same coalition convinced a group of conservative Republicans and liberal Democrats to pass an amendment striking changes to family- and employment-based immigration policies. Soon after, the Senate passed its illegal immigration bill and, with the help of then Majority Leader Bob Dole (R-Kan.), prevented the reintroduction of legal immigration amendments. The Senate’s legal immigration bill has yet to be debated, and it’s widely believed there will be no legal immigration reform, at least in this Congress.

What will remain are the enforcement provisions and four areas of the pending legislation that will seriously affect the business community. These include:

1. The revision of employer sanctions which calls for the establishment of an electronic verification system.
2. The imposition of extensive penalties for violating immigration status which will catch unwitting corporate employees and families in its web.
3. The revision of the H-1B and labor condition application process: Employers would be required to attest that no U.S. workers with similar qualifications and experience in a specific occupation have been laid off in the six months prior to the filing of the application and won’t be laid off in the ninety days following, or they’re required to pay the H-1B workers 110% of the laid-off workers’ wages.
4. An increase in enforcement personnel for employer sanctions, labor condition applications and permanent labor certifications.

The House and Senate disagree.
The House and Senate immigration bills are now awaiting reconciliation by a joint conference committee. The most controversial issue appears to be the amendment sponsored by Rep. Elton Gallegly (R-Calif.) which would permit states to bar public education benefits to undocumented aliens, including children. This amendment—which is included in the House bill but not in the Senate bill—is a major sticking point be-tween the House and the Senate, as well as amongst Republicans. House Majority Leader Dick Armey (R-Texas) has indicated that the House conferees will insist that the final bill include the Gallegly amendment, or something similar to it, although 47 Senators, including five Republicans, recently sent a letter to the Senate conferees opposing the provision, warning that it could very well jeopardize passage of the entire bill.

The H-1B and labor condition provisions, also in the House bill, are supported by the House Re-publican conferees but opposed by the Senate conferees. Democratic conferees favor dropping the provisions since they aren’t regarded as strict enough. The Democratic members would rather seek more stringent amendments of the H-1B program in the next Congress.

President Bill Clinton already has threatened to veto any bill that includes the Gallegly amendment, a threat the Republicans are certainly taking into consideration. As the attention to this issue at the Republican convention would indicate, the Republican Party’s position is to make this provision a major national campaign issue. In this presidential election year, a veto by Clinton of a much-wanted illegal immigration bill could prove very harmful—particularly in California, a state which is crucial to Clinton’s reelection. It should be noted that California’s Gov. Pete Wilson announced anti-illegal immigration measures immediately after the enactment of the welfare reform legislation. Therefore, the current prevailing wisdom is that there will be an illegal immigration bill that probably won’t include H-1B reform.

The corporate employer should prepare for stepped-up enforcement soon after the October 1, 1996 effective date.

Global Workforce, October 1996, Vol. 1, No. 1, pp. 10-12.