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IMMIGRATION
NEWS
This
week has three seemingly unrelated stories that point to the same issue. The Ninth
Circuit has ruled that a RICCO claim could be filed against an employer of undocumented
aliens; the Social Security Administration is issuing record numbers of No-Match
Letters; and the talks so promising a year ago on Mexican – American migration
have stalled. We believe that there is a strong demand in Central Pennsylvania
for labor by food processing companies, restaurants and others that cannot be
met by the domestic labor market. The present legal mechanisms for bringing in
alien workers in unskilled jobs is so difficult, expensive and slow that it discourages
many employers from proceeding. Yet, if the demand is to be met, aliens will have
to be hired. If the demand cannot be met, moreover, the employers will either
go bankrupt or overseas. We wonder why the two countries could not negotiate a
special program permitting Mexicans, otherwise admissible, to enter the United
States for a period of three years to work in specified industries such as food
processing and restaurants without the need for a specific petitioning employer.
This would enable one to enter as a guest worker and then find such employers
in specified industries to employ them. The guest workers would be required to
join any existing unions, could not work for any employer in a lock out or strike
and would otherwise be prevented from subverting American labor markets. This
would provide millions of hard working Mexicans the status they need to earn an
honest living and enable American employers to continue operating lawfully in
the United States. Previously, lack of enforcement allowed many
employers to hire such undocumented workers. However, as enforcement of our borders
improves and private lawsuits, such as Mendoza v. Zirkle Fruit Co., are filed
seeking treble damages against employer violators, it will be urgent to provide
a legal means for employers to do what they have been illegally doing for decades:
employ Mexicans.
The
Department of Justice announced a one-year extension to the Temporary Protected
Status (TPS) for nationals of Sudan. This extension, which covers approximately
552 Sudanese individuals, will be in effect from November 2, 2002 until November
2, 2003. The Department of Justice also announced a one-year extension to the
Temporary Protected Status (TPS) for nationals of Burundi. This extension, which
covers approximately 13 Burundi nationals, will be in effect from November 2,
2002 until November 2, 2003.
Section 244 of the Immigration and Nationality Act authorizes the Attorney General
to grant TPS to aliens in the United States who are nationals of countries where
armed conflict, natural disaster or other extraordinary conditions have created
a temporary situation to which return is either unsafe or unfeasible. In the case
of Sudan and Burundi, an ongoing armed conflict might seriously threaten the personal
safety of nationals returning to the country. Re-registration is available only
to individuals who registered under the initial Sudan Burundi TPS designation,
which ends November 2, 2002. Nationals of Sudan who are currently registered under
the TPS program must re-register during the 60-day period from August 30, 2002
through October 29, 2002. Under the extension, those who already have TPS will
be eligible to reside and work in the United States for an additional year. To
re-register for the TPS extension, an applicant must submit Form I-821, Form I-765
and two identification photographs to the local INS district office by October
29, 2002. If the applicant is only seeking to re-register for TPS, there is no
filing fee. However, all applicants who also seek an extension of employment authorization
must submit a $120 filing fee with Form I-765 by October 29, 2002.
Nationals of Sudan (or aliens having no nationality who last habitually resided
in Sudan) who previously have not applied for TPS may be eligible to apply under
late initial registration provisions.
The
Federal Register published on September 6, designated Iran, Iraq, Libya, Sudan
and Syria as countries whose nationals and citizens are subject to the special
registration requirements of the final regulation published on August 12, 2002.
Arriving nonimmigrants whoare citizens or nationals of those countries will be
required to fingerprinted and photographed upon arrival in the U.S., and to comply
with the 30-day in-person registration, annual registration, and departure control
requirements of the August 12, 2002 regulations. The Notice does not appear to
subject individuals from those countries who are already in the U.S. to the registration
requirements. No details are provided as to how or where the various steps of
the special registration are to take place. Saudia Arabia and Egypt were not so
designated.
The
week before 911, the United States and Mexico were in active dialogue on providing
a new Guest Worker visa for the Mexican worker. This promised to open exciting
new ways for the two countries to regularize the historic migration relationship
between them. The two Presidents discussed making "legality" the norm -- regularizing
the status of millions of undocumented Mexican immigrants working hard, paying
taxes, and raising families in America, and providing new temporary programs for
those who wish to work in the U.S. and return home.
The events of 911 brought the U.S.-Mexico discussions to a halt as America scrambled
to address security issues and to bring to justice those responsible for the attacks.
Congress and the Bush Administration implemented a series of new laws, executive
orders, regulations, and other directives that sought to make America safer from
future attacks. Yet while these new security provisions were undertaken, the immigration
issues facing the United State and Mexico did not disappear. The need to address
these issues remains as critical as before, based on the American Immigration
Law Foundation's review of recent government data about the impact of Mexican
workers on the nation's economy. Among AILF's findings:
1. Mexican Workers Are Integral to U.S. Economic Growth. The portion of Mexican
workers in the U.S. workforce has doubled during the past decade, as they become
more integral to the nation's economic growth.
While other immigrant groups also perform these essential worker jobs, the size
of the Mexican population makes its impact on the U.S. economy more quantifiable.
2. Mexican Workers Are Filling Needed Jobs in New Geographic Areas. Mexican workers
are becoming increasingly important in locations throughout the nation not previously
known for large immigrant populations, including southern states such as Mississippi
and Tennessee.
3. New Jobs Will Not Require Advanced Education. Nearly 43 percent of all job
openings by 2010 will require only a minimal education, at a time when native-born
Americans are obtaining college degrees in record numbers and are unlikely to
accept positions requiring minimal education.
4. America's current immigration policies are antiquated and fail to recognize
the importance of Mexican workers to the national economy.
A year has now passed since the Bush-Fox visit of 2001. The nation must act to
reform immigration laws so that they give the immigration system the integrity
to keep Americans safe, while at the same time giving businesses the essential
workers they need to succeed. U.S. immigration law must provide ways for Mexican
workers to enter and remain in the U.S., in both temporary and permanent status,
with protections to assure that they have the dignity and respect they deserve,
given the important contributions they make to America. The status quo can no
longer be accepted if the United States is to remain the world's leading economy.
The
INS announced that a total of 1,064,318 persons legally immigrated to the U.S.
in FY 2001. Of that figure, 411,059 obtained their visas abroad and 653,259 adjusted
their status in the U.S.
The
Social Security Administration (SSA) has undertaken several activities that adversely
affect aliens. The most noticeable of which has been to issue “No-Match
Letters” to employers of individuals whose social security numbers do not
match the name the SSA has for that number. The sheer volume
of no-match employees, although not entirely related to undocumented workers,
is a symptom of an immigration system that is not responsive to current economic
realities.
No-Match Letters: The SSA annually reviews W-2 forms and credits social security
earnings to workers. If a name or a Social Security Number (SSN) on a W-2 form
does not match SSA records, the Social Security earnings go into a suspense file
while the SSA works to resolve discrepancies. In recent years, the SSA has been
unable to match employee information with SSA records for 6-7 million workers
a year. SSA has deposited $280 billion dollars in the earnings suspense file as
a result of the cumulative effect of these no-matches. Previously, the SSA would
send no-match letters to employers when information submitted for at least 10%
of their employees did not match SSA records. Until 2000, that system resulted
in about 40,000 letters sent annually to employers. In 2001, that number jumped
to 110,000 letters, with 1 in 60 employers receiving no-match letters. Starting
in 2002, the SSA changed its criteria. An employer now receives a letter as long
as one employee’s information does not match the SSA’s records. This
change in practice has resulted in the SSA issuing 800,000 letters, the equivalent
of 1 in 8 employers receiving these letters. Roughly 7 million workers were included
on these letters.
The no-match letter employers receive explains that the employer submitted at
least one W-2 form in which a name or SSN did not match SSA records. The letter
provides a list of the names and SSNs of all employees whose records do not match
and requests that the employer provide the correct information within 60 days. It
also instructs employers that the letter, in and of itself, does not provide a
basis for taking adverse action against an employee and is not a statement about
the employee’s immigration status. Despite that language, employers have
responded to the letters with panic and uncertainty. The letters have been confused
with notification of immigration violations, with some employers immediately firing
individuals appearing on the list. Even savvy employers are very confused as to
how to respond to the letters and at the same time obey the immigrant worker protection
laws.
According to SSA, the increased production of social security no-match letters
does not reflect policy changes that have resulted from the September 11 terrorist
attacks, but rather an effort to reduce the earning suspense file and clean up
its database to prepare for the release of its new Internet based Social Security
Number Verification System (which is discussed later in this backgrounder). SSA
has reported that many of the no-matches result from typographical mistakes and
human error and that it is having the most problems with last names that are changed
or hyphenated, such as women’s names, shortened names, and compound names.
However, SSA’s push to correct its files was put into practice at about
the same time as the agency stopped issuing social security numbers to foreign
nationals who requested them in order to obtain a driver’s license. This
policy, implemented in March, has made it difficult for some immigrants to obtain
driver’s licenses, open bank accounts and use other services for which a
social security number is often required.
No matter why the no-match letters were issued, the result has been panic and
confusion in immigrant communities. Employees face varying situations, depending
on what actions their employers decide to take once they receive the no-match
letter. These actions have ranged from employees being terminated immediately
if their name appears on the no-match list, being given a limited timeframe in
which to correct the inconsistent information, to quitting if they cannot correct
the information.
Confusing the issue further is employers’ and employees’ lack of understanding
about how the no-match letters, the IRS regulations and employee protection laws
interact with one another. It is important that employees be informed that they
are able to ask for a copy of the letter and that they can consult with an attorney
or advocate group.
No-Match Letters and the IRS: Although the SSA does not have any power to enforce
its request for corrected information, the SSA is required by law to provide the
IRS with information on no-matchW-2 forms. The IRS is authorized by regulation
to fine employers $50 for each incorrectly reported social security number and
is planning to begin enforcing the regulation after it develops a program for
imposing penalties. The agency has indicated that it is currently considering
fining employers for infractions that take place in 2002 and issuing the fines
as early as 2004. However, it is unclear if it will meet this timeframe.
Until the new program is implemented, employers are still subject to the current
regulations that impose penalties if incorrect information is submitted to the
IRS. These regulations provide waivers from penalties if the employer acts in
a responsible manner and if the events of noncompliance are beyond the employer’s
control. As currently interpreted by an IRS representative, the regulations carve
out a number of safe harbors for employers:
If less than ½ of 1%, or less than 10, of the W-2 forms issued by a single employer
do not match SSA records, the IRS will not assess penalties against the employer.
The IRS will not fine an employer for incorrect information on the W-2 forms if
they are based on a duly executed W-4 form and the employer has shown due diligence
in trying to obtain the correct information. Due diligence may be shown if the
employer solicits correct information from the employee by requesting that he
fill out a new W-4 form. Documentation kept in the employer’s files of this
solicitation should insulate the employer from liability even if the employee
doesn’t provide the correct information. If the employer does not receive
the corrected information from a particular employee, he must re-solicit the information
in each succeeding tax year until he receives the correct information.
Once the Social Security Number Verification System (SSNVS) (see below) is operational,
employers will be able to verify an employee’s social security number via
the Internet. The IRS is not requiring that employers use this system, but it
will be considered within the context of due diligence. An IRS representative
has indicated that discontinued use of the system could be a factor in determining
that the employer has not satisfied the threshold of due diligence. It is unclear
how these safe harbors will change once the IRS develops its new plan.
Social Security Number Verification System (SSNVS): The SSNVS is an Internet based
system
that enables employers to verify that an employee’s social security number
is correct. Currently, the system has been implemented as a pilot program for
a small group of employers. The Social Security Administration has proposed broader
access to the SSNVS. It remains unclear how the system would comply with the anti-discrimination
provisions of the Immigration Reform and Control Act of 1986 (IRCA), safeguard
employee’s information from unauthorized verifications and prohibit employers
from targeting select groups for scrutiny.
Information Sharing with the INS: According to SSA and IRS representatives, neither
agency is
currently sharing detailed information with the INS. The only information that
the SSA shares with the INS is information relevant to investigations between
the two agencies and an annual review, required by law, of earnings reported for
Social Security numbers that were assigned for purposes other than employment.
The SSA is considering a program whereby it would share more information with
the INS and possibly grant the INS authority to issue social security numbers
(much like a hospital’s authority to issue a social security card to new
born infants). The IRS indicates that it does not share any information on no-match
letters with any agency, but the new IRS program currently under development would
include meetings with the INS.
RICCO
APPLIES AGAINST EMPLOYERS OF ILLEGAL ALIENS
The Ninth Circuit found a RICCO claim can lie against an employer of illegal aliens.
Olivia Mendoza and a number of other people, all legal immigrants, sued their
employers, two agricultural companies in Washington State, claiming that the companies
conspired to depress wages by hiring undocumented aliens. The district court dismissed
the complaint, finding that the Racketeer Influenced and Corrupt Organizations
Act (RICO) did not provide a basis for the suit. The Ninth Circuit reversed, and
reinstated the complaint, allowing it to go forward. According to the court, the
plaintiffs were entitled to pursue a remedy under RICO. RICO allows “any
person injured” by actions prohibited by RICO to sue for damages, in this
case, the alleged difference between the wages paid and the wages that would have
been paid if undocumented workers had not been hired. While acknowledging that
there could be other causes for the wages paid, the court found that this was
properly an issue for trial, and not a basis for the dismissal of the complaint.
Mendoza v. Zirkle Fruit Co., Ninth Circuit
The
Bush Administration supports placing all of our immigration functions and visa
processing within the largest division of the proposed Department of Homeland
Security - -the division of Border and Transportation Security. (Along with immigration,
this division also would include Customs, the Coast Guard, Federal Protective
Services, the Transportation Security Administration, and the Animal, Plant, and
Health Inspection Service.) We question whether this is prudent. The INS is already
a large and unwieldy bureaucracy, placing it in a governmental division with so
many other concerns is not likely, in our view, to result in dynamic efficiency,
but stagnation.
The Administration also supports placing the EOIR within the new department. We
think this is a bad idea. We think transferring the immigration courts to Homeland
Security threatens due process, will decrease accountability, and reduce public
confidence in the decisions reached. We would support the creation of an independent
agency so that our immigration courts are impartial. Such a separation would allow
for meaningful checks and balances. We also oppose including visa processing within
the authority of the new department. This function is best left at the State Department.
Dividing policy and process will result in chaos and dysfunction.
Congress will return from its summer recess in early September, with Homeland
Security legislation expected to take center stage for the entire month of September.
The House passed its version of the Homeland Security bill (H.R. 5005) prior to
recess, while the Senate is expected to vote on a bill in September, with debate
on this measure beginning when the Senate reconvenes.
H.R. 5005 splits up the INS, with services remaining in Justice and enforcement
and inspections going into the Homeland Security Department. H.R. 5005 also moves
the care and custody of children to the Office of Refugee Resettlement (ORR),
creates a civil rights office as well as an Inspector General (IG), and moves
visa processing policy into Homeland Security, with State issuing the visas. Finally,
H.R. 5005 explicitly rejects national, uniform standards for driver’s licenses,
thereby putting the brakes on plans to turn state driver’s licenses into
a de facto national ID card.
Policy guidance and legal opinions will come from Homeland Security, and the lack
of coordination between services, and enforcement will harm both functions. We
support the provisions in the House bill that move the care and custody of children
to ORR, the creation of a civil rights office, and the rejection of a de facto
national ID card.
The Senate Governmental Affairs Committee marked-up its version of Homeland Security
legislation (S. 2452) on July 26, just before the summer recess, and the full
Senate is expected to take up the bill in September. We support the immigration
provisions in S.2452, as passed by the Committee. The bill maintains immigration
functions together in a fifth division and incorporates S. 2444, the bipartisan
Senate bill to reorganize the immigration system, as the model by which to structure
immigration functions. The bill also moves the care and custody of children out
of the INS and into the ORR, creates a Civil Rights office and an Inspector General,
and also creates within the Department of Justice the Agency for Immigration Hearings
and Appeals that would include the Board of Immigration Appeals.
The Bush Administration opposes the immigration provisions in S. 2452, along with
other provisions in the bill. We expect we will be unhappy with the results.
In
an effort to keep American families together, the House Judiciary Committee, on
July 23, passed an amended version of the bipartisan Family Reunification Act
(H.R. 1452). The Act would restore a limited measure of fairness to the harsh
1996 laws that have torn apart thousands of American families and stripped long-term
legal immigrants of their basic rights. This measure offers an important down
payment on the need to reestablish the right to a day in court and restores some
measure of fairness to our immigration laws. The Family Reunification Act would
provide a limited opportunity for certain long-term legal permanent residents
to ask a judge to consider the facts of their case before deciding whether to
deport them from the United States.
The Committee-approved bill includes an amendment by Representative Darrell Issa
that would provide the Attorney General or his Deputy with the sole discretion
to grant cancellation of removal based upon the expanded grounds of eligibility
contained in the bill. The amendment also includes a sunset provision that would
expire in 2005, or three years after the promulgation of final regulations, whichever
is later
NORTH
KOREANS GRANTED US ASYLUM
Two defectors from North Korea who were apprehended when they attempted to enter
the US from Mexico in April were granted asylum. Officials say it is the first
time that anyone from North Korea has been granted asylum in the US.
RWANDAN DENIED ADMISSION FOR GENOCIDE CRIMES
The INS recently announced that it would attempt to deny admission to a citizen
of Rwanda on the ground that he had participated in genocide. Enos Iragaba Kagaba
attempted to enter the US unlawfully last December and was in removal proceedings
when the government added the genocide claim. It is the first time the INS has
ever used genocide as the basis for denying admission.
PALESTINIAN CHILDREN STARVING
The Middle East Times comments on a US-financed assessment of the overall malnutrition
level among Palestinian children, released in August by the US Agency for International
Development (USAID), that found that 20 percent of Palestinian children under
the age of five now suffer from chronic or acute malnutrition.
JORDANIAN MURDERED IN HONOR KILLING: RELATIVES CELEBRATE
The Middle East Times reports that a Jordanian youth murdered his sister after
learning that she got pregnant before marriage. Suwad Mahmoud, 24, was strangled
by her 20-year-old brother with a telephone cord on Sunday. The brother, whose
name was not given, was later arrested. Mahmoud married her neighbor in July after
her family discovered that she had had a sexual relationship with him. Later,
the family learned that she was already pregnant. After the murder, Mahmoud's
mother began ululating, and her uncles offered their neighbors and friends sweets
to celebrate. Mahmoud is the ninth woman reportedly killed in an honor crime in
Jordan since the beginning of the year. According to official figures, an average
of 20 women are killed in honor crimes each year in Jordan.
UN HIGH COMMISSIONER QUESTIONS US-CANADIAN PACT
The UN refugee agency raises some questions over a bilateral "safe third country"
agreement that would require claimants to seek asylum in the first of the two
countries they reach. The proposed deal, says UNHCR, could encourage people-smuggling,
or cause a backlog of applicants waiting at the border for a decision.
AFGHANISTAN LARGEST REPATRIATION EFFORT SINCE 1972
The last six months have seen the largest single refugee repatriation since 1972,
with total returns to Afghanistan currently standing at more than 1.63 million
people. If we add the estimates of spontaneous returns since late 2001, more than
1.9 million Afghans have gone home. In 1972, more than 9.8 million Bengalis who
had earlier fled East Pakistan returned to Bangladesh.
NURSES RELEASED IN LIBERIA
After weeks of negotiations, UNHCR yesterday secured the release of five NGO nurses
abducted by Liberian rebels on June 20. They were handed over to UNHCR staff late
afternoon September 2, 2002 at the Liberia-Guinea border and are now safe in the
southern Guinea town of Nzerekore.
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