Immigration Law Advisory

  The Immigration Law Advisory summarizes legal developments of interest to our organization clients and friends of the firm.  It is published on a periodic basis as developments warrant.

By:       Lynda Zengerle and Joan Claxton

I.                    New legislation targets immigrants, asylees in “terror war”

            On 10 February 2005 , the U.S. House of Representatives approved the Real ID Act.  One provision of the act requires that states demand proof of legal immigration status in the US from anyone seeking a driver’s license.  At present, 11 states issue licenses without requiring proof of legal residency, and a number of others are considering granting them to undocumented immigrants, rather than forcing millions of people to drive illegally and without accident insurance.  The Real ID Act would force these states to amend their drivers license laws and require all ID cards to include a digital photograph, anti-counterfeiting features and "machine-readable" technology, which could include a magnetic strip or RFID (radio frequency identification) tag. 

            In addition, the Real ID Act raises the standard for asylum applicants and compels them to bear an extraordinary burden of proof to establish their right to asylum.  Applicants would be required to produce corroborative evidence of their claims of persecution, and even then would have to prove that the central reason for their persecution was either their race, religion or political beliefs.

            The bill further expands the arbitrary power of immigration officers and judges to reject asylum claims on entirely subjective grounds.  Asylum could be denied because of an adverse credibility determination based solely on an assessment of the “demeanor” of applicants, meaning that these officials could send people back to be murdered, tortured or imprisoned just because they didn’t like the look on an asylum applicant’s face or the tone of his or her voice.

            The proposed legislation has not yet reached the U.S. Senate.

II.         U.S. small businesses are in crisis!

            Small businesses from a wide range of industries use the H-2B visa program to bring short-term seasonal workers to the U.S. to augment their American workforce.  This year, many employers will be unable to fill thousands of temporary positions which U.S. workers often are unwilling to fill, because the annual cap limiting the number of H-2B visas was reached on January 3, 2005 , only three months into the current fiscal year.  The H-2B visa program is capped at 66,000 visas per year.

            A variety of factors have hampered U.S. employers' ability to find and hire willing U.S. workers for short-term positions, including increasing education levels of the U.S. workforce, and increases in summer internships and office jobs for college students. Shortages in certain sectors of our economy are getting worse and the demand for workers to fill service-sector jobs is increasing.  In some cases, Americans are unwilling to engage in low-skilled and semi-skilled short-term seasonal employment.  In other case, many Americans are unwilling to relocate to a new location for several months out of the year, a move required by many of these short-term seasonal jobs.

            Unless Congress acts quickly and addresses this issue early in the 109th session to increase access to this visa program, thousands of positions, for which there are no U.S. workers available, will go unfilled.  Consequently, many U.S. small businesses will be forced to limit their services or close their doors - some for good.

            On January 27, 2005, CIS issued a proposed rule which would make significant changes to the process by which employers file petitions for H-2B workers, including requiring electronic filing of petitions and, in most cases, eliminating the need for employers to obtain certification from the Department of Labor prior to filing a petition that no qualified U.S. workers were available.  The proposed rule does not change the statutory cap on H-2B visas.  CIS has extended the public comment period on the proposed rule until March 30, 2005 .

For more information on this topic, please contact the authors or the attorneys with whom you usually work at Steptoe. 

For more information about Steptoe & Johnson, visit us at http://www.steptoe.com.

Questions and comments about the Immigration Law Advisory are always welcome and should be sent to lzengerle@steptoe.com or jclaxton@steptoe.com.

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