Volume Three, Number Nine

SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.

Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0.

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Newsletter US Immigration September 1998 contains the following topics:

Table of Contents

• 1. September 1998 State Department Visa Bulletin
• 2. Immigration Government Processing Times
• 3. H-1B Update: September 15th is National H-1B Call-In Day!
• 4. National Interest Waivers: Recent INS Decision Renders Outlook Gloomy
• 5. Investors: Four New Decisions from the Board of Immigration Appeals
• 6. Immigration Trivia Quiz: Home Run King from the Dominican Republic
• 7. Physicians: USIA Letter Helps Some IMG’s Remain in Legal Status Despite Absence of H-1Bs
• 8. Court of Appeal’s Decision Assures Immigrants of their Day in Court
• 9. Human Resource Directors: The Employer Sanctions Database
• 10. Answer to Immigration Trivia Quiz

Newsletter US Immigration September 1998 News Flashes:

• • Reminder – INS fee increases are effective on October 13, 1998. To see complete list, click on

    http://www.shusterman.com/fees.html

(Link no longer operational)

• Temporary Protected Status has been extended for certain nationals of Bosnia-Hercegovina until August 10, 1999 and certain nationals of Montserrat until August 27, 1999.

1. September 1998 State Department Visa Bulletin

On August 11, 1998, we posted the September 1998 Visa Bulletin, the same day that the State Department posted the dates on their web site.

For the worldwide Family categories, it was the best of times and the worst of times. The first preference (unmarried adult sons and daughters of U.S. citizens) moved forward nine weeks while the Mexican third preference (married sons and daughters of U.S. citizens) advanced seven weeks and the Mexican fourth preference (brothers and sisters of U.S. citizens) advanced six weeks.

For most of the other Family categories, the gain was four weeks or less. The bad news was that the worldwide fourth preference category, in order to stay within the yearly numerical limit, regressed seven weeks. This category will doubtlessly advance come October.

Most of the Employment categories remain ‘current’ (no backlogs). The unskilled workers category advanced one month to February 1, 1992.

Confounding State Department predictions, the mainland China Employment-based first, second, and third categories sprinted ahead four months, two months and almost five months, respectively. The State Department noted that the investor category (EB-5) for mainland-born Chinese could become “unavailable” starting in October 1998.

The news was mixed for Indian nationals, for whom the second category moved forward three months to May 1, 1997 while the third category stayed put at December 1, 1995.

Section 203(c) of the Immigration and Nationality Act provides 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,850 visas (7% of the 55,000 visa limit) may be provided to immigrants from any one country. For September, immigrant numbers in the DV category are available to qualified DV-98 applicants chargeable to all regions/eligible countries on a “CURRENT” basis. Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-98 program ends as of September 30, 1998. DV visas may not be issued to DV-98 applicants after that date. Similarly, spouses and children accompanying or following to join DV-98 principals are only entitled to derivative DV status until September 30, 1998. DV visa availability through the very end of FY-1998 cannot be taken for granted. Numbers could be exhausted prior to September 30. Once all numbers provided by law for the DV-98 program have been used, no further issuances will be possible.

For an explanation of what the categories, dates and symbols listed below mean, see

http://www.shusterman.com/greencardsthroughrelatives.html

and

http://www.shusterman.com/greencardsthroughemployment/

For the State Department’s official version, complete with information about the movement of family, employment and lottery numbers, see

http://travel.state.gov/visa_bulletin.html (Link is no longer operational.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	5-22-97	5-22-97	5-22-97	8-01-93	3-15-87
2A	3-08-94	3-08-94	3-08-94	4-01-93	3-08-94
2B	1-01-92	1-01-92	1-01-92	7-01-91	1-01-92
3rd	2-22-95	2-22-95	2-22-95	1-15-90	3-01-87
4th	1-22-88	1-22-88	3-08-86	8-01-87	6-22-7

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	11-01-97	Current	Current	Current
2nd	Current	5-08-96	5-01-97	Current	Current
3rd	Current	9-01-94	12-01-95	Current	Current
Unskilled	2-01-92	2-01-92	2-01-92	2-01-92	2-01-92
4td	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

2. Immigration Government Processing Times

We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.

Read more…

3. H-1B Update: September 15th is National H-1B Call-In Day!

As far as the H-1B legislation is concerned, this is do-or-die time. Please heed the advice of the American Immigration Lawyers Association and take the following action immediately: It is important that you call your Representatives urging them to support H.R. 3736 (the compromise H-1B bill), oppose the Watt Substitute, and oppose a motion to recommit (which would kill the bill by sending it back to committee). The Congressional switchboard number is 202-224-3121. You also can e-mail your message to Congress. According to House Leadership, H.R.3736 should be brought to the floor the week of September 14th. It is now “crunch time” and we need your help to ensure that this legislation passes the House by a wide margin. We need a strong vote in the House of Representatives to send a signal of broad support to Congress and, more importantly, to the White House, which has threatened a veto.

When you call, please stress the following:

I. H-1B workers are critical to the continued growth and success of both individual companies as well as the business and nonprofit sectors. H.R.3736 is a good deal for America.

The arbitrarily set cap has had an adverse impact on companies and communities, and severely restricts America’s ability to compete in a global economy by preventing companies from hiring the “best and the brightest.” Cite specific examples of the continued adverse impact the cap will have if it is not raised.

This legislation must be passed NOW! The problem will only get worse. INS sources indicate that as many as 38,000 applications already may be approved or are pending for FY 1999. Thus, the cap for FY 99 could be reached as early as December 1998.

Support H.R.3736 and oppose the Watt substitute and a motion to recommit. Votes for the Watt substitute and/or a motion to recommit are votes against the H-1B program.

The September 15 National Call-In Day offers us the opportunity to join with advocates nationwide in support of H.R. 3736. This is our chance to persuade Representatives to support H.R. 3736. H.R.3736 increases the cap on H-1B professionals and, to generate bipartisan support, includes worker protections and new funding for college scholarships and training for American workers. It is the only H-1B bill Congress will debate this session, and thus demands support.

Opposition to this compromise bill has coalesced around the “Watt Substitute,” named after Representative Mel Watt (D-NC). The Watt Substitute is more restrictive than the H.R.3736 compromise. Not only are the attestations in the substitute unworkable, but the Watt substitute would: increase the visa numbers for only two years; limit the period of stay of new H-1B professionals to four years; and take increased H-1B visas from the H-2B category. It is imperative that you contact your Representatives on National Call-In Day, Tuesday, September 15. The Congressional Switchboard number is 202-224-3121. Urge your Representatives to support H.R.3736, and oppose the Watt Substitute and any motion to recommit.

What to do about your own screwed-up H-1B petition? Before you do anything, read INS’s latest thoughts on this matter at

http://www.shusterman.com/h1b898.html (Link no longer operational)

4. National Interest Waivers: Recent INS Decision Renders Outlook Gloomy

Remember the old saying: “The only thing worse than not getting what you wish for is getting it”? Ever since the enactment of the Immigration Act of 1990, attorneys and other interested parties have been asking the INS for a definition of what constitutes a “National Interest Waiver” (NIW).

INS refused, and as a result, a period of creative chaos ensued. The INS approved thousands of extremely talented scientists, artists, researchers, etc. See

http://www.shusterman.com/nationalinterestwaivers.html

But, according to a front page article in the August 20, 1998 issue of the Wall Street Journal, other persons, some with more unusual occupations, were also approved: a golf course designer, a ballroom dancer, and an ethnic drum maker. Whether the ability of these people to remain in the U.S. is in the national interest is debatable, but there is little doubt that they make our nation more interesting.

On August 7, 1998, the INS made an attempt to create order out of this chaos when it established as a binding precedent, the case of Matter of New York State Department of Transportation. The case concerns an engineer who helps design bridges in New York to make them safer. The INS rejected his application. However, in doing so, it established three new rules, none of which can be found in the law, the regulations or in the legislative history of the 1990 law that created the national interest waiver.

The new rules are as follows:

A. It must be shown that the alien seeks employment in an “area of substantial intrinsic merit”.

B. It must show that the proposed benefit is “national in scope”.

C. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.

It is the second and especially the third rule that have potential immigrants and their employers gnashing their teeth.

With regard to the third, the labor certification process is a two-to-three year American version of the Chinese water torture. Employers are forced to recruit for jobs which are, for the most part, already filled by foreign-born nationals, and should even a minimally-qualified U.S. worker apply, the application is denied. For a detailed explanation of the labor certification process, warts and all, see

http://www.shusterman.com/recruitinginternationaltalent.html

With regard to rule number two: what’s wrong with asking applicants for national interest waivers to demonstrate that the benefits of their working in the U.S. be “national in scope”?

Consider this example: Every year, several hundred Canadian primary care physicians head south to the U.S. to work in government-designated underserved areas. In an ironic twist, Canadian physicians can obtain licenses by reciprocity in over 40 states, yet they can not qualify for H-1B status because the Secretary of Health and Human Resources (HHS) — the same department which publishes the list of underserved areas — requires them to also take the U.S. licensing exams that most states exempt them from! Fortunately, since they are working in HHS-designated medically underserved areas, the INS routinely grants such physicians national interest waivers. This allows them to start treating U.S. patients in under one year avoiding the three year wait to obtain a labor certification.

Yet during the past few months, many INS examiners have denied NIWs to Canadian physicians working in underserved areas stating that NIWs should not be used to alleviate a local labor shortage. Matter of New York Department of Transportation provides these examiners with additional ammunition to use against foreign-born physicians, and U.S. patients who live in rural and inner-city neighborhoods, thereby defeating the National Interest.

To read the new decision and an article describing alternatives for NIW applicants, see

http://www.shusterman.com/insdecisionrestrictingniw1998.html

5. Investors: Four New Decisions from the Board of Immigration Appeals

As with national interest waivers (See topic #3), the INS, eight years after the enactment of the Immigration Act of 1990, has finally issued a number of precedent decisions strictly interpreting the law as it applies to immigrant investors. For a discussion of the immigrant investor category, sometimes referred as the “Million Dollar Club”, and links to each of the new decisions, see

http://www.shusterman.com/investorsusimmigration/

Below are brief summaries of the new decisions:

A. Matter of Soffici – This petition was originally approved by INS’s Texas Service Center before being denied by Associate Commissioner, Examinations. The petitioner established a management company which does business as a Howard Johnson’s Motor Lodge in Florida. The funds “invested” in the company were actually a loan, and as such cannot qualify as an investment of capital as required for the approval of an investor petition. In addition, the Associate Commissioner found the petition inadequate in that an investment of $1 million, not $500,000, was required. The documentation that the hotel was located in a “rural” area was out-of-date. The funds were taken from a joint father-son account and, therefore, can not be attributed only to one person. The source of these funds was not properly documented. There was no documentation submitted to establish that the hotel was a “new commercial enterprise” since the Howard Johnson’s had been in business for 24 years. Although the hotel employs about 20 workers, the petitioner failed to show that he created additional jobs for U.S. workers.

B. Matter of Izumii – This petition was denied both by the Texas Service Center and by the Associate Commissioner. It involves what appears to be a bitterly contested case between the attorneys representing both “American Export Partners, LLC” (AEP) and its general partner “American Export Limited Partnership” (AELP), and the INS. The case elicited both oral argument and voluminous written briefs. According to AELP’s attorneys, both the Texas and the Vermont Service Center’s had, over a period of time, approved virtually identical AELP investor petitions over a period of time.

Although the facts are complex, it appears both AEP and AELP are located in an INS-designated “regional center” in Charleston, South Carolina. AELP, established a subsidiary which extends commercial credit to small export companies located in the southeastern U.S. The credit company has extended or purchased four loans: (1) It purchased a $780,000 loan which had been extended by a bank to a company located in Woodstock, Georgia; (2) It purchased a $380,000 loan which had been extended by the same bank to a company located in Atlanta, Georgia; (3) It extended a $200,000 loan to another company located in Atlanta, Georgia; and (4) It loaned $1,000 to a company located in Martinez, Georgia. Apparently, 95 investors have had visa petitions granted under this program. The Associate Commissioner found that since none of the loans were made to companies located in either “targeted employment areas” or “regional centers”, the minimum amount of capital needed to qualify as an investor was $1 million rather than $500,000. However, on this and virtually every other point, the attorneys for AEP/AELP and the Associate Commissioner disagree over the meaning and the precedential value of a series of letters from INS officials and unpublished decisions by INS’s Administrative Appeals Unit (AAU). A careful and complete reading of Matter of Izumii is required to understand the details of these disagreements.

The petitioner was required to make a $500,000 investment in the form of a promissory note. The note provides that an initial deposit of $120,000 be made into an escrow account, to be released to the partnership upon approval of an immigrant visa, five annual payments of $18,000, and a final balloon payment of $290,000.

Ultimately, the Associate Commissioner denied the petition citing the following additional grounds: (1) Since a visa petition must establish eligibility at the time that it is filed, the petitioner may not make material changes to his petition in order to make it conform with legal requirements after the petition has been submitted to the INS; (2) The capital must be made available to the business or businesses which create the jobs; (3) The petitioner may not receive guaranteed payments from the business while he still owes money to the business; (4) The petitioner may not enter into a “redemption agreement” with the business before the end of the two-year period of conditional residence. Here, the Associate Commissioner questioned whether the final $290,000 payment was “at risk” since the petitioner was given the option to sell his interest in the investment and receive the $290,000 in return. The Associate Commissioner either quoted or paraphrased (it is not clear which) a portion of the oral argument of one of the petitioner’s attorneys:

“Potential alien investors are not going to make this investment under any circumstances, unless they get a green card. If anybody even suggests that this is a wonderful investment and they’re going to make it without getting lawful permanent residence, they’re lying and they’re crazy; they’re brain-damaged, all right?”

Later in the opinion, the Associate Commissioner states, “This is conceptionally no different from a situation in which an alien marries a U.S. citizen and states, in writing, that he will divorce her in two years. The focus here is on the green card and not on the business…His (counsel’s) primary concern is obtaining permanent resident status for as little money as possible.”; and (5) The promissory note must be fully payable within two years since this is the period designated by law for removal of conditions to full permanent residence. The decision states that “if the instant petition were to be approved, the petitioner would have paid at most $123,600 of his own funds at the time he sought removal of the conditions of his permanent resident status. This …hardly evidences a good faith commitment of funds.”

Additional grounds for denial can be found in the decision itself.

C. Matter of Hsiung – This petition was denied by both the Nebraska Service Center and the Associate Commissioner. The petitioner is one of 14 “investors” (quotations supplied by the Associate Commissioner) in Imedix, Inc., a corporation established in 1997 for the purpose of structuring, purchasing, reorganizing and upgrading health care facilities in targeted areas of the U.S. No clinics have yet been acquired, but the petitioner estimates that 27 clinics will employ approximately 194 employees.

The petition was denied by the district director because the “petitioner had failed to make an active, at-risk investment in that the project was not even in the start-up phase”. The Associate Commissioner found that the petitioner had not established what assets were securing the promissory note, and whether these assets, presumably located abroad, were fully amenable to seizure by a U.S. note holder. Even if it were assumed that the note constituted “capital” under the law, the petitioner failed to establish that the fair market value of these assets equaled $500,000.

D. Matter of Ho – This petition was approved by the California Service Center, but denied by the Associate Commissioner. In 1997, King’s Wheel Corp. was established in California. It is located in the City of Compton, a targeted employment area. The visa petition was denied because the sum total of activity in support of the petition was (1) the transfer of $515,000 to an “unidentified” corporate business account in the U.S.; (2) the business account was credited the one million authorized shares of King’s Wheel, apparently in exchange for $500,000; and (3) Only two I-9s and a four-page business plan were provided to the INS.

There is no indication that King’s Wheel had commenced doing business, the source of capital was unclear, no verification that two persons mentioned in the I-9’s was provided; and the business plan consisted mainly of conclusionary assertions. The decision explains the requisites for an acceptable business plan, and states that “no astute investor would place half a million or a million dollars into a business that he had not thoroughly researched”.

All in all, these four decisions provide considerable insight into the INS’s standards for adjudicating visa petitions based on investments. After reading the Associate Commissioner’s decisions in Matter of Soffici and Matter of Ho, it is unclear how the Center Services in question could have approved these visa petitions in the first place.

One wonders why it took the INS almost eight years to designate precedent decisions in this complex area of law. It is no secret that at least two companies have been openly marketing their services to investors for several years, promising to secure investor visas where the amount of the investment would not exceed $125,000. These companies assured investors that despite the low amount, the investment scheme had been approved by the INS. Our law firm declined to participate in such ventures on the theory that “if it seems too good to be true, it probably is!”

We are troubled by the Associate Commissioner’s statement in Matter of Izumii that “OGC (Office of the INS General Counsel), memoranda…are merely opinions. OGC is not an adjudicative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommendations. See 8 C.F.R. 103.1(b)(1).”

In a more perfect world, the INS would issue regulations to implement new laws within a few months after their enactment. However, in reality, it often takes the INS years to issue such regulations. In the meantime, immigrants and their attorneys are forced to rely on opinions issued by INS officials, particularly those from the Office of the General Counsel, in advising their clients. For example, in the nearly two years since the enactment of IIRAIRA on September 30, 1996, INS has failed to even propose regulations regarding what constitutes “unlawful presence” for the purpose of implementing the three and ten year bars of inadmissibility. Thousands of persons rely on detailed opinions promulgated by the OGC. Matter of Izumii indicates that the faith being accorded to the highest legal advisor in the INS may be misplaced. This is an extremely troubling interpretation of the significance of OGC memoranda.

6. Immigration Trivia Quiz: Home Run King from the Dominican Republic

When I was in Europe at the time of the World Cup, someone asked me why we have a “World Series” and don’t invite teams from outside the U.S. to participate. Rather than split hairs by explaining that the Blue Jays and Expos are actually based in Canada, I came up with what I thought was a better answer. I told the questioner about watching Mexican-born Fernando Valenzuela pitching for the Dodgers in the World Series. I explained that since the U.S. is a nation of immigrants, the U.S. teams, in their desire to win ball games always sign the best players in the world. Now, the major leagues have players from Asia, from the Caribbean, and from various countries around the world.

Even right-wing columnist Pat Buchanan, who wants the government to step in to tell Intel and Microsoft how many foreign-born (and usually U.S.-trained) computer programmers they may hire, would never dream of proposing that the Federal Government tell the Cubs who to hire.

By the way, what’s the name of that Cub outfielder who is attracting a lot of attention this year? And who among us native Americans is more qualified for his job, Pat? Some American ballplayer could take over his position in the Cub’s line-up, and make several million dollars each year, right?

See the answer in Topic #10

7. Physicians: USIA Letter Helps Some IMG’s Remain in Legal Status Despite Absence of H-1Bs

Many U.S. industries, occupational groups and populations have suffered because of the effect of the H-1B cap. By reading articles in the press and listening to the debates inside the Beltway, one would think that only the high tech industry has been affected.

There is a tremendous maldistribution of physicians in the U.S. Most U.S. graduates prefer to specialize and to work in upscale urban areas. This creates a shortage of physicians in rural and inner city areas. Primary care physicians are also in short supply.

Immigration laws permit physicians educated in foreign medical schools to remain in the U.S. rather than returning to their native countries if they work in medically underserved areas in the U.S. in H-1B status for a minimum of three years and are sponsored by an interested federal government agencies or a state department of health. This sponsorship must also be approved by the U.S. Immigration Agency and the Immigration Service.

When the H-1B cap was reached in early May, many foreign-trained physicians who had qualified for J waivers were unable to work because of a lack of H-1B visas. Fortunately, Les Jin, the General Counsel of the USIA, came up with an innovative way to restore some of these physicians to J-1 status while they awaited the reopening of the H-1B category on October 1.

The policy applies only to a limited group of physicians: those who have obtained J waivers and have registered to take the examination required for certification by a member board of the American Board of Medical Specialties (ABMS).

For a more complete explanation of the USIA’s policy, see Mr. Jin’s letter to the ECFMG at

http://www.shusterman.com/physiciansusia-h1bcap.html

8. Court of Appeal’s Decision Assures Immigrants of their Day in Court

Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), it has been unclear whether a decision by the Board of Immigration Appeals, an agency of the Department of Justice, to deport a person from the U.S. is always subject to review by the Federal Courts.

On August 12, 1997, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled unanimously that “elimination of all judicial review of executive detention violates the Constitution”. In the case of Magana-Pizano v. INS, the Court ruled that where a person “is in custody in violation of the Constitution or laws or treaties of the United States”, he is entitled to habeas corpus relief.

“The court has found that the U.S. Constitution does not permit the attorney general or the INS to be judge, jury and prosecutor in a deportation case,” stated Lucas Guttentag of the American Civil Liberties Union Foundation.

This holding answers one of the simple questions that INS Naturalization Examiners routinely ask prospective citizens, “What is the highest law of the land?”. The answer is, of course, the Constitution. Whenever the Congress and the President enact a law that violates the Constitution, it is the responsibility of the Courts, in the context of a case which brings the issue to their attention, to strike down the law as unconstitutional.

The Court ruled that neither IIRAIRA nor the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) affect the ancient writ of habeas corpus as implicitly guaranteed by the Constitution or as codified by statute at 28 U.S.C. 2241.

The Writ of Habeas Corpus originated in early 17th Century England, where it was called the “most celebrated writ of the English law” by William Blackstone in his Commentaries. The writ was used in England to challenge detention by the King. The U.S. Constitution provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Court in Magana-Pizano ruled that IIRAIRA violated the Constitution’s Suspension Clause.

The Court cited cases dating back to the 1880’s where the writ of habeas corpus was used to challenge the provisions of the Chinese Exclusion Act of 1882. One judge alone heard an estimated 7,000 Chinese habeas petitions between 1882 and 1890.

In order to standardize the process and minimize unnecessary petitions for writs of habeas corpus, in 1961, Congress passed amendments to the immigration law which provided that all appeals from deportation cases decided by the Board of Immigration Appeals would be decided by the U.S. Courts of Appeals. This insured a greater degree of uniformity of decisions and increased judicial efficiency. With the passage of IIRAIRA, the Congress took a giant step backwards. Those cases, like Magana-Pizano’s, for which the law prohibits a direct appeal to a U.S. Court of Appeals, must first be challenged in a U.S. District Court by petitioning for a Writ of Habeas Corpus. Only after the District Court has rendered a decision may the case be appealed to the U.S. Court of Appeals and ultimately to the Supreme Court of the United States.

Magana-Pizano v. INS stands for the proposition that the Congress can not enact a law in which Justice Department is allowed to decide deportation cases which violate the Constitution or the laws without being subject to the review of the Federal Courts. The case upholds the supremacy of the Constitution, and is an important victory both for the doctrine of Separation of Powers and for individual liberty.

To read the text of Magana-Pizano v. INS, see

http://www.shusterman.com

click on “Immigration Courts” and again on “Important Federal Court Decision: Magana-Pizano v. INS (9-1-98)”.

9. Human Resource Directors: The Employer Sanctions Database (8-14-98)

The Employer Sanctions Database was added to the Web Site of the restrictionist immigration organization, the Center for Immigration Studies (CIS). The following is an explanation of the database provided by CIS’s Executive Director, Mark Krikorian:

In 1986, Congress finally prohibited the employment of illegal aliens. However, it failed to make the policy workable by providing for a quick and easy way for employers to verify the eligibility of new hires to work in the United States. This failure has given rise to a flourishing trade in fraudulent documents and widespread flouting of the law, as new hires present a bewildering variety of identification and work-authorization cards. Most employers caught employing illegal aliens simply claim that the documents the aliens used to prove their legal status looked real enough to them.

Even with these limitations, however, the Immigration and Naturalization Service (INS) has issued thousands of fines to companies which have intentionally broken the law. To facilitate identification of these rogue employers the Center for Immigration Studies has developed the Employer Sanctions Database

http://www.cis.org/search.html (Link no longer operational)

which includes fines for the knowing hire or continuing employment of illegal aliens. Violations for improper record keeping are not included.

The information goes back only to 1989; before that time, records were kept separately in each INS district office, and there hadn’t been much enforcement yet in any case. The database will be periodically updated with information obtained from the INS through the Freedom of Information Act. The database currently includes fines issued through September 1997.

In addition to the name and address of the businesses cited, the database reports the number of violations, the total amount assessed in the original Notice of Intent to Fine (NIF), and the total amount collected (which is often less than the original fine after negotiations between the employer and the INS).

The database’s search engine allows considerable flexibility; to conduct a search go to

http://www.cis.org/search.html (Link no longer operational)

and enter at least one of the following: business name, city, state, ZIP code, or date range of the fine. Business names may be partial; for instance, searching for “farm” will yield 80 listings, including Alantis Farms, Andrews Farm & Nursery, and Farmers Bazaar of Glen Cove.

Shusterman’s Comment: The Employer Sanctions Database may be slightly less than perfect, however. When I tried to find a record of the $260,000 fine that Disneyland paid to the INS in 1994, I could not locate any record of the fine even after typing in “Disneyland”, “Anaheim” (Don’t Mickey, Minnie, Donald Duck, Pluto, et. al. live in Anaheim?), and “1994”. Please let me know if you are able to find the fine!

Also, I found that INS fined one “Arianna Huffington” of Santa Barbara a paltry $9,985 on June 16, 1995, but that no money was ever collected by the INS. Could this information be correct?

10. Answers to Immigration Trivia Quiz

See

http://www.cubs.com/profiles/sosa.htm (Link no longer operational)

Carl Shusterman

Newsletter US Immigration September 1998 Quick Links

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September 10, 1998

Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.