Let’s Find a New Response to an Ongoing Problem

I haven’t written in a very long time. 

But today I need to.

This morning a local grassroots organization held a peaceful protest in front of the ICE office in Minnesota protesting the need for immigration reform and to try to stop the raids on workplaces and the forced separation of families.  Apparently similar protests were held around the country today.  The police arrested up to thirty of these individuals, which was probably part of the plan to get media attention on this important issue.

Within minutes I received a call in my office from a very angry woman who refused to identify herself despite my request for her to do so. 

This angry woman wanted me to tell her how to get someone deported because this person ‘deserved to be deported.’  I told her this was not what I practiced and she should call Immigration & Customs Enforcement.   I had to slowly repeat my response to her about 4-5 times because she was so wired that she couldn’t understand me.  She asked me why I wouldn’t just give her the phone number to get this person deported. 

When she hung up, I wondered immediately if this was a call from an angry spouse of a foreign national.  Over the past many years of my practice, I have witnessed many angry US citizen spouses try to get their foreign national spouses deported when the marriage goes awry, even when there are children born to the relationship.  All is not fair in love and war when one spouse is a US citizen and the other is not.  

But then I learned about the peaceful protest against ICE.   And I learned that within a few minutes of the protest being reported in the online version of the StarTribune, over 128 people commented online to the article.  

I wonder how many people commented to other local stories of interest such as the recent Petters ponzi scheme which defrauded billions of dollars. 

I started reading many of the 128 comments and soon I was nauseated by the vitriol contained in the comments.  Of course no one identified themselves by their true name.  Just as the woman who called my office this morning refused to identify herself as well.

Some people do deserve to be deported.   I agree.   But it is not that simple.   

Here is one complicating factor:  the children of foreign nationals in the United States.  I recently attended a seminar where I learned of an eight-year-old boy in Minnesota whose parents were caught up in an immigration raid last year.  This young boy, who had been doing well in school, came home from school to no parents and to his two year old brother who was all alone.  The eight-year-old took care of his little sibling for a week, doing his best to care for the child without having any one notice them.  Finally they were discovered and the county took over. 

This eight-year-old child developed PTSD, anxiety and depression and eventually failed his grade at school due to the stress placed upon him by this event.

Oh yeah, he is a US citizen.

Is this something we can bear as a nation?   

Dorsey & Whitney LLP recently presented a lengthy report to the Urban Institute entitled “Severing a Lifeline:  The Neglect of Citizen Children in America’s Immigration Enforcement Policy.”   It is painful to read. 

I profer that the treatment of children in this country should be included as part of the national discussion on immigration reform.  When people are here in the US, they get married and they have children.  Deporting people means separating families.  And if this generation of children grows up like this, what kind of society will we have down the road?  Will these abandoned children turn into productive and contributing members of American society?   How could they.     

Yet Congress lets our need for immigraton reform go on and on and on  . . . 

This is what the protesters were protesting about today.     

 

Peace,

Elizabeth

Mishmash of Good News and Interesting Stuff

I have had a very busy week in my practice but wanted to write a little something before I go home because all of it has been worth sharing.

Worth noting:

1.  The Southern Poverty Law Center, the well known civil rights organization which has tracked hate crimes and hate groups and which has successfully prevailed in lawsuits against white supremecists around the nation, has named FAIR as a ‘hate group” in its annual report released on March 2008.   Yeehaw!  For far too long FAIR’s idealogy has been taken seriously by Congress and the media even though FAIR and its multiple offshoots are known to be funded by white supremecists and their idealogy. 

Such idealogy includes the spread of racist propaganda about Mexicans and other Latino groups– which has substantially contributed to the undeclared war we are having in the US against undocumented immigrants who are largely Latino. 

The Southern Poverty Law Center reports that the number of hate groups in the US has increased by 48% since 2000, largely fueled by the anti-immigrant movement fueled by FAIR and its propaganda machine.  In addition to these groups, in the past three years over 300 new groups referred to as ‘nativist extremists’  were formed to harass and intimidate immigrants, according to the SPLC report. 

You can read this report in more detail at http://www.splcenter.org/intel/intpro.jsp

2.  In more good news, The CIS announced that it was extending practical training for STEM students from its standard 12 months to 29 months.  STEM stands for certain foreign students who have undergraduate or graduate degrees in computer science, actuarial science, engineering, engineering technologies, life sciences, math, physical sciences or military technologies.  Naturally, the CIS wants employers to register for E-verify in order to benefit from this program – which is going to be the new requirement for all immigration benefits eventually, even though E-verify is known to have a high inaccuracy rate.  In any event, this is evidence of how the CIS can fix problems when Congress can’t seem to fix the laws.    Look at www.ice.gov/sevis

3.  The LCA form will be going back to non-instant processing early next year according to a recent announcement.  For years lawyers struggled with the delays in the LCA processing holding up the filing and approval of h1b petitions.  The system became an online instant appoval system, making LCA delays a nonissue.  Now they will be taking up to 7 days for approval starting in January 2009.  Just in time for the next h1b crunch time in April 2009.

4.  A colleague called me today to ask if I saw any immigration complications for a couple in the US having a surrogate mother give birth to their child in Canada.  Would that child be able to enter the US as a citizen once released from the hospital?  Feels like a law school exam question — uh, I have to think about that one. 

5.  My chapter of the American Immigration Lawyers Association has chosen this year’s winner of our 2008 Immigrant of Distinction Award as well as the winner of our 2008 lifetime Achievement Award.  Stay tuned for details since I cannot reveal the winners yet.  . . .

Peace,

Elizabeth Streefland

 

Life Becomes Drama in Minneapolis

I have always loved the theater. 

Last week the theater became real life for me.  The renowned Guthrie Theater in Minneapolis put on a legal training course, referred to as CLEs, for local lawyers called Merchants of Faith:  Bias in the Litigation of Religous Belief.  It is scheduled for tomorrow as well and then available by podcast.  http://www.guthrietheater.org/learn/classes/calendar  

In this class, the actors performed scenes from Shakespeare’s “Merchant of Venice” in order to provide an example of religous bias inside and outside the courtroom.  Then, while the lawyers in the audience/classroom breathed a sign of relief at how far we have come as a society, at least in terms of bias in our jurisprudence, the actors performed 3-4 additional scenes from immigration court decisions.   I felt the collective horror from the audience as it realized that religious bias continued in our courts even today. 

One of the scences acted out was a current case of mine, used with my client’s permission as long as her name was kept confidential from the audience/classroom.   You see, the immigration judge has not made a decision on her case yet, although the hearing was over three years ago.

In this case, the judge does not believe my client truly is a Catholic because she had two abortions as a teenager.  So, he is conflicted about granting her asylum claim — because in his view, a real Catholic would not have gotten an abortion.  I am not so sure the Chinese government would care about this distinction, especially when the Chinese government forces women to abort their pregnancies in some areas of China, even in the last month of pregnancy.  

The stories presented in immigration court are unbelievably dramatic and ripe for the stage.  Violence, military coups, families and countries torn asunder, dire poverty and starvation, broken allegiances, broken hearts, romance under great stress and so on.     

To witness talented actors perform an immigration court transcript is to bring this drama to a new level and to make these stories accessible to a wider audience.   

Plus it is just good theater.  If it weren’t so real. 

Go, Guthrie. 

  Peace,

Elizabeth

  

Positive Changes for Immigrants

Yahoo! Yeehaw! Hurrah!

Within the past ten days, I learned of two positive changes to the law and procedure affecting immigration. These changes are logical and reasonable but they took years to take place. And I am thrilled to have a couple of extra tools to work with in my legal practice.

The most recent change took place on February 4th, 2008. The CIS announced a significant policy change in its FBI name check practice.

When a person applies for permanent residence or US citizenship, this person needs to be fingerprinted and have their biographic info sent to the FBI for security clearances. Sometimes this process took only a few days . . . and for the unfortunate, sometimes this process took years. The FBI didn’t allocate enough resources to complete the process in a timely manner and the CIS didn’t demand that the process take place in a timely manner. Applicants routinely filed and prevailed in lawsuits against the CIS for the delays in their cases, creating an unnecessary defensive burden on the CIS and the US Attorneys’ offices which represented the CIS in these lawsuits.

Meanwhile, the CIS refused to grant the permanent residence or naturalization application until the security clearance/name check procedure was completed. The argument allowing this delay was that it was necessary for national security.

The opposing argument was that it was better to allocate more resources to get the name checks done quickly so that a person who might pose a threat to our national security would not be living in the US for the years it took to get the name check procedure accomplished.

The new change to this practice is that now the CIS will adjudicate an application for permanent residence without a final clearance from the FBI when the name check has been pending for over 180 days. If the permanent residence application is approved and the name check is finally returned, raising some type of security concern, the CIS could rescind the original approval of the permanent residence. This will presumable pressure the FBI to complete the name checks in a reasonable time frame.

This is where I repeat, “Yahoo!” My clients no longer have to wait four years to get permanent residence just because someone else has a similar name as they do, a frequent cause for the delay.

Thank you, Michael Aytes, Associate Director of the CIS, and everyone else who worked on this policy change.

The second positive change is more obscure so bear with me — I am perhaps even more excited about this one.

At the end of December, 2007, President Bush signed a law revising the Freedom of Information Act known as FOIA. At its very simplest, this law allows people access to information about themselves held by the government subject to several exemptions. In my practice, my clients and I frequently need access to government held information, such as an immigration officer’s notes about why he or she denied my applicant’s application. I routinely need this type of information to appeal decisions; it is the main way immigration lawyers obtain ‘discovery’ or evidence.

If the US government improperly withholds information from an applicant, which it seems to regularly, the applicant can sue in federal court under the Freedom of Information Act. This is not new. For the past few years, though, the CIS has not been likely to turn over withheld documents easily, often choosing to dig in their heels and deny the documents, requiring the client to pay a great deal of attorney’s fees litigating the matter in federal court. Then poof, right before the substantive hearing in front of the federal court judge, the CIS would turn over the documents — which it should have turned over in the first place. In the most egregious cases, the applicant could have been deported while waiting for this information. To add insult to injury, when the CIS turned over the information before getting to the federal court judge, the CIS was rarely required to pay the applicant’s attorney’s fees despite being authorized to under the Freedom of Information Act.

I had such a case two years ago. My client paid about $20,000 in attorney’s fees for me to sue the government to turn over 45 pages of withheld information from his immigration records, all of which should have been turned over right away. After months of negotiations, the CIS finally relented and turned over everything we wanted. And my client’s application for attorney’s fees was denied because the CIS turned the information over right before a court order would have been issued granting my client relief.

Under the revisions to the law signed by Bush last December, the government is now required to pay reasonable attorney’s fees as long as the government changes its position (by turning over documents to the applicant). If the government is required to pay legal fees, then it seems likely that the government is less likely to withold documents required to be released under the Freedom on Information Act.

I am going to file a lawsuit under FOIA this week now that another client of mine has a chance to get her attorneys fees paid for. In this case, the government withheld 150 pages from her immigration file — and I am dead certain that some of those pages hold a missing piece of information crucial for her case. Until this law changed, she could not afford to get this information, effectively allowing the CIS to render improper decisions leading to her permanent removal from the US.

Yeehaw! She now gets a chance to have due process. The rest is up to me to handle.

Thank you, President Bush, for signing this new law.

Peace,

Elizabeth

Vietnam and the US — Friendly Again

After ostensibly ten years of negotiations with Vietnam, the US signed an agreement on Tuesday, January 22, 2008 with Vietnam for the US to return all Vietnamese nationals who entered the US after July 12, 2995 and who have been ordered removed.  This agreement goes into effect in sixty days and lasts for five years, although a three year extension is readily available. 

This is big news even though the US has stated that only 1500 Vienamese nationals living in the US will be affected.  The US stopped accepting refugees from Vietnam in the 1990s, drastically limiting the number of vietnamese entering the US (the San Jose Mercury News has indicated over 8000 Vietnamese will be affected http://www.mercurynews.com/valley/ci_8043621?nclick_check=1)

This process of returning nationals to their home countries after being ordered removed by the US government is deemed ‘repatriation’.      Until last Tuesday, the US had no repatriation agreements with four countries.  Now the list is down to three countries:  Laos, Cambodia and Cuba.    The US cannot return nationals from these countries who have been ordered deported.

There are other countries to which deportation is also nearly impossible although they may have an existing repatriation agreement, including Iraq, Iran, Somalia, Afghanistan, China.  And then there are the stateless people such as the Palestinians.  The US’ position is that it can remove people to these countries although in practice it is nearly impossible because there is no functioning government or the foreign government will not accept the returned national or assist in preparing travel documents for the national to be returned. 

 As it may not be clear to the lawperson, the US can order someone removed from the US but ICE needs another country willing to accept the person.  The US government doesn’t just bring the person ordered removed to the border and say “goodbye.”   If the US followed this simple practice, our only two neigboring countries would not accept the deported person into their countries, effectively trapping the deported person between the US and either Canada or Mexico.    Clearly that would be absurd since the person would have no way of leaving that space, at least legally leaving it.  Remember the Tom Hanks movie The Terminal?  In this film, based on a true but changed story, an eastern immigrant arrived at JFK only to learn his home country had been overthrown while he had been en route to the US, thereby rendering his passport and visa void and rendering him stateless.   So the US government could not allow him to enter the US by leaving the airport – or allow him to return to his country.   

But I digress.

Good luck to the people who will be returning home to Vietnam.   May you be treated well.   

Peace,

Elizabeth

  

DNA, Delays and Heartbreak

In April of 2007 I wrote briefly about a US citizen client of mine whose visas for three of his four sons were denied because DNA evidence indicated that he was not the biological father of these three sons.  The Rachel Swarns of New York Times wrote an article on my client and others like him across the country on April 10, 2007. 

The US consulate in Ghana denied the visas by mid October 2006.  The consular officer sent the underlying petitions back to the CIS to potentially be revoked.   I advised my client to prepare to respond to the revocation so he busily obtained evidence required for the potential response. 

For the past few months we have gathered all the evidence we need to overturn any potential revocation proceedings so we can get those children here to the US — but we haven’t been able to present this evidence yet.  We have to wait until the CIS communicates with us, telling us what the problem is and what it wants to resolve the problem.   

It is now sixteen months later.   And can you believe it?  Not a single word from the CIS since october 2006. 

Meanwhile, the family’s suffering continues.   Although I am not a part of their weekly conversations, I can imagine these words:  “Dad, are you going to get us?  You promised we were we all going to live together.  Why did my oldest brother get to come and we had to stay behind?  What is wrong with us?”

So my client contacted his local senator who contacted the CIS who finally got through to the CIS to learn the status of these three petitions.  We finally received a response this week — from the senator, not from the CIS of course.  

The CIS says it is going to be another nine months at least due to the high volume of returned petitions.   Which means it will be a minimum of two entire years from the time the consulate returned the petition to the CIS until the CIS finally takes a step.  

And if the CIS decides to start revocation proceedings when it finally responds after two years, it will be another 2-3 years before they are completed. Again, it will go into a black hole allowing my client the ability to communiate with no one about the case. 

“Dad, are you going to get us?  You promised we were we all going to live together.  Why did my oldest brother get to come and we had to stay behind?  What is wrong with us?”

 My own children always fight for their equal rights in our family.  “Mom, she got a bigger cookie than I did.  That is not fair!”  All parents have heard this. 

Can you imagine telling your children that they don’t get to live with you or even live in the same country with you as their older brother does for several years?  Several years is a lifetime for a child.

This is so sad. 

Peace,

Elizabeth 

  

  

Short-sightedness from Governor in Minnesota

Yesterday Governor Tim Pawlenty unveiled his plan, which he seems to do every year about this time, to crackdown on illegal immigration.  A local TV station reported him as saying ” ‘We can’t have a system, a secure system of identity and drivers licenses and other things, that is rampant with fraud,” the Governor said . . . .’ “

http://www.kare11.com/news/news_article.aspx?storyid=491973

I wonder how we got this way?  hmmm . . . I content that Governor Pawlenty is responsible for the large amount of fraud we have, if indeed we have it.  

A few years ago Governor Pawlenty pushed to require residents of Minnesota to provide evidence of valid immigration status to obtain a driver’s license or ID card.  When the legislature wouldn’t make this change, he moved to creating an administrative rule change at the Department of public Safety — a much more secretive process.  I argued strenuously against this move at public hearings on the change to the Driver’s License requirements by stating that it is better for public safety if the police officers know who it is they are arresting when presented with a driver’s license.  

I argued that it was absurd to content that undocumented immigrants would leave Minnesota if the state required legal immigration status in order to be issued a state driver’s license.  Rather, the state could would be helping to create an  underground false identity document business.  My view is that people will not leave if they can’t get documents; they leave if they can’t get a job.   If they can’t get legal documents, they will find a way to get fraudulent documents.  People need to feed their families.  I was a shrill voice in the minority paying attention to the details of the issue.

The State changed the requirements anyway. 

 A few years later, Governor Pawlenty is complaining that we have a system which is rampant with fraud.  And we have to spend more state money trying to fix this problem–which he had a large part in creating. 

 We need immigration reform at the national level, not short-sighted state politics.

Peace,

Elizabeth 

Will the presidential candidates propose something positive for immigration?

Happy new year to all, immigrant or native born.  This year is bound to be interesting in my office as the presidential candidates batter around the subject of immigration while the US government continues its assault against US employer and immigrants. 

Our country has needed comprehensive immigration reform for years.  Actually, years and years.  Mostly what Congress has done over the years is to create more restrictive laws while ignoring the pleas of US businesses for more visas to hire foreign born workers.  

In response, states and cities have started to create their own mini immigration laws.  Effective yesterday, employers in the state of Arizona have to comply with the most restrictive immigration law in the nation.  If they are found a second time to have hired an unauthorized worker, they will lose their ability to conduct their business in the state of Arizona.  There is no protection in the law for critical infrastructure, hospitals, nursing homes, nuclear power plants, etc.  

Hopefully grandpa is in an Arizona institution which has no I-9 errors in its paperwork.

Also in response, the US attorneys offices (which have had their own political problems in the past couple of years) are starting to criminally prosecute the US employer around the country for the felony charges of ‘alien harboring’ and ‘money laundering’.   The government is using the same techniques against the US employer which were established during the drug wars, such as sending in secret agents who are wired tapped, raiding the workplace, pressuring employees to speak against the employer by threatening family, and more.  It’s all designed to frighten people and to pit employer against employee. 

Consider this very real dilemna:  the US employer faces enormous monetary damages if it discriminates against a foreign employee by refusing to hire or by terminating this person because of his or her foreign status.  Yet the same US employer faces felony charges and enormous monetary fines if it knowingly hires undocumented workers.  How can an employer be sure it is clearly walking this fine line?  This is the real challenge. 

The US government created a solution for this challence:  an online system called “e-verify” for US employers to use to check the validity of the social security numbers of potential employees .    There are problems with this solution, however.  It has about a 10-15% inaccuracy rate.  And to use it, the US employer is required to waive substantive rights regarding freedom from searches and seizures by allowing the government to make periodic inspections of the employers’ records.    

This is not a case of the US government fighting criminals — which we all support.   This is the US government fighting your neighbor.  Possibly fighting you.  Who is cleaning your building or house?  Who landscaped your garden?    Who is washing the dishes in your favorite restaurant?   Have you checked the employment authorization of these individuals? 

It is not far fetched to state that if our government continues in this direction, you will be responsible for using the services of any unauthorized worker without verifying his or her employment status.    

Who is underlying this assault on employers and immigrants?

The main group is FAIR, which  has  been recently classified as a HATE group in the United States.  Sounds extreme but consider that FAIR, which has many other names, is responsible for writing the 2006 ordinance for the city of Hazleton in Pennsylvania which classified certain immigrants as “illegal,” punishes landlords and employers who do business with those immigrants and makes English the official language is unconstitutional (this ordinance was struck down by a federal judge who required the government had to pay 2.4 million dollars in attorneys fees).   statutehttp://www.aclupa.org/legal/legaldocket/challengetohazletonimmigra.htm

The Southern Poverty Law Center, which tracks hate groups in the United States, is responsible for identifying FAIR as a hate group.  It indicates in its press release that racists have found a new home in the anti-immigrant movement and that FAIR “has employed white supremacists in key leadership roles, has accepted over a million dollars from a eugenics foundation AND, as if that weren’t enough, has helped to bolster racist conspiracy theories throughout the country. . . . FAIR is the voice of individuals who have helped fuel the 40% increase in the number of hate groups in the US.  . . . The most terrifying number in all of this? A 35% increase in hate crimes against latinos. There has certianly been a similar increase in hate crimes against South Asians and Arabs, and increases in hate crimes against other marginalized groups.”  http://fairimmigration.wordpress.com/2007/12/13/southern-poverty-law-center-lists-fair-as-hate-group/

So, why are Americans listening to this propoganda? 

My dream is to find a presidential and congressional candidate who will lead us out of this immigration nightmare towards a reality where the laws matched our labor needs and where the employer and the employee could mutually benefit each other without mistrust.   

Let me know if you find one.   

Peace,

Elizabeth 

Congress’ Penalization of US Businesses

Two days ago on the House of Representatives passed bill H.R. 3043, an appropriations bill for 2008, after adding in the Grassley-Sanders amendment H.ADMT.3396.  This amendment contains a provision to increase the filing fees for an H1b petition from the current cost of up to $2350 for standard processing to over another $3500 more for a total of $5850.00 per petition.  This increased fee will be allocated to a scholarship fund for US citizens to study the sciences and engineering, etc.  The Bills are now being discussed in conference committee. 

As a refresher, h1b petitions are filed by US employers who want to hire a foreign national employee to fulfill a speciality positions, such as most nurses, IT workers, engineers, managers, etc.  The employers must prove the job requires a bachelor’s degree or higher in a speciality field and that the prevailing wage for the position will be paid.  The employees must establish that they have the bachelor’s degree or its equivalent in the specialized field.  

As another refresher, the US runs out of these h1b petitions very quickly every fiscal year.  This fiscal year, which began on October 1, 2007 , employers were allowed to file h1b petitions no earlier than April 2, 2007.   On April 3, 2007, only one day after the first day of filing was opened, the CIS refused to accept any more new h1b petitions, stating that it had already received 2-3 times the number of h1b petitions as it had alloted for the upcoming fiscal year and that it was holding a lottery to determine which employer’s petition would be chosen to be included in the lottery.  All other employers had to wait until April 1, 2008 to try again to hire a specialty worker.  

I am not the only person to think that something is seriously wrong with our immigration system when US employers have to play a lottery or wait a year before they can hire a skilled foreign worker for the prevailing wage.   Yet I do not see Congress taking any steps to fix this visa shortage problem despite the urgent requests from American businesses.    

So, now the Senate and the House want American businesses to pay a filing fee of up to $5850 while playing the lottery and waiting a whole year for a one day chance to hire a speciality foreign workers.  

And what are they paying for?  The customer service at the CIS service centers has never been worse.    It has even has had to post commentary on its inability to provide its customers with a simple receipt of filing.  http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=82b06a9fec745110VgnVCM1000004718190aRCRD

Congress is quite skilled at passing bills which increase immigration filing fees.  But that it about it.  All of the other problems with our system remain unfixed.  And it is not because the congresspeople do not know about the problems.  Rather, the problems do not get fixed because they are complicated and because most politicians take the position that it is political suicide to take a reasoned approach to the immigration dilemna in the United States.   

A few years ago, the filing fee for an H1b petition was $110.  In late 2004 the filing fee was $185.  Now the Senate and House want it to be $5850. 

A US corporation could probably hire a IT worker in India for $5850.  Its American stockholders would probably appreciate the reduction in overhead.   Meanwhile, skilled foreign workers will immigrate to another country which will appreciate their skills, further reducing our competititiveness. 

Peace,

Elizabeth

Who Will Do Our Landscaping Work This Year?

Immigration advocates have long stated that the US needs more work-based visas, whether it be for highly skilled positions or low skilled positions. 

For the past few years, the US has run out of the bread and butter h1b visa well before the fiscal year ended (actually, well before the fiscal year even started).  This left US employers in a lurch because they could not employ skilled and well educated US worker on an h1b petition until the next fiscal year, leaving them open to the likelihood of offshoring their skilled labor needs.    This year was the most extreme in h1b history; the US ran out of its h1b visas on the same day they were finally open for filing after almost a full year.   

Unfortunately, this same situation is unfolding for the h2b non-agriculture visa.  The h2b seasonal worker visa.  There are 66,000 of these visas allotted every fiscal year in order for businesses to fill their seasonal labor needs, normally with low skilled workers who are only needed during peak times of the year.  Think of landscapers, roofers, ski lodge workers, shrimp harvesters, and the like. 

In order to get the h2b visa, the employer needs to advertise the job openings and interview everyone who meets the job requirements.  They also need to pay the prevailing wage for the positions.   If, after hiring all of the US workers who apply for the jobs, there are still job openings for these seasonal positions, then the employer can file an h2b petition for foreign workers to temporarily fill these seasonal positions. 

I have consulted with many small US employers who uniformly inform me they cannot find enough US workers to fill these positions.  Few people born in the US seem to want to haul heavy rock around for eight hours a day on landscaping projects.  So having an h2b visa available is an inconvenient option many seasonal employers use.

 So many in fact that these h2b visas run out every year, leaving many seasonal employers without any US workers and without any legal foreign workers to fill their seasonal labor needs. 

In order to attempt to fairly provide for the diverse seasonal needs around the country, the h2b visas are split into two allotments of 33,000 visas.  The first allotment for seasonal positions which ran from October 2007 to April 1, 2008 was depleted as of September 27, 2007.  All petitions which were received that day were put into a lottery to determine which ones would be chosen for the remaining visas of the 33,000 originally available.

The second group of 33, 000 h2b visas are for positions which begin on April 1, 2008 — the summer positions.  Small employers should be preparing to file these h2b positions soon. 

This visa shortage has worsened this year, unfortunately.  Every returning h1b workers must be counted against the visa cap, unlike in previous years.  Most employers prefer to use returning workers since the relationship, performance standards and expectations have been previously established.  This requirement of counting returning workers against the cap effectively reduces the number of h2b visas available by a substantial number, further exacerbating the visa shortage problem.  

Congress is aware of this problem.  The Senate and House are both working on legislation which addresses this shortage; you can read up to the minute details about attempts to resolve this visa shortage at http://www.savesmallbusiness.org/  The House has 93 co-sponsors to a bill named the Save Our Small and Seasonal Businesses Act of 2007.   

Our need to fix our immigration laws did not die when Congress failed to act on this need last year. 

Peace,

Elizabeth Streefland