Immigration Laws: January, 2002 - Number #3

The US unemployment rate rose to 5.7 percent in November 2001; the Hispanic rate rose to 7.6 percent. Employment shrank by 1.2 million between March 2001 (the beginning of the recession) and November 2001. During the 1990-91 recession, the unemployment rate peaked at 7.8 percent.

California's unemployment rate rose to six percent in November 2001, as 53,000 jobs were eliminated there. Santa Clara County, which includes Silicon Valley, saw its unemployment rate jump from 1.5 percent in November 2000 to 6.6 percent in November 2001. California's minimum wage rose to $6.75 an hour on January 1, 2002, the same as Massachusetts; the minimum wage in Washington is $6.90 an hour.

The Census Bureau estimates that foreign workers account for about 13 percent of the US work force, up from nine percent in 1990.

During recessions, employers are increasingly laying off older workers. The US had recessions in 1981-82 and in 1990-91. In the 1990-91 recession, job-loss rates for men 45 to 59 years old were higher than those for men 25 to 39, even though the older workers had more seniority. The US Supreme Court agreed to determine whether older workers can sue under civil rights laws; the case involves Florida Power employees 40 or older who allege they were targeted for dismissal in the early 1990s when the company reorganized.

The Walt Disney Company in December 2001 agreed to pay $903,000 in back wages after one of its contractors, KTBA Inc, admitted it underpaid up to 800 workers who made beaded tiaras and wands for Disney stores across the US. Disney said it was not liable for KTBA's failure to pay the minimum wage, but was offering the money to bring workers' wages up to the minimum in order to be a good corporate citizen.

The US has 112,000 licensed child care centers, up from 86,212 in 1992. The increase has been fueled by women working: 73 percent of mothers with children under 18 have jobs outside the home. Institutional child care serves half of all American children aged five and younger, and the average annual salary in the child care industry is about $15,000. The growth of child care centers, often called early education centers, may be undermining the argument that "immigrants care for American babies," since most of the employees of child-care centers are not immigrants.

H-1B. The H-1B program allows up to 195,000 foreigners a year with a BA or more to enter the US for up to six years, and to adjust from nonimmigrant to immigrant status while they are in the US. Two other types of nonimmigrant visas--L (intracompany transferee) and E (treaty investor/trader/key employee) --also allow adjustment to immigrant status.

There were 163,200 H-1B visas approved in FY2001, and another 29,000 employer petitions for H-1B workers were pending on September 30, 2001, so that visas issued plus pending visas totaled 192,000.

Many foreigners who are awarded H-1B visas buy one-way tickets to the US, expecting to remain as immigrants. US employers may sponsor H-1B and other foreigners for two major types of immigrant visas: EB-2 and EB-3. EB-1 immigrant visas are available to persons of "extraordinary ability"-they do not need a US job offer to receive an immigrant visa. EB-2 immigrant visas are available to foreigners of "exceptional ability;" they must generally have an advanced degree and a certified US job offer before receiving an immigrant visa. EB-3 visas are for other workers, whose backgrounds range from BA to very little education, who must have a certified US job offer from a US employer. Most H-1Bs who become immigrants receive EB-3 visas.

The Department of Labor certifies a job as needing to be filled by a foreigner after the employer advertises the job and does not find a qualified US worker to fill it. Certification normally costs $10,000 to $20,000 a job, takes two to four years, and is handled by an attorney who advises the employer on how to write the job description and how to justify not hiring workers already in the US who respond to the ad.

Many H-1Bs are being laid off in 2001 before they are able to adjust to immigrant status. Some immigration lawyers are advising them to open consulting firms in order to qualify for the E-2 (treaty investor) E-1 (treaty trader) visas. E-visas are issued to foreigners investing in the US, and are renewable indefinitely.

Unions. The AFL-CIO, a federation of 66 unions representing 13 million workers, met in Las Vegas and made support for legalization of unauthorized immigrants official federation policy. AFL-CIO President John Sweeney said that unions are "a beacon of hope to millions of workers who've come to our country seeking a better life." An AFL-CIO spokesperson added: "There's no feeling in the labor movement that immigrants take away American jobs."

Sweeney urged unions to be more aggressive in organizing immigrant workers. In an interview he said, "the momentum [for legalization] has slowed a bit. But ultimately, the direction in which we were heading prior to September 11 is the right direction for our country to be going."

Sweeney, elected in 1995, promised to increase union membership, which stood at 13.2 million in 2001, about what it was in 1955, when the AFL-CIO was formed and union members were 35 percent of the labor force. Union membership as a percentage of the work force fell to 13.5 percent in 2001, down from 14.9 percent in 1995. Unions organized 2.5 million additional workers between 1995 and 2001, but lost about as many members because of job cuts.

The United Brotherhood of Teamsters, the International Longshore and Warehouse Union and the International Longshoremen's Association in December 2001 announced joint plans to organize 50,000 short-haul truck drivers at the nation's ports. The drivers, many of whom are immigrants, are considered independent owner-operators--they own their own trucks and pay their expenses in exchange for a fee for delivering loads. The unions will first have to organize the drivers into a trucking firm that can act as an employer in negotiations with shipping companies.

Fast Track. The US House of Representatives in December 2001 approved fast-track trade legislation on a 215-214 vote, the Bipartisan Trade Promotion Authority Act of 2001. It allows the president to negotiate trade agreements and present them to Congress for up-or-down votes, with no amendments allowed. Presidents had "fast-track" trade negotiating authority from 1974 to 1994, but not since. Fast-track is now termed "trade promotion authority." The bill now moves to the US Senate where it is expected to be passed.

Labor and environmental groups tried to defeat the trade bill, charging that the measure fails to protect worker rights and environmental concerns in developing nations.