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Developments in International Migration to the United States: 1997 -- Roger Kramer

October 31, 1997


DEVELOPMENTS IN INTERNATIONAL MIGRATION

TO THE UNITED STATES:

1997

BY


ROGER G. KRAMER*


The United States Report

for the Continuous Reporting System on Migration (SOPEMI)

of the Organization for Economic Cooperation

and Development (OECD)


* Director, Division of Immigration Policy and Research,

Bureau of International Labor Affairs, U.S. Department of Labor,

Washington, DC 20210 USA


The views expressed in this paper are the author's own and may not represent those of either the Department of Labor (DOL) or the U.S. Government.

TABLE OF CONTENTS

INTRODUCTION 1

FLOWS INTO THE UNITED STATES: OVERVIEW 1


IMMIGRANTS 1


Immigrant Flows in 1996 1


Family Reunification 2


Employment-based 6


Refugees and Asylees Receiving Immigrant Status 9


Diversity Immigrants 9


Trends 13


The Immigrant Visa Waiting List 22


Refugees and Asylees: Admissions and Processing 25


NONIMMIGRANTS 33


North American Free Trade Agreement (NAFTA) 40


General Agreement on Trade in Services (GATS) 43


ILLEGAL MIGRANTS 44

FLOWS FROM THE UNITED STATES: EMIGRANTS 47

CITIZENSHIP: DATA ON NATURALIZATIONS 49

STOCK OF FOREIGN-BORN IN THE UNITED STATES 53


INTRODUCTION:


This report, "Developments in International Migration to the United States: 1997," is an annual update and review of immigration events. While the report maintains the same format as reports of previous years, it provides not only the latest available immigration statistics but also descriptions of the major developments in U.S. immigration over the past year. As each year's report is written to be independent, background information is repeated from year to year.

FLOWS INTO THE UNITED STATES: OVERVIEW


Migrants to the United States fall into three distinct categories:


o Immigrants -- Aliens who are lawfully admitted to the U.S. for permanent residence and are eligible for eventual U.S. citizenship. Refugees may adjust to immigrant status after one year.


o Nonimmigrants -- Aliens lawfully admitted to the U.S. temporarily for a specific purpose.


o Illegal migrants -- Aliens entering without inspection or overstaying/violating their nonimmigrant visas. Intended duration of stay may range from short temporary visits to permanent residence.

IMMIGRANTS


Immigrant Flows in 1996


The number of persons granted lawful permanent resident status in fiscal year 1996 totalled 915,900 (See Table 1). This represents the largest number of immigrants admitted to the United States since 1914 -- if the analysis excludes those aliens receiving permanent resident status in past years under the 1986 Immigration Reform and Control Act's (IRCA) legalization programs. But, viewed in a different manner, the 1996 immigration figure does not seem especially high, representing only 0.3 percent of the total U.S population in 1996.


How does a person qualify for admission to the United States as an immigrant? The grounds for admission, as well as any numerical limitations, are set by the U.S. Immigration and Nationality Act (INA). Of course, these criteria have changed over time. The last major modification to the legal immigration admissions system occurred with the passage of the Immigration Act of 1990 (IMMACT 90). Given the often strong feelings (both pro and con) concerning immigration in the United States, as well as the number and diversity of different groups involved in the issue, the system for admitting legal immigrants is modified only infrequently. Prior to the 1990 legislation, the last major change occurred in 1965.


Immigration to the United States is strongly rooted in the humanitarian principles of family reunification and refugee resettlement. Nearly 80 percent of immigration in fiscal year 1996 was based solely upon these two principles. Even those admissions systems for filling employment needs and for increasing the diversity of countries in immigration flows allow for the admission of the immigrant's immediate family, i.e., spouse and unmarried minor children.


While there are numerous ways to qualify for immigration to the United States, classes of admission can be generally categorized into four major groups:


1) Family reunification

2) Employment-based

3) Refugees and Asylees

4) Diversity


Table 2 shows the number of immigrants admitted each year, by class of entry. A quick summation of the various classes shows that over 98 percent of all immigrants to the United States in 1996 were admitted in one of these four broad categories.


o Family reunification


In fiscal year 1996, family reunification accounted for nearly 65 percent of immigration to the United States. When analyzing this category, it is best to view it in terms of its two broad subcomponents -- (1) immediate relatives of U.S. citizens and (2) other family-sponsored immigrants entering under the preference system. The first category is a numerically unrestricted TABLE 1. IMMIGRATION TO THE UNITED STATES: FISCAL YEARS 1821-1996

Years Immigrants Years Immigrants


1821-1830 143,439 1981-1990 7,338,062

1831-1840 599,125 1981 596,600

1841-1850 1,713,251 1982 594,131

1851-1860 2,598,214 1983 559,763

1861-1870 2,314,824 1984 543,903

1871-1880 2,812,191 1985 570,009

1881-1890 5,246,613 1986 601,708

1891-1900 3,687,564 1987 601,516

1901-1910 8,795,386 1988 643,025

1911-1920 5,735,811 1989 1,090,924

1921-1930 4,107,209 1990 1,536,483

1931-1940 528,431

1941-1950 1,035,039 1991-1996 6,146,213

1951-1960 2,515,479 1991 1,827,167

1961-1970 3,321,677 1992 973,977

1971-1980 4,493,314 1993 904,292

1994 804,416

1995 720,461

1996 915,900


Note: Since 1977, fiscal years have covered the period October 1 through September 30. Fiscal year 1996 began October 1, 1995 and ended September 30, 1996.


Source: United States Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service, Table 1.

TABLE 2. IMMIGRATION, BY ENTRY CLASS: FISCAL YEARS 1991-1996

(Numbers in thousands)


1996, in

1991 1992 1993 1994 1995 1996 percents

1) Immediate relatives

of U.S. citizens 237.1 235.5 255.1 249.8 220.360 300.430 32.8

2) Family preferences 216.1 213.1 226.8 212.0 238.122 294.174 32.1

3) Employment preferences 59.5 116.2 147.0 123.3 85.336 117.499 12.8

4) IRCA legalization 1123.2 163.3 24.3 6.0 4.267 4.635 0.5

Residents since 1982 (214.0) ( 47.0) (18.7) (4.4) (3.124) (3.286) (0.4)

Agricultural workers (909.2) (116.4) (5.6) (1.6) (1.143) (1.349) (0.1)

5) Nonpreference 12.3 1.6 0.0 - - - -

6) Refugees & Asylees 139.1 117.0 127.3 121.4 114.664 128.565 14.0

7) Diversity - 33.9 33.5 41.1 47.245 58.790 6.4

8) Legalization dependents - 52.3 55.3 34.1 .277 .184 0.0

9) Others 39.9 41.1 35.0 16.8 10.190 11.623 1.3


TOTAL 1,827.2 974.0 904.3 804.4 720.461 915.900 100.0

TOTAL, NON-LEGALIZATION 704.0 810.6 880.0 798.4 716.194 911.265 NA


Notes: Figures may not add to totals due to rounding.


With the exception of immediate relatives of U.S. citizens, immigrants in a class of admission include principal beneficiaries, i.e., those aliens who directly qualify for the class of admission under U.S. immigration laws, and derivative beneficiaries, i.e., the spouses and unmarried children of principal immigrants.


Brief descriptions of the entry classes:


1) Numerically unrestricted immigrants comprising spouses, unmarried minor children, and orphans adopted by U.S. citizens as well as parents of adult U.S. citizens.


2) Numerically restricted family-sponsored immigrants comprise the following four preference classes:

1. Unmarried adult sons and daughters of U.S. citizens

2. Spouses and unmarried sons and daughters of U.S. permanent resident aliens

3. Married sons and daughters of U.S. citizens

4. Brothers and sisters of adult U.S. citizens


3) Includes immigrants issued employment-based preference visas since FY 1992, as well as immigrants issued third preference (members of the professions or persons of exceptional ability in the sciences and arts), sixth preference (skilled and unskilled workers in short supply), and special immigrant visas prior to fiscal year 1992.


4) Under the 1986 Immigration Reform and Control Act, certain persons who had been in the United States illegally were granted legal permanent residence.


5) Under the 1986 Immigration Reform and Control Act, immigrants from certain countries determined to have been adversely affected by the 1965 immigration reform were admitted under a special "nonpreference" category.


6) The distinction between refugees and asylees is the location of the alien at the time of application: asylees are already in the United States or at a port of entry, whereas refugees apply while still outside the United States.


7) Under the Immigration Act of 1990, a 3-year program (1992-94) authorized 40,000 visas annually for natives of the 34 countries determined to have been adversely affected by the 1965 immigration reform. Another diversity program of 55,000 visas annually began in fiscal year 1995 aimed at increasing the diversity of countries sending immigrants to the United States. Eligible countries are determined on the basis of previous levels of immigrant admissions from the specific country and region of the world.


8) Under the Immigration Act of 1990, a 3-year program (1992-94) provided for a maximum of 55,000 visas annually for the spouses and children of legalized aliens.


9) Includes groups such as persons receiving suspension of deportation, Soviet and Indochinese parolees, and registered nurses.


Source: U.S. Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service, Table 4.category comprising spouses and unmarried minor children of U.S. citizens, orphans adopted by U.S. citizens, and parents of adult U.S. citizens.


In contrast, family-sponsored immigrants entering under the preference system are numerically limited and comprise the following four preference classes:


1. Unmarried adult sons and daughters of U.S. citizens

2. Spouses and unmarried sons and daughters of U.S. permanent resident aliens

3. Married sons and daughters of U.S. citizens

4. Brothers and sisters of adult U.S. citizens

o Employment-based immigration


One of the major changes brought about by IMMACT 90 was increased numbers for employment-based immigration. In the decade prior to fiscal year 1992 -- the year that IMMACT 90 was implemented, 9 percent of all non-legalization immigrants to the U.S. entered under the two worker preferences which by law were subject to an annual cap of 54,000. In fact, persons admitted as workers accounted for less than 4 percent of all immigration because their spouses and unmarried minor children used more than half of the available visas in these preference categories. Under IMMACT 90, annual employment-based immigration increased from 54,000 to 140,000. Despite this expansion in the numbers, employment-based principals (i.e., not their accompanying families) have accounted for 4.6%-5.8% of annual immigration during the fiscal years 1992-96 (See Table 3). The reason this percentage has remained low despite increasing numbers for employment-based immigration since 1992 is that other types of immigration have also increased during this period.

TABLE 3. EMPLOYMENT-BASED IMMIGRATION, BY PREFERENCE: FISCAL YEARS 1992-96


Fiscal Year

Employment-Based Preference 1992 1993 1994 1995 1996


Total, Employment 1st preference 5,456 21,114 21,053 17,339 27,501

Aliens with extraordinary ability 261 1,259 1,313 1,194 2,060

Outstanding professors or researchers 319 1,676 1,809 1,617 2,633

Multinational executives or managers 1,446 5,088 4,975 3,922 6,354

Spouses and children of 1st pref. 3,430 13,091 12,956 10,606 16,454


Total, Employment 2nd preference 58,401 29,468 14,432 10,475 18,462

Members of the professions holding

advanced degrees or persons of

exceptional ability 27,503 13,801 6,807 4,952 8,870

Spouses and children of 2nd pref. 30,898 15,667 7,625 5,523 9,592


Total, Employment 3rd preference 47,568 87,689 76,956 50,245 62,756

Skilled workers 12,257 12,813 10,139 9,094 16,001

Baccalaureate holders 4,192 9,560 7,732 5,792 5,507

Spouse and child of the above 22,187 28,434 28,398 23,262 28,998


Chinese Student Protection Act --- 26,915 21,297 4,213 401

Principals --- 26,852 21,008 4,134 373

Spouses and children --- 63 289 79 28


Other workers (unskilled workers) 4,017 4,405 4,136 3,636 6,010

Spouse & child of unskilled worker 4,915 5,562 5,254 4,248 5,839


Total, Employment 4th preference 4,063 8,158 10,406 6,737 7,844

Special immigrants 1,768 3,576 4,647 2,929 3,494

Spouse and child of 4th preference 2,295 4,582 5,759 3,808 4,350


Total, Employment 5th preference 59 583 444 540 936

Employment creation, not targeted area 21 159 106 95 143

Spouses and children 32 311 190 190 301


Employment creation, targeted area 3 37 51 79 152

Spouses and children 3 76 97 176 340


Total, Pre-1992 3rd and 6th preference 651 --- --- --- ---

Principals 227 --- --- --- ---

Spouses and children 424 --- --- --- ---

Excluding Chinese Student Protection Act:

Total, employment pref., principals 52,014 52,374 41,715 33,310 51,224

Percent of all immigration 5.3 5.8 5.2 4.6 5.6

Total, employment pref., dependents 64,184 67,723 60,279 47,813 65,874

Percent of all immigration 6.6 7.5 7.5 6.6 7.2

TOTAL, employment preferences 116,198 120,097 101,994 81,123 117,098

Percent of all immigration 11.9 13.3 12.7 11.3 12.8


Including Chinese Student Protection Act:

GRAND TOTAL, employment preferences 116,198 147,012 123,291 85,336 117,499

Notes: Percentages may not add to totals due to rounding.


The number of admissions in a given year may exceed the numerical ceiling on visa issuances as immigrant visas may be used up to 4 months after issuance.


Source: U.S. Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service, Table 5.Within the 140,000 slots reserved for employment-based immigration, there is an increased emphasis on skilled workers. Indeed, IMMACT 90 limited the number of immigration visas granted on the basis of unskilled labor to 10,000 worldwide.


Specifically, the 140,000 employment-based immigration visas are distributed in the following manner:


Preference 1: Priority Workers


40,000 visas plus visas unused by preferences 4 and 5, special immigrants and investors, respectively.


o Extraordinary ability (proven by sustained national or international acclaim) in the sciences, arts, education, business, and athletics. No U.S. employer is required.


o "Outstanding" (internationally recognized and having at least three years of experience) professors and researchers seeking to enter in senior positions. A U.S. employer is required.


o Executives and managers of multinationals (requires 1 year of prior service with the firm during the preceding 3 years). The terms are extensively defined and a U.S. employer is required.


Preference 2: Members of the Professions with Advanced Degrees and Aliens of Exceptional Ability in the Sciences, Arts, or Business


40,000 visas plus unused "priority worker" visas


A U.S. employer is required. However, the Attorney General can waive that requirement. Requires a labor certification that there are not sufficient U.S. workers who are able, willing, qualified, and available and that the wages and working conditions of similarly employed U.S. workers will not be adversely affected.


Preference 3. Skilled Workers, Professionals, and Other Workers

40,000 visas plus visas unused by the two previous categories. Labor certification is required.


o Skilled workers with at least 2 years vocational training or experience.


o Professionals with a Bachelor's degree.


o Other Workers (Unskilled Workers). This subcategory is limited to no more than 10,000 visas per year.


Preference 4. Special Immigrants


10,000 visas. This category includes ministers of religion and persons working for religious organizations, foreign medical graduates, alien employees of the U.S. government abroad, alien retired employees of international organizations, etc.


Preference 5. Employment Creation (investor) visas


10,000 visas. For investors of at least $1 million. However, a minimum of 3,000 visas are reserved for investors of $500,000 in rural or high unemployment areas. Investment must create employment for at least 10 U.S. workers. Investors would be granted only conditional lawful permanent resident (LPR) status for 2 years; there are extensive anti-fraud provisions in the bill.


o Refugees and Asylees Receiving Immigrant Status


Refugee admissions and asylees are discussed in greater detail in a separate section, "Refugee and Asylees: Admissions and Processing," in this report. When viewing the number of persons granted immigrant status on this basis, it is important to keep in mind that the act of becoming an immigrant does not always coincide with the timing of arrival. Under U.S. law, refugees are eligible to adjust to immigrant status only after one year of residence in the United States. Thus, the refugees counted as immigrants in a given year are independent of those arriving in the U.S. in that year. The numbers presented in this section, i.e., Tables 1-6, refer to refugees adjusting to immigrant status, whereas the discussion under "Refugees and Asylees: Admissions and Processing" focusses on refugee admissions.


o Diversity Immigrants


There have been several diversity programs in U.S. immigration law in the last decade. This particular program of 55,000 visas annually began in fiscal year 1995 and aims at increasing the diversity of countries sending immigrants to the U.S. Eligible countries are determined on the basis of previous levels of immigrant admissions from the specific country and region of the world. Visas are apportioned among six geographic regions with a maximum of 3,850 visas available to persons born in any single country. Although this is a relatively small program, it generates considerable interest: Approximately 4.7 million qualified entries were received for the DV-98 diversity lottery. Because of the interest in this program, information on applying and a list of the DV­98 winners, by country, follows.This page should be replaced with the first page of the 3-pager from State Dept. on DV-98 This page should be replaced with the second page of the 3-pager from State Dept. on DV-98 This page should be replaced with the third (last) page of the 3-pager from State Dept. on DV-98

o Trends


Now, equipped with this brief overview of the immigrant admissions system, we can examine the reasons for the increase in admissions from 1995 (720,461) to 1996 (915,900). It is important to note that because immigration to the United States is defined as the granting of lawful permanent residence, immigration statistics bear little resemblance to the date of arrival in the United States. For example, a foreign student who has been studying in the U.S. for several years on a nonimmigrant visa might adjust to permanent immigrant status if he or she marries a U.S. citizen. In 1996, more than half (54%) of all immigrants were already living in the U.S. and adjusted to permanent resident status from a nonimmigrant, or temporary, status.


The vast majority of the increase can be accounted for by increased immigration under the family reunification and employment-based provisions (See Table 2). However, this nearly 200,000 jump in immigrant admissions appears to have been accentuated by the impact of section 245(i) adjustments on application processing times.


Section 245(i) of the INA was a 3-year program (fiscal years 1995-97) permitting illegal residents eligible for immigration status to adjust their status without leaving the United States. Previously, illegal aliens had to apply for their immigrant visa outside of the United States at a State Department consular office. Thus, section 245(i) shifted a great deal of visa processing work from State Department offices overseas to the INS, beginning with fiscal year 1995. This shift in workload initially resulted in longer processing times for many immigrant visas and, consequently, reduced the number of immigrants admitted in fiscal year 1995. The INS allocated greater resources to adjustment cases in fiscal year 1996, enabling a greater number of cases to be processed, thus increasing immigration levels for 1996.

The most dramatic increase in immigration between 1995 and 1996 occurred among immediate relatives of U.S. citizens. As Table 2 shows, immigration increased from 220,360 to 300,430, an increase of over 80,000. An increase in immigration of immediate relatives had been anticipated because the nearly 2.7 million persons who had received immigrant status under IRCA were becoming citizens and subsequently were eligible to petition for the admission of their relatives into the United States. Since there is no numerical limit on admissions of immediate relatives of U.S. citizens, this category has the greatest potential for increase.


Table 2 also shows an increase in immigration levels from 1995-96 for the two broad categories of the preference system, specifically, an increase of 56,052 for family-sponsored immigration and 32,163 for employment-based immigration. Although these two categories are numerically limited, the ceilings may change from year to year (see discussion in the later section entitled "The Immigrant Visa Waiting List"). The high level of family-sponsored immigration in 1996 was made possible largely as a result of unused employment-based numbers in 1995 that were added to the 1996 numerical limit for family-sponsored immigration. Employment-based immigration in 1995 and 1996 did not reach the respective numerical limits of each year; thus, numerical limits were not a factor and the increase in employment-based immigration between the two years actually represents an increased demand for visas.


Historically, projections of future immigration levels for the U.S. are generally unavailable, or at least, not widely disseminated, because of the many difficult assumptions that are involved. Projections are particularly difficult given the number of legislative proposals to substantially revise the numbers and criteria for admission. Even with the continuation of the current immigrant admissions regime, levels are heavily dependent upon such factors as the number of U.S. citizens petitioning for admission of immediate relatives, the economic conditions in the country which affect the numbers of employment-based petitions, and variations in the level of admissions for refugees whose numbers are subject to yearly consultations between Congress and the Administration. Yet despite these limitations, annual immigration levels (excluding refugees and asylees) have been projected to be at least 800,000 over the next two years, 1997-98. This increase from immigration levels in the first half of this decade (when aliens receiving immigrant status under IRCA's legalization programs are excluded) will be primarily the result of increased immigration petitions filed for the immediate relatives (spouses, children, and parents) of U.S. citizens by those persons who did receive immigrant status under IRCA and who recently became U.S. citizens.


Mexico continues to be the primary sending country for the United States, accounting for over one-sixth of all immigration to the United States (See Table 4). Asia, Europe, and the Caribbean were other primary sending regions to the United States.

TABLE 4. IMMIGRANTS, BY COUNTRY OF BIRTH: FISCAL YEARS 1991-96

(Numbers in thousands)


1996, in

Region 1991 1992 1993 1994 1995 1996 percents


Europe 135.2 145.4 158.3 160.9 128.185 147.581 16.1

Asia 358.5 357.0 358.0 292.6 267.931 307.807 33.6

Africa 36.2 27.1 27.8 26.7 42.456 52.889 5.8

Oceania 6.2 5.2 4.9 4.6 4.695 5.309 0.6

Canada 13.5 15.2 17.2 16.1 12.932 15.825 1.7

Mexico 946.2 213.8 126.6 111.4 89.932 163.572 17.9

Cent. America 111.1 57.6 58.2 39.9 31.814 44.289 4.8

Caribbean 140.1 97.4 99.4 104.8 96.788 116.801 12.8

So. America 79.9 55.3 53.9 47.4 45.666 61.769 6.7

Other & not

Stated 0.1 0.1 0.1 0.1 0.062 0.058 0.0


TOTAL 1,827.2 974.0 904.3 804.4 720.461 915.900 100.0

Notes: Figures may not add to totals due to rounding.


Data include immigrants who obtained lawful permanent residence status following legalization under the 1986 Immigration Reform and Control Act. These immigrants totaled:


Year Immigrants


1989 478,814

1990 880,372

1991 1,123,162

1992 163,342

1993 24,278

1994 6,022

1995 4,267

1996 4,635

2,684,892


Source: United States Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service, Tables 3 and 4.

The top sixteen sending countries to the United States in 1996 continue to show considerable South-North migration. Ranked in order, they are:


Mexico 163,572 Jamaica 19,089

Soviet Union(former) 62,777 Haiti 18,386

Philippines 55,876 Korea 18,185

India 44,859 El Salvador 17,903

Vietnam 42,067 Canada 15,825

Mainland China 41,728 Poland 15,772

Dominican Republic 39,604 Colombia 14,283

Cuba 26,466 United Kingdom 13,548


TOTAL, 16 countries 609,940

Percent of all immigration 66.6%


Source: United States Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service, Table 3.

A more extensive listing on immigration flows to the United States over the past 11 years (1986-96), by country of birth is shown in Table 5.

Source: United States Department of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service. In that publication, this table is table 3.Much discussion about immigration focuses on several States that receive the vast majority of immigration flows. In 1996, seven States received over 70 percent of all legal immigrants to the United States (See Table 6).

TABLE 6. IMMIGRATION, BY STATE OF INTENDED RESIDENCE: 1994-96


Percent Percent Percent

1994 of Total 1995 of Total 1996 of Total

State Immigrants Flow Immigrants Flow Immigrants Flow


California 208,498 25.9 166,482 23.1 201,529 22.0

New York 144,354 17.9 128,406 17.8 154,095 16.8

Texas 56,158 7.0 49,963 6.9 83,385 9.1

Florida 58,093 7.2 62,023 8.6 79,461 8.7

New Jersey 44,083 5.5 39,729 5.5 63,303 6.9

Illinois 42,400 5.3 33,898 4.7 42,517 4.6

Massachusetts 22,882 2.8 20,523 2.8 23,085 2.5


Other States 227,948 28.3 219,437 30.5 268,525 29.3


U.S., Total 804,416 100.0 720,461 100.0 915,900 100.0

Note: Percentages may not add to 100.0 due to rounding.


Source: United States Department of Justice, 1994, 1995, and 1996 Statistical Yearbooks of the Immigration and Naturalization Service, Table 17.

The Immigrant Visa Waiting List


The admissions of some immigrants, notably immediate relatives of U.S. citizens, are not subject to numerical limits. However, most admissions programs have numerical ceilings. Often the demand for visas, i.e., the number of qualifying aliens, exceeds the legislated numerical limit of a particular immigrant visa. The two largest numerically-limited programs are the family-sponsored and employment-based preferences. When IMMACT 90 went into effect in fiscal year 1992, these limits were initially set at 226,000 for family preferences and 140,000 for employment preferences. For each of these two broad preference categories (family and employment), IMMACT 90's provisions allow for any unused numbers at the end of a fiscal year to be carried over to the other broad preference category for the following fiscal year. For example, unused employment-based visa numbers would be added to the family-sponsored ceiling for the following year. As a result, numerical limits may change annually.


Numerical Limits Under IMMACT 90, by Fiscal Year 1992-97


Preference 1992 1993 1994 1995 1996 1997

Family 226,000 232,483 226,000 253,721 311,819 226,000

Employment 140,000 161,207 143,213 146,503 140,000 140,000

As of January 1997, the waiting list for immigrant visas under the preference system was 3,622,897. The queues for visas vary dramatically by preference category (See Table 7). It should be noted that the State Department waiting list understates the number of persons waiting for a visa inasmuch as the list does not include pending applications for adjustment of status under section 245 of the Immigration and Nationality Act which are handled at offices of the INS.


The increase in employment-based numbers legislated by the Immigration Act of 1990 has shortened the waiting period for most employment-based immigrants. Because of the former system's 54,000 limit on worker preferences, immigrants who had fulfilled all admissions criteria still had to wait approximately one and one-half years for an available third preference (highly skilled) slot and nearly four years for an available sixth preference (skilled and unskilled) slot. The queue for five countries -- Mainland China, Dominican Republic, India, Mexico, and the Philippines -- was often much longer.


The expansion of employment-based immigration has eliminated queues for most countries in all of the employment-based preferences (i.e., they are current, as of November 1997. See the first column of Table 8), with two exceptions -- (1) the unskilled worker preference which is limited to 10,000 and (2) certain religious workers who are limited to 5,000. India has a slightly longer wait in some of the other employment-based preferences. Because the demand for unskilled worker visas (21,834 as of January 1, 1997, see Table 7) exceeds the supply, aliens qualifying to enter under this preference have a wait of several years.


TABLE 7. IMMIGRANT WAITING LIST FOR PREFERENCE VISAS


As of January:

1994 1997

FAMILY-SPONSORED PREFERENCES


1st: Unmarried sons and daughters of citizens 63,499 93,376 2nd A: Spouses and children (under age 21 and

unmarried) of Permanent Residents 1,047,496 1,052,270

2nd B: Unmarried Sons and Daughters of

Permanent Residents 450,579 578,351

3rd: Married Sons and Daughters of Citizens 257,110 312,200

4th: Brothers and Sisters of Adult Citizens 1,643,463 1,502,233

Family-sponsored, Total 3,462,147 3,538,430


EMPLOYMENT-BASED PREFERENCES


1st: Priority workers 8,315 11,405

2nd: Members of the Professions Holding Advanced

Degrees or Persons of Exceptional Ability 11,159 9,527 3rd: Skilled Workers and Baccalaureate Holders 30,735 35,030

Other Workers (Unskilled Workers) 94,348 21,834

4th: Special Immigrants 5,241 6,171

5th: Employment Creation (Investor) 176 500 Employment-based, Total 149,974 84,467


GRAND TOTAL 3,612,121 3,622,897

Note: The Department of State collects this information periodically from consular offices at which immigrant visa cases are registered as well as the National Visa Center at Portsmouth, New Hampshire. Applications for adjustment of status under section 245 of the Immigration and Nationality Act which are pending at offices of the INS are not included in the tabulation of the immigrant waiting list.


It should not be assumed that once an applicant is registered, the case will remain on the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated.


Source: "Immigrant Visa Waiting List in the Family-Sponsored and Employment-Based Preferences, As of January 1994" and "..., As of January 1997" in U.S. Department of State, Bureau of Consular Affairs, Visa Bulletin, Vol. VII, No. 36A, May 1994 and No. 73A, April 1997, respectively.TABLE 8: PREFERENCE VISA AVAILABILITY, AS OF NOVEMBER 1997

(Applicants who have priority dates earlier than the cut-off

date shown may be allotted an immigrant visa)


All Chargeability

Areas Except

PREFERENCES Those Listed INDIA MEXICO PHILIPPINES


Family-based


1st 01FEB95 01FEB95 01MAY93 13OCT86


2nd--2A* 22JUN93 22JUN93 22SEP92 22JUN93


2B 01JUN91 01JUN91 01MAY91 01JUN91


3rd 08MAY94 08MAY94 01JAN89 01JUN86


4th 01APR87 15JUL85 01OCT86 08MAR78

Employment-based


1st C C C C


2nd C 01DEC95 C C


3rd C 15DEC94 C C


Other

Workers 01APR90 01APR90 01APR90 01APR90


4th C C C C


Certain

Religious

Workers 01NOV96 01NOV96 01NOV96 01NOV96


5th C C C C

"C" means "current", i.e., numbers are available for all qualified applicants.


*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP92. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP92 and earlier than 22JUN93. (2A numbers subject to per-country limits are "unavailable" for applicants chargeable to MEXICO.)


Source: U.S. Department of State, Visa Bulletin, Vol. VII, No. 80, November 1997. Refugees and Asylees: Admissions and Processing


Refugee and asylee admissions to the U.S. are governed by the Immigration and Nationality Act, as amended by the Refugee Act of 1980. This act defines refugees and asylees in conformance with the 1967 United Nations Protocol on Refugees. Specifically, refugees are defined as persons outside of their country of nationality who are unable or unwilling to return to that country because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Asylees must meet the same criteria as refugees. The only difference between the two groups is the location of the alien at the time of application: asylees are already in the United States or at a port of entry.


In discussing immigration and refugee statistics of the United States, it is important to keep in mind that, as mentioned earlier, the act of becoming an immigrant does not always coincide with the timing of arrival. Under U.S. law, refugees are eligible to adjust to immigrant status after one year of residence. Thus, the refugees counted as immigrants in a given year are independent of those arriving in the U.S. in that year. The earlier discussion focussed on refugees adjusting to immigrant status, whereas the discussion that follows will focus on refugee admissions.


The maximum number of refugee admissions is set annually by the President, after consultation with the Congress. Also, the ceiling can be increased during the year to accommodate additional refugees. A more likely scenario, however, is the reallocation of regional numbers within the overall ceiling -- the law permits unused admissions numbers allocated to a particular region to be transferred to other regions if there is an overriding need. Table 9 shows authorized refugee ceilings since the passage of the Refugee Act of 1980. Ceilings increased steadily from 67,000 in 1986 to 142,000 in 1992. For the next five years, ceilings decreased, with 1997 set at 78,000. For FY1998, the ceiling increased slightly to 83,000, although 8,000 of this number are unfunded at this time and are dependent upon the availability of resources within existing appropriations to fund the cost of the admission of these refugees. While authorized ceilings are not meant to be target goals, there is nonetheless a high correlation between the ceiling and admissions.


The overall ceiling is subdivided into regional ceilings covering five broad regions: Africa, East Asia, Eastern Europe and the former Soviet Union, Latin America and Caribbean, and Near East and South Asia (See Table 10). In fiscal year 1998, there are TABLE 9. AUTHORIZED REFUGEE CEILINGS AND REFUGEE ADMISSIONS:

FISCAL YEARS 1980-1998

Authorized

Fiscal Refugee Refugee

Year Ceiling Admissions


1980 * 207,116

1981 217,000 159,252

1982 140,000 97,355

1983 90,000 61,681

1984 72,000 71,113

1985 70,000 68,045

1986 67,000 62,440

1987 70,000 64,828

1988 87,500 76,806

1989 116,500 107,238

1990 125,000 122,326

1991 131,000 112,811

1992 142,000 132,173

1993 132,000 119,482

1994 121,000 112,682

1995 112,000 99,490

1996 90,000 75,693

1997 78,000 70,000 (preliminary)

1998 83,000


* The Refugee Act of 1980 went into effect at the midpoint of fiscal year 1980. Therefore, an annual ceiling was not set until fiscal year 1981.


Note: Beginning with fiscal year 1988, the ceilings and admissions cited above include Amerasian immigrants. While not technically classified as refugees, they are treated in most ways as refugees (e.g., they are eligible for orientation and financial support).


Fiscal Planning Figure Amerasian

Year for Amerasians Admissions


1988 0 319

1989 12,000 8,589

1990 15,000 13,059

1991 15,000 16,010

1992 18,500 17,253

1993 16,000 11,116

1994 3,500 2,822

1995 1,000 939

1996 0 956

1997 0 800 (preliminary)


Source: Authorized refugee ceiling and refugee admissions: U.S. Department of State. Amerasian admissions: Immigration and Naturalization Service

TABLE 10. INITIAL REGIONAL REFUGEE ADMISSION CEILINGS: FISCAL YEARS 1993-98


1993 1994 1995 1996 1997 1998

Region Ceiling Ceiling Ceiling Ceiling Ceiling Ceiling

Africa 7,000 7,000 7,000 7,000 7,000 7,000

East Asia 52,000 45,000 40,000 25,000 10,000 14,000

Eastern Europe 1,500 \ 55,000 48,000 45,000 48,000 51,000

Former Soviet Union 50,000 /

Latin America

& Caribbean 3,500 4,000 8,000 6,000 4,000 4,000

Near East &

South Asia 7,000 6,000 5,000 4,000 4,000 4,000

Unallocated 1,000 3,000 2,000 3,000 5,000 3,000

Private Sector

Initiative (PSI) 10,000 1,000 2,000 -- -- --

132,000 121,000 112,000 90,000 78,000 83,000


Note: Regional ceilings in 1993 and 1994 were reallocated slightly during the year.


Source: Regional refugee admission ceilings: 1993-96: Respective issues of the Statistical Yearbook of the Immigration and Naturalization Services; 1997: White House Memorandum to the Secretary of State, September 30, 1996; and 1998: Federal Register, October 10, 1997 (Volume 62, Number 197), pp. 53219-20.also 3,000 unallocated admissions that can be assigned as needs develop. There are no Private Sector Initiative slots in fiscal year 1998. Private sector resettlement under which private organizations were required to cover resettlement costs had been used for Cubans, Iranians, Vietnamese, and Ethiopians in the past.


Refugee and asylum admissions continued to be major immigration issues in 1997, although they were not nearly as high profile as in 1994 with the exodus of Haitians and Cubans fleeing to the United States. The Haitian exodus was resolved primarily through the October 1994 return of President Aristide to power.


The Cuban refugee issue was resolved, in large part, through a September 9, 1994 agreement between the U.S. and Cuba to ensure that future migration between the two countries is conducted in "a safe, legal and orderly manner." Under this agreement, the U.S. guaranteed that a minimum of 20,000 Cubans could migrate legally to the U.S. each year. Cubans would apply at the U.S. interests section in Havana. In exchange, the Cuban Government took steps to prevent the exodus of Cubans in rafts and boats.


The 20,000 number for Cubans is a minimum, and not a ceiling. The following is a brief outline of who is able to migrate to the U.S. from Cuba:


o Persons on the waiting list for an immigrant preference visa who would have been ineligible to receive that visa before September 30, 1995, will be paroled into the U.S. This has been characterized as a "one-time, extraordinary measure.",


o Immediate relatives (spouses, minor children, and parents) of U.S. citizens will continue to be eligible for immigrant visas,


o Persons eligible for a preference visa during this year and their spouses and minor children will also continue to be eligible for immigrant visas,


o Refugee admissions ceilings for Latin America and the Caribbean were 8,000 in FY95, 6,000 in FY96, and have been set at 4,000 in FY97 and FY98. Cubans may apply within Cuba for refugee status.


o Unmarried sons and daughters (as differentiated from minor children) of those Cubans given immigrant or refugee status will be offered immediate parole into the U.S. Also, parole opportunities will be available to bring in extended family members who reside in the same household and are part of the economic unit, and


o Persons who are selected in a lottery will ensure that the 20,000 migration minimum is reached each year. It is estimated that approximately 6,000 immigrants will be selected annually. Persons must apply by postcard from Havana and will have to meet 2 out of 5 criteria: completion of secondary school, 3 years of work experience, possession of job skills, family ties in the U.S., and previous interest in immigrating to the United States (before October 1, 1994).


One of the major developments in the asylum area in recent years was the increase in the staffing of the asylum corps. The Crime Control Act had appropriated funding permitting the doubling of the number of INS asylum officers from 150 to 300, and full staffing has virtually been completed. This increase brings the U.S. more in line with the staffing levels of other countries having similar asylum programs: the 1994 staffing of 150 U.S. asylum officers had faced nearly 150,000 new applications.


The INS implemented several changes in the for asylum procedure through regulations which were implemented on January 4, 1995. These (1) provided for an integrated processing system that would grant meritorious claims within 60 days and refer nongranted claims directly to immigration judges and (2) removed the link between work authorization and the asylum process by withholding work authorization until asylum is granted or until a claim remains pending for 180 days, as a deterrent to the filing of frivolous or fraudulent claims. The "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" which was signed into law on September 30, 1996 incorporated many of these reforms into the legislation.


Under this reform of the asylum system, the backlog of cases has continued to fall. Preliminary data indicate less than 400,000 cases pending as of October 1, 1997, the lowest backlog in four years. The backlog has fallen even with the receipt of nearly 173,000 new filings in recent years under the American Baptist Church (ABC) litigation settlement which required INS to readjudicate the asylum claims of certain Salvadorans and Guatemalans present in the U.S. as of 1990.


Receipts of new non-ABC cases have declined dramatically under asylum reform:

Non-ABC asylum FY 1993 FY 1994 FY 1995 FY 1996 FY 1997

applications

received 127,129 123,884 74,888 48,712 49,888

While the numbers below still show considerable backlog of asylum applications, this is a reflection of ABC cases being filed, as well as re-opened cases. It is important to note the success of asylum reform: since it went into effect in January 1995, over 235,000 backlogged cases have been completed while keeping current with new receipts.

443,492 Applications pending, as of October 1, 1996

Applications from Oct. 1, 1996-Sept. 30, 1997:

+ 53,514 Filed (49,888 Non-ABC, plus 3,626 ABC cases)

+ 32,616 Re-opened cases

- 10,315 Granted

- 2,515 Denied

- 14,176 Referred to Immigration Judges -- Not Interviewed

- 40,743 Referred to Immigration Judges -- Interviewed

- 62,673 Administratively closed

399,200 Applications pending, as of October 1, 1997


Source: Preliminary data from INS, Office of International

Affairs


A listing of asylum cases filed and approval rates, by selected nationality, for fiscal year 1996 is shown in Table 11 on the following two pages.

Table 11


Source: United States Department of Justice, 1995 Statistical Yearbook of the Immigration and Naturalization Service (forthcoming). In that publication, this table is table 29.NONIMMIGRANTS


The second category of migrants to the United States is nonimmigrants who are aliens lawfully admitted temporarily to the U.S. for specific purposes. This is a numerically significant category, totalling nearly 25 million in fiscal year 1996 (See Table 12). While over 19 million of these are visitors for pleasure (tourists), nonimmigrants are playing an increasing role in the U.S. labor market.


Currently, there are approximately 19 broad classes of nonimmigrant visas, most of which have no numerical limitations. A complete listing is given in Table 13. Many of these allow the holder to participate in the U.S. economy, including:


E-1 Treaty trader

E-2 Treaty investor

H-1A Temporary workers-Registered nurses (program ended, 1995)

H-1B Temporary workers-Specialty occupations & fashion models

H-2A Temporary agricultural workers

H-2B Temporary worker performing other services

L-1 Intracompany transferee

O Aliens of extraordinary ability in the arts, sciences,

education, business or athletics

P Athletes and entertainers

Q International cultural exchange visitor

R Aliens employed by nonprofit religious organizations

TN Canadian and Mexican professionals entering under the North America Free Trade Agreement

TC Canadian professionals entering under the U.S.-Canada Free Trade Agreement (suspended by NAFTA on January 1, 1994)


and some J-1s, cultural exchange visitors such as au pairs, and F-1s, students


Other nonimmigrant visas allow foreigners to pursue foreign-based business and communication interests in this country: B-1 (visitors for business) and I-1 (representatives of the foreign media), while still others allow employment here, but only in connection with diplomacy (the A visa) or international organizations (the G and NATO classes).


The number of nonimmigrants entering in a year underestimates their impact on the U.S. labor force since many of these visas permit stays longer than one year. The H-1B visa, for example, permits work in the U.S. for as long as six years.


The Department of Labor has found some abuses of the H-1B visa which:


"was conceived as a means to meet temporary business needs for unique, highly skilled professionals from abroad [and] is, in fact being used by some employers to bring in TABLE 12. NONIMMIGRANTS ADMITTED, BY CLASS OF ADMISSION:


FISCAL YEARS 1994-96

Admissions


Nonimmigrant class 1994 1995 1996


Foreign gov't officials, spouses, & children (A) 105,299 103,606 118,157

Temporary visitors for business (B-1) 3,164,099 3,275,334 3,770,326

Temporary visitor for pleasure (B-2) 17,154,834 17,611,533 19,109,944

Transit aliens (C) 330,936 320,333 325,538


Students (F-1) 386,157 356,585 418,117

Vocational students (M-1) 7,844 7,635 8,786

Spouses and children of students (F-2 and M-2) 33,720 31,260 32,485

Int'l representatives, spouses and children (G) 74,722 71,982 79,528


Temporary workers

Registered nurses (H-1A) 6,106 6,512 2,046

Specialty occupations: professionals (H-1B) 105,899 117,574 144,458

Temporary agricultural workers (H-2A) 13,185 11,394 9,635

Temporary nonagricultural workers (H-2B) 15,687 14,193 14,345

Industrial trainees (H-3) 3,075 2,787 2,986


Professional workers: U.S.-Canada FTA (TC) 5,031 X X

Professional workers: NAFTA (TN) 19,806 23,904 26,987

Workers with extraordinary ability (O-1) 5,029 5,974 7,177

Workers accompanying O-1 nonimmigrants (O-2) 1,455 1,813 2,112

Athletes and entertainers (P-1, P-2, P-3) 28,055 28,372 33,633

International cultural exchange (Q-1) 1,546 1,399 2,056

Nonprofit religious organization workers (R-1) 5,951 6,742 8,992

Intracompany transferees (L-1) 98,189 112,124 140,457

Treaty traders and investors & families (E) 141,030 131,777 138,568


Families of temp. workers (H-4,O-3,P-4,R-2) 43,207 46,380 53,572

Families of CFTA & NAFTA professionals (TB & TD) 6,033 7,202 7,694

Spouses & children of intracompany transferees (L-2) 56,048 61,621 73,305

Foreign media representatives and dependents (I) 27,691 24,220 33,596

Exchange visitors (J-1) 216,610 201,095 215,475

Spouses and children of exchange visitors (J-2) 42,561 39,269 41,250

Fiances(ees) of U.S. citizens (K-1) 8,124 7,793 9,011

Children of fiances(ees) (K-2) 764 768 1,012


NATO officials, spouses and children (N-1 - N-7) 9,135 8,579 10,945

Unknown 878 779 310


TOTAL 22,118,706 22,640,539 24,842,503


Note: These numbers include multiple entries by the same person over time. Consequently, they should not be interpreted as the number of individual nonimmigrants entering in a particular fiscal year.


x Not applicable


Source: United States Department of Justice, 1996 Statistical Yearbook

of the Immigration and Naturalization Service, Table 39.TABLE 13. NONIMMIGRANT CLASSES OF ADMISSION


A-1 Ambassador, public minister, career diplomat or consular officer, and immediate family


A-2 Other foreign government official or employee, and immediate family


A-3 Attendant, servant, or personal employee of A-1 or A-2, and immediate family


B-1 Temporary visitor for business


B-2 Temporary visitor for pleasure


B-1/B-2 Temporary visitor for business and pleasure


C-1 Alien in transit


C-2 Alien in transit to United Nations Headquarters district under Section 11 (3), (4), or (5) of the Headquarters Agreement


C-3 Foreign Government official, immediate family, attendant, servant or personal employee, in transit


D Crewmember (sea or air)


E-1 Treaty trader, spouse and children


E-2 Treaty investor, spouse and children


F-1 Student (academic)


F-2 Spouse or child of student


G-1 Principal resident representative of recognized foreign member government to international organization, staff, and immediate family


G-2 Other representative of recognized foreign member government to international organization, and immediate family


G-3 Representative of nonrecognized or nonmember foreign government to international organization, and immediate family


G-4 International organization officer or employee, and immediate family


G-5 Attendant, servant, or personal employee of G-1 through G-4 and immediate family


H-1A Temporary workers -- Registered nurses (Note: no new admissions)


H-1B Other temporary workers in specialty occupations


H-2A Temporary worker performing agricultural services unavailable in the U.S.


H-2B Temporary worker performing other services unavailable in the U.S.


H-3 Trainee


H-4 Spouse or child of alien classified H-1, H-2A/B, or H-3


I Representative of foreign information media, spouse and children


J-1 Exchange visitorTABLE 13. NONIMMIGRANT CLASSES OF ADMISSION (Continued)

J-2 Spouse or child of exchange visitor


K-1 Fiance(e) of United States citizen


K-2 Child of fiance(e) of U.S. citizen


L-1 Intracompany transferee (executive, managerial, and specialized personnel continuing employment with international firm or corporation)


L-2 Spouse of child of intracompany transferee


M-1 Vocational student or other nonacademic student


M-2 Spouse or child of alien classified M-1


N-8 Parent of an alien classified SK-3 special immigrant


N-9 Child of N-8 or of an SK-1, SK-2 or SK-4 special immigrant


NATO-1 Principal permanent representative of member state to NATO


NATO-2 Other persons affiliated with NATO including other

through representatives of member states to NATO, spouses and children of NATO-7 NATO officials, NATO experts, clerical personnel, and servants


O-1 Aliens of extraordinary ability in the arts, sciences, education, business or athletics


O-2 Accompanying aliens with critical skills that form an integral part of an O-1 alien's performance


O-3 Spouses and children of O-1 or O-2


P-1 Athletes and entertainers of international stature


P-2 Athletes and entertainers entering under a reciprocal exchange agreement


P-3 Artists and entertainers offering a culturally unique program


P-4 Spouses and children of P-1, P-2, or P-3


Q International cultural exchange visitor


R-1 Aliens employed for nonprofit religious organizations


R-2 Spouses and children of R-1


S-1 Aliens supplying critical information on a criminal enterprise


S-2 Aliens supplying critical information relating to terrorism


TN Canadian and Mexican aliens entering as professionals under the North America Free Trade Agreement

TD Spouses and children of TN aliens


TC Canadian aliens entering as professionals under the U.S.-Canada Free Trade Agreement (suspended by NAFTA on January 1, 1994)


TB Spouses and children of TC aliens relatively large numbers of foreign workers who may well be displacing U.S. workers and eroding employers' commitment to the domestic workforce. Some employers -- though a minority of those who use the H-1B program -- seek the admission of scores, even hundreds of foreign workers, especially for work in relatively low-level computer-related and health care occupations. These employers include "job contractors," some of which have a workforce composed predominantly or even entirely of H-1B workers, which then lease these employees to other U.S. companies or use them to provide services previously provided by laid off workers."

(Testimony of Secretary of Labor Robert B. Reich before the Senate Subcommittee on Immigration, September 28, 1995)


In his testimony, Labor Secretary Reich cited two examples of abuses that were found. The first was in the computer field and involved Syntel, Inc., a computer personnel/services contractor, whose workforce was more than 80 percent H-1B nonimmigrants. Syntel contracted with American International Group, Inc. (AIG), a huge insurance company, to replace the services of nearly 250 U.S. workers, which AIG laid off. In fact, the laid-off U.S. workers were required to train their H-1B nonimmigrant replacements during their last few weeks of employment. Secretary Reich pointed out that this laying off and displacement of U.S. workers is permitted in the H-1B program under current U.S. law.


What was illegal, however, was Syntel's underpaying its Indian computer programmers by nearly 20 percent below the wage they were required by law to pay. These programmers were paid about $34,000 per year instead of the prevailing wage rate of more than $41,000 per year. As a result of this case, Syntel agreed to pay nearly $78,000 in back wages to 40 H-1B employees and take other steps to develop U.S. workers to reduce its dependence on a nonimmigrant workforce. (See the "Labor Condition Application for H-1B Nonimmigrants" on the following page which shows the four conditions an employer must attest to before bringing in

H-1B workers)


Secretary Reich's example of H-1B abuses in the healthcare field involved Rehab One, a Michigan company which went into the business of providing temporary physical therapists -- in this case, exclusively H-1B workers from Poland -- to healthcare facilities primarily in Texas. A Department of Labor investigation found that the company actually paid its Polish therapists as little as $500 per month during certain periods though it was required to pay a prevailing wage of as much a $2,800 per month.


The Clinton Administration advocates reforms to the H-1B program to correct these abuses. It should be noted, however, that certain aspects of the current system are part of commitments inThis blank page should be replaced with an LCA formtrade agreements. Under the General Agreement on Trade in Services (GATS), the U.S. commitments included the current law's admission of up to 65,000 H-1B nonimmigrants to be paid the prevailing wage for the occupation in the area or the actual wage at the facility, whichever is higher. (Background information on the GATS agreement is covered later in this section.) The U.S. commitments, however, include three provisions which are not yet part of current U.S. law. Specifically, employers seeking access to H-1B temporary workers would be required to attest that:


(1) they have not laid off or otherwise displaced U.S. workers in the occupations for which they seek nonimmigrant workers in the periods preceding and following their seeking such workers; and,


(2) in certain circumstances, they have taken timely and significant steps to recruit and retain U.S. workers in these occupations.


The third proposal is to reduce the allowable period of stay under the H-1B program from six to three years to better reflect the "temporary" nature of the presumed employment need.

The North American Free Trade Agreement


The North American Free Trade Agreement (NAFTA) between the United States, Canada, and Mexico went into effect on January 1, 1994. The NAFTA supersedes the U.S.-Canada Free Trade Agreement. Although the Agreement facilitates the temporary entry of business persons, it does not create a common market for the movement of labor. Each NAFTA country maintains its rights to protect the permanent employment base of its domestic labor force, to implement its own immigration policies, and to protect the security of its borders. The following four groups of business persons are permitted temporary entry to the United States under Chapter 16 of the Agreement:


(1) Business visitors are aliens engaged in international

business activities for the purpose of conducting activities related to research and design; growth, manufacture, and production; marketing; sales; distribution; after-sales service; and other general services, and receiving no remuneration from a U.S. source.


(2) Traders and Investors. Traders are persons carrying on

substantial trade in goods or services between their own country and the country they wish to enter. Investors establish, develop, administer, or provide advice or key technical services to the operation of an investment to which the business person or the business person's enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive, or involves essential skills.


(3) Intra-company transferees are employed by a company in a

managerial or executive capacity or one that involves specialized knowledge and who are transferred within that company to another NAFTA country; and


(4) Professionals. Certain professionals (listed on the next page) are covered under the NAFTA provided they meet minimum educational requirements or possess alternative credentials and seek to engage in business activities at a professional level in that country.


Professions Covered under Chapter 16 of the NAFTA


GENERAL:

Accountant

Architect

Computer Systems Analyst

Disaster Relief Insurance Claims Adjuster

Economist

Engineer

Forester

Graphic Designer

Hotel Manager

Industrial Designer

Interior Designer

Land Surveyor

Landscape Architect

Lawyer (including Notary in the Province of Quebec)

Librarian

Management Consultant

Mathematician (including Statistician)

Range Manager/Range Conservationalist

Research Assistant (Working in a post-secondary educational institution)

Scientific Technician/Technologist

Social Worker

Sylviculturist (including Forestry Specialist)

Technical Publications Writer

Urban Planner (including Geographer)

Vocational Counsellor


MEDICAL/ALLIED PROFESSIONAL:

Dentist

Dietitian

Medical Laboratory Technologist (Canada)/ Medical Technologist (U.S. and Mexico)

Nutritionist

Occupational Therapist

Pharmacist

Physician (teaching or research only)

Physiotherapist/Physical Therapist

Psychologist

Recreational Therapist

Registered Nurse

Veterinarian


SCIENTIST:

Agriculturist (including Agronomist)

Animal Breeder

Animal Scientist

Apiculturist

Astronomer

Biochemist

Biologist

Chemist

Dairy Scientist

Entomologist

Epidemiologist

Geneticist

Geologist

Geochemist

Geophysicist (including Oceanographer in Mexico & U.S.)

Horticulturist

Meteorologist

Pharmacologist

Physicist (including Oceanographer in Canada)

Plant Breeder

Poultry Scientist

Soil Scientist

Zoologist


TEACHER:

College

Seminary

University


NAFTA facilitates entry under the first three of these categories, with little change to the current criteria for entry under U.S. immigration law. With regard to the movement of professionals between U.S. and Canada, the liberal provisions and absence of numeric limitations which existed in the U.S.-Canada Free Trade Agreement have continued. The United States and Mexico have agreed to an annual numerical limit of 5,500 Mexican professionals entering the United States. This number is in addition to those admitted under a similar category in U.S. law (H-1B nonimmigrants) that is subject to a global limitation of 65,000 professionals, but that remains unaffected by NAFTA. The 5,500 limit may be increased by agreement between the United States and Mexico. The ceiling will be phased out by January 1, 2004 (ten years after NAFTA went into effect) unless the two countries decide to remove the limit earlier.


Statistics on the flow of Canadian and Mexican nonimmigrant professionals to the United States under the NAFTA Agreement, since its implementation on January 1, 1994, are shown below:


Calendar Years

1994 1995 1996 (preliminary)

Canadian Professionals 25,104 25,598 29,141

Their spouses and children 6,707 7,436 8,472

Mexican Professionals 16 63 240

Their spouses and children 11 13 57


Note: These numbers include multiple entries by the same person over time. Consequently, they should not be interpreted as the number of individual professionals entering under the U.S.-Canada Free Trade Agreement and the NAFTA.

The entry of Mexican professionals into the United States under NAFTA differs somewhat from that of Canadians because U.S. immigration law changed after the U.S.-Canada Free Trade Agreement entered into force. The Canadian citizen is not required to obtain a nonimmigrant visa, prior petition, labor certification, or prior approval. The entry of a Canadian professional works in the following way. First, a Canadian citizen must have prearranged employment with a U.S. employer in one of the professional occupations covered by the Agreement. At the port of entry, the professional must present documentation to satisfy the INS inspecting officer. Specifically, an applicant must present evidence of citizenship, a letter from the employer in the U.S., and supporting documentation showing the type of professional activity in which they will be involved. This documentation must specify job duties, their expected length of stay, their educational qualifications or appropriate credentials, evidence that all applicable State and local licensure requirements are satisfied, and the arrangements for their salary.


A Mexican citizen seeking admission into the United States as a professional under NAFTA must present at the port of entry a TN visa issued by a U.S. Embassy or Consulate, and present a valid Mexican passport. This visa would be issued to the applicant after the prospective U.S. employer has filed a petition with and received written approval from the INS classifying the Mexican applicant as a professional. At the time the petition is filed, the following supporting documentation must also be submitted by the prospective employer: (a) a certification from the U.S. Department of Labor (DOL) that the prospective employer has filed a labor condition application; (b) evidence of the educational qualifications or appropri