The bill that will not go away

Senator Arlen Specter of PA says he is fashioning a new immigration reform bill, one that will not have the Z visa provision of the failed measure, which would give blanket protection to 12 million illegal immigrants. This adjustment may mollify the anti-amnesty crowd, but will rile businesses who want to hire these 7 million – plus workers without incurring legal liability. I’m skeptical.

Review of workers compensation coverage of illegal workers

A recent article in the quarterly journal of the International Association of Industrial Accident Boards and Commissions (IAIABC) reviews statutes and court decisions regarding workers comp coverage of undocumented workers. I have placed the entire article below – it is part I; part II is yet to appear. The authors say that 6 states have statutes that expressly authorize coverage for these workers – CA, FL, NV. NY,TX and UT, while two states’ laws expressly do not – ID and WY. Twelve states have had court decisions in favor of coverage – IL, MI, MN, ND, OH, AL, AZ, CO, MT, NC, SC and VA. Two of these states – MI and VA – also have court decisions going the other way. Two other states have had court decisions which go against coverage — KS and PA.
You ought to consider this list giving a rosier picture of coverage than is the case, because some states, notably NY, constrict the benefits of these workers, though not denying them outright.
By Thomas R. Lee and Dennis V. Lloyd
Illegal immigration is a hot-button issue that has spawned a wide range of legal and public policy questions — including questions regarding workplace injuries involving undocumented workers. The threshold question is eligibility for workers’ compensation benefits, which is a matter of state law.
Coverage of Illegal Aliens under Workers’ Compensation Statutes in Various States

Continue reading Review of workers compensation coverage of illegal workers

Immigration Malpractice by Citizenship and Immigration Services

The NY Times ran an editorial condemning the inefficiency of CIS, part of Homeland Security, in processing green card applications. The State Department encouraged people to file applications in a way that inundated CIS. Read here:
The prickliness and glacial ineptitude of the immigration system is old news to millions of would-be Americans. Immigrants who play by the rules know that the rules are stringent, arbitrary, expensive and very time-consuming. But even the most seasoned citizens-in-waiting were stunned by the nasty bait-and-switch the federal bureaucracy pulled on them this month. After encouraging thousands of highly skilled workers to apply for green cards, the government snatched the opportunity away.
The tease came in a bulletin issued by the State Department in June announcing that green cards for a wide range of skilled workers would be available to those who filed by July 2. That prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.
Then they learned that the hope was effectively a hoax. The State Department had issued the bulletin to prod Citizenship and Immigration Services, the bureaucracy that handles immigration applications, to get cracking on processing them. The agency is notorious for fainting over paperwork — 182,694 green cards have been squandered since 2000 because it did not process them in time. That bureaucratic travesty is a tragedy, since the annual supply of green cards is capped by law, and the demand chronically outstrips supply. The State Department said it put out the bulletin to ensure that every available green card would be used this time.
After working through the weekend, the citizenship agency processed tens of thousands of applications. On Monday, the State Department announced that all 140,000 employment-based green cards had been used and no applications would be accepted.
Citizenship and Immigration Services, the definition of a hangdog bureaucracy, says the law forbids it to accept the applications. The American Immigration Lawyers Association says this interpretation is rubbish. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application wave that it provoked.
The good news is that immigrants’ hope is pretty much unquenchable. Think of the hundreds of people standing in the rain in ponchos at Walt Disney World on Independence Day, joining the flood of new citizens now cresting across the country. They celebrated on July Fourth, but for many of them the magic date is July 30, when a new fee schedule for immigrants takes effect, drastically jacking up the cost of the American dream.
The collapse of immigration reform in the Senate showed the world what America thinks of illegal immigrants — it wants them all to go away. But the federal government, through bureaucratic malpractice, is sending the same message to millions of legal immigrants, too.
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Workers comp protections for illegal workers cut in New York

This is what the failed immigration reform bill was intended to prevent – a bifurcation of the nation’s worker protections into two systems – one for legal, the other for illegal workers. Judges, policymakers and practitioners are aware that by weakening protections for illegal workers, long term damage to the entire system of protections happens.
Thanks to http://www.workcompcentral.com, I learned that a New York appellate court ruled that illegal workers are ineligible for one form of workers compensation benefit: the so-called “additional compensation” to make up for earnings capacity loss when there is at least a 50% permanent reduction in earnings loss.
The case decided in June was Ramroop v. Flexo-Craft Printing Inc., 501026, 06/21/2007.
Says Workcompcentral, “In 1995, Ronnie Ramroop sustained a work-related injury to his right hand and was awarded a 75% schedule loss of use of his hand. In 2002, Ramroop requested his case be reopened to see if he was entitled to additional benefits provided for workers with at least 50% loss of use of a hand, which Workers’ Compensation Law Section 15 allows.”
The court ruled that because the worker in question was not legally able to work, his earning capacity was reduced – in fact, eliminated – by his illegal status, so that whatever learning loss he sustained from work injury was not the sole reason for earnings loss. Therefore the worker did not meet a criterion for more additional compensation that the injury itself must by be the sole reason for earnings loss.
This could be the start of a turn in judicial oversight that would eclipse a 2006 decision. In July 2006, in Jose Hernandez v. Excel Recycling Corp., the 3rd Division Appellate Court ruled that a policy of disregarding immigration status in determining eligibility for workers’ compensation benefits can be upheld, regardless of federal immigration law.

“I think that is something that can be dealt with at a later time.”

That was Senator Elizabeth Dole’s rationalization about how she expects the illegal immigrant population in the United States to be addressed, after voting against immigration reform.
Below is the Washington Post’s editorial on Friday 6 29 about the defeat of the bill.
An Immigrant’s Lament: 53 senators vote to keep 12 million people in the shadows.
AFTER SEN. Elizabeth Dole of North Carolina joined 36 of her Republican colleagues, 15 Democrats and one independent in the Senate yesterday in squashing the last, best hope for now of overhauling the nation’s bankrupt and busted immigration laws, she was asked what she proposed for the 12 million undocumented immigrants in the country. “I think that is something that can be dealt with at a later time,” she replied airily.
Tell that to Ernesto, Mrs. Dole. He’s a 31-year-old Salvadoran handyman in Wheaton who sneaked over the border through California four years ago after paying thousands of dollars to a migrant smuggler, to whom he remains in debt. Mrs. Dole and her colleagues may imagine that Ernesto will simply evaporate now that the Senate has decided to avert its gaze, but he won’t. Although he earns barely $1,200 a month, he does better here as a painter, carpenter, landscaper and electrician than he ever could in Cabañas, his hardscrabble native region of northern El Salvador, which is rich in beans and sugar cane but bereft of jobs.
Ernesto, who spoke with us on the understanding that his last name would not be published, was on Capitol Hill with a small group of immigrants yesterday. He watched ruefully as the senators dealt their lethal blow to his prospects for a normal life on the right side of the law. But he’s staying put. With the help of Casa of Maryland, a local nonprofit, he finds work several days a week and sends $200 a month home to his family in El Salvador. His worldly possessions here, which he keeps with him in a tiny rented room, consist of a power saw, a few hand tools, a television and the cellphone he uses to talk to his wife and 5-year-old daughter every day.
It’s enough, better than what he left behind in El Salvador, and plenty to nourish an immigrant’s dream of earning a little more, of working full time, of maybe bringing his family to live with him one day. Ernesto does not intend to leave, but even if he were to be deported, there are still about 12 million people representing 5 percent of the nation’s job force who cannot be ignored, hounded, harassed, wished or deported into nothingness. At some point Congress will come to its senses, steady its nerves and recognize that unimpeachable reality. Mrs. Dole and her colleagues may think they killed immigration reform yesterday. In fact the problem will just keep coming back, bigger each time than the last.

Big trouble with temporary work visa for professional workers.

The likes of Micosoft, Google, Intel and the rest of the IT lobby in Washington have not been able to get Congress to add more slots. In fact, one lobbyist called the Senate reform bill of May a disaster. The point system plan worked against the interests of the lobbying firms because it stripped employers of picking the workers they wanted. And Washington is paying more attention to abuses in the current H-IB program whereby foreign holders of the visas are paid less than their American peers.
From the NY Times article of today, “High-Tech Titans Strike Out on Immigration Bill” –
High-tech companies want to be able to hire larger numbers of well-educated, foreign-born professionals who, they say, can help them succeed in the global economy. For these scientists and engineers, they seek permanent-residence visas, known as green cards, and H-1B visas. The H-1B program provides temporary work visas for people who have university degrees or the equivalent to fill jobs in specialty occupations including health care and technology. The Senate bill would expand the number of work visas for skilled professionals, but high-tech companies say the proposed increase is not nearly enough. Several provisions of the Senate bill are meant to enhance protections for American workers and to prevent visa fraud and abuse.
High-tech companies were surprised and upset by the bill that emerged last month from secret Senate negotiations. E. John Krumholtz, director of federal affairs at Microsoft, said the bill was “worse than the status quo, and the status quo is a disaster.”
In the last two weeks, these businesses have quietly negotiated for changes to meet some of their needs. But the bill still falls far short of what they want, an outcome suggesting that their political clout does not match their economic strength.
Stephen W. Yale-Loehr, a co-author of a treatise on immigration law, said: “High-tech companies are very organized. They have numerous lobby groups. When Bill Gates advocates more H-1B visas and green cards for tech workers, everyone listens.
“But that supposed influence has not translated into legislative results,” Mr. Yale-Loehr, who teaches at Cornell Law School, continued. “High-tech companies have been lobbying unsuccessfully since 2003 for more H-1B visas. It’s hard to get anything through Congress these days. In addition, anti-immigrant groups are well organized. U.S. computer programmers are constantly arguing that H-1B workers undercut their wages.”
Many high-tech companies bring in foreign professionals on temporary H-1B visas. The government is swamped with petitions. On the first two days of the application period in April, it received more than 123,000 petitions for 65,000 slots.
The Senate bill would raise the cap to 115,000 in 2008, with a possible increase to 180,000 in later years, based on labor market needs.
Many high-tech businesses want to hire foreign students who obtain advanced degrees from American universities, and many of the students want to work here, but cannot get visas.
Senator Richard J. Durbin of Illinois, the Democratic whip, and Senator Charles E. Grassley, Republican of Iowa, have a proposal that would overhaul the H-1 B program and give priority to American workers. Their proposal would also define, in great detail, the wages that must be paid to workers who have H-1B visas.
Mr. Durbin contended that some companies have used foreign workers to undercut the wages of American workers. And in some cases, he said, foreign workers come to this country for a few years of training, then return home “to populate businesses competing with the United States.”
“The H-1B visa program is being abused by foreign companies to deprive qualified Americans of good jobs,” Mr. Durbin said. “Some companies are so brazen, they say ‘no Americans need apply’ in their job advertisements.”
High-tech companies said that the wage standards in the Durbin-Grassley proposal would, in effect, require them to pay some H-1B employees more than some equally qualified American workers who are performing the same duties.
The Government Accountability Office, an investigative arm of Congress, said that thousands of H-1B workers have been paid less than the prevailing wage.
One company, Patni Computer Systems, agreed this month to pay more than $2.4 million to 607 workers with visas after Labor Department investigators found that they had not been paid the wages required by federal law. The company’s global headquarters are in Mumbai, India, and its American operations are based in Cambridge, Mass.

Coaching Mexicans on labor rights in the U.S.

Thanks for Bill Zachry for bringing to my attention this San Francisco Chronicle article about training Mexican workers, in Mexico, about their employee rights. “Started in September, the Center for Migrant Rights is a small nonprofit group based in the central state of Zacatecas, which provides free legal aid to guest workers seeking compensation for injuries or missed pay. The workshops — this one was conducted in the central city of Celaya in Guanajuato state — emerged after some 20 workers who had returned from the United States decided to educate would-be migrants about the ins and outs of toiling in the United States.”
the Global Workers Justice Fund is trying to do something about ensuring legal representation of Hispanic workers in the U.S. when they have returned to their country of origin.
Mexico courses teach migrants American ways
(06-12) 04:00 PDT Celaya, Mexico — On a recent Sunday morning, a dozen burly men sat in a cinder-block garage, fixing their attention on the acronyms “OSHA,” “EPA” and “DOL” written on large pieces of paper.
“Why is it that we Mexicans only know about the migra (U.S. immigration officials) and the police?” asked Jesus Rojas of the Center for Migrant Rights. “Why not the Occupational Safety and Health Administration, which oversees workplace safety? Why not the Department of Labor, which looks out for wage violations?”
Next, Rojas passed around a pay stub from his job in Delaware when he worked as a landscaper on a guest-worker visa. “Don’t trash these, file them away,” he said. “Being organized can help if you or your fellow workers are underpaid or not paid at all.”
Call it Immigration 101.
Started in September, the Center for Migrant Rights is a small nonprofit group based in the central state of Zacatecas, which provides free legal aid to guest workers seeking compensation for injuries or missed pay. The workshops — this one was conducted in the central city of Celaya in Guanajuato state — emerged after some 20 workers who had returned from the United States decided to educate would-be migrants about the ins and outs of toiling in the United States.
Since then, the center’s immigration attorneys have organized crash courses on U.S. labor law, the role of U.S. government agencies and previous civil rights struggles. The lawyers then accompanied the budding activists to workshops in their home states of Zacatecas, Guanajuato, Queretero and Veracruz, among others.
As the U.S. Congress remains indecisive on immigration reform, one thing is sure in the poor and dusty outskirts of Celaya — migrant workers, whether illegal or not, will remain vulnerable to exploitation by some U.S. employers.
“I wish somebody had told me about all of this before I left Mexico,” said the 52-year-old Rojas.

Continue reading Coaching Mexicans on labor rights in the U.S.

Green card disasters

“Sertasheep” from www.immigrationvoice.org wrote me to highlight growing problems with green cards: extremely long waits for green card issuance, and mounting shortage of skilled professional labor beyond computer engineering. Here is his posting:
“Contrary to popular belief, it is not just computer engineers but also high-skilled professionals from such diverse facets of industry as medicine, banking and insurance, finance, teaching and research who are among those affected by delays amounting to over 10 years.
Arcane annual quotas restrict the number of Green Cards available in two ways to the same pool of high-skilled applicants. The First categorization is based on skills and exceptional abilities. The second categorization is based limits assigned to each qualifying country. Thus, there’s currently a overall cap of 140,000 Green Cards in addition to a hard country limit of 9,800 Green Cards annually, despite countries such as India and China yielding more high-skilled professionals to meet burgeoning US demands.
The American Medical Association (AMA) and the Association of American Family
Practitioners (AAFP) have predicted a severe shortage of PCPs over the next decade, as the demand is outstripping supply rapidly. In a position paper published last April, the AMA suggested addressing the shortage of physicians in underserved areas by international medical graduates (IMGs,).
The position paper states that one out of every five adequately served non-metropolitan counties would become underserved, if all IMGs currently in primary care practice were to be removed. Last October, the AMA wrote to several Senators and Representatives asking for their attention towards the hardships faced by not only the physicians and their families in getting Green Cards, but also the communities that depend upon them for their medical care. The AMA asked for exemptions from immigration caps for these physicians, upon completion of their service requirement.”

Legislative update

Bloomberg reports that the Senate’s proposed overhaul of U.S. immigration law failed a critical test vote today.

The 33 votes to limit debate were 27 short of the 60 needed to move toward a final vote on legislation granting legal status to 12 million undocumented aliens. Democrats scheduled another vote for 7:30 p.m. Washington time. Democratic Leader Harry Reid of Nevada said that if a second vote fails, “the bill’s gone.” He added, “What else can I do?”

One of the deal breakers was apparently a 49-48 vote on an amendment put forth by North Dakota Sen. Byron Dorgan to terminate the guest-worker plan in five years unless Congress renews it.

The guest-worker plan is a cornerstone of the fragile agreement worked out between Democrats and Republicans, which also would impose tougher sanctions on employers who knowingly hire undocumented aliens.
Negotiators today sought agreement on a list of amendments that Republicans would be allowed to offer, while Republicans tried to resolve concerns about Dorgan’s amendment, lawmakers said. In addition, Democrats were looking for changes in an amendment that would let immigration officials give information to law enforcement officials about applicants for legal status.

Another account of today’s immigration vote can be found in AP’s coverage
Newsday lists Senate votes by state.