AILA protests INS Raid in Texas
Posted Feb 05, 2000

The INS Enforcement Liaison Committee of the American Immigration Lawyers Association (AILA) submitted a letter of protest to Michael Pearson, Executive Associate Commissioner of INS for Field Operations, on February 1, 2000, pertaining to the INS raid in San Antonio, Texas. This raid was discussed in the last week’s Immigration Law Bulletin of the Law Office of Sheela Murthy dated January 25, 2000.

The February 1, 2000, AILA letter argues that, according to the decision in the National Association of Manufacturers v. Department of Labor (NAM) case, the court ruled that no H1B amendments are required to temporarily transfer the workers to another site, and therefore the INS was in violation of the law. Accordingly, there was no violation of law when the employer did not file the H1B amendments for the San Antonio location.

We have to wait and see if the INS acknowledges that they may have conducted the raids without legal basis. Obviously, this issue is likely to be hotly debated by them since it would render their raid illegal and a violation of the law!

Furthermore, as we have pointed out and the AILA letter pointed out, any alleged illegalities in having the employees working at another work site not approved by the INS, could only be considered a violation by the employers, not the employees.

AILA also raised the issue that the H1B engineers and the company in question are both now suffering hardship since the INS is preventing them from working, when there may not be a legal basis for the raid or for stopping work.

AILA stated that those arrested included permanent residents and persons with employment authorization cards; eyewitnesses said that persons were arrested based on their Indian ethnicity and not their immigration status. The AILA letter also expressed outrage that INS had made completely unfounded charges of fraud by the company, in its statements to the press, when no such fraud ever existed!

AILA urged INS to understand the practical realities faced by computer consulting firms, who must wait several months for the approval of an H-1B petition but who are also expected to predict in advance the projects and worksites to which programmers will be assigned. INS’s slow timetable is completely out of sync with this dynamic, fast-paced industry. The common practice of these companies is to list the company’s own headquarters address as the worksite.

Editor’s comment :
Law Office of Sheela Murthy

Whether, and in what circumstances, a change of worksite requires an amendment is not a settled question of law. It is AILA’s position, based on the NAM lawsuit and an INS Memorandum from 1996, as expressed in their letter to the INS, that no amendment is required. Since current INS policy appears to require an amendment, The Law Office of Sheela Murthy, P.C. continues to believe that the safest approach would be to file an amendment to protect the companies and the H1B employees.)