February 25, 2000
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Good morning. My name is Heidi Wilson. I am the Corporate Immigration Manager for Sun Microsystems. Thank you for extending this opportunity for me to be here today to share with you some of Sun's experiences and concerns with the Immigration and Naturalization Service (INS). Before diving into a detailed discussion of processing concerns and other performance-related questions, however, I believe it is important to provide the context for these concerns. With that, let me explain why the difficulties we are now facing with the INS are of such acute concern. To put it in simple business terms, the most valuable asset that Sun has is its highly skilled and innovative workforce. It is, therefore, imperative that this asset - this human capital - be in ready supply. Now here is the catch. We cannot control that supply. Due to a variety of factors, including a shortage of skilled workers here in the U.S. and the need for unique skills, Sun must rely on the INS to help provide us with access to a critical portion of that workforce. It is common knowledge among those who are familiar with the information technology industry that high tech companies, including Sun, rely heavily on the contributions of highly skilled foreign professionals. While this group only constitutes approximately 3% of Sun's total workforce in sheer numbers, their importance to the company in the areas of critical projects and special expertise is great. It is a straight equation. Sun must be able to rely on the INS as a partner to ensure the health of our business. If we cannot rely on efficient and timely processing of visa petitions and applications by the INS in order to give us access to the skilled professionals that we need, it damages the performance of the company. In particular, lengthy delays and inconsistencies in INS processing are resulting in major complications for company projects, planning and goals. The INS has a broad and difficult charter, and we have at times been very fortunate to receive good treatment and excellent service. That being said, those instances do not tend to be the rule. The agency is still plagued by problems, especially in the area of the slow and untimely processing of applications and petitions. Anyone in the Bay area who has had to drive from point A to point B during rush hour traffic will understand what a delay means. Well I can tell you firsthand that after dealing with the processing delays at the INS, I consider my daily commute from Fremont to Palo Alto to be a cinch. Something must be done to improve this situation, or the companies like Sun that must rely on the INS will continue to suffer the consequences. In our case that translates into lost business opportunities, slower innovation, and diminished productivity overall. Turning now to some specifics, we are experiencing delays of up to 14 months on the processing of I-140 Immigrant visa petitions. The problem here is that approval of this petition is necessary before a worker who is currently here on an H-1B temporary visa can file for adjustment of status in order to receive their green card. If the employee does not receive that adjustment of status before their temporary visa expires (a maximum of 6 years in the case of H-1B visas), they will have to leave the U.S., and thus their jobs, for at least a year before being eligible to return. Sun has already had to terminate approximately 10 employees over the course of the last eight months due to these delays. For the majority of these employees, had their I-140 Immigrant visa petitions been processed in a timely manner they would not have been forced to end their employment with Sun in the U.S. To make matters worse, through the end of next year we face the risk of losing approximately 100 more employees due to the same problems. As a case in point, Sun currently has an employee whose H-1B temporary visa will expire in June of 2000. He filed his I-140 petition to start the process of receiving a green card back in August 1999. The priority date on his I-140 petition is 1/13/98. Unfortunately, due to delays at the INS his petition has not yet been processed. Realistically, if his petition is not approved before this April when immigrant quotas are anticipated to backlog, Sun may have to terminate him from employment here in the U.S. For this employee that will effectively mean the loss of income, selling his home, and uprooting his wife and children. Ironically, this employee's wife is the holder of a PhD in Neuro Toxicology, and has had her work published. Unfortunately, the U.S. will lose the benefits of her work as well due to the family's forced departure. Since this employee is the key person on an important project, for Sun this will mean delaying shipment on a state of the art product to an important customer, and the loss of approximately $1 million revenue as a result. Moreover, the labor market is so tight these days that it will be difficult, if not impossible, to find a replacement for this person. Another area where slow processing is causing problems for us is with regard to H-1B visa petitions themselves. The INS is currently taking up to 90 days to process these petitions - this is on top of what could be up to 30 days for the preliminary Labor Condition Application (LCA) which has to go through the Department of Labor. In total, then, we are waiting up to 4 months or longer before being able to bring on board a critical, time-sensitive hire. Sometimes this means that employees will actually be stuck outside of the U.S. for several months, again resulting in project delays and other setbacks for the company. These types of delays and backlogs are not only a problem with I-140's and H-1B's. H-4 Spousal petitions have taken 8 months or longer to process posing problems for our employees' families. Petitions filed for replacement or lost petitions have taken 8-12 months to be processed. This causes problems for employees needing to travel for personal or business reasons, as they have no documentation to prove that they can reenter the U.S. in legal work status, and may be stuck outside the U.S. for an extended period of time. Adjustment of Status applications that employees need to obtain their green cards are taking 24 months or longer. While this limbo period persists, not only will the employee have to redo fingerprint forms and medical exams, but the company will also be prevented from promoting them to new or managerial positions. Work permits (EADs) and Advance Parole applications are taking in excess of 90 days to process, causing interruptions in employees' work, and eliminating the ability to travel for emergency family or business related situations during the pendency of a I-485 Adjustment of Status application. Another area of concern has been with regard to inconsistent adjudications. Specifically, the INS has been inconsistent in their approvals and denials of EB-2 and EB-3 petitions. For example, we recently had two identical I-140 petitions seeking EB-2 status reviewed by INS. Both petitions were based on identical labor certification applications, both of which, in turn, had been approved by the Department of Labor. Only one of the I-140 petitions was approved, however, while the other petition, although identical in every detail except the applicant's name, was rejected. Both of these applications should have been approved under EB-2. This type of inconsistent and flawed adjudication occurs all too frequently. Sadly, in order to appeal an erroneous INS denial to the Administrative Appeals Unit it can take a full year. Finally, I would like to highlight the severe problems that the INS has had in producing and maintaining an accurate count of H-1B petitions. This guessing game with regard to the number of H-1B visas remaining available at any given point in time creates a great deal of uncertainty for employers who are left with no way of knowing when, or even if, they can bring a needed worker on board. Sun has already had to wait several months to get needed employees on board. We have petitions that have been on file with INS since mid to late November, but we won't know how close they are to being approved, or even if they will be approved, until after we can determine whether the INS has hit the cap for this fiscal year. Obviously, if the INS is not able to reliably determine when the visas have been used up, companies like Sun are left in limbo with our hiring decisions. An additional frustration has been that the INS increased their fees, but we have not yet seen any benefits in the form of improved service as a result. I know that others on the panel will be addressing possible solutions for these problems, so I will not duplicate their comments here. I would however, urge you to give close consideration to these proposals as solutions are desperately needed. Thank you once again for inviting me here today. I appreciate the opportunity you have given me to add Sun's perspective to this discussion, and would be happy to answer any questions that you may have.
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Bay Area Congressional Delegation
Studies Chronic Delays at Immigration Agency Statement of Congresswoman Zoe Lofgren Statement of Jennifer Dineen-Ocon Statement of Sister Marilyn Lacey Statement of Jacob and Yetta Bromley Statement of Debra Jaramillo-Coker Statement of George Windsor Jones
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