Monday, July 5, 2010

CIS? NIMBA…

As I sat at the opening session of the American Immigration
Lawyers Association (AILA) National Convention on Thursday morning, I felt a
rekindling of the fire I felt when I began immigration practice.  David Leopold, AILA’s newly-installed
president, spoke eloquently about our responsibilities as immigration attorneys,
about the many masks behind which racism hides, and about our history as a
nation of immigrants. 



I don’t know Mr. Leopold personally, but after that
presentation of his, it sure feels like I do. 
The son of Holocaust survivors and as passionate an advocate as I’ve
seen among our ranks, it was quite apparent to me that the fire this man has in
his belly is exactly what we – AILA as
well as the United States of America – need to turn around the catastrophic injustices
manifested by our current hodge-podge of disjointed immigration laws and
regulations.



Despite my nearly 20 years as an AILA member,  I have often taken the organization to task
for what I perceive to be, at times, casting an agenda net which is as
implausible as it is broad.  It is
difficult to develop a constituency among the electorate or within Congress
when every single immigration restriction brings forth dramatic cries of “FOUL!”
by AILA.  Unfortunately, those of us who
practice investment-based and employment-based immigration have different
issues, concerns, and perspectives than the majority of our AILA brethren
practicing in the areas of family immigration, deportation defense, asylum, and
the like.  What is good for the goose is not
always good for the gander, and it is always troubling to see AILA take an
uber-liberal position which articulates an “injustice” where one does not, in
fact, exist.



The fact is that immigration laws, like all laws, are meant
to be enforced; barring underlying circumstances which create a significant
injustice, deporting someone who has been subject to deportation for years is
neither outrageous nor unjust.  It is
simply enforcement of the law.  For too
long AILA and other immigration advocates have tended to thrash around like a
barely-grazed soccer player when confronted with enforcement issues, demanding
Congressional reform when everyone knows it
will not happen and it makes credibility that much harder for those of us who
advocate for those who actually do follow the letter of the
law.  My arbitrarily-denied H-1B
professional is, in reality, the victim of far more injustice than the guy who
overstayed his visa waiver and is finally nabbed five years after a removal
hearing he chose not to attend.  But
while the latter gets the media attention, the former is accepted as just part
and parcel of a dysfunctional legal system.



This problem of these “two AILAs” – the liberal,
defense-focused AILA and the pragmatic AILA advocating for sensible business
immigration reform -- has existed for years, and it invariably weakens AILA’s
effective advocacy on both fronts.  I am
hopeful that under Mr. Leopold’s leadership, our institutional agenda can
finally be reconciled and fine-tuned so that Congress and the American people
are able to understand and separate the issues.   Until we are able to do so, we are simply
the Democrats to FAIR’s Republicans, entrenched in a public and congressional perception
which is simply inaccurate. 



As Mr. Leopold stated in his installation speech (and as I
have stated in these pages before), there is nothing surprising about Arizona’s
incredibly flawed response to the problem it faces with illegal migrants.  The USG is responsible for border enforcement
but despite the dramatic increase in “boots on the ground” and technologies,
the Mexican cartel wars continue to cross into the U.S.  Arizona’s dangerous encroachment on fundamental
constitutional protections is, in the eyes of a state saddled with the
financial burden imposed by both the criminal and social costs resulting in the
presence of an unchecked illegal migrant population, a rational response to the
consistent failure of the federal government to control the border. And today
as yesterday, the amount of money Western states spend to educate children who
are either undocumented aliens or the U.S. citizen children of undocumented
aliens is still massive and not subsidized by the USG…no wonder these laws are
passing.



But until there is COMPREHENSIVE immigration reform – reform
which addresses not only the enforcement angle but which creates a sensible
system of legal migration consistent with our fundamental American values – the
only thing which will “control the border” is another Berlin Wall.  And that’s not what we are about.



So what are the components of this “sensible system”?  I believe they are:



  • The establishment of an interim lawful status for the
    millions of illegal workers who have histories of reliable U.S. employment and
    clean criminal records which permits them to establish residency through a
    structured series of steps including mandatory community service, mandatory English-language
    education (with reasonable limitations for the elderly, as it is with
    naturalization filings), and, finally, a transition to lawful status which
    incorporates features of the U.S. naturalization process.   I know
    that my insistence on English-language education is politically incorrect, but
    that’s how my family viewed immigration to America: if you are lucky enough to
    live here, you have a responsibility to learn the language, no excuses.   I think
    that if a person who has violated U.S. immigration law for years is not willing to learn English – the one
    solitary social bond available to 100% of Americans – then they can head back
    home.  Sorry.

  • The passing of a single law
    which mandates that UNDER NO CIRCUMSTANCES will any federal agency use
    bureaucracy, regulatory ambiguity, or – that most undemocratic of weapon of
    them all, non-appealable consular discretion – in a way which results in fundamental
    injustice to a visa applicant, their employer, or their U.S. resident or
    citizen family.
        The need for an empowered, funded, and truly
    independent arbiter – not a “liaison” or “ombudsman” which is part and parcel
    of the bureaucracy itself – is crystal clear.  For two plus decades I have seen identical
    petitions handled in entirely different ways by USCIS, first tour visa officers
    who don’t know the difference between 214(b) and 221(g), and an institutionalized
    lack of accountability and human sympathy within the federal agencies
    responsible for the implementation of immigration laws.  It is inexcusable.  While you cannot legislate morality, you CAN
    legislate accountability, and it is time we do so within our immigration
    process.

  • The total deconstruction of the employment based visa categories,
    starting with the elimination of an H-1B process that has gone from a
    reasonable administrative process to a non-legislated tax on U.S. employers
    which happen to be in desperate need for technology, health-care, and science
    professionals who simply are not available in the U.S.  Tell me this: what rational U.S. employer
    would spend $2000+ on H-1B filing fees if they could simply
    hire an American worker to fill the job?? 
    We need a straightforward temporary worker program that allows foreign professional,
    agricultural, and seasonal workers to be a viable resource for U.S. employers
    seeking to compete in a global
    marketplace,
    where we are losing ground daily.  

  • We also need to go one step further beyond
    PERM – an admittedly saner method than its predecessor, labor certification –
    to figure out how an American company can permanently hire a proven non-immigrant
    worker without apology, and without the artifice of advertising a position
    which has in reality been filled by an valuable, existing employee.  The current system not only defrauds U.S.
    applicants by deceiving them into believing a position is open but it makes a
    mockery of the meritocracy which has driven American industrial leadership for
    over a century.  The whole notion that an
    employer MUST hire an American worker to replace a proven worker who is in
    legal nonimmigrant status is anti-business and reeks of entitlement.  Send me all the hate mail you want and I’ll
    say the same thing I’ve said for 15 years: if you are an unemployed U.S. worker
    in the pharmaceutical, IT, and healthcare fields, send me your resume instead
    of the hate mail and I’ll find you a job. 
    (Not one resume in 15 years, despite so many spite-filled claims of
    displacement by foreign professionals.)  I’m
    not saying exploitation does not happen, but in 20 years of representing
    employers in these industries, I’ve never met a single employer who preferred
    to have to spend thousands on my fees and filing fees to hire a foreign worker than
    to hire a qualified American worker.  Not
    one.




Sadly, this is the hardest part…getting Congress to tackle
the totality of problems.  While legislators
such as those in Arizona can get a voting public behind a radical enforcement
method because “they’ve had enough” of federal inaction, the price these
legislators have to pay for CIS is too steep politically.  Support improved methods of permitting
foreign workers into the U.S.?  Cease
characterizing U.S. industries with high foreign worker needs as evil empires and
taxing them to bring in the talent they need? 
No way, Jose (and, politically correct as that might be, I am allowed to
say it.)  The fact is that John Q  Public still thinks that we have plenty of  U.S. pharmacists, and can’t figure out why on
earth the guy ringing up his blood pressure medicine, Q-Tips and Ensure at 8
p.m. is from Nigeria.



Comprehensive immigration reform?  Not in my backyard.



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