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.
