Immigration Insider

Newly Discovered Press Coverage...about US!

Melissa and I worked, along with other immigration attorneys with whom we worked, spent some time at the University of Miami teaching law students how to prepare Haitian TPS forms; it was in the aftermath of the earthquake and UM's law school was scrambling to do what they could to help those affected.  I told you guys about this back then in the blog but Melissa just found this great article on it, so I am sharing it with you...

Melissa and Jose Train Students at UM

From Earthquake to Red Tape

When the earthquake hit Haiti, the world responded...and the U.S. responded admirably, in many ways.  The efforts to help the injured and save lives has focused on the South Florida community.  After so many years of disparate treatment between Cuban and Haitian refugees, it has been encouraging to see this compassion realized in humanitarian action.

But now that the proverbial dust has settled - and despite the continuing challenges which will continue to plague Haiti -- those fortunate enough to have received this compassion now face that most insidious of enemies: federal U.S. bureaucracy.  While it is clear that the U.S. can't simply "welcome all comers" and serve as the refuge for the global tide of "huddled masses, yearning to be free" prevalent in this very troubled world, the need for consistency and fairness in policy is self-evident.

According to this morning's Miami Herald, the red tape is getting thick around the Haitian community; it is something I have heard on the streets of Little Haiti as well.  If we as a nation can still justify the need for the 40+ year old Cuban Adjustment provisions, it is difficult to imagine that we can't understand that creating legal complications in the wake of the Haiti's earthquake is absolutely un-American.  Check out the Herald's article:

Red Tape for Haitian Earthquake Victims

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.

AILA National Convention Kicks Off

The 2010 National AILA seminar began at the Gaylord Convention Center in Washington, D.C's National Harbor this morning with an inspired opening by immediate past AILA president Charles Kuck and a passionate call for comprehensive immigration reform (CIS), the subject of President Obama's speech at American University this very morning.

It's been 7 years since I've been to a national AILA convention and BOY have things changed. The half dozen booth exhibits have multiplied into dozens of booths hosted by EB-5, publishers, credentialing services and the like. Instead of another 6 pound program, the 1000+ pages of materials came on a little USB drive.

But the most noticeable difference is the size of the crowd. I was told at registration last night than some 2500 attendees are here...as I recall, that's about 4 times as many as my last national convention.

No doubt about it, the subject of immigration is hot today, but for mostly bad reasons. The palpable mood is one of disbelief, as the glaring incongruities, injustice and foolhardiness in the areas of enforcement, business immigration delays, and problem of undocumented aliens continue to be administered in a knee-jerk fashion.

It is clear that the emotions behind the topic of immigration run far deeper than do the rational efforts aimed toward CIS. Let's hope Mr. Obama has something concrete to deliver at AU this morning, because we sure haven't gotten what he promised us before his election.

Life on the Border: Another Tragic and Needless Death in Juarez, Mexico

When I arrived in Ciudad Juarez, Mexico, in 1987 as a first tour Foreign Service Officer, the place at which I arrived was very different than the war zone I visited this past December.  Ciudad Juarez was already a dusty, dirty and crowded desert town and occasional crimes made the headlines: young women who would disappear only to be found buried in the surrounding desert; tourists would be regularly robbed at gunpoint; and, of course, the drug crime was in its comparatively nascent stage (compared to today.)  I got to ride with the Federales on several big busts, including one we got to by helicopter, which featured all the elements of a good Tarantino script:  a desert airstrip, an abandoned farmhouse, and a ton of cocaine bricks. 

Still, Juarez was a sort-of livable place.  We made good friends, we ate good food…we drank lots of Corona and good tequila.  The lunchtime chile relleno burritos served at “El Choque” (the only combined body shop/ burro stand I’ve ever seen) were breathtaking.  Leah and I could even go out for an occasional drink in the seedy downtown district, dodging the roving gaggles of happy drunken American teenagers out for a benign evening of misadventure south of the border. And although the neighborhood we lived in, San Marcos, was nicknamed “San Narcos” (based upon the many discreet drug traffickers who resided therein), it was a safe neighborhood and the peach tree exploded with fruit and it was where Alex spent the months of his life and, well…things were alright.

My first days at the consulate were filled with organizing my personal matters and getting settled into the townhouse provided to me.  Jesus – nicknamed ”Chuey”, as most Jesuses are in Mexico -- was a longtime local FSN ("Foreign Service National") who had been with the consulate many years.  He drove me around and generally helped us get settled in.  A few days after our arrival, I needed to travel across the border to El Paso to complete some paperwork.  Chuey and I were running errands on the Mexican side one day and I told him of my need to cross in to El Paso.  His response was that he could not take me because he did not have a visa.

Needless to say, I was astonished: how is it possible for a long time consulate employee to not have a visa to cross in and out of the United States?  I will never forget his reply:

”Señor José, I've been going back and forth by climbing the fence at the border since I was six years old... why on earth would I need a visa?"

Times have changed and changed a lot.  I got him his visa, and he was very proud of it (why, I'm not so sure.)  His days of fence-jumping behind him, Chuey became a lawful border crosser.

Sergio Adrian Fernandez was not so lucky this past Monday night.  The 15-year-old was just outside of the Santa Fe Bridge connecting El Paso to Ciudad Juárez when he was shot dead by a US border agent.  According to the Border Patrol, Sergio was with the group "of suspected illegal aliens being smuggled into the US from Mexico."  In reality, it appears that Sergio was simply being a foolish teenager, and, with a group of friends, was playing a far more dangerous version of the border crosser "Cat and mouse" game played by Chuey for so many years.  Witnesses told reporters that while other teenagers had thrown rocks at the border agents, Sergio had not.  According to Raul Flores, who was quoted by the media, young Sergio stepped out from behind a pillar on the Mexican side of the border with his hands in the air and the agent in teenager "had 4 seconds to look at each other" before the young man was shot, in the shoulder and then in the head.

Once again, the tensions are ratcheted up between the United States and Mexico and once again, another young man is dead.

On the Road Again...

Heading out of town for the weekend but I wanted to leave you with a link to Andres Oppenheimer's latest article in the Miami Herald.  It explains some basic fundamentals about why we have so many illegal aliens and just HOW our current disastrous immigration system has perpetuated this trend.  Read it HERE and have a great weekend. Jose

Raising Hell in Arizona

One of the great and terrible things about the Internet is the anonymity that it provides. This morning, Miami Herald columnist Andres Oppenheimer wrote an opinion piece regarding the potential repercussions of Arizona's new, aggressively anti-immigrant legislation. I rarely comment on online articles and after seeing the postings to Andres' column, I remember why.

Just as the Internet provides a cloak of anonymity to sexual predators and would-be terrorists, it does the same for otherwise normal folks who permit their hatred and prejudices to run amok in a way they would never permit a normal human discourse. As an example, consider a posting by an apparently educated individual who concludes that Oppenheimer "hates the USA as most Latinos do." I clicked "reply" to give this person a spanking but then I clicked “cancel”: what's the point?  Would this man or woman ever dare say anything that profoundly stupid among his/her friends, colleagues, or relatives?  Probably not.  But sitting at home on the computer, immersed in personal problems and the pressures of life and unfettered by basic things such as common sense, intellect, and sensitivity, an otherwise decent person slinks back into the primordial mud of those most base human qualities, releasing that vile prejudice which can only ferment in the dankest corners of the most damaged heart.  As I think about that, my anger turns to pity right away.

As an immigrant who's been in these United States for 44 years now, and both sensitive to the impact of this type of legislation on undocumented migrants as well as aware of the reasons behind Arizona's drastic measures, I understand both sides. Here in Miami, our public health care infrastructure is in shambles; a significant reason has to do with the fact that our local governments resemble more Third World fiascoes than sound American governance; at least so it would appear. But another reason has to do with the continued failure of the federal government to address the economic repercussions of illegal immigration on local communities.

When my younger son Danny was born at Miami's Baptist Hospital nearly two decades ago, I was somewhat shocked to learn that the majority of new mothers enjoying Baptist hospital’s renowned maternal ward were uninsured, undocumented foreign women. Essentially, we were told, by waiting in the parking lot of the emergency room until the baby's head was crowning, the immediacy of the birth constituted an "emergency”, and the hospital was required to admit the mother for the duration of the birth and well baby care. Naturally, because most of these women had little prenatal intervention, the percentage of cesarean births and postpartum problems was statistically higher than among the general population.  As I understand things, nothing has changed 20 years later, and hospitals are forced to write of millions of dollars of losses as a result…losses borne, ultimately, by U.S. taxpayers.  The fact that yours truly was uninsured and paid for Danny's birth by borrowing against a Hyundai Sonata, all of this information brought out some decidedly negative, less than pro-immigrant conclusions.   (I would appreciate it if you refrained from telling Danny about his Korean coupe origins, it could get tricky…J)

Arizona maintains that it is only doing what it has to do for its own protection and survival, given that the federal government remains unable to address the impact of a failed national immigration policy upon those communities in which the majority of unlawful aliens reside and, consequently, establish financial burdens. Being angry with Arizona for the heartless aspects of some of the specific laws enacted, but be angrier with the two political parties in Washington which have both consistently failed to deliver the comprehensive immigration reform which has been needed for decades.

"Live and Nationwide"...Like ZZTOP...(well, sort of...)

LA Seminar Press Release

The Graduating F-1 Dilemna: Taking Charge of Your U.S. Permanent Residency

My sons were down from school for Easter weekend and I had a nice chat about "the future" with Alex, my eldest, who will be graduating from the University of Florida this summer.  Alex is a bright, hardworking  young man, so I struggle to maintain that fine line between giving him my sage fatherly counsel and making him cringe.

With his graduation around the corner, and his plans for graduate school, I felt compelled to brief him on a lot of the global economic realities visible most clearly to those of us addicted to the Wall Street Journal.  He listened, and it is notable that the older he gets, the more he knows what he does not know.   As I told him about the barrage of clerkship requests we are getting from law students who are trying to get SOMETHING relating to law on their resumes before the finish law school, I painted a superficial but, I think, accurate picture of the impact of the economic realities of today on graduating students.  Alex, of course, is a U.S. citizen.  He doesn't have to worry about things like OPT, H-1Bs, PERM and the like.  In comparison to a graduating F-1 student who wants to live and work in the U.S., Alex has it easy.

Or does he?

What ARE the long term employment prospects for those graduating today from U.S. universities? Bright? Bleak?

I don't pretend to know.  But I DO know that my sons peers in F-1 status face significant issues in planning their post-college lives in the United States.  In addition to facing the realities of this still-reeling job market, they will be competing for jobs amongst employers who, more than ever, view the additional responsibilities associated with hiring a foreign worker with increased disdain and adversity.  This is going to affect TONS of kids in the next few years, among them the best and brightest who made it to America to pursue their studies.

In response to this, Melissa and I are beginning our research for a publication designed for these graduating F-1 students.  In it, we will explore:

• tactical planning for seeking employment via Optional Practical Training (OPT)
• how to present your "international-ness" as a plus and not a minus to prospective employers
• post-graduation OPT strategies to optimize H-1B employment opportunities
• making PERM an intelligent investment in the eyes of your U.S. employer
• what to do if your employer's immigration attorney is terrible
• elimination of the "H-1B entrepreneur" option by USCIS and what you can do about it
• investment-based immigration options for apparently starving graduates.

Stay tuned folks, and keep your seat belts on, it's going to get bumpy...(-;

To "L" in a Handbasket

A formidable number of weak L-1A visas were filed in Venezuela in the past decade, and it is small wonder the U.S. Nonimmigrant Visa team in Caracas casts a wary eye upon Intracompany Visa applications involving:

• a new U.S. enterprise with low job creation numbers
• a comparatively small Venezuelan parent/affiliate
• an entrepreneurial principal eager to see what he or she can do in the world's largest economy

To be blunt, the fraud was epidemic in the late 90's, and the only reason the situation has somewhat quelled is because most attorneys have come to belive that, with the above fact pattern, the consulate would likely deny the visa, notwithstanding the approved I-797.  (Not so, but more on that later.)

For me, this situation once again became a timely topic when we recently visited Caracas to discuss the E-5 Regional Center option with prospective Venezuelan clients.  As I mentioned in earlier posts, interest was strong -- how much of it was curiousity and how much was actual immigration planning remains to be seen.  But judging from the continuing buzz and follow ups, we certainly were not wasting our time there.  One recurring question, however, presented itself time and again:

"If I am ready to go to the U.S. now but the EB-5 approval will take close to a year, what can I do ?"

The answer to this question, of course, lies squarely in structuring of an appropriate non-immigrant visa.   But there are problems:

-Venezuela does not have a treaty of trade and commerce with the U.S., so the very useful E-1 and E-2 visas are not an option.

-Student visas, even for language studies, are subject to the Section 214(b) provisions requiring nonimmigrant intent...tough to prove when you have a pending EB-5 Immigrant Investor petition.

And so, we go back to the old reliable, 214(b)-free L-1 and H-1B (i.e., neither is subject to the applicant proving non-immigrant intent)...but they too have their problems:

-the H-1Bs remaining are flying the coop quickly and with a recovering economy, who says the 65,000 visas won't disappear on that next April Fools morning, as has been the norm till this past year?

-the L-1 abuse has left our legitimate small-company L-1 prospects in Venezuela wary and fearful of consular denials after getting their USCIS petition approved.

So here's what we are doing:  we are filing those small-company L-1s armed to the TEETH with bona fide evidence of legitimate business activity both in the U.S. and abroad, pre-empting the line of inquiry with powerful proof of the legitimacy of the enterprises...large OR small.  And we are getting them approved.

Sometimes showing the consular officer the Big Picture is all it takes...revolutionary!!