Home » Uncategorized (Page 8)
Category Archives: Uncategorized
Labor Day and Immigrant Workers
Just as Memorial Day was an opportunity to remember those men and women who have died in our nation’s service (including non-citizens who have a long and proud tradition of serving in the U.S. military), Labor Day is an opportunity to pay tribute to American workers. But is it really just “American” workers that we should be paying tribute to?
Here’s some data to consider about immigrant workers (those here lawfully or otherwise), courtesy of the Migration Policy Institute:
• The number of immigrant workers in the United States grew by 44.7 percent between 2000 and 2011.
• In 2011, foreign born workers represented 16.6 percent of the United States’ civilian-employed workforce.
• Immigrants accounted for an astounding 50.5 percent of civilian employed workers with no high school degree, and for 15.6 percent of all college-educated workers.
• The top three industries of immigrant workers in the United States were (a) educational services, and health care and social assistance; (b) arts, entertainment, and recreation, and accommodation and food services; and (c) professional, scientific, and management, and administrative and waste management services.
• The top three occupations of immigrant workers in the United States were (a) management, business, science, and arts occupations; (b) service occupations; and (c) sales and office occupations.
• Here’s a sad statistic. Brain waste affected over a million college-educated immigrants in the United States. Specifically, in 2010, there were 1,565,742 college-educated immigrants who were either unemployed or working in unskilled jobs such as dishwashers, security guards, and housemaids. This represents 22.5 percent of the college-educated immigrant labor force in the United States. Among native-born college-educated persons, 6,126,303 (or 16.5 percent) were underutilized. There’s plenty more data where this comes from, including data for your own state.
The United States and its economy benefits immensely from the valuable skills and talents provided by the likes of foreign-born high-skilled scientists and engineers and medical doctors. But we also – including my own State of New York – heavily rely on immigrants workers at differing skill levels in a variety of industries, many of which are experiencing labor shortages (e.g., agriculture, food processing, construction, or eldercare). As a result, the role of immigrant workers is vital.
Recall the following study published by the President’s National Economic Council, Domestic Policy Council, Office of Management and Budget, and the Council of Economic Advisers, entitled “The Economic Benefits of Fixing Our Broken Immigration System”. This report details the range of benefits to the U.S. economy that would be realized from passage of CIR. More importantly, it also discusses the high cost of inaction.
There was also a study published by the Institute on Taxation and Economic Policy (“ITEP”) that concluded that undocumented immigrants who live and work in the United States pay billions of dollars in taxes every year to state and local governments. If they earned a legal status, they would apparently pay even more. According to ITEP, “undocumented immigrants paid an estimated total of $10.6 billion in state and local taxes in 2010.” Moreover, “allowing undocumented immigrants to work in the United States legally would increase their state and local tax contributions by an estimated $2 billion a year.” If CIR were to occur, the increase state and local taxes in New York is estimated to be $224,126,000!
Despite this, many immigrant workers do not enjoy all the benefits that the United States offers “American” worker. Because of their undocumented status, many of those who are here unlawfully have no option other than to work in the underground economy. Worse yet, they are frequently subjected to exploitation by unscrupulous employers. That’s not at all a good reflection of what the United States is all about.
In 1894, Labor Day came to be, and with it came paid holidays, 40-hour workweeks and better working conditions for “American” workers. As we celebrate Labor Day in our backyards, perhaps barbequing with your families, let us also not forget the contributions of all the immigrant workers in our workforce.
“Documented”, a Film About a Pulitzer-Winning Journalist Who is Also an Undocumented Immigrant
And now for something completely different. I wish I went to the movies more often. All those summer blockbusters (or busts)! I actually haven’t been to the movies in ages. I think that’s about to change.
Recently, the San Francisco Chronicle reported that Facebook CEO Mark Zuckerberg took his first step on the national political stage when he publicly joined other tech leaders, civil rights activists and undocumented immigrants to call for the comprehensive overhaul of our nation’s immigration system.
Zuckerberg was at the West Coast premiere of Jose Antonio Vargas’s film “Documented,” a film that Vargas wrote and directed. Vargas, inarguably the most famous undocumented immigrant in America today, is a former San Francisco State student and San Francisco Chronicle staff writer who made national headlines by revealing in a 2011 New York Times Magazine essay that he is an undocumented immigrant.
“Documented”, directed by Vargas himself, centers around his personal experience as he prepared to reveal his undocumented status in the New York Times magazine essay. The film shows Vargas traversing the country as he speaks at college campuses and visits conservative towns where undocumented immigrants are apparently not welcome.
Throughout the movie, Vargas reminds people that “there is no line” for him to join to acquire citizenship. When he engages some of Mitt Romney’s supporters at a 2011 campaign stop, Vargas says “But sir, but sir, there’s no line. … I was brought here when I was 12. I didn’t know I didn’t have papers since I was 16; my grandparents, who were American citizens, didn’t tell me. So I been here — I been paying taxes since I was 18, I just want to be able to get legal, to get in the back of the line somewhere.”
According to critics, Vargas elegantly positions immigration as the most controversial – and least understood – political issue in the nation. I agree. I liken it to the new third rail of politics.
I have not seen this movie yet. But I will.
New York State’s Shortage of “Mid-Level” Skilled Workers: Can Immigrants Help Fill this Void?
I recently read an article in the Business Review addressing New York State’s shortage of some 350,000 mid-level skilled workers. According to the article,“mid-level” jobs are those that fall between a high-school diploma and a four-year degree. Robert Geer, Vice President for Academic Affairs for the University at Albany’s College of Nanoscale Science and Engineering (“CNSE”), said that of the 3,100 people employed at CNSE, most have two-year or four-year degrees, while only 1 in 14 holds a Ph.D. The article got me thinking about what Comprehensive Immigration Reform (“CIR”) will do to address this issue, if anything.
CIR, as proposed in the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act,” includes a provision for a new “merit-based” point system (Track 1 as it is known in the bill). This point system allows foreign nationals to obtain a Green Card by accumulating points primarily based on their skills, employment history, and educational credentials. The bill provides that 120,000 to 250,000 Green Cards would be made available each fiscal year based on the point system. (The actual number would apparently fluctuate based upon a formula that takes into account the number of Green Cards requested the previous year and the unemployment rate.)
According to the bill, Track 1 would have two (2) tiers: one for higher-skilled immigrants with advanced educational credentials and experience, and a second tier for less-skilled immigrants. Beginning in the 5th fiscal year after bill becomes a law, half of the Green Cards would be allocated to applicants with the highest number of points under tier 1, and the other half would be allocated to applicants with the highest number of points under tier 2.
According to the current iteration of the bill, the allocation of points in both tiers is based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. The system seems to prioritize foreign nationals who are young, educated, experienced, skilled, and fluent in English. Family ties and others factors are weighted lower.
There is also a Track 2 to the merit-based system, which is designed to clear, over a period of seven years (starting in 2015) the enormous backlog that currently exists in the family- and employment-based Green Card “preference” system. Track 2 is designed to eliminate these backlogs by 2021.
Under the bill, commencing October 1, 2014, family- or employment-based Green Card applicants who have had their Green Card applications pending five (5) years or more under our current system will become eligible for a Green Card. (The Track 2 merit-based system also makes Green Cards available to Registered Provisional Immigrants who have maintained that status for at least ten [10] years.)
It’s not entirely clear how much the Gang of Eight’s bill, as currently proposed, will completely solve the problems identified in the Business Review’s article. Both tier 1 and tier 2 potentially can make a dent. The tier 1 point system, however, seems to favor those foreign nationals with more advanced degrees as opposed to the types of degrees identified as needed in the Business Review’s article.
However, the tier 2 may have some potential. Under the bill, between 60,000 and 125,000 Green Cards would be made available in each fiscal year for foreign nationals in high-demand tier-2 occupations. According to the bill, these are occupations for which the highest numbers of positions were sought to become registered positions by employers during the previous fiscal year. Some Green Cards will be reserved for occupations that require little or no preparation too. Under tier 2, the number of Green Cards available can also increase by 5% each year if demand exceeds supply in any year where unemployment is under 8.5%.
This is significant as it potentially allows workers who currently do not have great chance to obtain a Green Card with an opportunity to obtain one. This is also important considering the United States (and NYS) needs immigrants at all skill levels, as noted in the Business Review’s article.
Immigrants in the U.S. Military: Sacrificing All for a Country that May Not Yet Be Theirs
On Memorial Day, we remember those men and women who have died in our nation’s service. Did you know that non-citizens have a long and proud tradition of serving in the U.S. military? In fact, there are thousands of men and women in uniform who were not born in the United States who are willing to sacrifice everything for our country.
Did you also know that one of the first U.S. service members to die in the U.S. – Iraq War was Lance Cpl. Jose Gutierrez, a non-citizen from Guatemala? He was killed in a tank battle in Iraq in March, 2003. According to CBS News, “The heroism and sacrifice of non-citizens was barely known — until Lance Cpl. Jose Gutierrez died in battle in Iraq. He came from Guatemala, and he came to the United States illegally. We can tell you how his story ended. He was killed in a tank battle in southern Iraq on March 21, [2003].”
Lance Cpl. Jose Gutierrez was granted U.S. citizenship posthumously. “No death of any soldier goes un-mourned. But the death of a man who died for a country that was not his — that proved especially poignant to many Americans, including President [George W.] Bush, who visited two wounded non-citizen soldiers and made them citizens on the spot.”
The presence of non-citizens in the U.S. military has deep historical roots. Non-citizens have fought in the U.S. Armed forces since the Revolutionary War. According to a report issued by the Immigration Policy Center, in August, 2009, there were 114,601 foreign-born individuals serving in the military; of that number, 12% of them were not U.S. citizens.
The military, and indeed our entire country, greatly benefits from the service of non-citizens in the U.S. military. Non-citizen recruits offer racial, ethnic, linguistic, and cultural diversity, something that is incredibly valuable given the U.S. military’s increasingly global agenda.
This has not gone unnoticed by Congress. Once again, according to the Immigration Policy Center, “[o]ver the [eight year period from 9/11], Congress has amended military related enlistment and naturalization rules to allow expanded benefits for immigrants and their families and encourage recruitment of immigrants into the U.S. Armed Forces. The U.S. military has also implemented new programs to encourage the enlistment and rapid naturalization of non-citizens who serve honorably during[.] Without the contributions of immigrants, the military could not meet its recruiting goals and could not fill its need for foreign-language translators, interpreters, and cultural experts.”
We are a nation of immigrants. The U.S. military is no exception. The U.S. military benefits (actually all of us benefit) from the presence of non-citizens within the ranks of the military. Today, as we remember the fallen, let us remember the importance of immigration and non-citizens to our nation and to our history. Let us also remember (and honor) the non-citizens that have made the ultimate sacrifice in defense of our great country.
H-1B Visas for High-Tech Workers: Necessary to Industry or Cheap Labor?
The other day I read an Associated Press piece in the Saratogian called Influence Game: Tech, Labor Spar On Immigration. The article started out as follows:
“To the U.S. technology industry, there’s a dramatic shortfall in the number of Americans skilled in computer programming and engineering that is hampering business. To unions and some Democrats, it’s more sinister: The push by Facebook’s Mark Zuckerberg to expand the number of visas for high-tech foreign workers is an attempt to dilute a lucrative job market with cheap, indentured labor. ”
The article went on to discuss the politics behind proposed changes to the H-1B nonimmigrant visa program in the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”). What it did not explore, or explain very well, was the statement that somehow the H-1B program facilitates “cheap, indentured labor.” Please allow me to dispel this myth.
The H-1B nonimmigrant visa is granted to foreign national professionals who will perform services for a U.S. employer in a “specialty occupation.” Examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Most employment-based nonimmigrant visas are tied to an employment relationship. That is, a U.S. employer is required to sponsor the foreign national so that the foreign national can work for that sponsoring U.S. employer. If the foreign national wishes to change jobs in the United States, a new employer must do the same thing. For individuals who are coming to the United States temporarily (which with few exceptions is what a nonimmigrant visa is supposed to be all about), I have no problem that the law requires the employers and employees to be tied at the proverbial hip (although I do agree that some not so nice employers probably do take advantage of this). Nevertheless, years ago Congress made it much easier for H-1B professionals to move from one employer to another. With a competitive labor market in the United States, H-1B professionals often do change employers in search of better opportunities (and I regularly work with both employers and employees where an H-1B professional is moving from one employer to another). H-1B employees are hardly indentured workers.
I am also troubled, however, by this persistent myth that somehow this labor is “cheap.” Nothing could be further from the truth. The law requires employers to pay foreign nationals on H-1B visas the higher of the prevailing wage for the occupational classification in the area of employment, or the actual wage (that is, the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question” ). I regularly see in my practice where an employer wishes to hire an H-1B professional only to find out that the wage the employer must pay the foreign national is higher, sometimes substantially higher, than the wage the employer was going to offer (or the wage that the employer is currently paying other individuals at the employer’s business).
Another fact lost in the article is the hassle and expense for a U.S. employer to sponsor a foreign national for an H-1B. To hire a foreign national on an H-1B, a U.S. employer must incur legal fees, filing fees, training fees, fraud prevention and detection fees, and sometimes even “premium processing” fees (i.e., fees paid U.S. Citizenship and Immigration Services [“USCIS”] to expedite a petition). There are potentially more fees too. Filing fees alone to USCIS can be north of $5,000.00. And this does not include the additional expenses to the company associated with the extra paperwork and ongoing compliance involved in the hiring and employing of an H-1B professional.
Trust me when I say H-1B professionals are not cheap labor, for the H-1B professional or the employer.
A Summary of the “Gang of Eight’s” Proposed Bill on Comprehensive Immigration Reform
On April 16, 2013, the Senate’s “Gang of Eight” introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation which is the Senate’s starting point for Comprehensive Immigration Reform (“CIR”). So, what’s actually in the “Gang of Eight’s” 844 page bill?
Here’s a primer.
1. Legalization. This is perhaps the most controversial provision of the bill. The bill provides that non-citizens who are in the United States unlawfully, and who entered the U.S. before December 31, 2011, may apply to become a Registered Provisional Immigrant (“RPI”). Those who are eligible would be required to pay a penalty along with any and all back taxes due and owing. They would also receive permission to work (and they would be permitted to travel abroad). They would also become eligible to apply for their Green Card after ten (10) years. Three (3) years after that, they can apply for naturalization (i.e., citizenship).
2. H-1B Nonimmigrants. The H-1B nonimmigrant visa / status is granted to a foreign national who will perform services in a specialty occupation. The bill will increase the available yearly quota to a minimum of 110,000 nonimmigrant visas, and a maximum of 180,000. The bill will also increase the U.S. advanced degree exemption to 25,000, but will limit the issuance of visas under this exemption to “STEM” graduates (i.e., science, technology, engineering, and math graduates).
The bill also proposes to add a recruitment requirement for all H-1B labor condition applications (which are required to be certified by the U.S. Department of Labor as part of the H-1B process). With respect to the H-1B category, this is (for the most part) very new (and I suspect will not be very popular with employers who use the H-1B program).
On the positive side, the bill also proposes to provide employment authorization for spouses and, on a technical point, adds a 60-day grace period after an H-1B worker has been terminated from his or her job.
3. Employment-Based Green Cards. Employment-based immigration is organized in what is called a “preference” system which has annual quotas. The total number of employment-based “Green Cards” available in the U.S. government’s fiscal year is 140,000. The bill proposes to exempt the following categories from the annual quota: aliens of extraordinary ability, outstanding researchers and professors, multinational executives and managers, doctoral degree holders, physicians who have completed their foreign residency requirement, and with respect to all of them, their spouses and children. The bill also adds a new employment-based Green Card category for certain entrepreneurs.
4. Family-Based Green Cards. Family-based immigration is also organized in a “preference” system which also has annual quotas. The total number of family-based “Green Cards” available in the U.S. government’s fiscal year is 226,000. The bill proposes to merge the FB-2A preference category (related to spouses and children of Green Card holders) into the immediate relative classification (where there is no quota), allow for derivatives of immediate relatives, eliminate the FB-4 category (related to siblings of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at thirty one (31), and reinstate the V nonimmigrant visa (related to spouses and children of Green Card holders).
5. Nonimmigrant (Temporary) Workers: Temporary workers typically are in the United States on “nonimmigrant” visas (like the H-1B). The bill proposes to create a “W-1” nonimmigrant visa for lesser-skilled workers, a “W-2” nonimmigrant visa for foreign nationals coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a “W-3” nonimmigrant visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. (The W-2 and W-3 visas would replace the current H-2A agricultural worker program.)
6. Political Asylum: Political asylum may be granted by U.S. Citizenship and Immigration Services (“USCIS”) or an Immigration Judge to foreign nationals who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, and/or their membership in a particular social group or their political opinion. The bill proposes to eliminate the current one-year filing deadline for applying for political asylum. It also proposes to authorize asylum officers to grant political asylum during “credible fear interviews” (i.e., interviews of foreign nationals who affirmatively apply for political asylum upon entering the United States). These would both be welcomed changes.
7. E-Verify: E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. The bill proposes to require all employers to use the system after five (5) years.
8. Fraud: The bill proposes to make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or Board of Immigration Appeals (“BIA”) accredited representative when one is not authorized to do so. This is another very welcome change. The bill also proposes to require the identification of individuals who assist aliens with the completion of forms.
There’s more… a LOT more, actually. These are the “big ticket” items, and at least some of them will create a lot of discussion within the halls of Congress over the coming weeks (and perhaps months). The bill is not perfect, but it is a very good start.
Will the Boston Marathon Bombings Derail Comprehensive Immigration Reform?
“Keep your eye on the ball.” My children are way too young to use this expression yet, but I can’t wait until their first batting practice, or their first shot on the driving range. For now, though, I’m going to use this expression as a metaphor for what’s going on in Washington, D.C., and specifically comments that some on Capitol Hill and elsewhere have made with respect to comprehensive immigration reform and the unspeakable tragedy that played out before our very eyes in Boston last week.
First and foremost, the events that took place in Boston, Cambridge and Watertown last week were horrific. We saw the tragic events unfold literally in front of our own eyes. Mercifully, it’s over, and the healing (along with the prosecutions and continued investigations) can begin.
The “Brothers Tsarnaev” committed terrible crimes. One has already paid the ultimate penalty. One will now be prosecuted to the fullest extent of the law. Although the facts are still unclear about how they actually came to the United States (at least publically anyway), we do know that they were both here lawfully, having gone through some part of our current immigration process (e.g., deriving benefits from their father’s application for political asylum)… all of which would have included extensive background checks.
Last Friday, Sen. Charles Grassley, the Ranking Member on the Senate Judiciary Committee, said, “How can individuals evade authorities and plan such attacks on our soil? How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?”
In response, the N.Y. Times published an editorial specifically addressing Sen. Grassley’s (and other’s) attempts to link the tragic events in Boston and the debate on immigration reform. “The immigration debate will test the resilience of the reform coalition in Congress. Changes so ambitious require calm, thoughtful deliberation, and a fair amount of courage. They cannot be allowed to come undone with irrelevant appeals to paranoia and fear.”
Republican congressman Mario Diaz-Balart had this to say: “It is a horrible situation. It is heart-wrenching. … Linking something like that to other legislation I think is probably not appropriate at this time. In the first place, we don’t have the facts. And what is indisputable, is that we have an immigration system that is broken; that we have an immigration system that is not working.” Republican congressman Paul Ryan (R-WI) recently stated the following: “We have a broken immigration system, and if anything, what we see in Boston is that we have to fix and modernize our immigration system for lots of reasons. National security reasons, economic security reasons. For all those reasons we need to fix our broken immigration system.”
My father always says there’s no such thing as perfection, except in the dictionary. Our immigration system is far from perfect. The Gang of Eight’s proposal for immigration reform is not perfect, but it’s a very good and very necessary start. The Albany Times Union published an editorial this morning stating, in part, “[t]his bill, warts and all, is the best hope for immigration reform that a system of political give-and-take is likely to produce.” I agree. The editorial went on to say “[i]t’s reasonable to say that if the bombing exposed weaknesses in our system, we should fix them.” I agree with that too.
Please, everyone, keep your eye on the ball, and let’s get this done.
The “Gang of Eight” Introduce a Bipartisan Immigration Reform Bill
This morning, the Gang of Eight offered their vision of Comprehensive Immigration Reform. Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation. This is Congress’s starting point for further discussion, debate, no doubt revision, and eventually (hopefully) the signature of President Obama. In a joint statement upon the introduction of the bill, the Senators said:
“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America’s borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”
I know the topic of immigration and immigration reform invokes deep feelings… both positive and negative, from the general public. People are entitled to their opinions. I have them too. But when I think about these topics, I make myself take off my lawyer hat and try to set aside my political ideology. I try to come at this issue from a very practical point of view. Our immigration system is broken. Is it practical to think that we’re going to deport 11 to 13 million undocumented foreign nationals who are presently in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education… and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken and it is about time that our national leaders, with the input of relevant stakeholders, discuss, debate and implement comprehensive immigration reform.
Very broadly, the Gang of Eight’s bill addresses such important issues such as (a) border security, (b) legalization for individuals in an unlawful status (a so-called “registered provisional immigrant status” where after ten years an individual could apply for lawful permanent residence, i.e., a Green Card, through a merit-based system), (c) elimination of backlogs in the current family- and employment-based immigrant visa categories, (d) the creation of a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies, (e) merit-based visas, where points are awarded to individuals based on their education, employment, length of residence in the U.S. and other considerations, (f) enhanced employment verification rules (i.e., mandatory participation in the E-Verify program, photo-matching, etc.), (g) H-1B nonimmigrant visa reform (e.g., raising the base cap of 65,000 to 110,000, with the potential for the cap to go as high as 180,000, and amending the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools, along with several other changes), (i) visa programs for lower-skilled workers, and (j) a program to allow current undocumented farm workers to obtain legal status.
It will take some time for this proposed legislation to be reviewed and digested. Then the debate will begin. The debate will be spirited. Hopefully it will be constructive and not divisive.
Is this proposed legislation perfect? I’ve obviously only skimmed it at this point, but the answer is probably no. Is it a good start? It sure is. More than anything, though, “it’s about time.”
The H-1B Visa Cap : NOT Working for Math, Science and Technology-based Businesses
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.
It’s About Time : Comprehensive Immigration Reform
“Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas, Nevada when he introduced his four (4) part plan for Comprehensive Immigration Reform. The four principles that the President feels should guide the overhaul of our immigration laws are as follows:
1. Securing our borders;
2. Strengthening accountability for businesses that break the law by undermining American workers and exploiting undocumented workers;
3. Strengthening our economic competitiveness by creating a legal immigration system that reflects our values and diverse needs; and
4. Creating accountability from those people who are living in the United States illegally.
I think the President’s quote should have been “It’s about time.” Our immigration system is broken, and it’s been broken for a very long time.
I “enjoyed” my first taste of our immigration system when I started working for U.S. Sen. Alfonse D’Amato in the 1980’s. Back then, constituents would call, both individuals and HR professionals for companies doing business in New York, complaining, e.g., that they could not get their relatives into the United States for a visit, or there were delays processing their company’s H-1B worker petition either at legacy-INS or the Department of State. Eventually, the primary company complaint in the 1990’s was that there weren’t enough H-1B nonimmigrant visas to go around. (Sound familiar?)
In those same conversations, I would no doubt hear about all the “illegals” that were streaming across our border, or hanging out on Westchester street corners waiting to be hired for day jobs. (I’m not picking on Westchester, but I was working in Sen. D’Amato’s New York City office at that time and a lot of my calls came from that area.)
In 1997, I went into private practice, focusing the majority of my practice on immigration and nationality matters. Although the times have changed, the issues have not. In fact, they’ve gotten worse. Much worse.
The Department of Homeland Security (including the three agencies that make it up – U.S. Citizenship and Immigration Service, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection) is an enormous agency. The U.S. Department of State is pretty big too. To be fair, I’ve met many people over the years who work at these agencies who are good people and who do exceptional work. But the system within which they work, and which we are stuck with, is very much broken.
Just before the President’s announcement, a group of U.S. Senators offered some guiding principles for comprehensive immigration reform. President Obama followed suit a couple of days later with the four principles noted above. Thus far, we’ve heard a lot of dialogue, both for and against comprehensive immigration reform, as one might expect (and in this author’s opinion, some good and some not so good). We’ve seen little yet in the form of actual legislative proposals.
In the House, Congressman Mike Honda (D-CA) introduced the “Reuniting Families Act,” which contains provisions for reducing family immigration visa backlogs and promoting timely reunification of immigrant families. Specifically, the bill includes provisions that would (a) ensure that immigration visas are allocated efficiently, (b) alleviate lengthy wait times that keep legal immigrants and their families separated for years, and (c) decrease measures that prevent family members from obtaining visas. The bill also includes other provisions, such as eliminating discrimination in immigration law against same-sex, permanent partners and their families who are seeking to reunite.
In the Senate, on March 18, 2013, Senator Grassley (R-IA) and Senator Sherrod Brown (D-OH) introduced the H-1B and L-1 Visa Reform Act of 2013. The jury’s still out on this proposed legislation, but at first glance, if passed without change, the H-1B and L-1 nonimmigrant visa programs will have some big changes (e.g., requiring that all companies make a good faith effort to hire Americans first, requiring prospective H-1B employers to list available positions on a Department of Labor sponsored website for a period of 30 days prior to petitioning for foreign labor, etc.). Companies that regularly use the H-1B visa program will no doubt not like these provisions.
It will be interesting to see the politics of all this as immigration in general, and reform in particular, has become the “third rail” of politics. But reform – well thought out reform – is absolutely necessary.
INSIGHT INTO IMMIGRATION 