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I recently sat for an interview with a reporter who is doing a series of articles on changes in immigration policies with a specific focus on our immigration court system. As I was speaking with this person, our conversation veered outside that lane, and we started talking about changes in immigration policy more broadly. We’ve seen a lot over the past year, but since Donald Trump became our president, the changes in U.S. immigration policy, whether planned or otherwise, have been dramatic. It’s probably not surprising when you have someone like Stephen Miller being the puppeteer for the marionettes.
Some have called it the “invisible wall.” The what? Yes, the invisible wall. While the President has been very public about his desire to construct a physical wall on our Southern border, slowly but surely, he and his minions are quietly and deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.” We’ve seen travel bans, extreme vetting directives, the slowing or stopping of the admission of foreign workers and entrepreneurs into the United States, the ending or reduction of programs for vulnerable populations, and, most recently, obstacles to the naturalization of foreign-born soldiers in the U.S. military.
The most significant change has been processing delays at U.S. Citizenship and Immigration Services (“USCIS”). Most readers of this article are familiar with the H-1B nonimmigrant visa program which, for many employers, requires a petition to be filed on or about April 1 each year for a employment start date of October 1 of the same year. Well, I recently had a case for a client where we filed their petition on April 1, 2018, and their petition was “finally” approved in November, 2019. That’s a year and a half. I will grant you that this is an extreme example, but the point remains. Case processing delays and applications backlogs at USCIS are out of control. These unprecedented processing delays affect individuals, families, and American businesses throughout the nation.
Most of my personal practice involves employment and business-related immigration. I work with employers to facilitate their access to talent in what is now a very tight job market. I work with companies that are on the cutting edge of science; colleges and universities who are educating our future entrepreneurs and investors; and health care professionals in rural areas that supply health care to underserved communities. Processing delays and case unpredictability does not help businesses in my community and beyond solve their very real staffing needs and challenges.
In April, 2019, USCIS responded to a February 2019 letter sent by 86 Members of the House of Representatives who had expressed concern (and demanded accountability) about USCIS’s processing delays. In its response, USCIS revealed that in Fiscal Year (“FY”) 2018, the agency’s “gross backlog”, that is, its overall volume of delayed applications and petitions, reached 5,691,839 cases. That number is staggering, and according to USCIS, marks a 29 percent increase since FY2016 and a 69 percent increase since FY2014. What’s more, this backlog rose from FY2017 to FY2018 despite a substantial decline in application rates and an increase in its budget during that period. That’s right, USCIS had more resources with which to process fewer new cases, yet its gross backlog still grew. I’m sorry, what?
According to a recent article in the Washington Post, there an estimated 800,000 foreign nationals who are working legally in the United States who are also waiting for a green card. Most of those in the queue are Indian nationals. According to the article, an Indian national who applies for a green card today could expect to wait up to 50 years to receive it.
What about citizenship applications? Since 2016, the processing time for citizenship applications has almost doubled, increasing from about 5 ½ months to over 10 months as of March 31, 2019.
Lawyers are now more than ever taking matters into their own hands. While it used to be the case that lawyers waited to sue the government until a client’s application or petition was denied, or perhaps waited until a case was “outside normal processing times” to sue, but processing times are so out of whack immigration attorneys have no choice but to sue.
It’s difficult enough explaining the ins and outs of our immigration system and processes to clients. Tack on the substantial costs involved in pursuing some immigration benefits (without the prospect of litigation to simply move the case along), and top it off with significant delays, and you can see why many in Congress and the media have called the delays we’re experiencing as being at crisis levels. These delays and backlogs have real impacts on individuals, families and businesses. It impacts our overall economic growth. We deserve better.
As we usher out 2019 and bring in a new year (and a new decade), let’s resolve to pass meaningful and comprehensive immigration reform, be a lot more compassionate to those of our southern neighbors who are fleeing their home countries in search of a better and safe life, and work a little harder to poke some holes and even knock down that invisible wall that’s been erected over the past three years.
 “Historical National Average Processing Time for All USCIS Offices,” USCIS, March 2019, https://egov.uscis.gov/processing-times/historic-pt.
Should the title be Immigration Reform 2.0 or 22.0? Maybe Immigration Reform Redux? Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)? Well, we’re starting down this path … yet again (albeit with some difficulty). So what’s the latest iteration?
On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system. The reforms are hardly sweeping, but they are dramatic.
The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings). This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.” The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents. The President is also calling for the elimination of the Diversity Visa Lottery Program.
In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.
Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base. The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:
This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.
There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.
Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States. About half of these individuals are the first in their family to permanently settle in the United States. The other half are joining their family members who arrived earlier. This is commonly known as “chain migration.” The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities). Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.
The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great. The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement. They are also the most upwardly mobile segments of the labor force. Here’s some data from the Migration Policy Institute.
- Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.
- Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.
A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.” Among its findings:
- Immigration has an overall positive impact on long-run economic growth in the U.S.
- In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.
I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.
In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today. By no means is it perfect. If we restrict it, however, we will no doubt negatively impact our country’s economic growth.
Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States. Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas. Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.
If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes. We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.
 The White House officially defines this as follows: The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.
 In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.
 “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.
I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform. At first blush, it doesn’t look great. At second blush too.
Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States. I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it. I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).
To be honest, I have mixed emotions about President Obama. But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.” It’s actually been longer than six years. President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart. Others before him have tried and failed as well.
I’ve made this point before, but it really is worth repeating. Our immigration system is broken. Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present 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 our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.
Unfortunately, a legislative fix does not appear in the offing. Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States. The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.
Just so I am clear. These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship. Only Congress has the ability to make those types of changes (with, of course, the signature of the President).
This is not a perfect solution. These individuals would (potentially) only be receiving a temporary reprieve from deportation. Congress could change the law, or a future president could cancel President Obama’s program. If that were to occur, those who participated in the program would be out in the open and thus exposed to removal. Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.
As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.” I agree.
In July, the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act.” The House, for its part, has until last week taken a more piecemeal approach to Comprehensive Immigration Reform (“CIR”). The House Judiciary Committee and others have passed smaller immigration bills relating to border security, internal enforcement, guest workers, and high-tech visas. Notably, there was no path to citizenship (or even a lawful immigration status) in the House bills that passed for the eleven to thirteen million undocumented immigrants in the United States. That changed last week.
On October 2, the Democratic leadership in the House announced the introduction of H.R. 15, a CIR bill modeled after the successful bipartisan Senate bill, with one notable exception. The House Democrats’ bill does not include billions of dollars requiring hundreds of miles of new border fence, as the Senate bill did. Instead, the House bill would set specific goals for border enforcement.
The likelihood of this bill being passed as is (or perhaps even passing at all) is pretty slim. Nevertheless, it keeps the dialogue about CIR moving forward. Here are some highlights.
First, the House Democrats’ bill’s border-security measures are more goal-oriented than the Senate’s bill, as passed. The Senate bill would spend $30 billion to double the number of federal border agents, complete 700 miles of fencing, and expand radar and aerial drone surveillance along the border. The House Democrats’ bill, on the other hand, requires the Department of Homeland Security to create a detailed plan requiring the apprehension of ninety percent (90%) of illegal border-crossers in high-traffic areas within thirty three (33) months, and across the entire U.S.-Mexico border in five (5) years.
Second, both bills would grant legal status to around 7.7 million of the 11.5 million unauthorized immigrants currently in the United States.
Third, both bills would allow an additional five (5) million legal immigrants into the United States in the next five (5) years. The House Democrats’ bill, like the Senate bill, would revamp the system for permanent residency and the admission of temporary workers.
Fourth, both the House Democrats’ bill and the Senate bill would tighten employer enforcement of illegal immigration. Specifically, both bills would require employers to use a new version of E-Verify, an electronic system for determining the legal status of current and prospective employees.
And finally, both bills would include a various other changes to the immigration system, including reforming the immigration court and detention process, making it harder for immigrants to attain legal status if they commit certain crimes, and streamlining the political asylum process.
So is this much ado about nothing? Perhaps. House Democrats contend that their bill could pass if House Speaker John Boehner would allow it to come up for a vote. The problem is that Speaker Boehner has repeatedly said that no bill will receive a vote unless a majority of House GOP members support it. Asked if there was any chance Republican Majority Leader Eric Cantor would put the bill on the House calendar, Cantor spokesman Rory Cooper replied, “No.”
It remains to be seen what the House will do with H.R. 15 or any other immigration bills that might be introduced in the House. Not withstanding the current dysfunction in Washington, D.C. (the government continues to be shut down as I write this), I continue to be cautiously optimistic that CIR is within Congress’s grasp.