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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.
So, the presidential field is set. Hillary Clinton is the presumptive nominee for the Democrats, and Donald Trump for the Republicans. To say that our immigration system is broken is an understatement, and although the Obama Administration has made some efforts at reform (whatever you may think of them), Comprehensive Immigration Reform (“CIR”) remains an elusive goal. And, absent something incredibly positive coming out of the Supreme Court in the case Texas v. United States, 15-674, we’ll likely not see anything significant come out of Washington on the immigration reform front until, at the very earliest, next January (but likely much much later, despite what we hear from one of the candidates).
And yet there are so many important issues to consider (some of which we’ve already been hearing too much about on the campaign trail, although not necessarily in a meaningful way), including, among others, the border wall and enforcement, mass deportation, the overwhelming need for CIR, and the list goes on.
What are the candidates saying on the campaign trail? At a campaign stop recently in Los Angeles recently, Hilary Clinton said, “Immigration is at the center of this presidential campaign. In my first 100 days I will introduce legislation for comprehensive immigration reform … When he [Trump] talks about deporting 11 million immigrants, he’s talking about ripping apart families.” She’s right about the latter. We’ll see about the former.
And the Donald? At a FOX News GOP debate in Detroit, he said the following: “I’m not playing to anybody’s fantasies. I’m playing to the fact that our country is in trouble. We have a tremendous problem with crime. The border is a disaster. It’s like a piece of Swiss cheese, and we’re going to stop it. We’re going to … be stopping people from coming into our country illegally. We’re going to stop it.” How? By building a “beautiful” wall, no doubt.
What we really need here are creative and progressive ideas to effectuate CIR, to ensure that the U.S. economy continues to grow from the recent recession, and to also ensure that families stay united or are reunited. Unfortunately, much of what we’re really hearing (from the Donald, anyway) is ridiculous and divisive rhetoric offering non-practical immigration policies, such as removing 11 to 13 million immigrants unlawfully living in the United States, or securing our Southern border with a bigger and more “beautiful” wall that Mexico will (no doubt not) pay for.
Let’s talk details. On the issue of border security and enforcement, quite frankly our U.S. – Mexican border is more secure today than it ever has been. By all accounts, spending on border patrol agents, infrastructure (i.e., the existing “wall”, among other things), and new and improved surveillance technologies to interdict unlawful crossings have grown exponentially; at the same time, unlawful border crossings are at their lowest level in decades. Consider the increase of staffing at the border: in 2014, U.S. Customs and Border Protection (“CBP”) had approximately 21,000 border patrol agents, a more than 500 percent increase from 1992 when there were only about 4,000 agents.
As well, enforcement under the Obama Administration is extremely high. Federal criminal prosecutions of immigration-related offenses are at their highest point in history. Since 1992, convictions for all immigration crimes (the vast majority of which are illegal entry and reentry crimes) rose from just 5 percent of all federal criminal convictions to 30 percent in 2014. Immigration offenses in the first seven years of the Obama Administration totaled 555,974 convictions compared to 251,952 during all 8 years of the Bush administration. President Obama, a Democrat, deported 2 million illegal aliens after just about five years in office. It took George W. Bush, a Republican, eight years to reach that number.
I can also state from first-hand experience that Immigration and Customs Enforcement (“ICE”) continues to try to remove people from the United States who pose no threat to our communities, breaking apart families (many of which include U.S. citizen children, spouses and parents). While the Obama Administration’s policies on the exercise of prosecutorial discretion have no doubt resulted in more fair outcomes for some, anecdotal evidence from my colleagues in the field suggest that prosecutorial discretion is not being exercised evenly (or some would say even fairly).
Hard is this may be to believe, there actually is widespread agreement across the country that Congress should pass CIR that allows unauthorized immigrants to remain in the country so that they may continue to contribute to our economy and the communities that they already reside in. Indeed, a May 2015 Pew Research Poll found that 72 percent of Americans say that undocumented immigrants should be allowed to stay in this country legally (assuming they meet certain requirements).
What about all the discussion about mass deportations? It’s just not rational to believe that 11 to 13 million undocumented immigrants living in the United States, in our own communities, working and raising their families, are going to leave the United States, or that we frankly have the resources to remove them. According to the American Action Forum, it would take 20 years and between $100 to $300 billion to arrest and remove the 11 to 13 million immigrants unlawfully living in the United States. And this is just the cost to remove them back to their home countries. This doesn’t even take into consideration the huge negative economic impact of removing these workers from the jobs and employers who depend on them every day. Industries that depend on immigrant labor (e.g., our own dairy farmers in New York States) would falter badly. Frankly, the effect of employers losing these workers would impact every part of our economy.
Is that how we want to spend our resources? What we need is a path for these people to obtain a legal status.
Finally, our family- and employment-based immigration system needs reform. Because our current immigration system is generally built around limited categories of temporary and permanent visas, many who want to come and contribute to our economy, or remain here after their schooling is done, are not able to do so. I recently spent some time with a friend of mine, a co-founder of a local and very successful technology company, and he was echoing what many in his industry say: the United States loses out when talented immigrants (often who are schooled here) are prevented from using their skills here after graduation, prevented from starting and building businesses, and prevented from using their talents to strengthen our economy. These talented and U.S. educated entrepreneurs and workers take their skills elsewhere, benefitting other countries, to the ultimate detriment of our own.
This needs to stop. We need real solutions to this problem from serious candidates. Whether or not you believe border enforcement is a priority (and it is), securing our borders does not need to be a prerequisite for CIR. We can do it concurrently. We just need to do it.