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H-1B Filing Season Comes and Goes: Why the Cap Should be Raised
So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again. April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?
A little reminder about the H-1B nonimmigrant worker program. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university. In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.
So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available? They employ a lottery to choose whose petition will be adjudicated and whose will be rejected. Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!
That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)
Which of course begs the question whether the cap makes sense. According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days.[1] In four of those years, the cap was reached in six days or less. This year it was seven (7) days.
I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.). In my opinion, the current regulations implementing the H-1B worker program do that just fine. The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.[2]
For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States.[3] In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.[4]
What about arguments that the H-1B worker program negatively affects employment rates? Bologna. (I haven’t seen, let alone written, that word in 30 years!) The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.
The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas. For example, many STEM occupations have very low unemployment,[5] compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.
Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields? Some even argue that H-1B visas are all taken by Silicon Valley companies. Some even say Microsoft and Google take them all by themselves? Wrong! According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers.[6] And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.[7]
There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them. But the simple fact is, the cap should be raised, significantly, or even eliminated. The evidence is clear that the H-1B visa program enhances our economy in so many important ways.
[1] U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.
[2] See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).
[3] Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).
[4] Id.
[5] Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.
[6] Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.
[7] Id.
Saratoga Race Course’s Back Stretch Workers: More Need for Immigration Reform
I am very fortunate to live in Saratoga Springs, New York. Last Friday was opening day at the Saratoga Race Course, and the weather cooperated. As a result, the crowds were out to watch racing at what I would argue is the country’s finest racing venue.
Friday morning, at about 5:30 AM, the line outside the track was all the way down Union Avenue, with thousands of patrons trying to be the first ones through the gates. About a month or so ago, I saw a similar line, but this line was filled with hundreds of people hoping to get summer jobs at the track. Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers. Of course there are many more.
Those who weren’t in that line, however, were the back stretch workers who do all of the little things to make our track experience enjoyable. These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.
While many of these workers are U.S. citizens, quite a lot of them are foreign nationals from Central America. Many of them enter the United States annually on an H-2B nonimmigrant visa. Quite frankly, these are positions that U.S. workers do not want to fill, and unfortunately for those in the horse racing industry, they are stuck trying to navigate the incredibly cumbersome (and expensive) process of obtaining an H-1B nonimmigrant visa for these workers on an annual basis… and in 2012, it got a lot worse.
The H-2B nonimmigrant worker classification allows foreign nationals who are citizens of certain named countries (with some limited exceptions) to accept temporary non-agricultural employment in the United States, after the employer has obtained a temporary labor certification from the U.S. Department of Labor by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment.
The H-2B classification allows foreign nationals to provide “temporary or seasonal” services or labor, provided the employment does not displace U.S. workers “capable of performing such services or labor” and as long as the H-2B employment will not adversely affect the wages and working conditions of U.S. workers.
The temporary job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. Therein lies part of the problem with using the H-2B nonimmigrant visa for backstretch workers. Employers need to clearly show that their need is short-term; that is, regardless of whether or not the position by itself can be explained as not being a permanent one, the employer has to have only a temporary need for the worker (i.e., a seasonal, peakload, intermittent, or one-time need for the temporary services or labor).
This was not a particularly big issue until 2012, when the government changed its interpretation of the law, effectively making a program that is vital to the horse racing industry, and to our enjoyment of it 40 days a year in Saratoga Springs, that much more difficult. The government used to say that workers met the standards of “seasonal” and “temporary” because the same owner or trainer needed them in different locations at distinct times of the year. In 2012, however, the government’s interpretation changed, and its position now is that these backstretch workers are essentially year-round employees. Now, owners and trainers must file separate visa applications for each worker at each meet. Perhaps the larger stables can afford this, but the smaller ones cannot.
This is yet another example where immigration reform could be useful. Unfortunately, things in Washington are not looking promising. When our government cannot even resolve the current humanitarian crisis affecting all of the children arriving at our borders, what chance do the owners, trainers and backstretch workers have?
Immigration Reform by Regulations: 97K Spouses Will Be Able To Work!
We are very fortunate to represent many employers who sponsor foreign nationals as H-1B nonimmigrant workers. One of the biggest challenges in working with H-1B nonimmigrant workers is explaining that their dependent spouse cannot also work in the United States. This is about to change for some.
As a reminder, an H-1B nonimmigrant worker is someone who works in a “specialty occupation,” which is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of H-1B specialty occupations are scientists, engineers, or computer programmers. H-1B nonimmigrant workers are admitted for an initial three year period, and their employers can extend that up to a maximum limit of six years.
Some H-1B nonimmigrant workers can actually extend their H-1B nonimmigrant status beyond the six years. For example, if their employer (or a prospective employer) filed a permanent residence application prior to the end of their fifth year of H-1B eligibility. Another example would be if the H-1B worker has a Labor Certification Application (commonly known as a PERM application) approved by the U.S. Department of Labor and an I-140, Immigrant Petition for Alien Worker, approved by U.S. Citizenship and Immigration Services.
Under current law, H-4 dependent spouses cannot apply for work authorization (unlike spouses in some other nonimmigrant classifications, e.g., L-1 dependent spouses). That is about to change.
On May 6, 2014, the Department of Homeland Security announced the publication of a propose rule designed to attract and retain highly skilled workers. The rule would allow spouses of certain H-1B nonimmigrant workers to request employment authorization if their H-1B spouse is currently pursuing permanent residence through employment-based sponsorship.
According to this proposed rule, H-4 dependent spouses can apply for work authorization if the H-1B spouse (a) is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or (b) has been granted an extension of his or her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B nonimmigrant workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit (in the situations described above).
Of course, this rule is a welcome change. And while this proposed rule may assist an estimated 97,000 H-4 dependent spouses who will now become eligible to apply for employment authorization, the rule does not assist H-4 dependent spouses whose H-1B spouses are not in the employment-based permanent residence process. By contrast, spouses of L-1 intracompany transferees are eligible to apply for work authorization, without the requirement of having to be in the permanent residence process.
This is not a perfect solution, but it’s a pretty big deal, nevertheless. I cannot tell you how often I have to break the news to an H-1B nonimmigrant worker that their trailing spouse can come to the United States but cannot work him or herself. There are organizations that work with trailing spouses (e.g., Tech Valley Connect works with trailing spouses to assist them with their professional development and assimilation into their new community), but a good portion of their missions are assisting trailing spouses with their professional development. Given the cap limitations associated with the H-1B program, what good does it do to work on professional development when employers are co constrained in terms of their ability to participate in the H-1B program?
From an immigration reform perspective, this, along with several other happenings recently, is interesting. Republicans have repeatedly said that President Obama cannot be trusted to enforce our laws. Here, we have an instance of legislating through regulatory change. This comes on the heals of President Obama directing DHS Secretary Jeh Johnson to conduct a review of immigration policy, including weighing an administrative move to curtail deportations. We shall see if there is any fall out of this in Congress. For now, a little progress.
Capital Region Approved as EB-5 “Regional Center”, Inviting Foreign Investors
OK, now for something completely new and pretty exciting (at least in my world). U.S. Citizenship and Immigration Services (“USCIS”) recently approved an application for an EB-5 Regional Center in the Capital Region which was facilitated by the Center for Economic Growth (“CEG”) and Prime Regional Center, LLC, an affiliate of Prime Companies. The Regional Center will be in an area of Upstate New York that includes eight counties surrounding and including the Capital Region, as well as specific counties in the Southern Tier, Mohawk Valley and Central New York.
So, what’s a Regional Center? Good question! Employment-based immigration is organized in a “preference” system, and one of the preferences is commonly called “EB-5”. The EB-5 employment preference is for immigrant investors (i.e., for employment-creation). In general, this category provides, initially, conditional permanent residence for foreign nationals who invest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year period, at which time he or she may make an application to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he or she has “substantially met the capital investment requirement.”
A foreign national may also be able to make a smaller investment of $500,000.00 if the investment is in a targeted employment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.
Certain EB-5 visas also are set aside for investors in what are called Regional Centers, which are designated by USCIS based on public or private proposals for promoting economic growth. A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.
The Regional Center program is for generally good for investors who have the means to invest the capital (i.e., not less than $500,000.00), but who do not wish to actively manage the business. Foreign national investors who choose to invest through a Regional Center must demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable methodologies, that ten (10) or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the Regional Center. The typical investment will be $500,000.00 (plus additional fees and expenses associated with getting into the program, which can range from $20,000 to $70,000, plus or minus, plus professional fees), which may or may not be returned to the investor at the end of the proverbial day.
In a statement about the approval of the Capital Region’s EB-5 Regional Center, New York Governor Andrew Cuomo said, “As the State works to attract businesses and jobs from across the nation, we must also look overseas to lure global investors and entrepreneurs to start and grow their companies in New York. … With this approval, the Capital Region will be more attractive than ever before to businesses from overseas interested in expanding their investments here in the United States.”
We can only hope.
Basically, an EB-5 Regional Center allows wealthy foreign national investors to essentially “buy” a Green Card for themselves and their families (although not without a lot of hoops to jump through and significant financial risks too). The EB-5 program has been around for quite some time now, but not until the Regional Center portion of the EB-5 program gained traction with the immigration bar and the economic development community and their lenders did it start being used as it was intended; that is, to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business.
This is truly an exciting opportunity for the Capital Region!
US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days
On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:
“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”
O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.
As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:
“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”
He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)
Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.
Mr. Stump went on in his statement:
“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”
I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.
Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:
“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”
The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:
“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”
The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?
We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.
Immigration Irony: John Boehner vs. President Obama, the “Deporter-In-Chief”
Many who know me will tell you that I have a propensity to have stream of consciousness moments. I think to myself, “Define Irony”, and then I try to think about a (classic) movie moment where this statement might have been made. Has anyone ever seen the movie “Con Air”? Hardly a classic, I know. Nevertheless, does anyone remember when all the convicts were dancing on the plane to Lynyrd Skynyrd’s “Sweet Home Alabama”? Steve Buscemi, a fabulous actor, says “Define Irony: A bunch of idiots dancing on a plane to a song made famous by a band that died in a plane crash.”
Merriam-Webster defines irony as:
(1) a pretense of ignorance and of willingness to learn from another assumed in order to make the other’s false conceptions conspicuous by adroit questioning —called also Socratic irony;
(2) (a) the use of words to express something other than and especially the opposite of the literal meaning, (b) a usually humorous or sardonic literary style or form characterized by irony (c) an ironic expression or utterance;
(3) (a) incongruity between the actual result of a sequence of events and the normal or expected result; an event or result marked by such incongruity, (b) incongruity between a situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play —called also dramatic irony, tragic irony.
Where am I going with this? Good question. Right after the President’s State of the Union Address, House Republicans finally released their “Standards for Immigration Reform.” It was a one page document that primarily echoed what the Republican leadership had been saying for months: border security and interior enforcement is their top priority, and they offered a commitment to some sort of legalization program for those in the country without legal status. The document also highlighted the importance of implementing an entry-exit visa tracking system and employment verification, above and beyond their interior enforcement goals.
Finally, right? I mean, it’s not a perfect, and indeed it’s pretty vague on some level, which means it offers House Republicans cover within their own party and when they’re negotiating with their Democratic colleagues. But it was progress nevertheless.
And then, literally in the wake of this statement, barely one week later, House Speaker John Boehner seemed to stamp out (once again) any prospect for immigration reform. Speaking of the Obama Administration, he said “There’s widespread doubt about whether this administration can be trusted to enforce our laws. And it’s going to be difficult to move any immigration legislation until that changes.” Speaker Boehner went on to say, “We are going to continue to discuss this issue with our members, but I think the President’s going to have to demonstrate to the American people and to my colleagues that he can be trusted to enforce the law as it is written.”
Really? Are you kidding me? So the Republicans are no doubt concerned about some of the commentary leading up to the State of the Union Address, where there was some discussion that if the President could not get his way legislatively in certain areas, he would simply resort to Executive Orders. But to say that the President can’t be trusted to enforce our laws?
Let’s consider deportations during the Obama Administration. Ever read “The Economist”? I love that magazine. And I think it’s fair to say that it’s pretty conservative too. Well, The Economist recently labeled the President as “Barack Obama, deporter-in-chief.” “America is expelling illegal immigrants at nine times the rate of 20 years ago; nearly [two million] so far under Barack Obama, easily outpacing any previous president. Border patrol agents no longer just patrol the border; they scour the country for illegals to eject. The deportation machine costs more than all other areas of federal criminal law-enforcement combined. It tears families apart and impoverishes America.”
A week later, The Economist followed up their earlier story with another article entitled “America’s deportation machine, The great expulsion.” Says the article, “ It is hard to find many areas where the federal government is so effective in implementing laws passed by Congress.” The article highlights the growing pressure that President Obama’s deportation machine is putting on the courts, and also even speaks to a detention bed quota. But the article also singles out something known as “Secure Communities” as the real culprit behind the dramatic increase in deportations. “The turning of police officers into immigration officials has brought border enforcement into areas
of the country far from the deserts of the south-west. Secure Communities, the name given to the programme that links police work to the immigration database, began life in a single jurisdiction in Texas in 2008 at the end of George W. Bush’s presidency. By May 2013 it was operating everywhere.”
So, not only do we have those federal agencies and officials who we expect to be enforcing our immigration laws doing a pretty good job, but now we also have state and local officials, who have essentially been deputized to do the same.
Can’t be trusted? Really? Define irony. Or, maybe we should be saying define disingenuousness. I’m trying to think of a movie quote. “Anyone? Anyone?”
Goodbye 2013 : Hope for Immigration Reform in 2014?
Do you remember how hopeful everyone was in January? “Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas when he introduced his four (4) part plan for Comprehensive Immigration Reform (“CIR”). In early 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,” and we were off to the House of Representatives. And that’s where we are today … still waiting for something … anything.
There’s a lot of discussion these days whether we’re ever going to have CIR (or any immigration reform for that matter). I heard an interesting piece the other morning on National Public Radio (“NPR”), where Brent Wilkes, national executive director of the League of United Latin American Citizens, a strong supporter of CIR, said he’s not concerned if CIR happens before the end of 2013.
“The real clock is this session of Congress doesn’t end until next December,” said Wilkes, who predicts that the House will vote on immigration bills by April or May in 2014. “This has been a long, long process for us, well over 20 years, and we’re not so impatient that we can’t wait four more months,” he added. I suppose that’s encouraging.
But I am also hearing a lot of political chatter as to the likelihood of having CIR before next year’s congressional mid-term elections, during the 2016 presidential primary cycle, or ultimately even by the time the 2016 presidential elections take place.
In a nutshell, the analysis goes like this. Although the Hispanic population today makes up 17 percent of the nation’s population and is the fastest-growing ethnic group, they disproportionately live in congressional districts represented by Democrats. So there’s no real incentive, at this point anyway, for Republican House members running for re-election in 2014 to support CIR if it’s not going to benefit them in their own district or, worse, potentially hurt them.
On to the Republican presidential primaries, where Republic presidential candidates will be focused on placating their conservative base (i.e., the voters in presidential primaries). No chance for CIR at this point
Now we’re into 2016, where maybe a Republican presidential candidate (or dare I say the Republican party) will finally learn the lessons of 2012. (That’s three years from now in case you’re not counting.)
Speaking of lessons learned, former Governor and Republican presidential candidate Mitt Romney recently went on CBS Morning to talk about life after the elections. During his comments, he stated that a significant shortcoming of his campaign was appealing to minority voters. (Really?) Interestingly, he took a somewhat different approach on immigration than he had during the campaign when he advocated “self-deportation.” Romney said, “I don’t think those who come here illegally should jump to the front of the line, or be given a special deal — be rewarded for coming here illegally — but they should have a chance, just like anybody else, to get in line and become a citizen if they’d like to do so.” While an admirable view, I think it’s a little too late coming from Governor Romney (but of course, we’re talking about lessons learned).
OK, so how about some potentially good news. Last week Speaker Boehner (R-OH) made a hiring choice for his own staff that hopefully speaks to his seriousness to address immigration reform in 2014. Roll Call reported that “Rebecca Tallent, who currently serves as director of immigration policy at the Bipartisan Policy Center (BPC), will join Boehner’s staff[.] Before joining the BPC, Tallent held several senior staff positions with Sen. John McCain, including chief of staff.”
The Roll Call piece went on to say that “[d]uring her time with McCain, [Ms. Tallent] helped the Arizona Republican draft a handful of immigration overhaul measures, including the last big push McCain made with the late Sen. Edward M. Kennedy … in 2007. … Before working for McCain, she worked for former Rep. Jim Kolbe, R-Ariz., a longtime advocate of overhauling the immigration system[.]”
CIR is very much overdue. “Now [still] is the time.” January seems so long ago, but I remain cautiously optimistic that the House will do something about CIR, albeit now likely in 2014.
Is Comprehensive Immigration Reform Dead?
Last week, I attended a retirement luncheon for Bishop Howard Hubbard, Bishop of the Diocese of Albany for the past 36 years. Bishop Hubbard and the late Sr. Maureen Joyce hired me in the summer of 2000 to set up and oversee an Office for Immigrant Services at Catholic Charities for the Diocese of Albany. This office sees low and no income clients, many of whom cannot afford to walk into a private practitioner’s office. Many of these (potential) clients also have immigration-related issues that would be well served by Comprehensive Immigration Reform (“CIR”).
While walking into the luncheon, Bishop Hubbard pulled me aside and asked how our numbers were in the office. I told him we were as busy as ever, and that if CIR was signed into law, we would have to re-think our office’s ability to handle the anticipated increase in caseload. When I said this, he looked at me curiously and said he thought that CIR was dead. I responded that in light of current events in Washington (e.g., the government shutdown, raising the debt ceiling, the fumbled rollout of Obama Care, etc.), that CIR was not dead, but that the support for it was definitely muffled. I hope I was right in saying that.
So what’s going on with CIR? Well, we know that the Democratic leadership in the House introduced H.R. 15, a CIR bill generally modeled after the successful bipartisan Senate bill (except that the House Democrats’ bill does not include billions of dollars requiring hundreds of miles of new border fence, as the Senate bill did). As of today, there were actually three Republican co-sponsors to H.R. 15: Rep. David Valadao (R-CA), Rep. Ros-Lehtinen (R-FL) and Rep. Denham (R-CA).
In a statement released when he decided to co-sponsor H.R.15, Rep. Valadao stated: “I have been working with my colleagues on both sides of the aisle to find common ground on the issue of immigration reform. Recently, I have focused my efforts on joining with likeminded Republicans in organizing and demonstrating to Republican Leadership broad support within the Party to address immigration reform in the House by the end of the year. By supporting H.R. 15 I am strengthening my message: Addressing immigration reform in the House cannot wait. I am serious about making real progress and will remain committed to doing whatever it takes to repair our broken immigration system.” (Finally, some common sense coming out of the House.)
You would think Republicans would have learned after the 2012 election debacle that CIR was a necessity. You would also think that after Republicans took it on the chin in the media for their antics during the government shutdown that they would be looking for opportunities to curry favor with voters. Public Policy Polling recently released new polls that looked at eight Congressional districts currently held by Republicans. The poll finds that while voters in each of these districts are unhappy with their Republican Representatives because of the government shutdown, the polls also found that “voters make it clear in each of these districts that they’ll be more likely to vote to reelect their Congressmen next year if they vote for 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 CIR. When will Republicans get this?
House Democrats Pass H.R. 15 Bill for Comprehensive Immigration Reform
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.
“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.
INSIGHT INTO IMMIGRATION 