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So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. Most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did he do it? Politics as usual.
First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.
The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).
But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020. (1) U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended. (2)
Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”
In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.
I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” (3)
When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.
I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.
The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.
(1) U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.
(2) Importantly, asylum seekers are not prohibited from coming to the United States.
(3)Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.
This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.
Readers of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.
A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.
Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.
Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:
In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”
Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)
This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.
So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.
We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.
Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.
My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
United States Citizenship and Immigration Services (“USCIS”) recently announced that it’s changing its mission statement to eliminate a passage that describes the United States as “a nation of immigrants.” USCIS’s new mission statement reads as follows:
“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
The previous mission statement read as follows:
“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”
Where do I start? Did you now that the director of USCIS, Lee Francis Cissna, is actually the son of an immigrant? Aren’t most of us if we trace back our lineage far enough?
In a letter to USCIS agency staff, Mr. Cissna said, “We are also responsible for ensuring that those who naturalize are dedicated to this country, share our values, assimilate into our communities, and understand their responsibility to help preserve our freedom and liberty.”
What Mr. Cissna did not mention in his letter to agency staff explaining his reasoning is that the phrase “nation of immigrants” was popularized by a book by President John F. Kennedy (published posthumously), titled “A Nation of Immigrants”, and is frequently used to convey the American ideal of multiculturalism. President Kennedy’s book explored the contribution of immigrants when the United States was in the midst of a debate over the direction of its immigration policy.
People who know me know my politics. I’m socially liberal and fiscally conservative. I am a registered Democrat. (I grew up in Albany after all.) I also used to work for Republican Senator Alfonse D’Amato. Back in those days, Washington was very different. Democrats and Republicans could debate issues during the day and enjoy a meal together in the evening. Senator D’Amato always worked with his colleagues across the aisle, including Senator Edward Kennedy.
In the wake of 9/11, Senator Kennedy, along with his colleague, Senator Sam Brownback, stated, “Immigration is a central part of our heritage and history. It is essential to who we are. Continued immigration is part of our national well-being, our identity, and our strength.” He wasn’t wrong.
In 1981, President Ronald Reagan stated, “Our nation is a nation of immigrants. More than any other country, our strength comes from our own immigrant heritage and our capacity to welcome those from other lands.” He wasn’t wrong either.
That was then, this is now. President Trump has used the phrase “nation of immigrants”, but he did so in a written statement defending his attempt to ban immigrants from seven Muslim nations.
Ensuring “the promise of the United States as a nation of immigrants” is no longer the mission of USCIS, the very agency charged with administering our immigration laws. On the contrary, the new mission statement reflects President Trump’s hardline stance on immigration and immigrants themselves.
Last month I wrote about receiving a call from a friend of mine who heads up the local affiliate of a national not-for-profit. As a reminder, among its many charitable endeavors, this not-for-profit runs a summer camp for kids. Some of their employees come from overseas. My friend, his superiors, and the association that represents the interests of his and other similarly situated not-for-profits are concerned that the Trump Administration, as a result of the Presidential Executive Order “Buy American and Hire American”, is going to revamp the J-1 Exchange Visitor Program, and specifically two of its component visa categories, the Summer Work Travel program (and possibly even the J-1 Camp Counselor program).
In our telephone conversation, he asked whether there were any alternative visa options that they might be able to consider. I told him there was, the H-2B nonimmigrant visa, but that the requirements for qualifying for an H-2B visa are much more onerous than the J-1 Summer Work Travel or Camp Counselor programs.
The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions), to accept “temporary” non-agricultural employment in the United States. Before doing so, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during the recruitment period. As this employment is temporary, the foreign national must also show “nonimmigrant intent” (i.e., that he or she has a compelling reason to return to his or her country of origin).
Like the H-1B program, there is an annual numerical limitation of 66,000 H-2B visas that are available in each government fiscal year. Under the regulations, an H-2B petition may be valid for up to one year for seasonal, intermittent, or peakload needs, and for up to three years for a one-time need. Also under the regulations, H-2B petitions may be extended for periods of up to one year, to a maximum of three years in H-2B status in some instances. To be eligible for a period of H-2B status beyond these limitations, a foreign national must remain outside the United States for at least three months. Spouses and children under 21 may hold a derivative H-4 status.
There are some key aspects of the H-2B visa program, among them, the employer identifying what its temporary need is. The 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. The following definitions apply:
- Seasonal. The seasonal definition of temporary need requires an employer to establish that their need for labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature and the period(s) of time during each year in which the employer does not need the services or labor. (Note that employment is not seasonal if the period of need is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees).
- Peakload. The peakload definition of temporary need requires an employer to establish that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand and the temporary additions to staff will not become part of the employer’s regular operation
- One-Time Occurrence. The one-time occurrence definition of temporary requires an employer to establish that it has not employed workers to perform the services or labor in the past and it will not need the workers to perform the services or labor in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker(s).
- Intermittent. Under this standard, an employer must establish that it has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform the services or labor for short periods.
As also noted above, before an employer can file a petition with U.S. Citizenship and Immigration Services (“USCIS”), it must first obtain a temporary labor certification from the USDOL. After a period of recruitment, the employer will file an application for temporary labor certification with the USDOL. The temporary labor certification represents an employer’s attestation of testing the labor market appropriately and in good faith to demonstrate that capable U.S. workers did not respond to its recruitment efforts or ultimately were not available (either due to lawful rejection by the employer, failure on the worker’s part to follow through or remain on the job, etc.) to perform the labor or services. Before filing the temporary labor certification, the law requires the employer to recruit for the offered position(s). This recruitment must take place within 120 days of the start date for the offered positions. Prior to the recruitment, the employer must also apply for and receive a Prevailing Wage Determination from the USDOL, which can take around 60 days to receive.
Once all of this is done, and assuming there are no available U.S. workers and the temporary labor certification is certified by the USDOL, the employer will file its H-2B petition with USCIS. It is permissible for an H-2B petition to be filed for multiple beneficiaries provided the temporary labor certification application on behalf of multiple workers entails “the same service or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.” Once that’s approved, it will be forwarded to the U.S. embassy / consulate closest to where the foreign nationals reside and that issues H-2B visas.
I have completely over-simplified this process. It’s highly technical and keeping on top of the timing is critical. However, for an employer that has the type of needs that are outlined above, the H-2B visa may be a very viable option.
 On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American.” The purported purpose of the “Hire American” portion of the order is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry into the United States of foreign workers. Most of the focus of the implications of this Executive Order has been on the H-1B nonimmigrant visa program. Other visa programs are clearly in the cross-hairs as well.
I suppose I shouldn’t be surprised that U.S. Immigration and Customs Enforcement (“ICE”) has now conducted two (2) sweeps in my hometown of Saratoga Springs, New York. “If you’re in this country illegally and you committed a crime by entering this country, you should be uncomfortable,” Acting ICE Director Thomas Homan recently told the House Appropriations Committee’s Homeland Security Subcommittee. “You should look over your shoulder, and you need to be worried.” Nice, right? No, not really. Not at all. The result? According to reports, twenty six (26) men have been picked up off the streets of their (and my) community and detained, initially at the Albany County Jail and thereafter at the Buffalo Federal Detention Facility in Batavia, New York. Some of them will be placed in removal (i.e., deportation”) proceedings. Others may already be in removal proceedings. Yet others may have previously been removed and later came back to the United States, presumably unlawfully. Those individuals will have their prior removal orders reinstated and will be removed again. There may be other scenarios too. I know. Some were my clients. Some are now my clients.
Public opinion is mixed as to what happened. Some good, some not so good. Here’s my take.
These individuals are fathers, husbands, brothers, cousins, and perhaps sons too. Some and perhaps all of them played very important roles in our community. In some respects, they were the backbone of our community. That is, some, and perhaps all of them, worked for businesses that we frequent. And some, although I am sure not all, worked for those business legally (e.g., pursuant to valid Employment Authorization Documents that our government issued to them while their applications for political asylum are being adjudicated by U.S. Citizenship and Immigration Services). It’s ironic, isn’t it? On the one hand, our government issues these individuals Employment Authorization Documents so they can lawfully work in the United States while they wait for USCIS to adjudicate their asylum applications. On the other hand, ICE picks them up off the streets and then detains them.
And what about the employers who employ these workers, and particularly those who were lawfully working for them? Summer has officially started, and opening day of the Saratoga Race Course is now only weeks away. Employers in service-based industries, and particularly the restaurant and hospitality fields, are particularly affected. Quite candidly, these individuals work in jobs that the very vast majority of American workers do not want. (Trust me, it’s true.)
Is the Saratoga Race Course next? This is the time of year you see long lines in front of the race track. These are not fans going to see the races. That’s for next month. No, these are lines 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.
The “many more” include the back stretch workers who are absolutely essential and 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. A great many of these workers are foreign workers. And although many of these workers are no doubt here lawfully, dare I say that some are not? Will ICE be on the race track’s doorstep next?
There are three issues that we’re dealing with here. On the one hand, what’s happening to the foreign workers who have been picked up? What about their families, some of whom are U.S. citizens? Each of their situations will be different. Each one may (or may not) have relief to stay in the United States long-term. Time will tell.
On the other hand, we’ve got the employers. Track season is the biggest part of their year, and right now those in the restaurant and hospitality industry are dealing with unexpected (and unwanted) labor issues.
And on the “third” hand, we’re in a very tight labor market right now. Saratoga Springs is fortunate to have very low unemployment. But with that comes issues associated with hiring enough workers to fill year-round labor needs, including the bump that employers need during track season.
The solution? How about an immigration system that works? One that is responsive to the legitimate needs of our business community. Unfortunately, our immigration system is broken, and it’s been broken for a very long time. But that doesn’t mean that federal law enforcement officials should be coming into our community and creating unnecessary fear among our friends, families and neighbors. What we need are meaningful and compassionate solutions from our “friends” in Washington, D.C. What’s the over – under that that will happen anytime soon?
“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:
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.