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Immigration Reform by Executive Action: What Did Obama Actually Do?

boydadimmigrationrally

So, the President finally did it.  On November 20, 2014, President Obama announced a series of actions (not executive orders as it turns out) that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.”  These actions involve, among other areas, border security, providing a temporary status (commonly called “deferred action”) for some aliens who are currently unlawfully present in the United States, and future legal immigration.  So what did the President actually do?  I’m glad you asked.

Border Security.  Likely to placate those on the right, and certainly consistent with this Administration’s record level of deportations, the President announced he is implementing a “Southern Border and Approaches Campaign Strategy” which the Administration argues will “fundamentally alter” the way in which it marshals resources to the border.  We’re informed that this will involve the U.S. Department of Homeland Security (“DHS”) commissioning of three (3) task forces, consisting of various law enforcement agencies, which will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. The primary objectives of this new strategy is increasing the risk of engaging in or facilitating illegal transnational or cross-border activity, interdicting people who attempt to enter illegally between ports of entry, and preventing the illegal exploitation of legal flows (e.g., alien smuggling at ports of entry).

Aliens Unlawfully Present in the United States.  The centerpiece of President Obama’s announcement, and no doubt the most controversial, is to grant deferred action (basically temporary relief from removal) to some aliens who are unlawfully present in the United States (i.e., those who were brought to the United States as children and raised here, or those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”)).

In addition, President Obama expanded a program his administration announced in June 2012, known as Deferred Action for Childhood Arrivals (“DACA”).  That program allowed aliens who were unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.  DACA, as originally proposed, expressly excluded aliens who were unlawfully present aliens and who were over 31 years old, or who had entered the United States on or after June 15, 2007.  Under President Obama’s recent action, aliens who are over 31 years old, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action.  The President’s recent initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.

As noted above, aliens who are unlawfully present in the United States who have children who are U.S. citizens or LPR’s will also be eligible for deferred action (and employment authorization) provided they can show (1) “continuous residence” in the United States since before January 1, 2010, (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they apply for deferred action, (3) not being an enforcement priority under the administration’s newly announced priorities, and (4) they present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.  Individuals who are granted deferred action pursuant to the President’s initiatives, or otherwise, are eligible for employment authorization provided they can show “an economic necessity for employment.”

There were other provisions which addressed aliens who are unlawfully present in the United States too, but these are the big ones.

Legal Immigration.  The President also announced certain initiatives intended to affect aliens who are lawfully present in the United States, and which was described by the President as supporting high-skilled business and workers.  One such provision is to ensure that all immigrant visas (basically “Green Cards”) which are authorized by Congress in a given fiscal year are actually issued.

Yet another initiative that the President announced is expanding the duration of “optional practical training” (“OPT”) available to F-1 nonimmigrant students in the United States studying science, technology, engineering, and mathematics (“STEM”) fields at institutions of higher education in the United States, as well as expanding the actual degree programs that are eligible for OPT.

Again, there were other provisions which the President announced in this category.

I realize the President’s actions are very controversial, and a lot of people are unhappy with them.  As I’ve said before, and I’ll say it again, our immigration system is broken and it desperately needs to be fixed.  In a perfect world, Congress would pass meaningful, comprehensive and bipartisan legislation, and send it to the President for his signature.  That has not happened for way too long. So I suppose this is the next best thing.

Election Afterthoughts and Immigration Reform by Executive Action

imm_2I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform.  At first blush, it doesn’t look great.  At second blush too.

Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States.  I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it.  I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).

To be honest, I have mixed emotions about President Obama.  But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.”  It’s actually been longer than six years.  President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart.  Others before him have tried and failed as well.

I’ve made this point before, but it really is worth repeating.  Our immigration system is broken.  Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present in the United States?  No.  Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to?  No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.

Unfortunately, a legislative fix does not appear in the offing.  Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States.  The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.

Just so I am clear.  These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship.  Only Congress has the ability to make those types of changes (with, of course, the signature of the President).

This is not a perfect solution.  These individuals would (potentially) only be receiving a temporary reprieve from deportation.  Congress could change the law, or a future president could cancel President Obama’s program.  If that were to occur, those who participated in the program would be out in the open and thus exposed to removal.  Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.

As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.”  I agree.

Back to School, but Congress Still as Unproductive as Ever

I rec????????????????????????????????????????????????????????????????????????????????????????????????????????????????ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.

I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?

I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.

When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.

I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”

After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”

What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”

Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?

Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.

Can’t We Just Deport Justin Bieber?

Justin Bieber?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????OK, so my apologies ahead of time to those of you who have children who like Justin Bieber or enjoy his music.  My children are still (mercifully) way too young to know who he is or the shenanigans he gets himself involved in.

What I did not know until his recent arrest in Miami is that the young Mr. Bieber is not a U.S. citizen; rather, I am informed that Mr. Bieber is in the United States as a nonimmigrant (perhaps in an O-1 nonimmigrant status, which status is reserved for foreign nationals of extraordinary ability).  In Mr. Bieber’s case, the standard for an O-1 nonimmigrant is actually a lower standard; that is, instead of proving to U.S. Citizenship and Immigration Services (“USCIS”) that he’s an alien of extraordinary ability, because he’s an “artist or entertainer” (so they say), the standard is showing that he’s an alien of “distinction.”  But I digress.

My understanding is that Mr. Bieber and R&B singer Khalil Sharieff were arrested on January 23 while drag-racing in Miami Beach.  According to news reports, Mr. Bieber was charged with driving under the influence (“DUI”), resisting arrest and using an expired driver’s license.  He has pleaded not guilty to all charges.

Some news outlets also reported that Mr. Bieber initially resisted arrest, cursed at police officers, and also told police that he had consumed alcohol, pot and prescription drugs (this all according to the police).  His next appearance in court is May 5.

Of course, the arrest (and related arrogance) of a young pop star consumed the media for days, if not weeks.  What was more interesting to me, however, is when some media outlets started reporting that people were calling for Mr. Bieber to be deported (actually, officially called “removed”) from the United States.

For example, a petition was lodged with the White House to have Mr. Bieber deported.  The petition was created the day of his arrest, and it urged the White House to revoke Mr. Bieber’s permission to be in the country.

We the people of the United States feel that we are being wrongly represented in the world of pop culture. We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported and his green card revoked. He is not only threatening the safety of our people but he is also a terrible influence on our nation’s youth. We the people would like to remove Justin Bieber from our society.

First off, as noted above, I don’t believe that Mr. Bieber has a “green card”.  But apart from that, over 100,000 people have signed on to the petition.  Even Sen. Mark Warner, a Democrat from Virginia, is on board. “As a dad with three daughters, is there someplace I can sign?” he asked with a laugh, when prodded by the hosts of Chesapeake-based FM99’s “Rumble in the Morning.”  The White House is obligated to respond to petitions that reach more than 100,000 names.  Still waiting on their response at this point.

OK, so this all got me thinking.  Could Justin Bieber actually be removed from the United States as a result of this incident?

Immigration consequences attach to foreign nationals who have been “convicted” of certain crimes, as well as sometimes even to foreign nationals who admit to committing certain crimes for which they were not convicted, or whom the government has “reason to believe” are involved in certain criminal activities.  Because Mr. Bieber (I presume) is lawfully in the United States, he would be subject to the grounds of deportability under section 237 of the Immigration and Nationality Act (INA), as amended, and possibly even the bars to a finding of good moral character at under section 101(f) of the INA.

I’ve had an opportunity to review Mr. Bieber’s Complaint / Arrest Affidavit (and I must admit, it makes for some very interesting reading if you don’t mind the “f” bomb).

Mr. Bieber was charged with violating section 316.193 of Florida Statutes, which generally relates to DUI offices.  This section of law includes several subsections, and it’s not clear from the Complaint / Arrest Affidavit under which subsection he was charged.  Nevertheless, as no one was hurt or (thankfully) killed in the incident, it seems reasonable to conclude that he was charged under a subsection that would not result in his being convicted of, e.g., an aggravated felony (for immigration purposes)[1] or a crime involving moral turpitude.[2]  The other two charges likely do not have negative immigration consequences as well.  So, he appears safe, as far as these charges go anyway.

However, if the young Mr. Bieber did admit to police that he abused drugs, this could be a big problem for him.  The INA that provides that “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”

Of course, I don’t wish any ill-will on Mr. Bieber, but if all this was the case, my children might not ever ask me whether they can see him at the Times Union Center or SPAC as they’re growing up!


[1] The term “aggravated felony” is defined at section 101(a)(43) of the INA, and now includes some 50 different offenses. While some of these offenses, such as murder, rape, and kidnapping, would sound like aggravated felonies to the layperson, a good number of the offenses in the definition do not readily appear heinous enough to be termed “aggravated felonies,” and based upon case law, some DUI violations can be considered aggravated felonies.

[2]  The Board of Immigration Appeals (“BIA”) defines a Crime Involving Moral Turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

Team USA Sochi 2014 and the Influence of Immigration

olympic ice skatingI always enjoy watching the Olympics, both summer and winter.  Sure, they’re a bit over the top, not to mention exorbitantly expensive to host these days.  And the Olympics have seen their share of tragedy too, both human and political.  But did you know that there’s a long history of first and second generation immigrant athletes representing the United States on Team USA?  (Did you also know that some former Olympic champions were previously in the United States unlawfully?)  The U.S. Skating Team is especially influenced by immigrant athletes and coaches.  For example:

  • Simon Shnapir, who came to the United States from Russia, will be representing the United States in Sochi in pairs skating with his partner, Marissa Castelli.
  • Marina Zueva, previously a Russian ice dancer, retired in the late 1970’s to become a choreographer.  She moved to the United States in 1991 and has worked with many elite skaters including current members of Team USA.
  • Oleg Epstein, Marina Zueva’s former partner, is also an immigrant from Russia.  He has choreographed Gracie Gold and ice dancers Davis and White and is currently a coach and choreographer for siblings Maia and Alex Shibutani.
  • Although the “Shib Sibs,” as the Shibutanis are commonly known, are first generation Americans, their mother is an immigrant from Japan who met their father when they were both studying music at Harvard.
  • Rafael Arutyunyan, born in Soviet Georgia, competed as a skater for the USSR early in his career.  After immigrating to the United States, he has coached many successful U.S. skaters including Michelle Kwan.  He is currently one of Ashley Wagner’s coaches.
  • Igor Shpilband, a former ice dancer for the USSR, defected to the United States in 1964.  He is both the coach and choreographer for ice dancers Madison Chock and Evan Bates.
  • Finally, Yakuto Sato, a former Japanese figure skater who placed seventh at the 1992 Winter Olympics and fifth at the 1994 Winter Olympics, is, interestingly enough (considering where the Olympics are being held) the only foreign-born Team USA skating coach without a Russian background.  She currently works as a coach and choreographer at the Detroit Skating Club, where she coaches Olympic hopeful Jeremy Abbott.

Considering the Olympics are being held in Sochi, Russia, I suppose it’s a bit ironic that all but one of the individuals noted above is of Russian descent.  Nevertheless, it does not mean we support our Team USA any less.  We wish them all great success.

Coke Super Bowl Ad “America Is Beautiful” : Stunned by the Intolerance and Bigotry

boydadimmigrationrallyI was actually stunned Monday morning, the morning after the Super Bowl, not because the Broncos had been blown out by the Seahawks, but because of the unbelievable reaction to Coca-Cola’s 60 second Super Bowl advertisement. And when I say stunned, I mean I was really stunned.

Last night my wife was reading to me some of the posts that were showing up on YouTube, right below the link to Coke’s advertisement.  As I type this blog, 9455 comments have been posted, and that number is increasing every time I check it.  I don’t spend a lot of time online, and virtually no time on social media sites, but I am told this is a ridiculously high number of comments.  I thought about giving some examples here, but honestly, I can’t even dignify any of them by re-posting them.

Are we not a nation of immigrants?  Are we not a melting pot?  Was the Super Bowl not played just a few miles south of the largest melting pot in the world?  Has anyone taken a walk and looked around Herald Square recently (where ESPN set up camp just outside of MACY’s for the week before the Super Bowl)?  Has anyone looked at the faces of the thousands of people that walk around Time Square every day (which also happened to be right in the middle of Super Bowl Boulevard)?  Isn’t Ellis Island, right in New York harbor, where many of our grandparents landed when they came to America, very likely speaking languages other than English?

I’m quite sure that many of the people who posted their slurs on YouTube don’t even know that our own government allows some immigrants to pass a test to become a U.S. citizen without even speaking a word of English.  That said, it does not mean the immigrants don’t wish to learn or become proficient in English.  Indeed, the opposite is true.  According to the Pew Hispanic Forum, the development of English language proficiency among non-English speaking immigrants today mirrors that of 19th and early 20th century, when our ancestors of Italian, German, and Eastern European decent came to America (many through Ellis Island).  While first generation, non-English speaking immigrants predictably had lower rates of English proficiency than native speakers, 91 percent of second generation immigrants are fluent or near fluent English speakers.  And by the time we get to the third generation, that number goes up to 97 percent!

I’ve spent the last year writing about the virtues of immigration in general, and the positive outcomes that will result if Congress is able to pass, and the President actually signs, legislation dealing with Comprehensive Immigration Reform (“CIR”).  Last July the U.S. Senate passed the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act.”  Finally, last week, in the wake of the President’s State of the Union Address, House Republicans released their standards for immigration reform. The standards include enforcement, reforming the legal immigration system, and addressing the undocumented immigrant population.  And for those of you who think that all immigrants should speak English, you’ll be pleased to know that the House Republicans’ standards for immigration reform includes a requirement that the path to legalization include a requirement that illegal immigrants “develop proficiency in English and American civics” as a pre-condition to becoming legalized. (And that we need CIR to fix our broken immigration system.)

I read a great piece in Forbes about Coca-Cola’s advertisement.  Writes Tom Watson, “Coca-Cola’s … America, The Beautiful Super Bowl ad was among the most talked about spots of the otherwise disappointing (unless you’re a Seahawks fan) contest – and it was an ad with a clear purpose. Yet it was not in any way, explicitly political. The ad illustrated the stakes of immigration reform and took pride the impact of immigration on U.S. culture.”

We are a nation born of immigrants.  I would also remind people that immigrants have a long and proud tradition of serving in the U.S. military, and that there are thousands of men and women in uniform today who were not born in the United States and who are willing to sacrifice everything for our country.  Let’s show them, their parents, their brothers and sisters, their children, and their friends and neighbors, some respect.

A New Year and New H-1B Filing Season for Specialty Occupations

?????????????????????????????????????????????????????????????????????????????????????????????So, yes, this is actually what I am thinking about on New Year’s Day.  The start of the H-1B filing season is actually upon us.  Since Comprehensive Immigration Reform (“CIR”) did not pass in 2013, the Gang of Eight’s plan to raise the H-1B visa cap never came to be (or I’d like to say has not come to be yet).  As such, immigration practitioners are once again left to have difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions.

A little primer is in order.  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.

In order to determine whether a particular position would be considered a specialty occupation, the regulations require that the position must meet one of the following four (4) criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common in the industry in parallel positions among similar organizations or, alternatively, that the particular position is so complex or unique that a degree is required; (3) the employer normally requires a degree or its equivalent; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.

The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the following September 30.  For those employers who wish to hire foreign nationals as H-1B workers, unless the position is exempt, there is an annual cap of 65,000 nonimmigrant visas that are available in each fiscal year (and the 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).

Importantly, the earliest date by which an employer may petition for a prospective H-1B worker is the April 1 preceding the October 1 beginning of the U.S. government’s new fiscal year.  Assuming that the offered position is not an exempt position (i.e., a position that is cap exempt), the timing of an employer’s H-1B petition is critical.  This is because in recent years the H-1B cap has been reached within days of April 1.  Therefore, late filing may cause an employer to miss the opportunity to participate in the H-1B program in a given fiscal year.

Because there are some prerequisites to filing an H-1B petition with USCIS (e.g., obtaining a prevailing wage determination, filing a Labor Condition Application with the U.S. Department of Labor, etc.), now is the time for employers to start thinking about whether they wish to participate in the H-1B visa program.

House Democrats Pass H.R. 15 Bill for Comprehensive Immigration Reform

pexels-photo-531970.jpegIn 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.

States Enact Their Own Immigration Laws While The House of Representatives Takes Baby Steps

imm_2As I write this piece, summer is slowly turning into fall, the leaves are just starting to change their colors, and Congress has come back to work from its summer recess. Comprehensive Immigration Reform (“CIR”) is only slightly closer to reality than it was since 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 of Representatives continues to take baby-steps toward a piecemeal approach at CIR. We’ll see what happens there.

So, instead of focusing on what’s going on in Washington, D.C. in terms of CIR, I thought it might be interesting to take a different approach for this month’s article. That is, what’s been going on at the state level on the immigration front?

The National Conference of State Legislatures (“NCSL”) recently reported that “[a]s of June 30, 2013, state legislatures had already exceeded the number of laws and resolutions enacted in all of 2012. In the first half of 2013, lawmakers in 43 states and the District of Columbia enacted 146 laws and 231 resolutions related to immigration, for a total of 377. This is an 83 percent increase from the 206 laws and resolutions enacted in the first half of 2012.”

The issues touched upon nationwide have been expansive: education, employment, health, human trafficking, ID’s and driver’s licenses, law enforcement and public benefits, to name just a few.

I started out this column noting that our immigration system is badly broken at the federal level. The fact that the states, therefore, have responded by passing their own patchwork of laws attempting to regulate immigration, typically considered to be within the exclusive jurisdiction of the federal government, makes the situation even worse.

The reason for this uptick in state-sponsored immigration legislation is reported to be two-fold. First, in 2012, states seemed to wait for the outcome of the U.S. Supreme Court decision in Arizona v. United States. On June 25, 2012, the Supreme Court overturned three of four provisions in Arizona’s S.B.1070 regarding that states authority in immigration enforcement.

Second, just a couple of few weeks earlier than the Supreme Court’s decision, the Obama Administration issued a new policy on deferred action for childhood arrivals (commonly known as “DACA”). On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and who meet several key guidelines could request consideration of deferred action for a period of two (2) years, subject to renewal, and could also be eligible for work authorization. Deferred action is a discretionary determination by the Department of Homeland Security (“DHS”) to defer the removal action of an individual as an act of prosecutorial discretion. Deferred action does not, however, provide an individual with lawful status.

According to the NCSL, a number of state-enacted immigration laws have been quite positive. For example, Colorado, Minnesota and Oregon extended in-state tuition benefits to unauthorized immigrant students. As of this writing, 15 states now offer this benefit. Other states took up driver’s license eligibility, beginning with California in the fall of 2012, and Colorado, Connecticut, Georgia, Illinois, Maryland, Maine, Nevada, Oregon and Vermont in 2013.

What’s going on in New York thus far in 2013? As of June 30, 2013, our state legislature considered four pieces of immigration-related legislation, three of which were passed.

First, the controversial Secure Ammunition and Firearms Enforcement Act (commonly known as the “New York SAFE Act”) amended gun licensing restrictions to include the consideration of citizenship or immigrant status (i.e., generally preventing the issuance or renewal of a license under the act to an alien not legally or lawfully in the United States).

Within the state budget, there were two immigration-related provisions. First, there was a provision which related to an electronic information sharing system that allows for the exchange of criminal history records for noncriminal justice purposes authorized by federal or state law, and defines noncriminal justice matters to include the use of criminal history records for purposes other than criminal justice matters, including immigration and naturalization matters. The state budget also included a provision which amended eligibility for unemployment benefits for illegal aliens; that is, illegal aliens or immigrants working without legal permission cannot obtain unemployment benefits.

By line item veto, Governor Cuomo vetoed a provision in the state budget which would have included funds for language classes for limited English proficient and immigrant students.

The NCSL also reported that the largest spike in immigration-related activity at the state level was in passage of non-legislative resolutions. That is, 31 states adopted 231 resolutions covering a myriad of issue areas. Twenty five sought action from Congress or the Obama Administration, including eight resolutions related to passing CIR. Others asked Congress to reauthorize the Violence Against Women Act (which it did), among other important areas.

Once again, the fact that the states are passing their own immigration related laws and resolutions is proof positive that our immigration system is broken at the federal level, and CIR is desperately needed. The Senate has already spoken. House Judiciary Committee Chairman Bob Goodlatte recently was quoted as saying that congressional fights over Syria and the debt limit “should not deter us from getting to [immigration] as soon as possible.” He said his committee and others have already passed smaller immigration bills relating to border security, internal enforcement, guest workers, and high-tech visas, and there could be votes on these measures as soon as October. Notably, there’s still no path to citizenship (or even a lawful immigration status) in the House bills that have passed for the eleven to thirteen million undocumented immigrants in the United States. I guess we’ll have to continue to wait and see what happens.

Labor Day and Immigrant Workers

imm_6Just as Memorial Day was an opportunity to remember those men and women who have died in our nation’s service (including non-citizens who have a long and proud tradition of serving in the U.S. military), Labor Day is an opportunity to pay tribute to American workers.  But is it really just “American” workers that we should be paying tribute to?

Here’s some data to consider about immigrant workers (those here lawfully or otherwise), courtesy of the Migration Policy Institute:

• The number of immigrant workers in the United States grew by 44.7 percent between 2000 and 2011.

• In 2011, foreign born workers represented 16.6 percent of the United States’ civilian-employed workforce.

• Immigrants accounted for an astounding 50.5 percent of civilian employed workers with no high school degree, and for 15.6 percent of all college-educated workers.

• The top three industries of immigrant workers in the United States were (a) educational services, and health care and social assistance; (b) arts, entertainment, and recreation, and accommodation and food services; and (c) professional, scientific, and management, and administrative and waste management services.

• The top three occupations of immigrant workers in the United States were (a)  management, business, science, and arts occupations; (b) service occupations; and (c) sales and office occupations.

• Here’s a sad statistic.  Brain waste affected over a million college-educated immigrants in the United States.  Specifically, in 2010, there were 1,565,742 college-educated immigrants who were either unemployed or working in unskilled jobs such as dishwashers, security guards, and housemaids.  This represents 22.5 percent of the college-educated immigrant labor force in the United States. Among native-born college-educated persons, 6,126,303 (or 16.5 percent) were underutilized.  There’s plenty more data where this comes from, including data for your own state.

The United States and its economy benefits immensely from the valuable skills and talents provided by the likes of foreign-born high-skilled scientists and engineers and medical doctors.  But we also – including my own State of New York – heavily rely on immigrants workers at differing skill levels in a variety of industries, many of which are experiencing labor shortages (e.g., agriculture, food processing, construction, or eldercare).  As a result, the role of immigrant workers is vital.

Recall the following study published by the President’s National Economic Council, Domestic Policy Council, Office of Management and Budget, and the Council of Economic Advisers, entitled “The Economic Benefits of Fixing Our Broken Immigration System”.  This report details the range of benefits to the U.S. economy that would be realized from passage of CIR.  More importantly, it also discusses the high cost of inaction.

There was also a study published by the Institute on Taxation and Economic Policy (“ITEP”) that concluded that undocumented immigrants who live and work in the United States pay billions of dollars in taxes every year to state and local governments.  If they earned a legal status, they would apparently pay even more. According to ITEP, “undocumented immigrants paid an estimated total of $10.6 billion in state and local taxes in 2010.”  Moreover, “allowing undocumented immigrants to work in the United States legally would increase their state and local tax contributions by an estimated $2 billion a year.” If CIR were to occur, the increase state and local taxes in New York is estimated to be $224,126,000!

Despite this, many immigrant workers do not enjoy all the benefits that the United States offers “American” worker.  Because of their undocumented status, many of those who are here unlawfully have no option other than to work in the underground economy.  Worse yet, they are frequently subjected to exploitation by unscrupulous employers.  That’s not at all a good reflection of what the United States is all about.

In 1894, Labor Day came to be, and with it came paid holidays, 40-hour workweeks and better working conditions for “American” workers.  As we celebrate Labor Day in our backyards, perhaps barbequing with your families, let us also not forget the contributions of all the immigrant workers in our workforce.

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