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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.
Over 300 Amendments to the Gang of Eight’s Bill for Comprehensive Immigration Reform?
On May 7, 2013 several senators proposed, in total, more than 300 amendments to the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”). That’s right, more than 300 amendments. If you’re interested in perusing them, they’re all available on the Senate Judiciary Committee’s website.
Some of the amendments are good (e.g., making sure that all families can be reunited with their loved ones including siblings of U.S. citizens, making sure that businesses have access to the workers they need, ensuring that both U.S. workers and foreign nationals are fairly paid and are fully protected, and restoring due process so that everyone who goes through our immigration system is treated fairly).
Some amendments are bad. For example, requiring largely ineffective and cost prohibitive measures as “triggers” before an undocumented alien could apply for legalization, barring aliens with minor convictions from being able to apply for Registered Provisional Immigrant (“RPI”) status, preventing RPI’s from being able to travel outside the United States to visit their families, and eliminating important legal protections such as access to legal counsel and the basic right of a detainee to have a custody hearing before detention.
According to at least one news outlet, thus far there has been a spirit of bipartisanship during the mark-up of the bill (e.g., an amendment by Republican senator Charles Grassley sought to require continuous surveillance of 100% of the U.S. States border and achieve 90% effectiveness of enforcement of the entire border was approved by a voice vote).
Of course, not everyone is embracing this bipartisan spirit. Sen. Ted Cruz from Texas, the freshman Senator who always seems to find a way to be in the news, filed an amendment to the bill last week that would ban anyone who has been in the U.S. without status from becoming a citizen at any point.
I’m not from Texas, but my sense is that it’s a fairly conservative state. I find it interesting, therefore, that The Houston Chronicle had some harsh words for its two Senators who both sit on the Senate Judiciary Committee. I quote: “Many of these amendment IEDs are being offered by such ardent opponents of the legislation as the Lone Star State’s Senate duo, tea-party true-believer Ted Cruz and his senior colleague John Cornyn, a tea-party target in 2014 if he doesn’t toe the line. Despite protestations to the contrary, Cruz, Cornyn and other hard-liners would be happy to hobble immigration reform. That’s why they have latched on to the border-security issue as a way to kill it.”
I think that most Democrats and Republicans would agree that realistic and cost effective border reform is a key goal for CIR to have any shot at passing. Let’s make sure, though, that it is both realistic and cost effective.
A Summary of the “Gang of Eight’s” Proposed Bill on Comprehensive Immigration Reform
On April 16, 2013, the Senate’s “Gang of Eight” introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation which is the Senate’s starting point for Comprehensive Immigration Reform (“CIR”). So, what’s actually in the “Gang of Eight’s” 844 page bill?
Here’s a primer.
1. Legalization. This is perhaps the most controversial provision of the bill. The bill provides that non-citizens who are in the United States unlawfully, and who entered the U.S. before December 31, 2011, may apply to become a Registered Provisional Immigrant (“RPI”). Those who are eligible would be required to pay a penalty along with any and all back taxes due and owing. They would also receive permission to work (and they would be permitted to travel abroad). They would also become eligible to apply for their Green Card after ten (10) years. Three (3) years after that, they can apply for naturalization (i.e., citizenship).
2. H-1B Nonimmigrants. The H-1B nonimmigrant visa / status is granted to a foreign national who will perform services in a specialty occupation. The bill will increase the available yearly quota to a minimum of 110,000 nonimmigrant visas, and a maximum of 180,000. The bill will also increase the U.S. advanced degree exemption to 25,000, but will limit the issuance of visas under this exemption to “STEM” graduates (i.e., science, technology, engineering, and math graduates).
The bill also proposes to add a recruitment requirement for all H-1B labor condition applications (which are required to be certified by the U.S. Department of Labor as part of the H-1B process). With respect to the H-1B category, this is (for the most part) very new (and I suspect will not be very popular with employers who use the H-1B program).
On the positive side, the bill also proposes to provide employment authorization for spouses and, on a technical point, adds a 60-day grace period after an H-1B worker has been terminated from his or her job.
3. Employment-Based Green Cards. Employment-based immigration is organized in what is called a “preference” system which has annual quotas. The total number of employment-based “Green Cards” available in the U.S. government’s fiscal year is 140,000. The bill proposes to exempt the following categories from the annual quota: aliens of extraordinary ability, outstanding researchers and professors, multinational executives and managers, doctoral degree holders, physicians who have completed their foreign residency requirement, and with respect to all of them, their spouses and children. The bill also adds a new employment-based Green Card category for certain entrepreneurs.
4. Family-Based Green Cards. Family-based immigration is also organized in a “preference” system which also has annual quotas. The total number of family-based “Green Cards” available in the U.S. government’s fiscal year is 226,000. The bill proposes to merge the FB-2A preference category (related to spouses and children of Green Card holders) into the immediate relative classification (where there is no quota), allow for derivatives of immediate relatives, eliminate the FB-4 category (related to siblings of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at thirty one (31), and reinstate the V nonimmigrant visa (related to spouses and children of Green Card holders).
5. Nonimmigrant (Temporary) Workers: Temporary workers typically are in the United States on “nonimmigrant” visas (like the H-1B). The bill proposes to create a “W-1” nonimmigrant visa for lesser-skilled workers, a “W-2” nonimmigrant visa for foreign nationals coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a “W-3” nonimmigrant visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. (The W-2 and W-3 visas would replace the current H-2A agricultural worker program.)
6. Political Asylum: Political asylum may be granted by U.S. Citizenship and Immigration Services (“USCIS”) or an Immigration Judge to foreign nationals who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, and/or their membership in a particular social group or their political opinion. The bill proposes to eliminate the current one-year filing deadline for applying for political asylum. It also proposes to authorize asylum officers to grant political asylum during “credible fear interviews” (i.e., interviews of foreign nationals who affirmatively apply for political asylum upon entering the United States). These would both be welcomed changes.
7. E-Verify: E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. The bill proposes to require all employers to use the system after five (5) years.
8. Fraud: The bill proposes to make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or Board of Immigration Appeals (“BIA”) accredited representative when one is not authorized to do so. This is another very welcome change. The bill also proposes to require the identification of individuals who assist aliens with the completion of forms.
There’s more… a LOT more, actually. These are the “big ticket” items, and at least some of them will create a lot of discussion within the halls of Congress over the coming weeks (and perhaps months). The bill is not perfect, but it is a very good start.
Will the Boston Marathon Bombings Derail Comprehensive Immigration Reform?
“Keep your eye on the ball.” My children are way too young to use this expression yet, but I can’t wait until their first batting practice, or their first shot on the driving range. For now, though, I’m going to use this expression as a metaphor for what’s going on in Washington, D.C., and specifically comments that some on Capitol Hill and elsewhere have made with respect to comprehensive immigration reform and the unspeakable tragedy that played out before our very eyes in Boston last week.
First and foremost, the events that took place in Boston, Cambridge and Watertown last week were horrific. We saw the tragic events unfold literally in front of our own eyes. Mercifully, it’s over, and the healing (along with the prosecutions and continued investigations) can begin.
The “Brothers Tsarnaev” committed terrible crimes. One has already paid the ultimate penalty. One will now be prosecuted to the fullest extent of the law. Although the facts are still unclear about how they actually came to the United States (at least publically anyway), we do know that they were both here lawfully, having gone through some part of our current immigration process (e.g., deriving benefits from their father’s application for political asylum)… all of which would have included extensive background checks.
Last Friday, Sen. Charles Grassley, the Ranking Member on the Senate Judiciary Committee, said, “How can individuals evade authorities and plan such attacks on our soil? How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?”
In response, the N.Y. Times published an editorial specifically addressing Sen. Grassley’s (and other’s) attempts to link the tragic events in Boston and the debate on immigration reform. “The immigration debate will test the resilience of the reform coalition in Congress. Changes so ambitious require calm, thoughtful deliberation, and a fair amount of courage. They cannot be allowed to come undone with irrelevant appeals to paranoia and fear.”
Republican congressman Mario Diaz-Balart had this to say: “It is a horrible situation. It is heart-wrenching. … Linking something like that to other legislation I think is probably not appropriate at this time. In the first place, we don’t have the facts. And what is indisputable, is that we have an immigration system that is broken; that we have an immigration system that is not working.” Republican congressman Paul Ryan (R-WI) recently stated the following: “We have a broken immigration system, and if anything, what we see in Boston is that we have to fix and modernize our immigration system for lots of reasons. National security reasons, economic security reasons. For all those reasons we need to fix our broken immigration system.”
My father always says there’s no such thing as perfection, except in the dictionary. Our immigration system is far from perfect. The Gang of Eight’s proposal for immigration reform is not perfect, but it’s a very good and very necessary start. The Albany Times Union published an editorial this morning stating, in part, “[t]his bill, warts and all, is the best hope for immigration reform that a system of political give-and-take is likely to produce.” I agree. The editorial went on to say “[i]t’s reasonable to say that if the bombing exposed weaknesses in our system, we should fix them.” I agree with that too.
Please, everyone, keep your eye on the ball, and let’s get this done.
The H-1B Visa Cap : NOT Working for Math, Science and Technology-based Businesses
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.
It’s About Time : Comprehensive 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 Comprehensive Immigration Reform. The four principles that the President feels should guide the overhaul of our immigration laws are as follows:
1. Securing our borders;
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.
INSIGHT INTO IMMIGRATION 
