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Capital Region Approved as EB-5 “Regional Center”, Inviting Foreign Investors
OK, now for something completely new and pretty exciting (at least in my world). U.S. Citizenship and Immigration Services (“USCIS”) recently approved an application for an EB-5 Regional Center in the Capital Region which was facilitated by the Center for Economic Growth (“CEG”) and Prime Regional Center, LLC, an affiliate of Prime Companies. The Regional Center will be in an area of Upstate New York that includes eight counties surrounding and including the Capital Region, as well as specific counties in the Southern Tier, Mohawk Valley and Central New York.
So, what’s a Regional Center? Good question! Employment-based immigration is organized in a “preference” system, and one of the preferences is commonly called “EB-5”. The EB-5 employment preference is for immigrant investors (i.e., for employment-creation). In general, this category provides, initially, conditional permanent residence for foreign nationals who invest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year period, at which time he or she may make an application to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he or she has “substantially met the capital investment requirement.”
A foreign national may also be able to make a smaller investment of $500,000.00 if the investment is in a targeted employment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.
Certain EB-5 visas also are set aside for investors in what are called Regional Centers, which are designated by USCIS based on public or private proposals for promoting economic growth. A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.
The Regional Center program is for generally good for investors who have the means to invest the capital (i.e., not less than $500,000.00), but who do not wish to actively manage the business. Foreign national investors who choose to invest through a Regional Center must demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable methodologies, that ten (10) or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the Regional Center. The typical investment will be $500,000.00 (plus additional fees and expenses associated with getting into the program, which can range from $20,000 to $70,000, plus or minus, plus professional fees), which may or may not be returned to the investor at the end of the proverbial day.
In a statement about the approval of the Capital Region’s EB-5 Regional Center, New York Governor Andrew Cuomo said, “As the State works to attract businesses and jobs from across the nation, we must also look overseas to lure global investors and entrepreneurs to start and grow their companies in New York. … With this approval, the Capital Region will be more attractive than ever before to businesses from overseas interested in expanding their investments here in the United States.”
We can only hope.
Basically, an EB-5 Regional Center allows wealthy foreign national investors to essentially “buy” a Green Card for themselves and their families (although not without a lot of hoops to jump through and significant financial risks too). The EB-5 program has been around for quite some time now, but not until the Regional Center portion of the EB-5 program gained traction with the immigration bar and the economic development community and their lenders did it start being used as it was intended; that is, to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business.
This is truly an exciting opportunity for the Capital Region!
US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days
On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:
“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”
O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.
As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:
“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”
He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)
Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.
Mr. Stump went on in his statement:
“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”
I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.
Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:
“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”
The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:
“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”
The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?
We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.
Can’t We Just Deport 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.”
Coke Super Bowl Ad “America Is Beautiful” : Stunned by the Intolerance and Bigotry
I 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.
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.
Labor Day and Immigrant Workers
Just 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.
Comprehensive Immigration Reform: Will the House of Representatives Do What’s Right for America?
So… 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 now we’re on to the House of Representatives. What happens there is anybody’s guess. What we do know for sure is that Speaker of the House John Boehner has no intention of taking action on the Senate’s bill. “I’ve made it clear, and I’ll make it clear again: the House is not going to take up the Senate bill. The House is going to do its own job in developing an immigration bill,” Speaker Boehner said at a press conference last Monday afternoon.
So what does that mean for Comprehensive Immigration Reform (“CIR”)? I have no idea. How sad that I just wrote that. House Republicans seem so out of touch with what the American people want, and what’s good for America.
There have been countless reports in recent weeks referencing a number of studies which tout how great CIR would be for the U.S. economy. Take for example the combined report of 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!
I remember working in Washington, D.C. in the late 1980’s. Fresh out of college and going to grad school, I started interning on Capitol Hill for Sen. Alfonse D’Amato. He then hired me and I worked for him for ten years. In those days, it seemed like most of the legislation I saw get passed was largely bipartisan and things got done. Today, it’s the complete opposite. It seems like nothing gets done in Washington, and no one’s getting along across party lines. With that as the backdrop, it was incredible that the Senate passed their bill. As for the House, the House Judiciary and Homeland Security Committees combined have passed five piecemeal bills dealing with immigration reform. None offer a road to legalization or citizenship for the undocumented population, and none increase the number of visas for legal immigration or clear the backlogs that currently exist.
It remains to be seen what the House will do in developing their owner “immigration bill”, as Speaker Boehner suggests it will. I suppose it should be somewhat encouraging that Speaker Boehner told House Republicans last week to pass immigration reform legislation, stating that House Republicans will be “in a much weaker position” if they failed to act. He’s right.
Immigrants in the U.S. Military: Sacrificing All for a Country that May Not Yet Be Theirs
On Memorial Day, we remember those men and women who have died in our nation’s service. Did you know that non-citizens have a long and proud tradition of serving in the U.S. military? In fact, there are thousands of men and women in uniform who were not born in the United States who are willing to sacrifice everything for our country.
Did you also know that one of the first U.S. service members to die in the U.S. – Iraq War was Lance Cpl. Jose Gutierrez, a non-citizen from Guatemala? He was killed in a tank battle in Iraq in March, 2003. According to CBS News, “The heroism and sacrifice of non-citizens was barely known — until Lance Cpl. Jose Gutierrez died in battle in Iraq. He came from Guatemala, and he came to the United States illegally. We can tell you how his story ended. He was killed in a tank battle in southern Iraq on March 21, [2003].”
Lance Cpl. Jose Gutierrez was granted U.S. citizenship posthumously. “No death of any soldier goes un-mourned. But the death of a man who died for a country that was not his — that proved especially poignant to many Americans, including President [George W.] Bush, who visited two wounded non-citizen soldiers and made them citizens on the spot.”
The presence of non-citizens in the U.S. military has deep historical roots. Non-citizens have fought in the U.S. Armed forces since the Revolutionary War. According to a report issued by the Immigration Policy Center, in August, 2009, there were 114,601 foreign-born individuals serving in the military; of that number, 12% of them were not U.S. citizens.
The military, and indeed our entire country, greatly benefits from the service of non-citizens in the U.S. military. Non-citizen recruits offer racial, ethnic, linguistic, and cultural diversity, something that is incredibly valuable given the U.S. military’s increasingly global agenda.
This has not gone unnoticed by Congress. Once again, according to the Immigration Policy Center, “[o]ver the [eight year period from 9/11], Congress has amended military related enlistment and naturalization rules to allow expanded benefits for immigrants and their families and encourage recruitment of immigrants into the U.S. Armed Forces. The U.S. military has also implemented new programs to encourage the enlistment and rapid naturalization of non-citizens who serve honorably during[.] Without the contributions of immigrants, the military could not meet its recruiting goals and could not fill its need for foreign-language translators, interpreters, and cultural experts.”
We are a nation of immigrants. The U.S. military is no exception. The U.S. military benefits (actually all of us benefit) from the presence of non-citizens within the ranks of the military. Today, as we remember the fallen, let us remember the importance of immigration and non-citizens to our nation and to our history. Let us also remember (and honor) the non-citizens that have made the ultimate sacrifice in defense of our great country.
H-1B Visas for High-Tech Workers: Necessary to Industry or Cheap Labor?
The other day I read an Associated Press piece in the Saratogian called Influence Game: Tech, Labor Spar On Immigration. The article started out as follows:
“To the U.S. technology industry, there’s a dramatic shortfall in the number of Americans skilled in computer programming and engineering that is hampering business. To unions and some Democrats, it’s more sinister: The push by Facebook’s Mark Zuckerberg to expand the number of visas for high-tech foreign workers is an attempt to dilute a lucrative job market with cheap, indentured labor. ”
The article went on to discuss the politics behind proposed changes to the H-1B nonimmigrant visa program in the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”). What it did not explore, or explain very well, was the statement that somehow the H-1B program facilitates “cheap, indentured labor.” Please allow me to dispel this myth.
The H-1B nonimmigrant visa is granted to foreign national professionals who will perform services for a U.S. employer in a “specialty occupation.” Examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Most employment-based nonimmigrant visas are tied to an employment relationship. That is, a U.S. employer is required to sponsor the foreign national so that the foreign national can work for that sponsoring U.S. employer. If the foreign national wishes to change jobs in the United States, a new employer must do the same thing. For individuals who are coming to the United States temporarily (which with few exceptions is what a nonimmigrant visa is supposed to be all about), I have no problem that the law requires the employers and employees to be tied at the proverbial hip (although I do agree that some not so nice employers probably do take advantage of this). Nevertheless, years ago Congress made it much easier for H-1B professionals to move from one employer to another. With a competitive labor market in the United States, H-1B professionals often do change employers in search of better opportunities (and I regularly work with both employers and employees where an H-1B professional is moving from one employer to another). H-1B employees are hardly indentured workers.
I am also troubled, however, by this persistent myth that somehow this labor is “cheap.” Nothing could be further from the truth. The law requires employers to pay foreign nationals on H-1B visas the higher of the prevailing wage for the occupational classification in the area of employment, or the actual wage (that is, the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question” ). I regularly see in my practice where an employer wishes to hire an H-1B professional only to find out that the wage the employer must pay the foreign national is higher, sometimes substantially higher, than the wage the employer was going to offer (or the wage that the employer is currently paying other individuals at the employer’s business).
Another fact lost in the article is the hassle and expense for a U.S. employer to sponsor a foreign national for an H-1B. To hire a foreign national on an H-1B, a U.S. employer must incur legal fees, filing fees, training fees, fraud prevention and detection fees, and sometimes even “premium processing” fees (i.e., fees paid U.S. Citizenship and Immigration Services [“USCIS”] to expedite a petition). There are potentially more fees too. Filing fees alone to USCIS can be north of $5,000.00. And this does not include the additional expenses to the company associated with the extra paperwork and ongoing compliance involved in the hiring and employing of an H-1B professional.
Trust me when I say H-1B professionals are not cheap labor, for the H-1B professional or the employer.
INSIGHT INTO IMMIGRATION 