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April 2006 Newsletter April 12, 2006 DEAR CLIENTS AND FRIENDS: I am writing this Newsletter at a strange, uncertain, but potentially hopeful time in the ongoing immigration saga of the United States. While the Congress seems to be floundering in parliamentary maneuverings that have led to the current impasse in passing reform legislation, immigration has moved from the quiet halls of Congress into the raucous world of street demonstrations and oftentimes strident news commentary. In 73 separate cities nationwide during these past few days, several million people have demonstrated in favor of a balanced and humane immigration system, thereby exercising a fundamental national value of free and open speech and the right of association despite certain observations that pro-immigration marchers represent “a repellent spectacle.” (quote attributed to Brit Hume of Fox News as reported in the New York Times, issue of April 11, 2006). And amazingly, public opinion polls are swinging strongly toward a public recognition that our immigration maladies will not be solved solely by more enforcement, but rather needs to be coupled with some fundamental reforms to the immigration benefit system that will include, in some form, a guest worker program and legalization provisions. So, for now, the immigration debate is making front page news and has captured the attention of a broad strata of the U.S. population. Given that the Senate is now in recess and will not again take up Comprehensive Immigration Reform (CIR) until after it reconvenes on April 24, 2006, I thought it would be useful to use this respite to summarize the course of the immigration reform initiative and to provide some initial analysis of the Senate version of legislation to reform our immigration system. Relatively early in my immigration legal career, I published an Op-Ed piece in the Chicago Tribune (issue of October 28, 1986) in the aftermath of the Immigration Reform and Control Act (IRCA) of 1986, which at that point represented the first sustained effort since 1952 to enact Comprehensive Immigration Reform measures. In that piece, I noted that any meaningful, Comprehensive Immigration Reform initiative would need to address three (3) major issues: 1) the quality and type of foreign nationals acquiring immigration benefits; 2) the quantity of foreign nationals gaining admittance to the United States; and 3) the implementation of a meaningful enforcement and control system. My feeling at that time was that the Congress had not effectively addressed these three issues, meaning that our immigration system would remain dysfunctional, creating a future need to again address the immigration requirements of our country. Regrettably, my prediction that the 1986 Act would prove unsuitable has been more than borne out over the past 20 years. We, as a nation, continue to experience frustration at the lack of control over our borders; the absence of a meaningful, fair, and effective internal enforcement system; and a growing need for immigrants to fuel continued national growth and international competitiveness in a globalized economy. Early in the 1990s, we witnessed an expansion of immigration opportunities, particularly for employment purposes. Over this past ten-year period of time, however, we have seen a substantial curtailment of immigrant rights and opportunities as well as a concerted and heretofore largely ineffective commitment to tightening up border security. Perhaps not surprisingly, in the absence of a truly comprehensive approach, the piecemeal efforts of the past ten years proved to be largely ineffective in curbing and controlling a burgeoning illegal alien population now estimated to number around 11 million individuals. Rather, many observers have begun to see that any meaningful fix would need to balance out three important legs of the immigration puzzle: 1) enhanced border security to stanch incoming flows of illegal aliens; 2) enhanced internal enforcement; and 3) an overhaul of our immigration benefits system to remove various inequities and meaningless frustrations inherent in the system. As I had stated in a previous Newsletter, the fundamental belief of proponents for Comprehensive Immigration Reform (of whom I am one) is that as long as there are gross inequalities in our immigration laws, there will be a concomitant compulsion within many foreign national communities to immigrate illegally to the United States for purposes of family reunification, avoidance of persecution, and economic betterment. To focus solely on the enforcement of an outmoded, illogical system is simply a zero-sum game. This current movement toward Comprehensive Immigration Reform took a major step forward in January 2004, when President Bush first publicly proposed significant immigration reform that would correlate border security initiatives with a guest worker program. His initiative, while highly controversial, received varying levels of support from the immigrant community, business interests, and faith-based organizations, but the move toward Comprehensive Immigration Reform thereafter stalled out until after the election. However, in the past several months, it has gathered substantial momentum with the Congress rather than the President taking the lead in this issue area. Now that immigration reform has stalled out in the Congress, public opinion has become the driving force for immigration reform. On December 16, 2005, the U.S. House of Representatives passed the “Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005” (HR 4437), as jointly sponsored by Rep. James Sensenbrenner (R-WI) and Rep. Peter King (R-NY). The basic premise of the House version ignores the issue of America’s illegal alien population and the need to redesign our immigration laws to facilitate economically productive immigration. Instead, the House version proposes a series of tough, enforcement-minded initiatives intended to crack down severely on violations of our immigration laws. The House version includes these major points of concern: It would make many undocumented aliens into criminal felons, thereby replacing the current system in which most immigration status violations are regarded as civil violations; It would criminalize many individuals and organizations (presumably, even social service organizations, refugee agencies, churches, attorneys, hospitals, and employers) which provide assistance – including advice – to undocumented foreign nationals; It would vastly expand the obligations of state and local law enforcement agencies to enforce our immigration laws, thereby conceivably breaking the bonds of trust between immigrant communities and law enforcement agencies; It would vastly expand the government’s prerogative to detain and jail individuals asserting a well-founded fear of persecution in their home countries through our asylum laws. In contrast, the Senate appeared to be embarking on a vastly different approach to immigration reform that incorporates major overhauls in the areas of border security, internal enforcement, and the immigration benefit system. On March 27, 2006, the Senate Judiciary Committee passed the “Comprehensive Immigration Reform Act of 2006” (S 2454) sponsored largely by Sen. Arlen Spector (R-PA), but heavily influenced by previous reform efforts spearheaded by Sen. John McCain (R-AZ) and Sen. Edward Kennedy (D-MA). The Spector Bill became the central vehicle under consideration in the Senate, despite initial indications that Sen. Bill Frist (R-TN) would introduce a tough, enforcement-minded alternative that would roughly parallel the House initiative. Ultimately, the Senate leadership agreed to a compromise measure that included a major amendment sponsored by Sen. Chuck Hagel (R-NE) and Sen. Mel Martinez (R-FL) that would have provided an earned legalization program and possible path to citizenship for many of our nation’s undocumented residents and a temporary guest worker program largely aimed at skilled and unskilled workers. In short, the Senate seemed to be on the verge of agreeing to a bi-partisan proposal that would balance out a carrot approach (i.e., expanded immigration benefits in the form of increased quota levels, a guest worker provision, an earned legalization program) with a tough stick approach (i.e., toughened border security and internal enforcement, expanded criminal liability to immigration violators, etc.) But the entire deal fell apart on April 7, 2006, when essentially the Senate was unable to agree on the rules of the Bill’s debate – specifically, the terms under which other members of the Senate should be able to propose further amendments to this Bill. And it was precisely as a result of this parliamentary maneuvering that a carefully crafted, far-reaching reform measure that had achieved widespread consensus became stillborn as the Senate then recessed without taking final action on an immigration reform measure. While the whole story of this legislative debacle has yet to be told, in typical Washington fashion the leadership of each Party is blaming the other side for snatching defeat of this measure from the jaws of victory. Sen. Spector has stated his intention to again take up the issue of Comprehensive Immigration Reform, and has scheduled a mark-up session of the Senate Judiciary Committee on Thursday, April 27, 2006. Procedurally, the plan would be for the Committee to again debate and report out a piece of legislation for consideration on the full Senate floor. It is obviously concerning that this two-week Congressional recess may deflate the momentum that had previously built for a reform measure, which is why renewed demonstrations and a letter-writing campaign to members of Congress are now so important. As to what is next, let us assume that the Judiciary Committee again reports out a comprehensive proposal that blends the Spector and Hagel-Martinez approaches. (Actually, this is quite probable.) The Senate will then again debate an immigration reform measure, and the outcome is certainly in grave doubt. Assuming, though, that the Senate does pass a comprehensive measure, the Senate and House will then convene a conference to try to iron out their differences. At present, there seems to be an insurmountable gulf between the two houses of Congress, although the Speaker of the House of Representatives, Rep. Dennis Hassert (R-IL), indicated a possible growing receptivity within the House of Representatives to consider favorably a guest worker program. The possible options open in conference are: 1) a compromise measure that would then be reported back to the respective chambers of the Congress for discussion and final vote; 2) endorsement of either the Senate or the House measure that would then require ratification by the other chamber of the Congress; or 3) gridlock and failure to act. At present, it is simply too early to predict the outcome, particularly since the conference panel members have yet to be appointed. Assuming, though, that the Congress is able to agree upon a single version, its proposal would then be sent to President Bush for review and signature. While President Bush has been quite vocal in favoring border security and immigration reform – in particular a guest worker program - in the absence of a concrete legislative proposal, it is simply impossible to predict firmly how the President will react. However, given the protracted nature of the immigration debate and the President’s long-term commitment to fundamental reform (even though he has consistently stopped short of endorsing an earned legalization provision), the expectation is that any Congressional bill that includes a guest worker provision will be signed into law. Given the far-reaching sweep of the current efforts in the Senate to reform our immigration system, I think it would be useful to outline in summary fashion some of the key provisions that were included in the Spector-Hagel-Martinez compromise measure, particularly since we expect to see some version of this proposal reintroduced for the Senate’s deliberation. Essentially, the Senate’s expected proposal deals with the following seven (7) basic issues: BORDER CONTROL: Increase in new border protection officers and inspectors; enhanced application of sophisticated technologies; increased attention to inspections on both the northern and southern borders; enhancements to the border security fence; reporting obligations on the impact of border security efforts on civil liberties and property rights; implementation and expansion of machine-readable, tamper resistant documentation; expansion of visa revocation for status violators; greater flexibility to detain illegal entrants rather than a continuation of the current policy of “catch and release.” INTERIOR ENFORCEMENT: Restrict or eliminate certain defenses and/or requests for discretionary relief in deportation actions; substantially expand the definition of “aggravated felony” which in an immigration context presents powerful grounds for deportation; narrow certain grounds for judicial review of immigration convictions; criminalize certain actions that assist illegal aliens (although religious and many humanitarian organizations will be exempted from this exposure); increased flexibility by the states to detain illegal aliens; shortening the allowable periods of “voluntary departure;” an expansion of grounds for expedited removal (i.e., when an alien only receives an abbreviated administrative hearing); expanded construction of federal detention facilities. EMPLOYER RESPONSIBILITIES AND SANCTIONS: Introduction of a new and mandatory Electronic Employment Verification System to replace the current I-9 system; increased penalties for knowingly and systematically hiring illegal alien workers. GUEST WORKER PROVISIONS: Creation of a new H-2C visa classification for foreign guest workers carrying a six-year maximum duration of status; creation of labor protection standards, including the employer’s need to show unavailability of suitable numbers of U.S. workers; extensive employer attestation requirements to ensure alien worker protection and fair play to U.S. labor force; annual numerical limitation set at 325,000 that will thereafter be revised depending on previous year’s usage; ability of alien guest worker to be sponsored ultimately for permanent residence. FOREIGN STUDENT PROVISIONS: Creation of new F-4 student category for foreign students pursuing advanced degrees in math, engineering, technology, or the physical sciences with limited employment authorization during course of studies; special provisions for F-4 students to obtain permanent resident status based on their employment; limited amnesty for students and certain minors who became illegal through the actions of their parents rather than pursuant to their own malfeasances. IMMIGRATION QUOTA REVISIONS: Increase in the quotas for both H-1B Temporary Workers and permanent residents so as to lessen the current backlogs for employment-based immigrant visas; increase in the per country quota which should eliminate certain backlogs for advanced degree professionals from China and India; expanded exemptions for certain professionals from the immigrant visa quotas; a permanent authorization of the Conrad State 30 Waiver Program for alien physicians. CONDITIONAL NONIMMIGRANT WORKER PROGRAM (I.E., EARNED LEGALIZATION): Pathway to legal status for illegal aliens who have resided and worked in the U.S. The current version essentially creates a three-stage earned legalization program that is structured as follows: Tier 1: Individuals who have been in the U.S. for five years or more could pursue lawful permanent residence and ultimately citizenship through a six-to-eight year prospective work requirement, a clean record, learning U.S. civics and English, and the payment of a significant fine and back taxes. Again, it is by no means clear that all or even if any of these provisions will be adopted by the Senate, or thereafter enacted by the Congress. But the Senate measure as described above came very close to passage, and some version of this Bill will again quite likely be reported out to the full Senate floor. I wish that I had a crystal ball to predict the outcome of the situation. Immigration has become a central polarizing issue in this country and its proponents and detractors feel passionately on the subject. But there is a growing consensus that the issue of immigration reform cannot be put on hold indefinitely. It is an issue carrying profound economic, political, legal, social, and moral consequences to our nation. And it is precisely in recognition of the fact that a humane and balanced immigration system is a reflection of our best moral and national values that I would commend you to read the Interfaith Statement in Support of Comprehensive Immigration Reform that endorses the notion that the various religious traditions consistently recognize the imperative of providing dignity and care to the foreigner. http://www.wr.org/ourwork/whatwedo/reform.asp As to me, I fervently believe that just as the uniqueness of this country was historically built upon immigrants, I feel that the future greatness and prosperity of the nation will continue to be sustained by immigrants who, perhaps more than any other segment in today’s population, reinvigorate and redefine the ideal of the American Dream. I will seek to keep our community of clients and friends informed on these changes that so profoundly affect the lives of our clients, the prospects of success for our employers, and the face of our nation as a whole. As always, I would welcome your comments and questions on the information being presented here. I look forward to future opportunities to keep you abreast of these immigration-related developments. Cordially, ROBERT D. ARONSON
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Aronson & Associates, P.A. |