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January
2008 Newsletter January 2, 2008 DEAR CLIENTS AND FRIENDS: It’s true … I confess … quite a pity, though … apparently amidst the hectic flurry of the primary campaign, not one Presidential candidate has had the good sense to pick up the phone to call me for my opinions on immigration reform. I simply don’t understand this regrettable omission, particularly given the jingoistic drivel that the candidates daily put forth to demonstrate their commitment to a “get tough” policy toward immigrants. So, through this piece, I wish to present my own 10-point platform to the Presidential candidates – as well as to the readership of this Newsletter - for immigration reform, which, if enacted, would serve our key national interests: 1) to remain globally competitive; 2) to maintain vigilance for our legitimate national security interests; and 3) to restore the credibility and decency of our immigration laws. At the outset, I would like to make two preliminary observations:
In this Newsletter, let me give you a sneak preview of the Aronson 10-point program for a meaningful, workable immigration program that I would gladly and proudly offer to the Presidential candidates, and to the nation as a whole. 1. End Political Deadlock: Pass Comprehensive Immigration Reform The whole underlying concept of Comprehensive Immigration Reform (CIR) is to create a balanced, holistic approach that involves the following elements: border security + enhanced internal enforcement + immigration benefit reform. The goal here is to create rational, appropriate grounds for immigration that will serve our national, economic, and social interests. Remove any leg of this triad and the whole system collapses. In short, a very valid and appropriate objective should be to staunch the inflow of unauthorized foreign nationals to this country and to remove immigration malfeasors. But it is simply not possible to obtain these objectives unless our laws are reformed in a manner that will provide status to contributing foreign nationals, enable employers to access key personnel, and enable families to be united in dignity in this country. 2. Take Some Baby Steps: Dream Act and Ag Jobs If CIR represents a grand sweeping vision of immigration reform, a more immediate objective needs to be to fix some inexcusably creaky issues in our immigration system. There are two issues that the broad membership of Congress generally supports, but reform efforts continue to be stymied by parochial paralysis. The first issue is the Dream Act, which recognizes that children should not get permanently tarnished with the label of “illegal alien” for the decisions of their parents. Just to clear the record - the justification for the Dream Act is not solely for the benefit of children; rather, it is unconscionable (in fact, really, really stupid) to marginalize and drive into the underground children who have lived in the United States as they enter their peak wage earning and productivity years. The second issue is Ag Jobs, which is the creation of an expanded number of immigration visas for agricultural workers who are filling jobs that unquestionably are not being performed by U.S. workers. We not only need increased numbers of agricultural workers, but we need standards governing their wages and working conditions, and the current situation simply ignores the serious imperative of providing plentiful, reasonably-priced agricultural foodstuffs under fair wage and working conditions. 3. Stop Hunching Up and Raise the Roof a Bit We live today in a tough, very competitive global competition for human talent – in particular, human brain power. Let’s face it - the United States is not going to remain competitive globally in unskilled, basic industrial sectors; but we absolutely must sharpen and enhance our competitive position through highly advanced innovation and research. But in order to retain our competitive position, we need to recruit the most highly productive and intelligent contributors to our country. To do so, we absolutely need to increase our stultifying, wizened numerical allotments for highly skilled foreign professionals – particularly, our quotas for H-1B and “green card” professionals. The biggest competitor for foreign talent, the European Union, has actually expanded immigration possibilities for foreign professionals with its establishment this past October of the “Blue Card” scheme that facilitates the immigration to the EU of highly trained, highly educated professionals. In contrast, our H-1B numbers recurrently run out within 24 hours of availability; advanced degreed professionals from India and China are now looking at multi-year waiting periods for their “green cards”; in the near future, we expect to see quota-based immigration backlogs that will affect foreign nationals from all countries and regions of the world. While we laud and encourage “Just-In-Time”(JIT) management policies for inventory control, we need to be just as adamant in creating immigration programs that will expedite the placement of key professional workers to U.S. employers. The solution here is to raise the quota allotments for foreign professionals – the very sources that provide key brain-based services that are vital to our global competitiveness and national economic growth. 4. Sanctions: Standards and Accountability I want to firmly state here my belief that the U.S. Government has the right to impose penalties on employers who flout our immigration laws, to investigate employers who recruit and hire foreign nationals lacking employment authorization, and to remove foreign nationals who act in derogation of their legal responsibilities. If the immigration liberalizations noted above are to be implemented, there is an equal imperative to create a national ethos of adherence to immigration rules and an ability of the government to enforce our immigration laws. I do not believe, however, that the government has an unfettered right to perpetrate raids and investigations on employers. Rather, I think there needs to be standards and accountability, including: 1) oversight by the courts on raids and investigations conducted by Immigration and Customs Enforcement (ICE) and other government agencies; 2) penalties on employers should be largely civil and administrative with criminal exposure reserved only for very serious violations; 3) a policy of considering certain humanitarian considerations in deciding whether to place in detention unauthorized foreign nationals, and specifically releasing from detention (absent extenuating circumstances) foreign nationals suffering from serious medical conditions,, pregnant women, nursing mothers, caregivers of minor children, etc.; 4) minimization in the use of force, intimidation, and display of weaponry during ICE raids and investigations; 5) mitigation of penalties on employers that have employed their workforce – including unauthorized aliens – under fair and competitive conditions; 6) recognition of the significant difference between a raid (which is conducted pursuant to a search warrant that authorizes possible detainment and compulsory questioning of participants pursuant to certain Constitutional protections) and an investigation (which is an arms-length inquiry in which there is no right to detain or compel testimony); and 7) ICE should coordinate matters with local law enforcement and social service providers who can actually mitigate the disruption of such enforcement actions to the overall health of the community at large. 5. Travel and Security Concerns We have immeasurably broadened technological means to screen out foreign nationals who pose security risks to the United States. Foreign nationals need to provide biometrics as part of their visa application process and then need to go through the U.S.-Visit screening process upon entry to the country. It is equally important to utilize these new technologies not only as a screening device, but also as the means to accurately and quickly make visa decisions. It is disruptive and counterproductive to take weeks and oftentimes even months or years to obtain security clearances as required for visa issuance. These delays are disruptive to both individuals and businesses and highly injurious to the image of the United States on the global stage. The U.S. needs to set realistic time limits for concluding background security checks as part of the visa issuance process and it is definitely unwise and even unsafe to take inordinate periods of time to issue security clearances to foreign nationals already residing in this country. Basically, I believe there should be no more than a 90-day period of time provided to national security agencies to conduct background security reviews. 6. Technology with a Human Face Somewhat related to the above, we are currently seeing a substantial increase in the utilization of technological tools to ensure the legality of an employer’s workforce. The government has instituted an optional program known as E-Verify (previously: BASIC Pilot) that enables employers to verify the employment authorization and validity of documentation of all newly-hired employees. I suspect that this program within the next 12 months will become de facto obligatory. We are also seeing other technologically-based initiatives for immigration compliance purposes, including increased coordination among the recordkeeping systems of various government agencies – particularly, the Department of Homeland Security, the Social Security Administration and the Internal Revenue Service. Setting aside privacy concerns, I think, in principle, this application of modern day technologies is warranted, but the U.S. Government databases unquestionably have errors, making it incumbent for the federal agencies to quickly rectify mistakes indicating that an individual is ineligible to work in the United States. Jobs are important and background verifications should be done promptly and accurately, and government officials – i.e., real, live, and caring human beings – need to be available to override and correct the computer-generated data. 7. Stop the Hodgepodge of Local and State Immigration Fiefdoms Over this past year, many states and local communities have enacted their own immigration enforcement laws, largely focusing on employment and driver’s licenses, but also targeted on health, education, law enforcement, public benefits, human trafficking, and voting. In 2007, over 1000 pieces of immigration legislation were introduced at the state or local levels, and 182 immigration provisions have become law in 43 different states. At present, four states have enacted their own tough employer sanctions legislation, including a major test case in Arizona under which businesses would lose their business licenses if they do not go through certain stringent, prescribed steps to ensure the legality of the employee workforce. In other instances, state or local governments have gone the other way and passed liberalized immigration provisions, largely related to housing, drivers licenses, and state-issued identification documentation. I think that these local initiatives are immensely dangerous and destructive, not only because they can be so venomous and ill-informed, but also because they reflect upon a widespread, growing mistrust of the federal government to control our immigration situation. Given the broad, national implications of immigration, I strongly believe that immigration policy should remain centralized with the U.S. government, and also that the U.S. Congress needs to restore a strong sense of dignity, credibility, and integrity to our immigration process, and the first step here would be the enactment of Comprehensive Immigration Reform. 8. Reinvigorate the U.S. Refugee Program The UN High Commissioner for Refugees (UNHCR) has certified the existence of roughly 13 million refugees in the world – that is, individuals who face a fear of persecution in their home country. Acting both in fulfillment of our international obligations and our own national ethos of humanitarian concern, the United States each year accepts and resettles a portion of this refugee pool. Over the past several years, our refugee program has become regrettably ensnarled in red tape and bureaucratic squabbling with the result being that the U.S. has simply not met its aspirational targets for refugee resettlement. Whereas the President declared a target refugee admissions figure of 70,000/year, the actual level of refugee admissions hovers at around 40,000 – i.e., just over half of the budgeted allotment. A robust refugee program reflects our best values as a nation and, incidentally, children of refugees display an extremely high level of achievement - probably because freedom is a treasured reality rather than a neutral, emotionless concept. I am particularly disturbed by our lackadaisical approach to affording refugee protection to citizens of Iraq who now face persecution precisely because of their support of U.S. military and diplomatic objectives or to individuals who were coerced into supporting terrorist organizations. If I can summarize my entire feelings about U.S. refugee program, it would be that this is an initiative that we should cherish and venerate in a manner similar to the civil rights movement, as it fulfills our most basic, elemental obligations to our fellow human beings of providing safety, opportunity, and dignity to otherwise at-risk, persecuted populations. 9. It’s Not a One-Way Street: Immigrants have Responsibilities The points appearing above focus on government initiatives to address inequities in our immigration system. But foreign nationals have obligations as well. I strongly believe immigrant communities also have an important role in making our immigration system work. I do not believe that ethnic communities need to assimilate into American life, which would entail a loss of individual, distinctive identity, and native customs; but I also do not believe that these communities have the right to exist as separate, non-digested enclaves in the United States. Rather, I very strongly endorse the concept of acculturation, in which immigrants should be expected to take responsibility for their new lives in the United States, including acquisition of English language fluency. I think it is highly desirable to create public-private partnerships that will create educational opportunities, job training, language training, and entrepreneurial startup funding within new immigrant communities. These are not publicly funded gift or entitlement programs; rather, they are publicly created opportunities that ultimately require the firm, committed buy-in by our nation’s immigrants as a condition for remaining in this country. 10. It’s a Matter of Elemental Decency I know that we live in an age of budgetary restraint and it was under this guise that the 1996 Welfare Reform Act effectively eliminated our nation’s immigrants from enrollment in U.S. Government entitlement (e.g., welfare) programs. I definitely can accept a basic desire to restrict access to publicly funded benefit programs to broad swathes of immigrant classes. But I think that as a matter of elemental decency, these restrictions go way too far in three specific instances: 1) regardless of status, if an individual pays into the social insurance funds, he/she should be able to receive its benefits; 2) immigrant children should be fully entitled to applicable government-funded social programs, particularly in the areas of education and nutrition; and 3) regardless of immigration status, all individuals should be equally eligible for healthcare coverage as this is one benefit that addresses in a cost-effective manner an essential human need. So, is there work to be done and dreams to be fulfilled?
Yes, I think so. But at the same time and particularly as we
enter a new year that promises to bring change to our nation’s
leadership, there is one unassailable fact: The United States
is a nation built on immigrant dreams, immigrant strength, and
immigrant brains, and this fact does not exist as a quaint historical
notion, but rather as a vibrant, constantly renewing contemporary
reality. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served byAronson& Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates,
P.A. |