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May 30, 2007 Newsletter Dear Clients and Friends: Roughly two months following the commencement of my career as an immigration attorney back in 1986, the Congress passed a major piece of immigration reform legislation – the Immigration Reform and Control Act – that for the past 20 years has substantially altered the course of U.S. immigration law. As I write this Newsletter, the Senate with the strong encouragement of the Bush Administration is undertaking a major initiative under the rubric of Comprehensive Immigration Reform that promises to drastically alter – for better or worse – our country’s immigration landscape. Ironically, I was in Washington, D.C. in my capacity as a Board Member of America’s oldest migration, refugee, and immigrant rights organization, the Hebrew Immigrant Aid Society (HIAS), at the time that the Senate commenced active debate on its Comprehensive Immigration Reform proposal. In the course of my stay in our nation’s capital, the Board Members of our organization met extensively with representatives of the Bush Administration, Congressional advisors, faith-based refugee rights organizations, and immigration think-tank commentators. Perhaps as a reflection of the high stakes of the Comprehensive Immigration Reform debate, we met for nearly three hours in the White House’s Old Executive Office Building where we were briefed by senior officials of the Administration seeking the support of HIAS on a political issue holding major ramifications to the Bush Administration’s legacy. Over this past week, the pace of the Senate’s deliberations has been extremely intense, made all the more complex by innumerable amendments and shifting public perceptions of the entire immigration reform debate. We expect that the Senate will reach a vote some time in mid-June. If the Senate indeed passes reform legislation, we expect the House of Representatives to introduce some form of parallel legislation, which would then also go through a volatile process of legislative debate and amendment. Assuming (as is quite likely) that discrepancies exist, the House and Senate will convene a joint committee to iron out the differences. If subsequently endorsed by the respective chambers, the legislation will be referred to the President for final signature. In my opinion, we will see some version of immigration reform probably enacted by the Labor Day weekend. Unquestionably, there are major hurdles that need to be overcome and the ever-present possibility that positive, constructive, and ameliorative provisions will either get passed into law or aborted as our nation and its elected officials grapple with such a highly divisive, polarizing issue of profound importance to our national experience. So, while I generally avoid writing about proposed legislation given that it is challenging enough to deal with the law as it currently exists, I feel that the emerging Senate debate deserves the understanding of our community of clients and friends. I do not intend in this piece to review in detail the specific provisions that exist today in the Senate’s proposed legislation because any existing legislative version will undoubtedly quickly change once the Senate reconvenes following the Memorial Day recess. Rather, I would like in the ensuing text of this Newsletter to outline the major factors that currently influence the immigration debate and that will undoubtedly impact any final legislative outcome. In so doing, I unabashedly admit to being a proponent of a vigorous, robust immigration system that is designed to facilitate U.S. preeminence in a competitive, globalized world while maintaining a humane, respectful attitude toward family unification and humanitarian principles of affording sanctuary to those facing persecution in their home countries. THE POLITICAL CONSTELLATION The first question when grappling with the emergence of immigration reform as a major legislative agenda item concerns the political factors behind the immigration debate. In my opinion, the following factors have congealed in a manner that propels the Comprehensive Immigration Reform debate to the very forefront of the national agenda: •
There is a growing national perception that our immigration laws
and policies are terribly out of sync with modern day realities; In
short, a wide range of factors currently propel the debate on Comprehensive
Immigration Reform. As a personal aside, while I have long advocated
for immigration reform, I am very bothered by this sudden rush of
legislative action because I think that the serious nature of immigration
to our national welfare deserves considered, responsible, and nuanced
discussion and compromise rather than a fatally flawed measure timely
to the 2008 elections. As one Congressional staffer recently told
me, everyone understands that the current Senate proposal is seriously
flawed, and the hope is that the major problems will get fixed either
in the ensuing debate, or in the House of Representatives, or in
the subsequent Conference Committee discussions … or not at
all. THE BASIC ARCHITECTURE OF THE SENATE’S BILL The Senate’s Bill starts with a basic premise that meaningful immigration reform requires a holistic, integrated approach that addresses the following three debilitating flaws in the current system: •
Border Security: tougher, more effective measures to staunch the
inflow of unauthorized foreign nationals to the United States; Thus far, both the Congress and the Administration have clung ardently to this comprehensive, holistic approach, rather than splintering immigration reform into a patchwork, incomplete initiative. In many respects, it would be far easier to adopt certain minimal measures that would satisfy the business community (such as increasing the quota allotment for H-1B nonimmigrants and the employment-based preference category) while placating the conservative political spectrum by adopting stricter, punitive enforcement measures, largely directed toward immigrant populations that hold little voice within the political system. But such an approach would ignore the real need to come meaningfully to grips with America’s illegal population and, more generally, to reengineer a system that is currently both discredited and antithetical to legitimate national needs. However, as the immigration debate intensifies over the summer, there is a very real possibility that the current fragile Congressional coalition will splinter, thereby shelving any meaningful, far-reaching initiatives to enact workable immigration reform. A CLOSER LOOK AT THE CURRENT SENATE PROPOSAL However laudable the intention may be to adopt constructive, far-ranging, and integrated reform measures, the actual impact of the Bill is not derived from broad, high-minded visions of sweeping legislative reform, but from the specific provisions that impact the mosaic of America – that is: families, employers, communities, and foreign nationals. Or to put it another way, the “devil is in the details,” and there unquestionably are some saturnine provisions at play in this Bill. Without getting bogged down in details – many of which will substantially change as the Congressional debate intensifies – here are 10 basic provisions of the Senate’s new immigration proposal: 1. Border Enforcement: The underlying objective here would be to create better programs and a more sustained capability to staunch illegal migration to the United States through both the land border crossing points (Southern and Northern borders) as well as the various ports of entry. Key provisions: •
Tightening up U.S. borders through an expansion of technological
surveillance and an increase in border patrol officers; 2. Interior Enforcement: This section includes a wide range of measures intended to deal more harshly and effectively with unauthorized aliens with the objective of identifying, apprehending, and punishing immigration violators. Key provisions: •
A substantial increase in enforcement personnel; 3. Worksite/Employer Enforcement: Under a belief that jobs act as a magnet attracting unauthorized foreign nationals, the Senate Bill creates a wide range of employer responsibilities to ensure the legality of its workforce. Key provisions: •
Implementation of a new Electronic Employment Verification (EEV)
System that requires employers to check against government databases
to confirm a job applicant’s employment eligibility; 4. Temporary Worker Program: One of the most controversial sections of the Senate’s plan is the Temporary Worker Program, which is intended to authorize foreign nationals to work in a wide variety of positions – disproportionately sourced in low-paying, service, agricultural, and labor jobs – that are in short supply owing to general upward mobility in the existing workforce. Key provisions: •
Creation of a “Y” nonimmigrant visa for Temporary Workers; 5. Nonimmigrant Visa Revisions – Employment: The business community widely utilizes certain temporary, nonimmigrant visa classifications in order to recruit needed personnel as required to maintain or enhance their competitiveness in the marketplace. Key provisions: •
Increase the H-1B cap to 115,000 in 2008 and 180,000 thereafter; 6. Physician Reform Measures: In light of both the numerical deficiencies and the misdistribution in the physician workforce, the law has contained a number of initiatives intended to enhance physician coverage in socially desirable practice situations. The new law in some measures furthers this essential policy while simultaneously reducing the options open to International Medical Graduates coming to this country. Key provisions: •
Makes permanent the Conrad State Waiver Program; 7. Benefits Reform – Family: The U.S. immigration system has traditionally valued highly family-based immigration. At present, roughly 75% of all immigration comes through family sponsorship, based upon an underlying belief that family reunification is a highly desirable social and national objective. However, there is a growing concern that family immigration erodes the immigration system in three important facets: 1) it facilitates an unacceptably high level of immigration as various family members sponsor their foreign relatives (the so-called “chain migration” phenomena); 2) by its nature, family-based immigration does not allow for a selection of foreign nationals based upon their potential contributions to the United States; and 3) family immigration disproportionately brings over the elderly and infirm (i.e., parents) who tax the social safety net capabilities of the country. Against this background, the Senate Bill would entirely reengineer family-based immigration by eliminating various family preference categories and instead funneling nearly all immigration into a merit-based system. Key provisions: •
Elimination of immigration sponsorship for adult children (both
married and unmarried) of U.S. citizens and permanent residents; 8. Benefits Reform – Employment: Innumerable studies indicate that foreign nationals are vital to sustaining or enhancing business competitiveness in an increasingly globalized world. Regrettably, our current system contains strict and seemingly inadequate numerical limits in employment-based immigration, thereby recurrently leading to long periods of delay in consummating permanent residence based on employment. The new Bill would completely revise employment-based immigration from an employer-sponsored system to an applicant-driven, point-based system. Key provisions: •
Complete shift in employment-based immigration from an employer-sponsored
system to an applicant-driven system in which an individual foreign
national could directly apply for permanent residence based upon
a point system intended to profile high achieving, high contributing
individuals; 9. Earned Legalization: At present, there are approximately 12 million unauthorized foreign nationals living in the United States. Their continuing presence as an undigested, unassimilated segment of our population poses incalculable problems in creating a socially cohesive nation. No one realistically proposes that we can or even should forcibly deport this population as to do so would wreak havoc with families, communities, and employers. The Bill seeks to address this problem through the creation of our nation’s largest and most ambitious legalization program, and then states certain key benchmarks that an applicant needs to meet in order to earn status under the legalization program. Key elements: •
Creation of a “Z” visa that will provide a temporary,
transitional period for foreign nationals who are unauthorized as
of some date certain (currently set at January 1, 2007); 10. Trigger Points: To be sure, this is a far ranging, in some ways radical reform proposal. The law requires that certain benchmarks must be met related to the border security and internal enforcement aims of the Bill before the highly ambitious, controversial provisions go into effect for Guest/Temporary Workers and Legalization (except for the Z probationary visa, which is a precursor to obtaining Legalization). EDITORIAL RUMBLINGS: 10 TROUBLING ASPECTS OF THE NEW BILL As you have undoubtedly deduced, the Senate Bill would substantially – in fact, dramatically – change our current immigration system. I think that it is a very encouraging, positive development to approach immigration reform in a comprehensive manner, tying together its three intertwined elements of border security, internal enforcement, and immigration benefits redesign. I am further aware of the need for political compromise and the art of the politically possible. I do not expect to see a perfect Bill (as perfection is defined by me), particularly given the wide spectrum of views on immigration ranging from an embrace of immigration as the necessary fuel for continued economic expansion to restrictionist policies intended to narrow the scope of multiculturalism. But amidst all of the current turbulence in the formation of a viable immigration plan, permit me to present my own list of the 10 most problematic elements to the new Bill: 1. Listen to the Market: Among the recurrent themes appearing in the Senate’s Bill is a reliance on the U.S. Government to identify professions of paramount importance to the United States and to then allocate numerical values in the point system. I think that the pronouncements of Government bureaucrats are a far less effective measure of what is needed in our economy than the actual needs of employers. In short, let the needs of employers and their ability to test the labor market determine their true competitive requirements and drive employment-based immigration. 2. Keep a Role for Employer Sponsorship: Directly related to the above, the new Bill completely reorients our employment-based system from an employer-sponsored system to an applicant-driven system, and then focuses to the near exclusion of unskilled labor on highly educated foreign nationals. I just cannot accept the notion that Government-based models of prospective success are more determinative than an employer’s own assessment of its needs. In addition, there remains an ongoing national need for Essential Workers – i.e., individuals who contribute to the national betterment by working in jobs that traditionally have gone unfilled by U.S. workers. Or to put it another way, why should the Ph.D. in Russian literature having minimal prospects for employment in the profession have a stronger claim to permanent residence than an ethnic chef? (And I was in a Ph.D. program in Russian literature, so I have some insight and profound respect for this area of philology.) 3. H-1B – Keep it Simple: The H-1B Temporary Worker classification has over the years proven to be an effective, time-efficient visa classification providing status to a broad range of foreign professionals, running from university professors and physicians to computer professionals, and all professional points in between. Studies consistently show that H-1B professionals contribute far more economically than they take if for no reason other than they add to the economic competitiveness of U.S. companies and contribute to the social services net (e.g., Social Security Fund and other Government safety-net programs) while not drawing out benefits. Any new reform proposal should: 1) increase the H-1B numbers; 2) eliminate extensive employer testing of the U.S. labor market; 3) retain the doctrine of “dual intent”; and 4) set reasonable fee rates that legitimately cover processing costs rather than serve as a deterrent to filing (e.g., an absurd figure of $5,000 per petition, as currently appearing in the proposed Bill). 4. Redesign the Temporary Worker Program: The Temporary or Guest Worker program is intended to fulfill two major needs: 1) provide this country with the services of Essential Workers who perform services not otherwise done by U.S. workers; and 2) eliminate one of the chief pressure points (i.e., the lure of employment) resulting in illegal immigration. In its current formulation, the Temporary Worker Program is an open invitation for foreign nationals to again massively violate the law owing to four principal design flaws: 1) the requirement that Y visa holders leave the U.S. every two years for a 12-month period of time; 2) limitations on the right of spouses and children to accompany a Temporary Worker to the United States; 3) insufficient numbers of Y visas to fill otherwise qualifying positions; and 4) a failure to provide a pathway to permanent residence for those who work productively for a stipulated period of time. 5. Keep Families Together: I simply cannot accept the burdens appearing in the proposed Bill on two of the most sacrosanct family relationships: spouses and parents. Specifically, parents of U.S. citizens will be subjected to numerical limitations, and the enlargement of Visitor visa eligibility for them is a paltry, imperfect solution. Furthermore, once a foreign national has obtained permanent residence, there should be no quota/numerical limitation on their ability to qualify their spouses and minor children for permanent residence. In short, our immigration system should encourage nuclear families to live together and not serve to keep them apart. 6. Value Family Values: Beyond the core nuclear family, our laws have traditionally allocated immigrant visa numbers for adult children of U.S. citizens. The attachments and responsibilities of parents do not end when children reach the age of majority, yet the proposed Bill completely eliminates the ability of family relationships with grown children to serve as the basis for immigration sponsorship. Owing not only to the sanctity of the family relationship but also to the imperative of allowing family units to be reunited, the proposed Bill should allocate greater opportunities for family reunification either by 1) restoring the family-based preference categories for adult children; and/or 2) allocating a generous point allocation under the merit-based system for family members living in the United States. 7. Due Process and the “Fair Shake”: I believe strongly in the enactment of sound, rational laws and then in the obligation of individuals to adhere to their legal obligations. I further believe that individuals who violate the law should bear the consequences of their actions and that there should be transparent, impartial systems in place to mete our judgment. However, I believe that this proposed Bill oversteps certain fundamental notions of due process and fair play in three important areas: 1) it recurrently enacts harsh penalties with little or no flexibility to recognize extenuating and/or special circumstances as mitigating factors; 2) it sharply reduces the right of the independent federal courts to review decisions made by the immigration authorities; and 3) it expands unduly the penalties for certain actions, such as creating lifetime bars to reentry to the United States if a foreign national in certain situations overstays his/her period of authorized immigration stay. 8. Create Workable Transition Programs: One of the chief aims of the proposed Bill is to once and for all clear out the unconscionably long waiting times that have plagued the existing family-based immigration classifications. In its current formulation, the proposed Bill states that family-based immigration cases filed prior to May 2005 will be processed through to completion, while those filed after this cut-off date will be terminated. That is unfair given that U.S. family sponsors filed in good faith under existing law. Minimally, the grandfathering date should be substantially moved forward to the date of the law’s enactment. 9. Physician Reform Measures: All of the studies indicate that there is a major and growing shortage of physicians. What is alarming is that as the demand for physician services grows to serve an increasingly geriatric domestic population, the quantity of physicians lags far behind. This deficiency is pervasive, cutting across both primary and specialty care disciplines, and permeating urban and rural communities. Perhaps the most cost-effective and readily available source of physicians is International Medical Graduates, and our immigration laws can and should stimulate their entry into medical practice in this country by creating more flexible, generous waiver provisions, exempting H 1B petitions and immigrant visa petitions from the quota ceilings, and allocating a generous numerical value to physicians in the merit-based system. 10. The Underlying Attitude: We are a strong, vibrant, and, hopefully, confident nation now faced with new challenges in an increasingly globalized, interdependent world. I believe that legal immigration carries major promises for contributing to the economic and social vitality of our country. While any final immigration reform bill will hopefully design a system that will attract and reward those foreign nationals who can and will serve our national needs, there is an equally compelling imperative to create social cohesion, which can only occur when immigrant communities possess lawful status that will enable them to more fully participate in the rhythms of American society rather than retreating into individual ethnic enclaves. I do not think that this country is best served by a wizened, penurious immigration system, but rather from a willing embrace of those who meet generous, rational legal immigration standards as required to take up new lives in this country. A FINAL WORD Thirty years ago, I lived for several years in Washington, D.C. where I worked as a lobbyist representing U.S. business interests. I learned during that period that the political process is highly volatile and unpredictable, and that it would be foolish at this early stage in the Senate’s deliberations to predict an outcome. However, I would be remiss not to offer at least some initial guess as to the direction in which this whole immigration debate is now moving. I think that we will see the final passage of some type of immigration reform legislation that will have as its core the central provisions appearing in the Senate’s proposal. I think that there are strong political pressures moving the immigration reform issue to some type of resolution and there is a growing and, in many respects, a begrudging recognition that some type of fundamental revision needs to be enacted to restore the system. In particular, I expect that when all of the Congressional debate has subsided, we will have some type of legalization program intended to provide an opportunity for approximately 12 million individuals to obtain legal status. Time will tell whether this type of legalization effort is a foolish social experiment or a realistic accommodation to a hitherto unattended problem. We are, though, now at the beginning of a Congressional debate that will likely stretch throughout the summer. There are a great many steps between the introduction of this proposed legislation and its enactment into law. In a sense, the current situation is reminiscent of a line from a T.S. Elliot poem reading: “Between the idea/And the reality/Falls the Shadow.” Given that one of the principal aims of the current immigration reform movement is to enable part of our population to come out of the shadows so as to live more fully in this society, I can only hope that the shadow coming out of the current immigration debate will be cool and refreshing rather than one casting gloom, mystery, and despair. As always, please feel free to contact us with any questions or concerns on any aspect of immigration law. We look forward to hearing from you. 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 by Aronson & 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. |