Stephanie Rose Should Explain Her Role In The Postville Prosecutions

The New York Times reported yesterday that the nomination of Stephanie Rose to be the U.S. Attorney for the Northern District of Iowa has fallen under criticism because of her key role in the criminal prosecution of nearly 400 undocumented Guatemalan farmers in Postville, Iowa in May 2008. http://bit.ly/3N8RrL.

To me the issue is not whether Rose should be confirmed. That is for the Senate to decide. But first she has a moral and ethical duty to publicly answer for her role in the prosecutions, and give assurances that as the chief law enforcement officer for the Northern District of Iowa, Rose will approach each criminal prosecution with a sensitivity that she seemed to lack during the Postville prosecutions. At a minimum Rose needs to fully explain her role, including,

• The May 12, 2008 press release from the U.S. District Court for the Northern District of Iowa announcing the temporary assignment of federal judges and court personnel to Waterloo, Iowa "in response to the … prosecution of numerous illegal aliens…" The press release was issued by the court before any of those arrested and charged had been found to be in the country illegally.

• The infamous "Defense Manual" that was, in reality, a guide to the conviction and deportation of the defendants.

• The use of the so-called "Fast Tracking" system, concocted by the government, which amounted to little more than a conviction/deportation assembly line that compromised the fundamental rights of the defendants in favor of expedited proceedings.

• The inadequate provision of CJA defense counsel to the immigrant workers, including mass hearings at which defense counsel were called upon to represent as many as 17 defendants at a time in a single, brief, proceeding, with some called on to do so on multiple occasions for multiple groups of defendants.

• The denial of access to immigration counsel for lengthy periods of time during "processing" and questioning.

• The lack of any assurance that each individual charged was afforded meaningful access to counsel familiar with both criminal and immigration law.

• The required use of an "exploding" plea agreement which contained an arbitrary 7 day expiration period without sufficient time given to the defendants to assess the case facts and forms of relief under the immigration law.

• The inappropriate, and arguably unlawful, use of "judicial removal" which lead to the automatic deportation of many defendants, despite close family ties to the U.S.

Did Rose at least raise her voice privately in opposition to the government's use of coercive prosecutorial tactics against the undocumented immigrants, most of whom were uneducated Guatemalan farmers?

If not, why not?

Since her nomination, Rose's supporters have tried to distance her from any discretionary role in the Postville cases claiming that the prosecutions were directed by the Department of Justice in Washington, DC. But, as The Times points out, this claim flatly contradicts the testimony of former Senior Associate Deputy Attorney General Deborah Rhodes who told the House Immigration Subcommittee last summer that the Postville prosecutions were planned by the local federal authorities. At the time, Rose was the Deputy Chief of the Criminal Division in the U.S. Attorney's Office for the Northern District of Iowa and, reportedly, third in the office chain of command.

Did Rose really have no clue that the Postville prosecutions were being planned by her colleagues? Did she really have no prior knowledge of the ICE Postville investigation or that criminal complaints and criminal arrest warrants for 697 Postville workers were being prepared and sought by her office in early April 2008? And, in light of the Supreme Court unanimous decision that the identity-theft law could not be applied to prosecute immigrants only because they used false Social Security or visa numbers, as it was in many Postville cases, does she still think use of the law as a hammer to obtain guilty pleas from the Postville defendants was appropriate?

As U.S. Attorney Stephanie Rose will serve as the chief law enforcement officer in the Northern District of Iowa and will be responsible for coordinating many investigations and prosecutions. She needs to tell the truth, the whole truth, and nothing but the truth. The public is entitled to nothing less.

Death Number 105: Pedro Juan Tavarez

Now that health care legislation has passed the House of Representatives, all eyes are on the Senate. Will the U.S. Congress send President Obama a heath care bill he can sign? Stay tuned.

But while Congress considers health care reform, including whether or not to include a "public option", too many immigrant detainees find themselves with no health care option at all. Since 2003 a staggering 105 detainees have died while locked up by ICE. The latest fatality, Pedro Juan Tavarez, died recently at the Brigham and Women's Hospital in Boston. The circumstances surrounding his death are, to say the least, murky. On its website, ICE reported Tavaraz's death in cold "bureaucrat speak" as follows,

Detainee passes away at Boston hospital

BOSTON - On Oct. 19, Pedro Juan Tavarez, a 49-year-old national of the Dominican Republic being held on immigration violations, passed away at Brigham and Women's Hospital in Boston, Mass.

On October 16, The Suffolk County House of Correction, where he was detained by ICE, transported Tavarez to the hospital after medical staff suggested possible pneumonia. The hospital diagnosed him with heart and respiratory conditions for which he was being treated.

Tavarez's family was at the hospital with him when he passed away and was able to consult with medical staff on decisions concerning his medical treatment. U.S. Immigration and Customs Enforcement (ICE) notified the Consulate General of the Dominican Republic of Tavarez's passing. Additionally, the appropriate state health authorities have been notified. The medical examiner's office has not determined an official cause of death and will determine if an autopsy is necessary.

http://bit.ly/T0ap8

ICE's carefully chosen words reveal that Tavarez, a relatively young man, was transported to the hospital only "after [ICE] medical staff suggested possible pneumonia", but that once he reached the hospital he was diagnosed with heart and respiratory conditions "for which he was being treated". Apparently ICE "medical staff"—it's not clear whether the staff included a licensed physician—had no idea what was wrong with Mr. Tavarez. The phrase "for which he was being treated" suggests his heart condition was only diagnosed and treated after he left ICE detention and was examined by doctors at Brigham and Women's Hospital.

The ICE death announcement raises troubling questions. How long had Mr. Tavarez been ill? Did he have a history of heart problems before he was taken into custody by ICE? When did he first seek medical attention from ICE? Did the ICE detention facility's medical staff include a physician? How long did Mr. Tavarez have to wait before he was examined by a doctor? How much time passed before ICE medical staff decided to transfer him to a hospital for appropriate medical care? Could his life have been saved had his illness been properly diagnosed and treated sooner?

Mr. Tavarez's case has received only limited media attention. But his death adds to the increasing number of immigrants who have died in ICE custody.

ICE Assistant Secretary John Morton has pledged to design an immigration detention system that truly reflects the civil nature of immigration law. Let's hope he makes good on his promise. In the meantime, he can start by ensuring that ICE detention is not a death sentence for an immigrant who is unfortunate enough to take seriously ill while in custody.

Watch Out For Lou Dobbs' Next Move

By Eleanor Pelta, AILA First Vice President

Late yesterday, CNN announced that Lou Dobbs was stepping down from his position as “advocacy anchor” of the network in order to “seek a more activist role.” CNN announced that Dobbs would now “carry his banner of advocacy journalism elsewhere.” Although CNN’s press release described the parting as “amicable,” news reports covering Dobbs’ departure cited recent tensions between Dobbs and CNN, relating in part to Dobbs’ on-air perpetuation of the widely-discredited theories of the “Birthers,” who questioned President Obama’s U.S. citizenship. Advocacy Journalism? Advocacy, perhaps. But journalism? It was surprising that CNN actually used this term in its’ press release. What exactly is an “advocacy journalist?” Given that a common definition of journalism is writing or reporting of news or facts in a direct presentation without interpretation, and that journalists work hard to present both sides of a particular issue, isn’t “Advocacy Journalism” a contradiction in terms?

We should be proud that AILA was the first organization in the immigrant rights community to stand up to Dobbs. Initially Dobbs staffers would tape interviews with AILA spokespeople and use only snippets of the interview to support Dobbs’ own views. Then AILA made clear to Dobbs and his producers that we would not appear on his program unless it was on a live segment. Since such a segment could not be edited and manipulated, Dobbs refused. AILA’s coalition partners followed suit, with the result that over the past 22 months, Dobbs had virtually no access to real immigration expertise. As the New York Times and The Washington Post continued to run articles discrediting Dobbs, the impact of Dobbs’ lack of access to our expertise was keenly felt—it came to a head when a representative from the office of CNN’s President called AILA to find out why Dobbs wasn’t using AILA as a resource—then the “cat was out of the bag,” as it were.

Clearly CNN must have recognized that the constant ravings of an anti-immigrant demagogue can’t be good for its ratings—let alone its’ self-image as an independent news-reporting organization. Before we all breathe a collective sigh of relief, however, let’s look carefully at Dobbs’ parting words. Last night, he stated, “…[S]ome leaders in media, politics and business have been urging me to go beyond the role here at CNN and to engage in constructive problem-solving, as well as to contribute positively to a better understanding of the great issues of our day. And to continue to do so in the most honest and direct language possible.” In light of Dobbs’ beliefs and how he has already “contributed” to the immigration debate thus far, these words take on a very ominous meaning. What might Dobbs do when he is no longer constrained, even minimally, by the boundaries of a credible news organization?

To get a sense of what might happen, we need only look at the career trajectory of one of Dobbs’ spiritual predecessors—similar in style if not his radical and irresponsible spewings—Father Charles Coughlin. Father Coughlin was a Canadian-born priest serving at Royal Oak, Michigan’s National Shrine of the Little Flower Church. One of the first political leaders to reach a mass audience through radio, Father Coughlin began his radio career as a staunch Roosevelt supporter. But, like Dobbs who claims he was radicalized by the events of September 11, Coughlin became disillusioned by the New Deal in the mid-1930’s and embarked on a campaign against “money changers” and the government, which in his view was “permitting a group of private citizens to create money.” It was not long before he was preaching out-and-out anti-Semitism, claiming that the Depression was caused by an “international conspiracy of Jewish bankers,” and that Jews (including Lenin and Stalin, both of whom, according to Coughlin, were Jewish) fomented the Russian Revolution in an effort to uproot Christianity in Russia. His magazine, “Social Justice,” also published anti-Semitic material; he began to endorse some of the policies of Hitler and Mussolini, and at a 1938 rally in the Bronx, gave a Nazi salute and stated “When we get through with the Jews in America, they’ll think the treatment they received in Germany was nothing.”

At the height of his popularity, Coughlin received more mail than FDR. When Coughlin temporarily lost his radio operating permit, he raised funds among his many supporters, purchased air time, and played recordings of his speeches. When it seemed that the government might actually try Coughlin for sedition, the Roman Catholic Church forced him to retire from his “advocacy” activities.

Those who really want to preach hate and perpetuate lies will always find a venue to do so. What will “Dobbs unleashed and unplugged” do?” He will clearly find another “Bully Pulpit,” whether it is another media outlet willing to air his rants or a run for public office, perhaps financed by those who pour their money into FAIR and the Center for Immigration Studies. Maybe we can take a minute to be thankful that Dobbs is no longer on CNN, since the victories of those who fight for immigrant rights are few and far between these days. But then let’s watch—and prepare—for his next move.

A Special Veterans Day Blog By AILA Member Margaret Stock

On Veterans Day this year, AILA honors the service of military veterans, past and present. While honoring all veterans, the AILA leadership in particular acknowledges the contributions of those immigrants who have served in our nation’s Armed Forces.

We note at the outset that one of the military members killed in the Fort Hood massacre last week was a former immigrant from Mexico who had risen to the rank of Major in the Army National Guard. In a classic immigrant success story, Libardo Eduardo Caraveo, age 52, had come to the US as a teenager, learned English, obtained a Ph.D., and eventually joined the US military more than a decade ago. He was assigned to an Army National Guard medical unit when he was murdered at Fort Hood. Another of the Fort Hood victims was Private First Class Kham Xiong, who came to America from Thailand as a child. Private Xiong had also volunteered to serve in our Nation’s Armed Forces. Contrary to some Internet postings, Army Major Nidal Malik Hasan, the perpetrator of the Fort Hood crimes, was a native-born American citizen and not an immigrant. We honor Major Caraveo’s and Private Xiong’s service and mourn all of the Fort Hood victims. In their memory, American flags are flying at half-staff around our Nation.

That at least two of the Fort Hood dead had immigrated to the United States is not surprising; large numbers of immigrants and naturalized citizens serve in our Nation’s Armed Forces. The Immigration Policy Center released a report this week spotlighting the contributions of immigrants to the US Armed Forces. According to the Report, foreign-born members of our armed forces are almost eight percent of the 1.4 million military personnel on active duty. More than 119 immigrant members of the military have lost their lives in combat in Iraq or Afghanistan since September 11, 2001.

This month was marked by two notable events relating to immigrants in the military:

On November 6, 2009, the President signed a law proclaiming that Casimir Pulaski, a famous Polish immigrant hero of the American Revolution, is now an honorary posthumous citizen of the United States. This proclamation led to mild joking amongst immigration attorneys (“That is the longest pending naturalization case that I have heard about”) but the passage of this law emphases an important point about American history: Immigrants have been key to America’s success on the battlefield since the dawn of the Republic, and continue to be a vital asset today.

The large numbers of immigrants in the military and the worldwide deployment of US military personnel help explain why immigration issues affect military readiness. Immigrants in the US military seek to naturalize or to bring families members to the US or adjust their status here. Many military members who are not immigrants themselves are married to immigrants or have other immigrant family members. Like everyone else in the US, these military members and their families are affected by the dysfunction of our Nation’s broken immigration system. Military families often face hardship, separation, stress, and fear as they attempt to negotiate the US immigration system.

AILA members frequently represent military members, veterans, and their families through their immigration law practices. Additionally, AILA offers its members a unique opportunity to assist military members, veterans, and their families through the pro bono AILA Military Assistance Program (MAP). AILA MAP is a collaborative effort between AILA and military legal assistance offices. Military Legal Assistance Offices provide free assistance to soldiers and their families, but they have been inundated with complex immigration legal questions. To resolve these cases successfully, they often need the assistance and experience of seasoned immigration attorneys. AILA MAP volunteers to date have helped more than 350 military members, veterans, and their families with immigration-related issues. More than two hundred AILA members are AILA MAP volunteers.

In a positive development for many AILA MAP cases, this week marked the introduction of the Military Families Act, S. 2757, a bill designed to help thousands of military family members who have been hurt by immigration law dysfunction. The bill would adjust the status of the immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts. Many potential beneficiaries of the bill are AILA MAP clients. The bill was introduced by Senator Robert Menendez (D-NJ) and has five co-sponsors to date. We will be watching the progress of the bill in coming months, and look for a companion bill to be introduced in the House.

As we celebrate Veterans’ Day, let us not forget that AILA itself also has many members who are military veterans; a few of these are veterans who work as private practice immigration attorneys while at the same time they continue to serve in the US Armed Forces as members of the Reserve or National Guard. Today as we mark another Veteran’s Day, we also salute our AILA members who are veterans and thank them for their service.

Related Links:

President Obama's speech at Fort Hood http://bit.ly/3DQlnM

IPC Report http://bit.ly/xJIvS

AILA MAP link http://bit.ly/1L9I7s

Military Families Act http://bit.ly/1Ds1a9

Casimir Pulaski Bill http://bit.ly/2alB1k

An Open Letter To ICE Assistant Secretary John Morton

Dear Assistant Secretary Morton:

Your assumption of the reins at U.S. Immigration and Customs Enforcement earlier this year has brought optimism. You seem to bring a much needed fresh perspective to the enforcement arm of the Department of Homeland Security. In particular your observation that since immigration law is largely civil its enforcement should reflect its civil nature gives many hope that brighter days lay ahead. In the absence of comprehensive immigration reform there is hope that with the change in leadership at DHS common sense and humane enforcement priorities will prevail.

But yesterday ICE refused to halt the deportation of Sam Mejia-Reyes and Elida Perez who have lived in the U.S. since 1992 after fleeing from Guatemala with their infant son. If ever there was a case that cried out for executive intervention to stop a deportation, this was it. Here is how the San Francisco Chronicle described the case in an editorial published yesterday morning:

Sam Mejia-Reyes and Elida Perez offer a case study on why this nation needs immigration reform. They have lived and worked in the United States since they fled Guatemala with an infant son in 1992. They saved up enough money to buy a house in Novato several years ago. Neither Sam and Elida nor their children - two of whom were born in the United States - has been in even a whiff of trouble.

Yet today the couple will be escorted on a plane for deportation to Guatemala. Immigration and Customs Enforcement sent notice Tuesday that their appeals had been exhausted. They will leave with their 4-year-old daughter, Dulce, a U.S. citizen by birthright. They will leave behind their 13-year-old daughter Helen, also a citizen and thriving in high school, along with their 18-year-old son, Gilbert, who is fighting deportation proceedings of his own.

* * *

In the cruelest twist of all, the family came on the radar of immigration officials only because of mistaken identity: On March 7, 2007, armed federal officers stormed into their house looking for a suspect who was neither a relative nor acquaintance. The U.S. government nonetheless initiated deportation proceedings against the three noncitizens in the family.

An estimated 12 million residents of the United States have come here illegally. For those who work and avoid trouble, enforcement is just a game of chance. Unfortunately, two hard-working Novato parents are paying the price for an immigration policy that is not aligned with reality or the nation's best interest.

http://tinyurl.com/yzrgzx4

Assistant Secretary Morton, previous ICE policy directives require ICE to prioritize enforcement, placing national security and public safety at the top of the list. These directives gave you ample power to keep the Mejia-Reyes family together.

But you did not.

So, tell me, is our country more safe now that Sam Mejia-Reyes and Elida Perez have been deported? Are our citizens better protected? Have ICE enforcement priorities been served?

I, for one, am at a loss to understand what policy objective was met by the removal of two honest, hard working people. What grand national interest has been served by the destruction of yet another family?

Everyone agrees our immigration system is badly broken. That is why until Congress rolls up its sleeves and gets to the hard work of fixing it, we need people like you, who are charged with enforcing the law, to enforce it in a manner which protects the nation and gives folks like Sam Mejia-Reyes and Elida Perez, who are sadly caught in the web of immigration dysfunction, a fighting chance to eventually earn their place in the American Dream.

Are YOU smarter than a Fifth Grader, Mr. Rovell?

This last weekend, for the first time since 1982, an AMERICAN won the NYC Marathon. As someone who has run several marathons and who would have been lapped by this winner, I greatly admire these fleet footed men and women.

Why is this an immigration issue? Well, it turns out a commentator on CNBC by the name of Darren Rovell thinks there are different kinds of "Americans." In this case, Meg Keflezighi, an American ,who immigrated to the United States when he was 12 as a refugee, proudly wore the USA on his sweat stained jersey as he cruised to victory in the NYC Marathon. Much was made in the press of the fact that an American had finally won this particular marathon again after more than 25 years! But, Mr. Rovell was apparently looking for a controversial way to express his ignorance.

Mr. Rovell noted:

"He is an American citizen thanks to taking a test and living in our country...Nothing against Keflezighi, but he's like a ringer who you hire to work a couple hours at your office so that you can win the executive softball league."

Rovell explained his bizarre views in an article on CNBC's web site:

It's a stunning headline: American Wins Men's NYC Marathon For First Time Since '82. Unfortunately, it's not as good as it sounds. Meb Keflezighi, who won yesterday in New York, is technically American by virtue of him becoming a citizen in 1998, but the fact that he's not American-born takes away from the magnitude of the achievement the headline implies.

Mr. Rovell later apologized, because he realized what an idiot he sounded like. But the apology was hollow, without meaning, and dug the hole even deeper. He explained that because this great runner had trained here since he was young, he was now American "enough" to count.

It turns out, Keflezighi moved to the United States in time to develop at every level in America. So Meb is in fact an American trained athlete and an American citizen and he should be celebrated as the American winner of the NYC Marathon. That makes a difference and makes him different from the "ringer" I accused him of being. Meb didn't deserve that comparison and I apologize for that.

Mr. Rovell, you sir are an emblem of what is wrong with the immigration debate in America today. I suppose that in your opinion that folks like Albert Einstein (immigrated as an adult), Zbigniew Brezinski (immigrated as an adult and fellow NBC employee), Isaac Asimov (a favorite of mine), Dan Aykroyd (he was born funny in Canada), Alexander Graham Bell (a Scott, who immigrated as an adult), Wayne Gretzky (learned Hockey in Canada), Patrick Ewing (who was also a U.S. Olympian--guess we should give that Gold Medal back, eh Mr. Rovell), and literally millions of others, simply do not count as "real" Americans to Mr. Rovell because they did not "grow up" as Americans. I guess we should reject them and their contributions to America becuase they did not "grow up" here.

As my kids might say, Dude, stop drinking the Haterade! America is a nation of immigrants. Once you take that oath, it is your future that matters, not your past. This sentiment is the beauty of what it means to be an American. You are part of a greater good, you are part of the greatest experiment in the history of mankind. You the former immigrant, are now an American. You are now as good as Mr. Rovell, even if you did not grow up in America. You are now as good as anyone else. Mr. Rovell, take a civics course and learn what it means to be an "American."

Immigration Legislation-- Piecemeal or The Whole Enchilada

I have had a number of AILA members and prospective immigrants email me recently about my blog on the waiting lines. In addition to the comments on the length of the immigrant visa delays (and possible changes to the wait times based upon newly found information), many commentators also threw in their thoughts on the need for immigration reform. One particular thought ran through many of these emails. Is immigration reform going to happen, and if it will happen will it be "CIR" or will it be piecemeal?

As I pondered how best to respond to this, today AILA posted a listing of all the immigration related legislation introduced in September and October 2009:

Round-Up of Immigration Related Legislation (Sept-Oct 2009)
Cite as "AILA InfoNet Doc. No. 09110264 (posted Nov. 2, 2009)"

The following immigration-related bills were introduced into the House of Representatives and the Senate in September and October:

New IDEA (Illegal Deduction Elimination Act) (H.R. 3580)Introduced by Rep. King (R-IA) on 9/16/09. Summary: To amend the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income, and for other purposes.

Improving Methods to Promote Regular Occurrences of the Verification of Employability Status Act of 2009 (H.R. 3676)Introduced by Rep. Broun (R-GA) on 9/30/09. Summary: To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make permanent the E-Verify Program, and for other purposes.

H.R. 3687 Introduced by Rep. Issa (R-CA) on 10/1/09. Summary: To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an
advanced degree in the United States

Dairy and Sheep H-2A Visa Enhancement Act (H.R. 3744)Introduced by Rep. Arcuri (D-NY) on 10/7/09. Summary: To amend the Immigration and Nationality Act to provide a special rule for the period of admission of H-2A nonimmigrants employed as dairy workers and sheepherders, and for other purposes.

Fairness in Representation Act (H.R. 3797)Introduced by Rep. Foxx (R-NC) on 10/13/09. Summary: To prevent congressional reapportionment distortions by requiring that, in the questionnaires used in the taking of any decennial census of population, a checkbox or other similar option be included for respondents to indicate citizenship status or lawful presence in the United States.

Every Person Counts Act (H.R. 3855)Introduced by Rep. Baca (D-CA) on 10/20/09. Summary: To amend Title 13, United States Code, to make clear that each decennial census, as required for the apportionment of Representatives in Congress among the several States, shall tabulate the total number of persons in each State, and to provide that no information regarding United States citizenship or immigration status may be elicited in any such census.

Note: Each week hundreds of bills are introduced into the House and Senate, and the likelihood of any particular bill moving is usually very small. The bills posted on this page represent all immigration-related legislation introduced this week, not legislation AILA believes is important or likely to succeed.

One of the common strings I see running through these non-comprehensive bills, is that, for the most part they are negative. They are bad bills introduced to be used as leverage against any CIR legislation that will be introduced.

Let's take the givens: We know that CIR is going to be tough to pass if the economy does not recover. We know that CIR is going to be controversial because the anti-immigration minority will inundate Congress with calls, letters, faxes and emails. We know that on top of any CIR legislation all of these "bad" bills will be proposed as additions because they have been pending prior to reform legislation. So, why not start getting those who understand the need to fix our broken immigration system to start introducing "positive" immigration bills, to be used as a counterweight to these bad bills?

Just a thought for those working on these issues. Isn't it about time to play the game on the same terms as our opponents?

Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays

I had a very upset client contact me this last week. He was angry . . . at the Visa Bulletin. He could not understand how, after the start of the new fiscal year, there was essentially no movement in the visa numbers. I tried to calm him by telling him that he just needed to be patient. Then I realized how patronizing that sounded. How much longer did he need to wait? He has an approved immigrant visa petition (EB-3) with an early 2005 priority date in the worldwide category. So, I decided to try to figure out when he might actually get his green card. I ask that you bear with me through this process. This is a LONG post, but one I think you will appreciate reading.

I have to warn you now, this math is a shot in the dark. I do NOT have all of the numbers of pending and approved cases in each category of employment based immigration. However, some estimate, based upon some pretty good numbers, is better than mere guesswork. Let me walk you through this analysis.

However, I first ask you to forgive me in advance, math is the reason I went to law school. Also, the USCIS simply has not released clear numbers (possibly for fear of letting folks know exactly how long their wait will actually be).

My focus for this analysis will be in the EB-2 and Eb-3 categories, since it is in those categories that our clients are most interested. There are four basic numbers we are looking for, NONE of them are easy to find. Let's discover the basic numbers we will be using:

First, how many approved I-140 cases are awaiting a visa number? According to AILA's recent liaison meeting with DOS, there are 198,186 "case ready" I-140 petitions awaiting visa issuance, in the EB-2 (52,584), EB-3 (139,737) and EW (5,865) categories. Case ready means (as best as we understand), that as soon as the petition is current, the Adjustment will be approved or consular processing will begin. Obviously, the EB-2 numbers are only for India and China.

Second, how many pending I-140 cases are there at the Service Centers awaiting adjudication? According to the June 2009, USCIS Production Update Report to Congress, USCIS had 85,970 pending I-140 cases awaiting adjudication. Unfortunately, USCIS does not break out the I-140 cases in this report between EB-2 and EB-3. These are the most recent numbers I could find.

Third, how many pending I-140 cases are at the District Offices? I have no idea! I cannot locate anywhere the numbers of cases at the local USCIS offices. No one knows. Really. There is no report that I can find where this number has been released. And, frankly, I do not believe that USCIS has an accurate count on this either (I do pray they get such a count soon).

Fourth, how many pending labor certifications are there at the DOL? This number is actually pretty sure. There are 62,100 pending labor certifications as of the September 22 stakeholder meeting with DOL (not counting pending appeals). Unfortunately, again, we do not know which of the categories (EB-2 or EB-3) the cases will fall under.

Now, it is time for the math. Assuming all pending Labor Certifications and pending I-140s are approved (yes, I know some will be denied and some are duplicates), there are at least a total of 346,256 individuals with approved or soon to be approved petitions awaiting green cards, not including their families. If we assume an average family size of 4 people (I believe this is a safe assumption), there are 1,385,024 people waiting on employment based green cards in the EB-2 and EB-3 categories.

I know the number is huge! And next we have to try to fit that number into the two separate EB categories. Unfortunately, we have two problems in doing this. The first problem we have is that we do not know how many of these I-140 cases are in the EB-2, or EB-3 categories. So, let's use a little deductive reasoning here. Using experience and best guessing based upon the division we already know about in the numbers of cases from the DOS, lets say 26% are EB-2 (360,162), and 74% are EB-3 (1,024,917).

The second problem is that we do not have a per country breakdown. (I hope the USCIS has that breakdown). How to account for this? Again, let's estimate based upon the DOS numbers, that India accounts for 70% of the EB-2 and 39% of the EB-3 numbers and that China accounts for 30% of the EB-2 and only 3% of the EB-3 numbers and the rest of the world accounts for 58% of the EB-3 numbers.

We also know the maximum numbers available in any given year for all family and employment based categories is 25,630 (with some caveats), and that there are only a total of 80,000 employment based immigrant visas in the EB-2 and EB-3 categories combined (with some flow down from other categories).

You can see we have leaped, jumped, guessed, and assumed our way to the follow conclusions:

India EB-3 wait for permanent residence for a labor certification filed today: 15.8 years. This generous estimate comes from the fact that an estimated 399,717 Indian Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants which would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories, so the wait time is probably longer.

China EB-2 wait for permanent residence for a labor certification (or NIW) filed today: 4.1 years. This estimate comes from the estimated 108,048 Chinese Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants that would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories.

Worldwide EB-3 wait for permanent residence for a labor certification filed today: Well, there are 594,451 people waiting in this queue. The limiting factor here will be the 80,000 annual limit on employment based immigration. Excluding per country limits and flow down from other employment based immigrant visa categories, this is at least a 8.1 year wait.

And these waits are from when the person STARTS the green card, not when they come into the United States.

I can now tell my client a waiting date based upon, at least, some real numbers. But, I will still be wrong. The dates are not accurate, but at least it is not made up out of whole cloth. But we now all understand that we cannot look at the Visa Bulletin and actually determine how long the wait is.

The point of this whole exercise, besides telling my client how long he still might have to wait, is to point out the consequences of these numbers.

Line? What Line? These are employment based immigrants. Every single one has a job offer, an employer, and a certification that either there are no qualified, willing and able US workers for the job, or that the individual is so good, we do not even have to test the labor market. We need these people. We want these people. How many do you think will now just give up and go home?

This delay in legal, employment based immigration is a crisis for America. If you are an intending immigrant, and your immigration option is employment based, do you have the patience the wait 15 years for your green card? Can you do better in Australia, Canada, or even back home in your home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?

I believe these numbers have a purpose. The purpose is immigration reform, and not just a legalization. We all know that a broken legal immigration system causes illegal immigration. We need to fix the legal immigration system now! We need to modify the process, significantly shorten the wait and increase the numbers to meet the demand. We need to not include family members in the total calculated visa numbers. And, Yes, we need to make these change even in a struggling economy. We must maintain the great benefits that positive, focused employment based immigration has delivered to America. The reality is that Congress must act to help save the future of American innovation and economic growth. And, they must do it now.

BALCA--Just Say No

Over the course of the last year, AILA has been posting a series of BALCA decisions. These BALCA decisions routinely deny the labor certification appeal, even for minor, de minimis errors of the employer and/or counsel. An example of today's postings include the following:

BALCA Affirms Denial Based on Lack Of FEIN on Date of Filing for Domestic Household Employer http://www.aila.org/content/default.aspx?docid=30340 BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification. Matter of Edward J. Tierny, 2009-PER-00314 (7/13/09). AILA Doc. No. 09102061.

BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day
Requirement http://www.aila.org/content/default.aspx?docid=30342 BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. Matter of Spires Restaurant, 2009-PER-00125 (8/25/09). AILA Doc. No. 09102063.

BALCA Affirms Denial Based on Employer's Failure to State Experience Requirement on PWD Request http://www.aila.org/content/default.aspx?docid=30343 BALCA affirms the PERM denial based on the employer's failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. Matter of Florida Restaurant Group, LLC, 2009-PER-00014 (8/25/09). AILA Doc. No. 09102064.

I could list dozens of other denials from BALCA on similar ticky-tack issues, but I think you get the point--BALCA does not care that you or the employer misread one line in a hundreds of pages of FAQs, regulations, or liaison minutes. You or your client missed it and that is not DOL's problem. No Soup For You. Refile. Get to the Back of the Line. We do not care how it affects your business. The real tragedy here is that BALCA gives you this decision 4-5 YEARS after you filed the original labor certification, adding insult to injury.

Some would say this is a reason to have a simplified immigration system as it relates to the permanent employment of foreign nationals in the United States. I cannot disagree. The promise of PERM--quick approvals and denials based upon "real world" recruitment, is an illusion, nothing more. PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!

Who would have thought that we would pyne for days of "regular" labor certifications! What a farce this system has become in the name of progress.

LESSONS ABOUT TEMPORARY WORKER PROGRAMS AND IMMIGRATION REFORM GAINED FROM A TRIP TO ZACATECAS MEXICO

By Deborah Notkin, AILA Past President

Last month, I was honored to be invited to be a “judge” at a program on migrant workers rights organized by the Centro de Derechos de Migrantes in Zacatecas, Mexico. The organization is involved in seeking legal recourse for migrant workers, primarily entering the US on H-2b visas, for payment of required wages and other worksite violations. The “judges” met with a migrant workers organization and came up with a list of solutions to avoid the problems.

By far, everyone agreed that the problems began with “recruiters” who charged substantial sums (typically around $1,000) from each hopeful temporary worker and this money was rarely returned if there was not a visa available. This problem seems to reach epic proportions during a period of prosperity in the US when the H-2b visa cap of 66,000 workers doesn’t provide sufficient visas to fill needs. Under both Mexican law and now under the rules of the current H-2b regulations, recruiters are prohibited from charging fees to the prospective migrant workers but the judges found that enforcement needed to be stepped up.

We also concluded that workers needed to be given a notice of the terms of employment including salary and the workers stressed portability once they entered the US if they were employed by a non-compliant employer. This portability plan was recommended which would require the worker to find another position in the same field, such as construction, and to have a salary offer for no less than the required salary on the initial application.

In speaking to these workers and some government officials on both sides of the border who attended the program, it was clear that there are many compliant employers as well as employers who were ignorant of the H-2b rules and depended on the “legal services” of unscrupulous recruiters and employers who knowingly violated the law.

Many of the workers had spouses currently in the US working in apparently compliant H-2b employment situations, happy with the prevailing wages that were being paid. The workers who benefited most from the H-2b program were those who had located good employers and returned annually to work for the same employer on a seasonal basis.

Without adequate enforcement, the H-2b program can be a “hit or miss” proposition for those going to work for a specific employer for the first time. Not all recruiters, also referred as staffing staffing organizations are unscrupulous but unfortunately, some who have gotten involved in the H-2b program, on both sides of the border, are a big part of the problem.

Zacatecas, Mexico is a beautiful colonial city and in general, the workers I spoke with did not have a desire to immigrate permanently to the US. In going forward with comprehensive immigration reform, I am hopeful that we will have a reasonable visa to handle future non-professional workforce needs that allows both a path to permanent residence or a circulatory migratory pattern, at the discretion of the migrant worker.

I am also hopeful that this system will recognize the legitimate needs of honest employers, and allow every one of these employers the chance to demonstrate their need for these workers, whether they are the types of business that traditionally use the H-2b worker, such as the landscaping industry, or an employer with unusual needs, such as skilled sail making in New England. In this vein, the concept of a “Commission” as it is put forth in some quarters, would limit and prevent worker visas which would be of common benefit to workers and US employers. We need to change our broken system, but in doing so not to limit the legitimate future workforce needs of employers in the US.

Most of all, I will never forget the two strong and dignified women who won a class action suit for discrimination while in H-2b status. Their abrasos (hugs) when I left will stay with me forever.