An Update--The Line? What Line? The More Tragic Truth Emerges About Legal Immigration.

In October 2009, I wrote a blog talking about the disastrously long waiting lines for legal immigration to the United States. In Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays, I stated that:

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 our home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?

The Department of State just released its annual numbers for cases received by the National Visa Center, awaiting issuance of an immigrant visa at a consulate. The report says this:

The following figures have been compiled from the NVC report submitted to the Department on November 3, 2009, and show the number of immigrant visa applicants on the waiting list in the various preferences and subcategories subject to numerical limit. All figures reflect persons registered under each respective numerical limitation, i.e., the totals represent not only principal applicants or petition beneficiaries, but their spouses and children entitled to derivative status under INA 203(d) as well.

Okay, the bottom line numbers? Bad, very bad. The total Family Numbers waiting for a priority date: 3,369,455, including 1,727,897 in the Brother and Sister (FB-4) category. At the 65,000 annual number level for that category, that is a 26.5 year wait (ignoring per country limits). The total Employment Numbers awaiting a priority date: 130,509, including 119,759 in the EB-3 category. This is at least a 3-4 year wait (again, ignoring per country limits). So, 3.5 million people waiting in line, or is it? The reality is worse. These do NOT include the those cases pending at USCIS!

If we ad in the numbers pending at USCIS (as best we know them), the situation is far more grave. Family based petitions pending at USCIS in June 2009 (no new numbers are easily available), were 1.1 million, bring the total backlog to 4,400,000 for family cases. Employment based cases pending at USCIS in June 2009 numbered 80,000. This bring the total up to 210,000 for EB-3 cases. Wow!

It gets worse though when you realize this simple fact. The numbers from the National Visa Center do not include cases for folks NOT consular processing. Frankly, and just just like in October when I first wrote about this, we do not really know exactly how many cases are pending immigrant visa availability. What we do know is that the legal immigration system is broken.

When we hear politicians and uninformed folks yelling about illegal immigration and telling folks to wait in line like everyone else, the answer is, What Line?

These numbers once again poignantly express the dilemma that legal immigrants have. Many feel, justifiably, that any immigration reform must FIRST focus on legal immigration reform, cutting down wait times to reasonable periods, BEFORE anyone who entered into or remained in the U.S. without permission is given ANY legal benefits. The answers are simple here, the question is, are there any politicians with enough courage to vote for real legal immigration reform?

Why Is H-1B A Dirty Word?

By Eleanor Pelta, AILA First Vice President

H-1B workers certainly seem to be under fire these days on many fronts. A new memo issued by USCIS on the employer-employee relationship imposes new extra-regulatory regulations on the types of activities in which H-1B workers can engage as well as the types of enterprises that can petition for H-1B workers. The memo targets the consulting industry directly, deftly slips in a new concept that seems to prohibit H-1B petitions for employer-owners of businesses, and will surely constitute an open invitation to the Service Centers to hit H-1B petitioners with a new slew of kitchen-sink RFE's. On another front, USCIS continues to make unannounced H-1B site visits, often repeatedly to the same employer. Apart from the "in-terrorem" impact of such visits, I personally cannot see the utility of three different visits to the same employer, particularly after the first one or two visits show that the employer is fully compliant.

But USCIS isn't the only agency that is rigorously targeting H-1B's. An AILA member recently reported that CBP pulled newly-arrived Indian nationals holding H-1B visas out of an immigration inspection line and reportedly placed them in Expedited Removal. The legal basis of those actions is still unclear. However, the tactic is too close to racial profiling for my own comfort.

Finally, recent H-1B "skirmishes" include various U.S. consular posts in India issuing "pink letters" that are, simply put, consular "RFE's" appearing to question the bona fides of the H-1B and requesting information on a host of truly repetitive and/or irrelevant topics. Much of the information that is routinely requested on a pink letter is already in the copy of the H-1B visa petition. Some of the letters request payroll information for all employees of the sponsoring company, a ridiculous request in most instances, particularly for major multi-national companies. One of the most frustrating actions we are seeing from consular officers in this context is the checking off or highlighting of every single category of additional information on the form letter, whether directly applicable or not, in effect a "paper wall" that must be overcome before an applicant can have the H-1B visa issued. Very discouraging to both employer and employee.

How have we come to a point in time where the H-1B category in and of itself is so disdained and mistrusted? Of course I'm aware that instances of fraud have cast this category in a bad light. But I think that vehemence of the administrative attack on the H-1B category is so disproportionate to the actual statistics about fraud. And interestingly, the disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement—the Department of Labor—but from CIS, CBP and State. Sometimes I just have to shake my head and ask myself what makes people so darn angry about a visa category that, at bottom, is designed to bring in relatively tiny number of really smart people to work in U.S. businesses of any size. It has to be a reaction against something else.

Yes, a great number of IT consultants come to the US on H-1B's. It is important to remember that so many of these individuals are extremely well-educated, capable people, working in an industry in which there are a large number of high profile players. And arguably, the high profile consulting companies have the most at stake if they do not focus on compliance, as they are the easiest enforcement target and they need their business model to work in the U.S. in order to survive. Some people may not like the business model, although arguably IT consulting companies provide needed services that allow US businesses, such as banks and insurance companies to focus on their own core strengths. Like it or not, though, this business model is perfectly legal under current law, and the agencies that enforce our immigration laws have no business trying to eviscerate it by policy or a pattern of discretionary actions.

It is true that some IT consulting companies' practices have been the focus of fraud investigations. But DOL has stringent rules in place to deal with the bad guys. Benching H-1B workers without pay, paying below the prevailing wage, sending H-1B workers on long-term assignments to a site not covered by an LCA—these are the practices we most often hear about, and every single one of these is a violation of an existing regulation that could be enforced by the Department of Labor. When an employer violates wage and hour rules, DOL investigates the practices and enforces the regulations against that employer. But no one shuts down an entire industry as a result.

And the IT consulting industry is not the only user of the H-1B visa. Let's not forget how many other critical fields use H-1B workers. In my own career alone, I have seen H-1B petitions for nanoscientists, ornithologists, CEO's of significant not for profit organizations, teachers, applied mathematicians, risk analysts, professionals involved in pharmaceutical research and development, automotive designers, international legal experts, film editors, microimaging engineers. H-1B's are valuable to small and large businesses alike, arguably even more to that emerging business that needs one key expert to develop a new product or service and get the business off the ground.


The assault on H-1B's is not only offensive, it's dangerous. Here's why:

• H-1B's create jobs—statistics show that 5 jobs are created in the U.S. for every H-1B worker hired. An administrative clamp-down in the program will hinder this job creation. And think about the valuable sharing of skills and expertise between H-1B workers and U.S. workers—this is lost when companies are discouraged from using the program.
  
• The anti-H-1B assault dissuades large businesses from conducting research and development in the US, and encourages the relocation of those facilities in jurisdictions that are friendlier to foreign professionals.
  
• The anti-H-1B assault chills the formation of small businesses in the US, particularly in emerging technologies. This will most certainly be one of the long-term results of USCIS' most recent memo.
  
• The attack on H-1B's offends our friends and allies in the world. An example: Earlier this year India –one of the U.S.'s closest allies --announced new visa restrictions on foreign nationals working there. Surely the treatment of Indian national H-1B workers at the hands of our agencies involved in the immigration process would not have escaped the attention of the Indian government as they issued their own restrictions.
  
• The increasing challenges in the H-1B program may have the effect of encouraging foreign students who were educated in the U.S. to seek permanent positions elsewhere.
  

Whatever the cause of the visceral reaction against H-1B workers might be—whether it stems from a fear that fraud will become more widespread or whether it is simply a broader reaction against foreign workers that often raises its head during any down economy –I sincerely hope that the agencies are able to gain some perspective on the program that allows them to treat legitimate H-1B employers and employees with the respect they deserve and to effectively enforce against those who are non-compliant, rather than casting a wide net and treating all H-1B users as abusers.

What Happens When USCIS Breaks The Law?

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act ("APA"). Yet, twice in the last two months the USCIS has issued "memos" that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.

USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in "rulemaking by RFE;" making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone's bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest "Neufeld Memos" the USCIS has simply gone too far.

The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals. The USCIS, without any input from the users of the program (really, there was no input), has broken the camel's back. Absent an immediate withdrawal of these memos, it is quite clear that in order to keep these programs workable, additional action will have to be taken. AILA USCIS HQ Liaison Committee has sent to USCIS Chief Counsel Roxana Bacon a detailed letter explaining how the USCIS has fundamentally eviscerated the H-1B program, and has clearly violated the APA. I strongly urge you to read it, to understand the depths to which the USCIS has delved in its war on the H-1B program.

I have no doubt that the USCIS's intention in issuing these law-altering memos is to somehow curry favor with certain Senators who share a concern about the H-1B and the EB-5 programs, in regards to the fraud that exists in them. No one disputes that fact that some bad users have abused this program; some intentionally, others ignorantly. But, changing the rules to prohibit the legal and correct use of the program to catch bad actors is not the way to make a program work effectively. Enforcing existing laws against fraud, and not classifying legitimate industries as evil, is the way to go about cleansing the program of inappropriate users. The USCIS's own failure to police the programs cannot justify what they have just done.

Here is a simple request to Director Mayorkas. When the your agency is going to issue a major policy change, perhaps you might want to ask users of your "service" whether what you want to do accomplishes its true purpose. I can assure you, that these two recent memos do not accomplish what you think they do, nor what you may have been told they will do. There is only one solution to the crisis caused by the recent pronouncement. To paraphrase President Ronald Reagan: Mr. Mayorkas, Withdraw Those Memos!

New York State Attorney General Andrew Cuomo Steps up to the Plate on Combating the Unauthorized Practice of Law

By Deborah Notkin, AILA Past President
Attorney General Andrew Cuomo has been combating the unauthorized practice of law for the last year and a half and has shut down many small outfits preying on immigrant communities. But on January 14, 2010, he took down the big fish by obtaining a restraining order preventing them from providing legal assistance on immigration matters.

The International Immigrants Foundation and their "legal wing", The International Professional Association have been preying on the immigrant community for over 20 years. Two AILA members, National UPL Committee member Jason Abrams and Past AILA President Allen Kaye have been trying to rid the community of this parasite for many years. They were in the forefront of the final effort, providing important evidence to the Attorney General. Other, newer AILA members were instrumental in supporting the Attorney General's complaint with detailed affidavits.

The International Immigrants Foundation's President, Eduardo Juarez, had a column in El Diario as well as a spot on 93.1 FM, a major Spanish speaking radio station. He is not an attorney. In the past, he had fooled even some in the New York City government and had some close relations there – attending planning meetings, glad-handing celebrities, and holding an annual parade down Manhattan's Sixth Avenue. His fees were at the higher end of the scale, way beyond those a registered 501(c)(3) organization like his should have entertained, and to make matters worse, he charged a monthly membership fee during the course of pending immigration matters.

New York does not have a perfect law regarding the unauthorized practice of law, but with what we have, and the determination of the Attorney General's Civil Rights Bureau and Charities Bureau, this predator is being shut down. The lesson here is that others concerned about the unauthorized practice of law can go to their attorneys general and use the heroic example of Andrew Cuomo and his staff to show it can be done. AILA's National UPL committee has an ongoing effort to reach out to various attorneys general, but the words of individual AILA members always help.

Now, the task of the New York Bar is to step up to the plate to assist Cuomo's office in finding competent representation for those with ongoing cases.

If You’re Not Outraged By ICE Detention Policies, You’re Not Paying Attention

Buried in the local news section of the New York Times on Wednesday was yet another disturbing report about the treatment of immigrant detainees by US Immigration and Customs Enforcement. http://bit.ly/5df4fp. Detainees at the Varick Street Detention Center in Lower Manhattan reportedly went on a hunger strike to protest ICE detention policies and practices. A Jamaican detainee alleged that "all hell broke" loose after about 100 detainees refused to go to the mess hall on Tuesday morning and gave ICE officers flyers declaring they were on a hunger strike protesting detention policies and practices. According to the Times, one detainee claimed a SWAT team used pepper spray and 'beat up' some detainees, took many to segregation cells as punishment and transferred about 17 to immigration jails in other states. The 20 detainees remaining in his dorm were threatened with similar treatment if they continued the hunger strike. Other detainees reported they had seen immigration agents in riot gear dragging detainees from the far side of the jail while other detainees were taken to the segregation unit. Most detainees who reported the incident would not give their names for fear of retaliation.

It may not seem surprising that prisoners would protest the conditions of their confinement. But ICE detention is particularly suspect and each and every allegation of abuse must be taken as if true until ICE proves otherwise. This latest report comes on the heels of a major article that ran in the Times on Sunday, January 9, 2010 that exposed a detention system riddled with abuse, neglect, death, and corruption which immigration authorities have schemed to keep secret. Over the past two years there have been no less than 20 alarming articles about abuse and death in ICE detention including,

• Officials Hid Truth of Immigrant Deaths in Jail, January 9, 2010 http://bit.ly/5b6sTY
  
• Officials Say Detainee Fatalities Were Missed, August 17, 2009 http://bit.ly/40x9fD
  
• Immigrant Detainee Dies, and a Life Is Buried, Too, April 2, 2009 "http://bit.ly/2Id48H
  
• Ill and in Pain, Detainee Dies in U.S. Hands, August 12, 2008 http://bit.ly/4Elc0h
  
• Few Details on Immigrants Who Died in Custody, May 5, 2008 http://bit.ly/7iffNx
  

A more complete catalog can be found at http://bit.ly/8JBA1w. Each article gets longer and more urgent.  And this list doesn't include Congressional testimony and other independent reports detailing horrific detention conditions. As the Times stated in its January 19 editorial http://bit.ly/5WR6jE,

Americans have long known that the government has been running secretive immigration prisons into which detainees have frequently disappeared, their grave illnesses and injuries untreated, their fates undisclosed until well after early and unnecessary deaths.

What we did not know, until a recent article in The Times by Nina Bernstein, was how strenuously the government has tried to cover up those failings — keeping relatives and lawyers in the dark, deflecting blame, fighting rigorous quality standards, outside oversight and transparency. These deficiencies endure today. 

It is nothing less than horrifying that the terms "disappear", "secret", and "death" can be used to describe ICE detention. When will the Obama Administration act to protect the basic human rights of immigrant detainees? How many more will have to die before someone in government is outraged enough to start paying attention?

I Was Wrong About The Gutierrez Bill—It’s Worse Than I Thought

By Deborah Notkin, AILA Past President


In an analysis of the Gutierrez bill that gave the employment provisions for future flows of lesser skilled workers more credit than they deserve, I mistakenly assumed that hopeful workers from abroad would be linked up with the internet based program in Section 503 of the bill to put these workers in touch with employers who "have traditionally relied on unauthorized labor" in the past. But there is no link to this database. Instead the plan is to have a lottery of 100,000 for the next three years which will focus primarily on citizens from countries historically providing us with our undocumented workforce. No employment offers or family ties are part of the consideration. The lucky recipients will get to come to the U.S. for three years on a transitional visa and then have a pathway to permanent residence without the indicia of employment. They are chosen at random and after that, who knows?


There is nothing in this bill that provides for future workforce needs, despite all the statistics and historical data of the continuing need the U.S. will have for non-agricultural lesser skilled workers as baby boomers retire and our birth rate declines. And while the serious unemployment figures in our country have indeed temporarily lessened the need for foreign workers in some segments of the workforce, there are many sectors employing lesser skilled workers that still cannot fill worksite needs in this economy.


We desperately need a visa system for future flows that works in a range of economic climates, from boom to bust. We have no system to bring in non-professional skilled and unskilled workers to fill non-seasonal positions. We have had and continue to have chronic shortages in many sectors of our economy. Lack of a reasonable provisional visa program for non-professional workers to augment gaps in the domestic workforce is imperative if a legalization program is not to commit the mistakes of omission in the past Amnesty Program of 1987. That omission is the lack of a nonprofessional work visa so needed workers can come here in a safe, legal and orderly fashion.

Rep. Steve King--A Modern Scrooge (Unreformed)

Sometimes, there are no words to describe someone's insensitivity. You just have to let them express it themselves. So, I give you the words of Reprsentative Steve King (R. Iowa), explaiing why TPS for Haitians is not necessary:

Illegal immigrants from Haiti have no reason to fear deportation, but if they
are deported, Haiti is in great need of relief workers and many of them could be
a big help to their fellow Haitians.

Rep. King's statement is reminiscent of Scrooge's statement from "The Christmas Carol:"

First Collector: At this festive time of year, Mr. Scrooge, it is more than usually desirable that we should make some slight provision for the poor and destitute.
Ebenezer: Are there no prisons?
First Collector: Plenty of prisons.
Ebenezer: And the union workhouses - are they still in operation?
First Collector: They are. I wish I could say they were not.
Ebenezer: Oh, from what you said at first I was afraid that something had happened to stop them in their useful course. I'm very glad to hear it.

Congratulations Representative King. You have reached the level of Ebenezer Scrooge in your feelings for suffering immigrants. I am sure you are proud of yourself.

DHS Prepares Detention Center For Haitian Refugees

While the US government is valiantly leading the effort to bring disaster relief to the people of Haiti, back in the U.S. the Department of Homeland Security is quietly preparing for the possibility of an influx of unwelcome Haitian refugees by creating space at South Florida's main detention center. The Los Angeles Times reports that between 250 and 400 immigration detainees are being moved out to clear space for any Haitians who manage to reach U.S. shores. DHS also states that Guantanamo Bay could be used to house temporarily house Haitian immigrants. http://bit.ly/5V7kQa



Not that there are any Haitians sailing toward the US at the moment, or that a grand influx of Haitian refugees is expected any time soon. No, the DHS just wants to prepare the prison cells in case the Haitians arrive.

Sometimes I wonder if the bureaucrats who run DHS have any clue about what goes on outside their government offices. Have they seen the news reports out of Haiti this past week? Do they not understand that most Haitians are simply trying to find enough food, water, and medical help to make it through the night, let alone planning to ferry themselves across a very dangerous stretch of the Caribbean Ocean to reach South Florida?

And, assuming that some Haitians did make it here, what is the point of detaining them? Why not simply give them the Temporary Protected Status granted to their fellow Haitians who were in the US when the earthquake struck or grant them Humanitarian Parole? Of course, there are those who will argue that if we don't lock up new Haitian arrivals we'll only encourage their brethren to follow. And there may be some truth to that. But given the horrific situation in Haiti, it's difficult to imagine that detention will serve as a deterrent. It would make more sense to give Haitian refugees TPS or Humanitarian Parole so they can remain free, and work to build the resources they will need to return to their homeland once the situation permits.

Martin Luther King’s Birthday

This week marks the 81^st birthday of the Rev. Dr. Martin Luther King, Jr. His heroic struggle for civil rights, a battle for which he paid with his life, is an inspiration to all Americans. While there has been progress since the 60s, there remains much work to be done.

Last week, USCIS Director Alejandro Mayorkas, speaking at the first naturalization ceremony timed to honor the slain civil rights leader, reminded the nation that the legacy of Dr. King and the civil rights movement of the 60s is America's promise of a dream to all who are able to come here. "When we greet new citizens into the United States we speak of the open opportunities that our country presents to everyone around the world who qualifies for the benefits our agency administers…Martin Luther King helped define those hopes and opportunities for everyone."

I applaud Director Mayorkas for his words and for honoring Dr. King's memory with citizenship ceremonies around the country. But it is also important to remember those who cannot get here or who are here but cannot enjoy America's promise—the victims of persecution and torture who seek refuge in America but have been refused admission; the business entrepreneurs, scientists, artists, and others who long to contribute to America’s economy, social fabric, and culture but are subject to a bureaucratic “culture of no” as well as absurd visa quotas and interminable backlogs; the husbands, wives, fathers, mothers, sons, daughters, brothers and sisters who dream of reuniting with their loved ones and have played by the rules only to find themselves at the wrong end of a broken immigration system. And, of course, we must hold in our hearts all those who are in the U.S., but are detained or live in fear of arrest, deportation, and separation from their families because America offers them no pathway to citizenship.

I would encourage everyone to take time this week to read (or re-read) Dr. King's Letter from a Birmingham jail http://bit.ly/fRSs. It is an open letter written on April 16, 1963, by Dr. King from the city jail in Birmingham, Alabama, where he was confined after being arrested for his part in a planned non-violent protest against racial segregation by Birmingham's city government and downtown retailers. His eloquent words apply with equal force to all struggles for human rights, including today's fight for immigration reform.

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

***

How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

Secretary Napolitano’s Statement Announcing TPS for Haitians

Press Office

U.S. Department of Homeland Security

January 15, 2010

Contact: DHS Press Office, (202) 282-8010

STATEMENT FROM HOMELAND SECURITY SECRETARY JANET NAPOLITANO

"As part of the Department's ongoing efforts to assist Haiti following Tuesday's devastating earthquake, I am announcing the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States as of January 12, 2010. This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration's continuing efforts to support Haiti's recovery.

"At this moment of tragedy in Haiti it is tempting for people suffering in the aftermath of the earthquake to seek refuge elsewhere. But attempting to leave Haiti now will only bring more hardship to the Haitian people and nation. The international community has rallied to deliver relief to Haiti. Much has already arrived and much more is on its way. The Haitians are resilient and determined and their role in addressing this crisis in their homeland will be essential to Haiti's future.

"It is important to note that TPS will apply only to those individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.

"The Department of Homeland Security continues to extend sympathy to our Haitian neighbors and support the worldwide relief effort underway in every way we can. Four Coast Guard cutters have arrived in Haiti, in addition to a variety of Coast Guard assets that were already in the area to support military air traffic control, conduct damage assessments and rescue people in need of assistance. The Federal Emergency Management Agency (FEMA) continues to work closely with the U.S. Agency for International Development (USAID) and the State Department—the lead U.S. federal agencies in the response—while coordinating the deployment of state and local Urban Search and Rescue Teams from across the country to Haiti and standing by to provide food, water and other resources as requested. U.S. Customs and Border Protection (CBP) has provided aircraft to support response efforts.

"Haitians in the U.S. who are eligible to apply for TPS should go to www.uscis.gov or call USCIS toll-free at (800) 375-5283."