Will Obama Administration Pacify Roiling Immigration Seas?

March 2009Newsletters Legally Speaking

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America is navigating through roiling, frothy, possibly even deadly seas of uncertainty caused by the economic meltdown of our nation and indeed the world. Month after month brings growing unemployment, company shutdowns, re-evaluation of spending, and the government’s unprecedented role in an effort to buoy the ship of state as it takes on extraordinary deluges of proverbial water.

Continuing the nautical metaphor, our ship has a new political captain, whose stated course evokes hope. For aliens, either on the ship or seeking to board, there is fear that they will either not be permitted entry or be thrown overboard into the churning depths.

The Pennsylvania State University recently opened its new law school and Center for Immigrant Rights with a symposium featuring “A-list” advocates and academics. The symposium provided significant insights regarding the state of immigration law and policy.

Late in the afternoon of the all-day program, one lawyer in attendance asked the panel, “With all the terrible things that you say are happening to aliens in this country, the criminalization of work, the culture of enforcement, deaths and detention, do I have an ethical obligation to advise my clients not to come to the U.S.?” This stumped the panel and stupefied the audience until Kareem Shora, National Executive Director, American Arab Anti-Discrimination Committee, said that after President Obama’s inauguration, there is hope for change.

The experts expressed faith that the Obama administration will push for the legislative initiative that has become known as Comprehensive Immigration Reform (CIR). According to panelist Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association, CIR rests on four legs – border security, employment authorization, enhanced availability of employment-based visas and legalization. She is hopeful that a comprehensive package will be enacted before the end of 2009 and is doubtful that there will be piecemeal legislation anytime soon.

Professor Steven Legomsky of Washington University School of Law, and author of the principal law school case book on immigration law, analyzed the political line in the sand that has been drawn in the debate. Immigration restrictionists tend to view the undocumented population collectively, while advocates see undocumented immigrants as individuals. There is no evidence, according to Legomsky, that undocumented individuals are more prone to commit crimes than the general population. There is no consensus among economists as to the total economic or labor market impact of our undocumented population. What Legomsky pointed out quite clearly is that immigration policy affects individuals. He ended by saying, “Never forget that by demonizing our immigrant populations, we are talking about our friends and our neighbors” and, by extension, employees and colleagues.

Coming down from 30,000-foot view and hoping for legislative change at a federal level, New York University Law School professors Nancy Morawetz and Muzaffar Chishti spoke about enforcement. Morawetz pointed out that the Department of Homeland Security’s (DHS) enforcement strategy - known as “Operation End Game” - is to maximize the number of people removed from our nation’s soil. What has been lost in the numbers game, she said, is prosecutorial discretion and, therefore, proportionality and the human reality. Her hope and prediction is that the Obama administration will change the culture of numbers-only immigration enforcement into a new operational paradigm: smart enforcement that is aimed at ridding our country of threatening, high-profile law breakers, rather than on anyone in technical violation of our complex immigration laws.

With another set of hopeful observations for immigrants, Chishti said that the number of state laws addressing or attempting to address immigration matters and immigrants, legal and illegal, is on the wane. He predicted that state and local law enforcement, similarly, will resume their focus on crime detection and law enforcement, not on the enforcement of U.S. immigration laws.

Recent events provide an unclear picture of whether that hope was well placed. On February 24, 2009, agents from the U.S. Immigration and Customs Enforcement (USICE) continued the Bush Administration strategy of work-place raids and descended on the Yamato Engines Specialists plant in Bellingham, Washington. Twenty eight people were arrested.

In the aftermath of the raid, The New York Times quoted a high-level DHS official saying that its Secretary, Janet Napolitano, “was not happy about it because it’s inconsistent with her position, and the president’s position, on these matters.” The day after the raid, Secretary Napolitano appeared before the House Homeland Security Committee and stated as it relates to these raids:

In my view,we have to do workplace enforcement and it needs to be focused on employers who intentionally and knowingly exploit the illegal labor market. That impacts American workers, has an impact on wage levels and often has an impact on workers themselves. Our ICE efforts should be focused on those kinds of things. We should have thought through prosecutions that are going to result in deportations that result from any workplace action. That is the direction we seek to move.

Addressing the American Recovery and Reinvestment Act of 2009 (Stimulus Bill),Congress also focused on immigrant workers. Balancing the consequences of our economic meltdown with a need for H-1B labor, the act added limitations in hiring H-1B workers by Stimulus Bill beneficiaries. The Stimulus Bill went into effect February 17, 2009, and will sunset February 16, 2011. During that period of time, restrictions are imposed upon H-1B petitions filed by any company that receives funding under Title I of the Emergency Economic Stabilization Act of 2008 (the TARP Bill) or receives funding under Section 13 of the Federal Reserve Act.

Covering only banks and other companies receiving TARP money or credit directly from the Federal Reserve system, the provision imposes restrictions comparable to those currently in place on H-1Bdependent employers. Simply stated, these restrictions require the employer, before filing the H-1B petition, to take good-faith steps to recruit U.S. workers for the position. In doing so, employers need to assert that they have not laid off nor will lay off any U.S. worker in the job category that the H-1B worker is filling for 90 days before and 90 days after the filing of the H-1B petition.

If there are any questions regarding whether an employer has received funds triggering the new application protocols, the list of recipients is disclosed publicly by the U.S. Treasury on its website: http://www.treas.gov/initiatives/eesa/transactions.shtml.

It is clear that the administration is trying to steer its immigration course through stormy seas. A review is under way of many of the Bush Administration’s immigration regulations and policy pronouncements. One controversial policy whose implementation has been delayed and delayed is discussed in more detail by Fox Rothschild immigration lawyer Cynthia Yializis in her article “The Future of E-Verify” in this newsletter.

Whether there are policy and regulation changes or not, for employers who are contemplating layoffs, there are significant consequences for their legal immigrant workers.

To learn more about the Immigration consequences of layoffs, please see the article entitled, “How Layoffs and Downsizing Affect Foreign-Born Employees Working on Visas.”

By the time of our next newsletter, we will see how much of the hope expressed by the experts is warranted.