Obama Administration Launches “Comprehensive Immigration Reform”

June 2009Newsletters Legally Speaking

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How do you spell "America" in 2009? The names of the championship finalists of the National Spelling Bee may tell us something important. There was a Tim and a Kyle, a Kennyi, but there was also a Ramya, who is fluent in Tamil, and Neetu, who is fluent in Hindi. And, the winner from Olathe, Kansas was Kavya Shivashankar. There’s not much more American than the National Spelling Bee. The names of the finalists give us some hint as to who we have become, and who we now are.

May 13, 2009 marked the first anniversary of the federal government’s raid at the Agriprocessors, Inc. meat packing facility in Postville, Iowa. To the United States Immigration and Customs Enforcement agency (USICE),Postville was an experiment. For the first time, USICE sought to criminalize immigrants on a mass scale by prosecuting them criminally for the use of invalid social security cards and other documentation. Using the Federal IdentityTheft statute, the prosecutors secured convictions of these workers, and sent them back to their home countries as felons.

Reacting to the public outcry, the Obama Administration, through Department of Homeland Security Secretary Janet Napolitano, has stated that its priority will be to prosecute employers who violate the law, rather than pursue the employees. Moreover, the United States Supreme Court, in two recent matters, found that an immigrant may not be charged with aggravated identity theft for using another’s social security card unless the government can show that the defendant knew that the card belonged to another person. While these decisions in no way condone the use of fraudulent cards or other documentation, by immigrants or others, they do mean that only in cases where the government can prove that the immigrant knew that he or she was taking a real person’s identity would they be subject to persecution under the Aggravated Identity Theft statute. (See Nicasio Mendoza- Gonzalez v. United States and Carlos Flores-Figueroa v. United States.)

While raids by USICE rounding up hundreds of undocumented workers may become a thing of the past, there are still millions of undocumented aliens presently in the United States. President Obama recently expressed his intentions to push Congress to pass “Comprehensive Immigration Reform” to overhaul the entire system, including the process of employmentbased immigrant and nonimmigrant visas. Major labor unions, including the AFL-CIO, generally are in accord with granting legal status to undocumented immigrants, but are opposed to new guest worker programs or expansion of any temporary worker programs. A union proposal is the creation of a national commission that would manage the future immigration flow of workers based upon that commission’s determination of annual labor market demands.

While many businesses want to see a commitment to Comprehensive Immigration Reform that includes bringing millions of undocumented workers out of the shadows, they also wish to see a program that includes new avenues for bringing in much needed skilled workers. One argument is that, over the years, the absence of sufficient visas has actually helped create the current undocumented workforce. Unless reform adequately addresses the cause of the current undocumented workforce, a new one will emerge again, as it did after the 1986 amnesty. We can expect much more to be written about this as immigration works its way back toward the top of the public agenda. As of this writing, the economy is still the principal issue and the effect of the economy’s downturn is reflected in the demand (or lack of demand) for H-1B visas.

Last year, within days of the start of H-1B filing season,April 1, 2008, all of the H-1B visas subject to cap limits (temporary worker visas for professional workers being offered at least the prevailing wage) were completely over-subscribed. This year, as of June 1, 2009, there are still more than 10,000 visas available.

Concurrent with the continued availability of H-1B visa numbers for new employment, the lack of jobs has resulted in a natural reduction in the flow of undocumented aliens to the United States. In its May 14, 2009 article, the New York Times cites census data from Mexico as follows:

Census data from the Mexican government indicate an extraordinary decline in the number of Mexican immigrants coming to the United States. The recently released data shows that about 226,000 fewer people emigrated from Mexico to other countries during the year that ended August 2008 than during the previous year, a decline of 25%. All but a small fraction of the emigration, both legal and illegal, from Mexico is to the United States… 'If the jobs are available, people come', said Jeffrey S. Passel, senior demographer at the Pew Hispanic Center, a nonpartisan research group in Washington. 'If jobs are not available, people don’t come.'

So, with ice hockey’s 2009 Stanley Cup finally hoisted by the Pittsburgh Penguins following a championship battle among teams filled to brimming with immigrants, we can look forward to:

  • enhanced enforcement against employers, rather than against the undocumented aliens themselves;
  • increased apprehension of undocumented aliens at the border and a reduction of the number of undocumented aliens interested in coming to the U.S.;
  • an improvement of E-Verify and growth of the E-Verify program;
  • continuing backlogs in employment-based immigrant visas, particularly for those born in India and China, and those jobs requiring less than a master’s degree to perform the duties (EB-3);
  • in the name of security, delays in the issuance of H-1B visas by consuls throughout the world but, particularly, in the Indian subcontinent;
  • aberrant decisions by USCIS on a whole host of issues as the implementation of the transition of the Obama Administration trickles down to the level of immigration adjudicators; and
  • loud and acrimonious debate on Comprehensive Immigration Reform.

Here is one important and practical tip for employers of H-1B workers: Make sure your public access file and other documents are in order. H-1Bs will be the new internal enforcement front in the government’s war against undocumented workers.

Pittsburgh lawyer Robert S. Whitehill chairs the Immigration Practice at Fox Rothschild, a law firm with 450 lawyers in 15 offices in seven states. If you have any questions about the information contained in Legally Speaking, or any legal matter, please contact him at 412.394.5595 or [email protected].