Today, New York Attorney General, Andrew Cuomo, turning his attention rather momentarily away from Wall Street, issued more than 50 subpoenas to individuals and businesses in New York City, as part of a widening investigation into immigration fraud by unauthorized practitioners and businesses, including “non-profit” businesses. The New York Times reported today some details of the investigation and provides some short glimpses into the hardships caused by these predators.

To Attorney General Cuomo I say thank for doing what Attorney Generals around the United States (and, heck, the Attorney General OF the United States), should have been doing for years. Its about time that the law enforcement authorities took seriously the damage these predators cause on one of the most vulnerable sectors of our society–new immigrants.

Even that bastion of the letter of the law following government agency–the USCIS, does not actively investigate and prosecute the very people violating its own regulations! Might I cite you to 8 C.F.R. 292.1, which clearly states that NO one may represent someone before the USCIS who does not fall within that specifically detailed list. The USCIS sees it going on first hand, yet does nothing about it. You have to ask yourself, why? Is it perhaps because it is just easier to deport the victims, rather than go after the perpetrators?

But, let us not forget to be introspective too. Whenever we see this happening, we also need to ask ourselves–are attorneys assisting in this unauthorized practice of law? Too many times, attorneys are sucked into “non-profit” enterprises, or pair with in-the-know “community leaders” who have the attorneys act as fronts for their UPL activity, when the attorneys have little to no knowledge of immigration law, and abandon all attempt at the illusion of giving legal advise, all for the 30 pieces of silver these bad actors give the attorneys in return.

As we approach comprehensive immigration reform, and the tremendous demand that reform will put not only on the USCIS and the immigration system, but also on the need for competent legal services, we have to demand that federal and state authorities act now to send the message that taking money to give no service and do no good, will not be tolerated, Further, USCIS must send the message that it will not tolerate an abuse of its own system (isn’t USCIS perceptually doing that now with the record setting number of RFEs it is sending out), and begin to prosecute the UPLers. Remember, it is a violation of law to not sign the forms submitted to USCIS if you complete them for someone else–Come on USCIS, do a real investigation!

So, Bravo to Attorney General Cuomo. Let’s see if Attorney General Holder will follow suit and put a stop to these Harbingers of Doom.

President Obama is delivering on his promises to make comprehensive immigration reform a reality. With heightened political clout and a Democratic congressional majority in tow, President Obama is poised to bring urgently needed change to immigration policy. According to Politico, President Obama has invited Congresspersons to the White House for a June 8 meeting to highlight immigration reform, “[t]he meeting will be an opportunity to launch a policy conversation that we hope will be able to start a debate that will take place in Congress later in the year.” http://www.politico.com/blogs/joshgerstein/0509/Obama_sets_WH_immigration_reform_event_for_June_8_.html

Obama’s policy drive has impeccable timing. The need for comprehensive immigration reform is apparent. The current system is broken on many levels. There are no legal channels for essential workers in the service sector – restaurant, hospitality, nursing homes, janitorial, agricultural etc. There are unrealistic caps on highly skilled professionals. Interminable backlogs separate families and provide little incentive to immigrate by following the rules. The existing enforcement-only immigration policy is inadequate to meet the economic and social needs of the United States. Unless we reform our immigration laws now, the economic security of the nation is threatened.

Comprehensive immigration reform is a dire necessity. The need to reform our immigration laws now could not be more immediate or urgent. We need to provide a path to legalization for the 12 million undocumented persons living in the United States. An estimated 3-4 million of these folks have U.S. spouses and children and many have been here for decades. Many own homes and support their families and are critical to our economy. However, we must not restrict the political debate to providing a path to legalization for the 12 million. Congress must realize that the plight of the immigrant is not only about those without status. Comprehensive immigration reform must address the plight of those who patiently wait abroad to be re-united with their families and are stuck in absurd decade-long backlogs. It also must address the needs of industry and science which urgently requires uniquely qualified immigrants. We have a rare opportunity to fix a broken immigration system that violates fundamental principles of justice on a daily basis. The current detention policy is irrational, unsafe and inefficient. It is clear the enforcement-only policies are hurting our communities and not solving the overall problem. Existing legal channels are inadequate to meet social or economic needs. The caps on high-skilled professionals and the lengthy backlogs separating close family members are simply astounding. A Stanford graduate with a master’s degree in computer science born in China or India must wait a decade after certification by the Department of Labor that there are no US workers for the job. The married Filipina child of a US citizen must now wait almost 20 years for a visa. The need for workable pragmatic solutions that restore the rule of law and meet US economic, social and security needs is obvious. The need for reform is critical; the timing is urgent.

In the midst of this economic crisis, Congress must realize that comprehensive immigration reform is a key to our nation’s recovery. Rather than restricting the number of professional and skilled workers able to contribute, we must let market forces regulate the number of workers needed. This year market forces empirically proved that they are capable of regulating the visa system. Employer’s demand for H-1B visas dropped dramatically as the job market tightened. There was no need to micro-manage or restrict visa numbers-economic need automatically achieved a better result.

Rather than discouraging foreign investment, we must provide incentives to bring in foreign capital. Preventing companies and highly skilled professionals from entering the country only worsens the recession. The United States was founded upon the innovation and ingenuity of immigrants. Comprehensive immigration reform needs to encourage foreign investment and increase caps on skilled professionals in order to facilitate the flow of innovation and ingenuity into the country. There is no advantage in keeping out the best and brightest that the world has to offer. Highly educated international talent is an asset to the American economy. The best and the brightest professionals, many of whom have been educated in the US, are needed to play a role in the economic recovery. Now, more than ever, U.S. companies need to be competitive globally. Artificial barriers to talent acquisition prevent innovation, which in turn limits job creation. There has been so much inaccurate information regarding the H-1B specialty occupation temporary work visa category that it is worth taking the time to clarify. H-1B workers are a very small part of the U.S. workforce. About 85,000 new H-1B workers are approved each year, compared to a U.S. workforce of about 145 million people (which is .06% or six 100ths of 1%). Protectionist H-1B restrictions undermine the President’s economic stimulus package and threaten our economic security. A recent National Foundation for American Policy brief found that rather than displacing Americans, for every H-1B position request, U.S. technology companies increased their employment by 5 workers. H-1B professionals play a vital role in US innovation – they are scientists and engineers that promote innovation – and innovation promotes economic growth. For example, foreign born professionals file more US patents and start more businesses proportionally than their US counterparts. A December 2008 study from Harvard Business School found that immigrants comprise nearly half of all scientists and engineers in the United States who hold Doctorate Degrees. Therefore denying US employers access to foreign national professionals, including those educated in the US, forces this international talent into the arms of our overseas competitors, which will cause US employers in the science and engineering fields to lose out. These decades-old visa categories are critical to our economic security and have served our economy well. A March 2008 study of 120 technology companies, by the National Foundation for American Policy (NFAP) found that 65 percent of these companies had reacted to the arbitrarily low limits on the H-1B visas by moving more of their work out of the U.S. to countries where the highly skilled workforce is available. Limiting access to H-1B workers could delay economic recovery and as the economy recovers, U.S. employers will need new skilled workers. Since foreign nationals make up a substantial portion of U.S. graduates in science, technology, engineering and mathematics, it is in our best interest to make H-1B visas available to keep this talent here. The H-2B temporary program also meets specific labor needs primarily for small business owners working in seasonal and often remote locations. These jobs have been certified by the Department of Labor to be in short supply and that there are no US workers to fill vacant short-term positions. There are rigorous protections for U.S. workers that protect U.S. jobs and working conditions in these visa categories. Unfortunately there are no legal channels at all for most essential workers in the service sector—restaurant, hospitality and nursing homes. The biggest problem with these temporary visa categories is that the numbers are absurdly restricted. We need comprehensive reform now to allow for sufficient leeway, where up-to-date industry and economic needs dictate visa caps.

There is no better time for President Obama to deliver on his campaign promises and make comprehensive immigration reform a reality. For nearly 400 years this great nation has experienced growth and success that was paved by the sweat and innovation of industr
ious immigrants. We can only hope that President Obama with his clear vision will to lead us to prosperity as part of his plan to provide broad immigration reform to our broken system.

Deborah Notkin, AILA Past President, contributes today’s blog on CIR:

For those of us who have long been committed to Comprehensive Immigration Reform including a path to legalization for the undocumented, family reunification, restoring the order of law AND having a reasonable temporary worker visa can see the great opportunities to achieve this under the Obama administration but great dangers as well.. The various constituencies who have been fighting for change for years know that there has to be something in it for all the involved parties, business, labor, the ethnic communities and the faith-based community in order to insure passage in Congress.

In the past, the various constituents have been able to forge reasonable, albeit imperfect, proposals going forward. Each group needs to feel that they have gotten the benefits most important to them but not to put a stop to the components of reform important to other sectors of this incredible coalition. A poison pill from any one of these constituencies will kill the possibility of going forward.

Unfortunately, some who have recently voiced partial support to comprehensive reform, take divisive positions that could become a poison pill which will ultimately defeat achieving reasonable reform. They take the position that our immigration system must be based solely upon permanent immigration. Statements made in the discussion assert that all temporary worker programs are exploitative by nature, take jobs from US workers and enrich the enemy – US Business. They not only demean the current H-1b, H-2A and H-2b programs without substantial foundation or facts but they clearly oppose anything that is not permanent immigration.

This disingenuous position flies in the face of not only the experience in the US but the success of other countries which have intelligent temporary worker programs. A reasonable temporary worker program that allows a pathway to permanent residence has been lacking in US temporary worker programs for non-professional labor, making it impossible in periods of employment shortages, for employers to fill chronic needs.

And our professional visa program is important to keep the best and brightest foreign students, who make up a substantial amount of our engineering, science and technology graduates from US universities. We know from all the authoritative research that we need to improve US education in these fields from kindergarten on up but in the meantime, our global competitiveness depends on our innovative industries to be able to get the professionals that they need. And the US labor market does not provide the needed talent in sufficient numbers. It is one thing to look at what may be problematic with the H-1b program and fix it, either through enforcement or regulatory change. It is quite another matter to nix it.

One might ask, why would we be talking about this type of program in this period of recession and unemployment? It is precisely a good time to measure our programs, to insure that we are protecting the US labor force but also providing employer’s workers for jobs for which US workers are not available. Given the difficulty of crafting and passing immigration legislation, when the opportunity arises, we need to craft proposals that work in periods of economic prosperity as well as in recessions.

There are many reasons why, even in this economy, jobs go begging. Skilled, state of the art machinery, requiring skilled workers is not available everywhere in the US Labor force And lesser skilled physical work, particularly when it means relocations to remote areas, frequently garners no takers.

Many advocates in the fight for a humane and productive immigration system also argue that our country needs to do more to shore up the economies of our immigrant “feeder countries.” primarily South of the Border in order to reduce the pressure to migrate to the US. One of these ways this can be accomplished is the seasonal worker program. Workers come to the US to work in agriculture or other industries during the down season for like products and services in their home countries. Many of these workers desire to leave their families at home, make US dollars to bring home and these dollars help these economies in many ways, including setting up small businesses, increasing consumption and sending children to good schools. This is called circular migration, which is indeed the choice of many migrants. It does not mean that there should not be a path to permanent residence for those who so desire and this dual concept of temporary to permanent was originally crafted in the AgJobs legislation, a brilliant proposal developed by business and labor together.

So why then, do a strident few oppose all temporary worker programs? Some have said it is because temporary workers don’t make permanent, dues paying union members. However, as mentioned above, several service worker unions have been in the forefront of the push for immigration reform since its inception and have recognized the need for reasonable temporary worker programs as an element of any rationale system going forward.

Whatever it is, the exemplification of temporary worker programs constituting “indentured servitude” and labeling the entire employer community as the oppressive, exploiting class, fly in the face of the facts of our current, imperfect and limiting temporary worker programs. For example, the employer must offer the prevailing wage, as designated by the Department of Labor. Even the most unskilled jobs on the ONET/SOC website, used as the primary prevailing wage source for the H-2b program, designate a prevailing wage that is well above the minimum wage. The abuses referred to by opponents of temporary worker programs involve in actuality a small number of businesses, primarily those that are “body shops” or job contractors and in the non-professional H-2A and H-2b programs, these contractors have pretty much been regulated out of their previous exploitative practices if not from the entire program as a whole.

And what about “displacing US workers”? For all the H-2b and H-2A programs, the employers are required, at their own expense, to try to recruit US workers. This recruitment is mandated and supervised by the Department of Labor. I have represented clients in this endeavor who could not find US workers as well as those who found US workers through the required H-2b US worker recruitment program, negating their need to move forward with the H-2b process and alternatively, hiring the US workers.

Another concern, legitimate indeed, is that the possibility of exploitation is greater when one cannot easily change employers. All of the legislation proposals in the past and most likely going forward, will give the immigrant workers “portability”, a system which allows them to switch employers in the same job category which qualified them for a work visa in the first place. While there is a lot to be said for overhauling the cumbersome H-2b and H-2A programs, temporary worker programs are essential to an overall rational immigration policy.

Department of Labor statistics point to a shortfall of available lesser skilled service workers in a number of sectors over the next decade. Without a temporary worker program as part of immigration reform, we risk having the same situation 20 years from now that we have now. During the Amnesty of 1986, we legalized over 3 million people. Those people have moved on. They have retired, they have become small business owners, they have educated themselves and their children. We need to remember several salient facts. According to the American Society of Entrepreneurs, 47% of successful new entrepreneurs are immigrants. And according to a number of surveys, children of immigrants are more likely to go to college than the domestic population. In short, legalized immigrants have attained the American Dream and moved on. They have contributed to our economy, our tax roles and our
culture. But what they have not contributed to is an eternal supply of lesser skilled workers. For this, we frequently need immigrant workers.

Let’s not make the mistake of the 1986 Amnesty. We legalized a lot of good people, many attained the American Dream and we did not include a reasonable temporary worker program for future flows. So what we created was the problem of illegality all over again when our economy was hungry for more skilled and lesser skilled workers than the US was creating. It would be tragic to create this cycle again. Next time, I don’t think the American people will be as open to yet another legalization program.

Hopefully, the rest of the pro-immigration community will see this poisonous stance for what it is – a spoiler to reasonable reform that promises to unite our families, build our businesses with necessary workers, and restore both human rights and border security.

Is it possible? Is there really link between President Obama’s bold nomination of Judge Sonia Sotomayor, with possible movement or non-movement on Immigration Reform this fall? The folks over at http://www.electoral-vote.com/ note that there may be a link:

“A side effect of the Sotomayor nomination is that it may allow Obama to delay dealing with immigration reform for a while since Latino voters will be feeling good about him for a while just due to this nomination. On the other hand, if Obama (or more realistically, Rahm Emanuel) wants to enjoy the spectacle of the GOP tearing itself to bits, reintroducing the McCain-Kennedy immigration bill would be a good first start. The Tancredo wing the the Republican party will go all out to block it because it provides a path to citizenship for over 10 million illegals currently in the U.S. But an all out fight against these people–many of whom have friends and relatives who are citizens (and voters) will further alienate Latinos from the Republican Party. In contrast, the only major Democratic constituency that might oppose the bill is the labor movement, but there are probably other ways to mollify them (e.g., an all out push for card check).”

The reality is that with Judge Sotomayor’s nomination we could actually see an even stronger movement toward immigration reform. Clearly, by nominating a Latina to the highest Court in the land, President Obama has sent a very strong message to his Latino constituency. The question remains, however, is this enough of a message to delay immigration reform? My guess–absolutely not. One nominee to the Supreme Court still does not balance the incredible harm still being done to the legal and undocumented Latino community by the continuing aggressive and race based immigration enforcement only program the Obama administration continues to employ. Only when Driving While Hispanic is an historical footnote will the Latino vote be satisfied that America has lived up to her true potential.

In the first week of May—without comment or, apparently, any concern for its impact—U.S. immigration officials unilaterally rewrote the law, disqualifying thousands of families and workers trapped half-way through the green card process. As a result, people who just last month would have been welcomed as legal residents are now facing deportation, most with no hope of return.

It’s not clear what prompted this policy, but the draconian new interpretation wasn’t needed to implement or comply with new law. And given the administration’s stated goals of promoting both change and transparency, this mean-spirited end run by an agency that lacks even a sitting Director, is puzzling at best.

In our current “zero-tolerance” climate, even the most minor immigration violation often prevents a person from obtaining legal status. Since 1996 (and before), our immigration laws have provided severe penalties for overstaying a visa, working without proper documents or remaining in the country unlawfully. At the same time, however, Congress also provided a limited—and critical exception: those with established family ties or employment–people with no criminal history, no record pf serious immigration violations or security concerns–might nonetheless complete the process after paying a whopping $1000 fine, beyond the usual hefty fees and expenses. Even with these harsh restrictions, for those that complied with the law, there was at least the prospect that families could be reunited and needed workers successfully become residents.

But that all changed when USCIS—the agency tasked with adjudicating immigration benefits—decided to ignore more than a decade of precedent (including two circuit courts of appeals decisions). Now, the agency will not only refuse to accept any applications filed under this provision, but will deny—and seek to deport–those who relied on the law.

These immigrants weren’t taking advantage of a loophole or cutting ahead of the thousands who are trapped in our unworkable immigration system: on the contrary, they stood in line and paid thousands in extra fines and fees; and many have been waiting more than a decade for their chance at citizenship.

This decision doesn’t just impact intending immigrants, but also their families, employers and the communities in which they have legally resided all these years.We insist that would-be immigrants play by the rules, but what happens when USCIS changes the rules in the middle of the game? We all lose.

Editor’s Note: The policy change referenced here relates to a May 6, 2009 USCIS memo on Consolidated Guidance Concerning Unlawful Presence.

A guest post from AILA Board of Governors Member Dagmar Butte:

I recently received a response to a Contact Congress letter from a new Senator that appeared, on its face, to fully support CIR. As I read the letter more carefully; however, it became apparent that the letter focused almost exclusively on border control issues and employer compliance. It concluded that these goals had to be accomplished before any other sorts of reforms could be enacted. He said we needed to restore the rule of law first. The letter brought me face to face with two unpleasant realities and reminded me that we cannot relax our advocacy efforts with the new administration. First, this person is a Democrat so it proves we cannot make any assumptions about anyone on this issue based on their party affiliation. Second, it reminded me that there is a lot of education of policy makers to be done and we as AILA members are ideally suited to that task because we see all parts of the immigration system in a way most people never do.

While I think we all agree that employer compliance and border control must be a part of any comprehensive reform- even if we disagree how that should be accomplished – we have to teach Congress that Comprehensive Immigration Reform is so much bigger and more complex than that. It is not just about putting more guards on the border and punishing employers who hire undocumented workers. Restoring the rule of law cannot occur if the law is, as this Senator acknowledged, broken. Only when our law is restructured in such a manner that it fairly addresses all aspects of immigration can we regain control over our borders and obtain employer compliance. These things are not a prerequisite to reform; they are the end result of sensible, well thought out comprehensive reform.

We need to make it viscerally clear to Congress that, among other things, today we have a system that denies immigrants basic due process protections, allows them to die in jails when there only sin is being undocumented, and separates US citizen children from their undocumented parents – or worse – end up deporting these US citizen children with their parents if there is no one in the US to care for them. We all – members of Congress and ordinary Americans – need to remember that these are people. They are mothers, fathers, husbands, wives, sons and daughters – often of American citizens or lawful permanent residents.

Whenever I have told a member of Congress a sympathetic story in this realm, the usual response is: “That poor family, something should be done to help that person.” The problem is that this is often the same member of Congress who also says: “We must be tough on unlawful immigrants, we must control our borders and we must increase enforcement.” This is clearly a disconnect since the only way to help that poor family, and thousands like it, is to fully reform the system and not focus on enforcement and ignore reform until enforcement works. Sadly, since 1996, Congress has largely played to the second sentiment and usually ignored the first. This must change or we are headed for a crisis much more serious than we face today. Immigration issues to some degree or other permeate every major piece of legislation Congress will consider this year from health care reform to economic legislation and Congress must craft a reform bill that allows these other important pieces of legislation to proceed smoothly and it must do so soon. We as AILA members have an obligation to help Congress do that.

Here is just a short list of what I would like to help Congress craft. Use all or part of it, use it as a jumping off point for your own list, but whatever you do, make sure Congress gets that any attempt at immigration reform must include the following:

1. A method for families to be united in the United States without subjecting them to the lengthy or even permanent bars to re-entry that result purely from unlawful presence in the US. To do this, INA 212(a)(9)(B) and INA (a)(9)(C) must be eliminated.
2. A more sane and less arbitrary method for aliens in removal proceedings who have US citizen or LPR spouses, parents or children to remain in the US than the current Cancellation of Deportation process.
3. Restoration of due process protections for all aliens, even those who have committed serious crimes. After all, our constitution does not say every person is guaranteed due process of law “unless he or she is a criminal.” It says everyone gets due process.
4. More resources for Immigration Courts and the Board of Immigration Appeals so that they have the time to actually decide and review cases in a meaningful manner. This will relieve pressure on the Courts of Appeals and restore integrity to the immigration review system.
5. Restoration of discretion for Immigration Judges particularly in cases involving minor criminal violations where the alien either has fully reformed or the factual circumstances are such that there are substantial mitigating circumstances.
6. Making Immigration Judges truly independent so that there are free to render truly impartial decisions and so that they are not viewed – rightly or wrongly – as simply rubberstamping the policies and decisions of DHS.
7. A restructuring of the current quota system that actually considers the migration patterns of today –both in terms of family and business immigration. For example, today’s quotas were created at a time when no one anticipated large numbers of brilliant engineers coming from India and China and a time when, frankly, we did not need them. Today we do and the current nine year backlog in processing petitions for Indian born engineers who hold Masters’ Degrees (many from the US) is outrageous and stupidly shortsighted.
8. A robust program both for high skilled workers and essential workers in agriculture and other industries that have difficulty attracting a qualified workforce.

This is just my two cents, make sure you put in yours!