Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Today's Most Important Immigration Issues
There are three important and interrelated immigration issues that should be of considerable concern to foreign nationals, their employers, and families:
- the unprecedented shortage of employment-based visas and other viable avenues to lawful immigration status;
- the increasing demands by the immigrant community and employers alike to legalize undocumented foreign workers; and
- stepped up enforcement actions against foreign nationals and their employers by the Department of Homeland Security ("DHS").
In short, fewer visas and expanded immigration enforcement have resulted in headaches and heartaches across the board, and what is more, immediate relief is nowhere in sight.
In the United States, highly skilled foreign nationals and employers who require their services - as well as lesser skilled workers - all are adversely affected by the virtual unavailability of temporary work visas for both professional and nonprofessional foreign workers. The extraordinary long wait for immigrant visas ("green cards") also is frustrating and prejudicial to growing the economy and providing essential services. But, what about promised legislative relief? The House of Representative's leadership recently announced that immigration reform will not be considered this session, and during the remaining pre-election period, any legislative activity that takes place will be designed to highlight legislative agendas more than viable lawmaking. Moreover, we may never see immigration reform if certain current leaders continue to have their way. The current political paralysis that has removed comprehensive immigration reform from the Congressional agenda for the foreseeable future is summed up by the title of once presidential candidate, Pat Buchanan's latest screed, State of Emergency: The Third World Invasion and Conquest of America.
The factually unfounded anxieties raised by Buchanan about immigrants have consequences as incredible as they are absurd. For example, U.S. employers cannot obtain the most common type of temporary work visa, H-1B status, for much needed highly skilled workers until October of 2007. Practically speaking, this means that technology companies, accounting and architectural firms, schools, and virtually every other type of organizations, with very few exceptions, are unable to hire highly skilled foreign workers for the next year. At the same time, it is extremely difficult for most employers to obtain H-2B temporary worker status to meet their needs for lesser-skilled workers. Qualifying for H-2B temporary worker status requires employers to show a temporary rather than a permanent work force, and demand far outstrips the limited supply of H-2B visas.
The news is no better for permanent resident visas, or green cards. According to the Department of State's October Visa Bulletin, for example, employers and foreign workers born in India or China with labor certification-based cases where the job requires a Master's degree or a Bachelor's degree plus at least five years of progressive experience, currently face a two to five-year wait to apply for U.S. permanent residence status (based upon an approved labor certification and/or I-140 petition). For those foreign workers whose positions require at least a Bachelor's degree or at least two years of experience, the wait to be eligible to apply for U.S. permanent residence status may be five or more years. For those foreign workers whose jobs require less than two years of experience, the wait for the coveted green card is at least five years, and more likely ten or more years. Why such a long wait? Again, because demand for green cards far outstrips the numbers allocated annually by Congress. And, these waiting times are likely to become longer as the Department of Labor ("DOL") and U.S. Citizenship and Immigration Services ("CIS") work through their respective backlogs. This unavailability of visas is nonsensical as well as burdensome for countless business and foreign workers who help the U.S. economy at every level.
The wait to become legal is even worse for most relatives of U.S. citizens and permanent residents. For example, unmarried adult sons or daughters of U.S. citizens now must wait at least six years to become legal, unless they were born in Mexico or the Philippines. Those individuals must wait even longer-13 to 15 years-before they can live legally in the same country as their American parents. The spouses and young children of permanent residents must wait at least five and probably ten years to become legal. Again, the wait is longer for Mexicans. This reality simply belies the assertion that American immigration law facilitates reunification of families. In fact, the opposite is true.
The inability to enter legally and to remain legally once in the U.S. contributes substantially to illegal migration. Increased immigration enforcement also means that many undocumented from Mexico, who in years past came to the U.S. for nine months of work and then returned to Mexico for three months to be with their families, now bring their family members to live in the U.S. illegally rather than face apprehension at the border, or live apart indefinitely. Princeton University Professor, Douglas Massey, proves this point in his book, Beyond Smoking Mirrors. He makes it clear with government data that tougher enforcement and fewer visas ironically result in many more undocumented workers living in the United States.
It's against this backdrop of visa supply and demand (i.e., little supply and huge demand) that the U.S. Immigration and Customs Enforcement ("ICE") has undertaken a major interior immigration enforcement action, "Operation Return to Sender." Over the course of the last several months, ICE arrested almost 3,000 foreign nationals. According to the Department of Homeland Security, this nationwide initiative was designed "to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration" by targeting individuals with final orders of removal and others with status violations. While lofty goals, DHS' get- tough strategy seems to be more about public relations in this pre-election period than a tactic that will have long-term and meaningful results.
Looking more broadly, America's current immigration experience is now not unique. The "immigration problem" is not just our problem, as the need for foreign workers in other advanced economies also is beyond dispute. Gideon Rachman of the influential Financial Times, correctly pointed out in his September 12, 2006 article, "Hysteria, Hypocrisy, and the World's Immigrant Hoards" that foreign workers, both legal and illegal, currently are omnipresent in the United States, Europe, Canada, and Australia. Why? According to Mr. Rachman, and many others too, simply because "somebody wants them or they would not keep coming."
And, like Mr. Buchanan, Mr. Rachman also reports in Financial Times "in Europe, there is a similar sense that immigrants from the Third World are massing on the borders."
The need for more flexible immigration laws and visas is further underscored by the words of Demetrios Papademetriou, President of the Washington-based Migration Policy Institute:
Illegal immigration is part of the vital lubricant of our society. It wouldn't be happening if so many people's interest were not served by this status quo.
Mr. Rachman echoes this point and then says more in Financial Times:
The correct response to all this is not to continue hypocritically demanding a crackdown on illegal immigration. It is to create more avenues for legal immigration for workers of all types.
The free movement of people, like the free movement of goods, does not always benefit everybody all the time. But the world is better for it, all the same.
We agree. Hopefully, Congress will get Mr. Rachman's point sooner rather than later and take much needed legislative action to increase H-1B and other visa numbers, and implement an earned legalization program for the undocumented.
ICE Proposal on "Safe Harbor" Procedures for SSA "No-Match" Letters - Another Enforcement Tool
In June of 2006, U.S. Immigration and Customs Enforcement ("ICE") published a proposed rule that would significantly change existing regulations that govern how employers respond to "no-match" letters from the Social Security Administration ("SSA"). A no-match letter is a letter sent by the SSA notifying an employer than it has submitted reports such as W-2s that contain names and social security numbers that do not match SSA records. The proposal would modify the regulations by expanding the list of scenarios that may lead to a finding that the employer had "constructive knowledge" that an employee was not authorized to work and subjecting the employer to criminal and civil penalties if the employer continued to employ the worker. The rule includes a "safe harbor" provision that imposes new legal obligations a U.S. employer must follow to avoid liability if a no-match letter is received.
Current ICE guidance states that the receipt of a no-match letter does not in and of itself put an employer on notice that it is employing unauthorized workers, even though ICE guidance also makes clear that it would be incorrect for an employer to assume that it can safely ignore any legal relevance or consequences of SSA discrepancies. The proposed rule, however, would mandate procedures to be followed to resolve SSA no-matches within a stipulated period of time, or face penalties. While still just a proposal, the rule reflects another sweeping enforcement measure that ignores the economic realities that are likely to fuel illegal migration, undermine comprehensive immigration reform that seeks to combine worksite enforcement with a regulated worker program, and penalize millions of well-intentioned employers and hardworking immigrants.
Comments to the proposed rule were due by August 14, 2006. If this proposal is finalized, we will provide guidance on how to implement the required procedures in order to protect against such penalties.
Legal Times Recognizes Michael Maggio As Leading Attorney in Washington, DC
Founder of Maggio & Kattar, Michael Maggio was recognized this month in Washington's leading legal and lobbying periodical, Legal Times, as one of ten attorneys in the Washington, DC area who "open doors for those seeking refuge or jobs." Jenna Green of Legal Times says,
These are challenging times to practice immigration law.... But economic concerns about jobs and wages are also a factor in the increasingly difficult path to visas, green cards, and citizenship. The result is what has been described as "a culture of 'no' " for prospective immigrants. And that's where these 10 lawyers come in. They're the attorneys to call when the company needs skilled workers here - fast. Or when the consequences of being deported are catastrophic. Or when every avenue for obtaining a visa seems to have been exhausted. These lawyers win the kind of praise from clients seldom heard in any other practice: "I'd easily give her my left kidney." "We call her the blue-eyed angel." "He saved my life."
Michael was recognized for his broad practice experience-representing large corporations as well as individuals, his attraction to complex, challenging cases, and his ability to cut through the issues quickly and effectively. For a full copy of the article, see this link .
Maggio and Kattar's Office Expansion
We are pleased to announce that we have occupied additional office space at 11 Dupont Circle, doubling our size. Our new space in the same building reflects our growth and our expanding need for creative and zealous immigration attorneys committed to excellent client service and positive results. About twenty of our lawyers and paralegals are relocated in a newly renovated suite. The new suite also contains a large conference center where we will hold in-house educational training sessions and seminars for staff and clients. Our firm's reception, administration, and about half of our legal staff remain in Suite 775.