The leading corporate immigration lawyer in our research offers his expertise on current United States immigration policy.
"If it ain’t broke, don’t fix it!” exclaimed Bert Lance, President Jimmy Carter’s first budget director. Many are familiar with this sagacious solution to saving the United States billions on unnecessary spending on government programmes. Less familiar is the explication that followed, “That’s the trouble with government – fixing things that aren’t broken and not fixing things that are broken.”
The second part of Lance’s proverbial wisdom echoes the essence of the most recent challenges of the United States immigration debate - determining which mechanisms are broken, and which must be fortified in order to finally produce a tangible and viable solution. Recently, the most visible developments toward immigration reform have materialised through Congress’ massive investment in border and interior enforcement. These measures, aimed at reinforcing the doorway to the US, have actually ricocheted, detracting those best poised to rebuild our economy including innovators, investors, and the best and the brightest university graduates, from melding into our nation of immigrants.
Understanding Enforcement-First Measures
The future of immigration depends on adopting a holistic approach. Unfortunately, little is being done to achieve this end. Instead, we witness enormous investment in piecemeal enforcement solutions, regardless of the economic or societal implications. Many advocates of the enforcement-first approach, including politicians and legislators, believe that by driving out undocumented workers, they will actually create new jobs, or reclaim jobs that Americans seek in a time of high unemployment and economic downturn. Instead, it actually drives out those who create new jobs as well as those who fill undesirable, but necessary, positions in sectors including agriculture, restaurants, elder care and child care.
For over 20 years, since the passage of the Immigration Act of 1990, the United States has been crying out for authentic immigration reform that meets the needs of our 21st century economy. Instead, enforcement-first solutions feed the insatiable appetite of an angry mob stoked by restrictionists, and driven by nativist sentiments that most Americans find abhorrent. Anti-immigrant measures deter those who will strengthen the US, and criminalise immigrants who have already built lives and established families in this country during a time when the pathways for legal immigration were unattainable or non-existent.
However, there may be opportunities for substantial progress. The lives, livelihoods, and futures of millions depend on immigration reform. Hundreds of thousands of children who have grown up in the United States without any authorised status, the “dream kids” wait for a time when they can work legally, become doctors and teachers, and give back to the only country and communities they have ever known. Hundreds of thousands more linger relentlessly in a vast green card purgatory, waiting up to 22 years, for the moment they will be permanently reunited with their families, or released from modern-day indentured servitude – captives of our immigration system, including those who serve in our military, families seeking opportunity and freedom, and the best and the brightest minds around the world. Those most likely to relinquish the American dream are highly skilled professionals, the best and brightest, who are being lured abroad by a new phenomenon called the “reverse brain drain”. After obtaining education and work experience in the United States in the finest academic and professional environments in the world, international students and highly skilled foreign workers are leaving the US en masse, with their education and experience, to enhance the economies of countries with less discriminating and more welcoming immigration policies.
Given the fragile state of the US economy, as well as the increasingly competitive global market, the US cannot afford to squander this important source of innovation, creativity, and diligence from our work force. It’s no surprise that Asian countries, which have traditionally been recognised for their ability to advance technologies by leapfrogging after others have invested substantially in the initial research and development, are now leaping ahead and growing at an accelerated pace benefiting from the US’s largest export – highly educated foreign nationals seeking professional positions.
Serving Two Sides - The Corporate Immigration Lawyer
Corporate immigration lawyers face the unique challenge of dual representation, representing the interests of both employers as well as foreign nationals. This dual representation relationship works as long as both parties are on the same side of the fence. Similarly in the immigration debate, both sides yearn for a better system. Employers aspire to benefit from the skills, creativity, and labour of foreign nationals. Foreign nationals seek to find legal pathways to obtain gainful employment, to lay the foundation for economic, political, and social stability for their families, and to avoid breaking the rules that can result in removal.
If the broken and the unbroken are identical for these seemingly disparate groups and their superficially incongruent interests, then it is also possible that our nation’s multifaceted struggles such as border and security issues and worksite compliance concerns, are ultimately achievable by focusing on a more universal goal - creating a safer, stronger America true to our democratic principles.
The solution is not a fully formed secret treasure waiting to be unearthed; it is a work in progress, gestating steadily through each round of polemical debate. It is possible that previously failed attempts at comprehensive immigration reform, and even the Dream Act, which would have provided a pathway to citizenship for undocumented students who grew up in America, are merely birth pangs heralding a truly comprehensive solution to the broken and unbroken of the immigration debate.
What's Not Broken, What Needs Fixing?
In his 25 January 2011 State of the Union address, President Obama raised some of the highly contested immigration issues and outlined several critical areas he aims to address including the Dream Act, border enforcement, and attracting foreign talent to enrich the US workforce and remain globally competitive. It is no secret that Obama’s second term rests on capturing the Latino vote, which also means committing to – and delivering on – immigration. This translates to a few important points with respect to the future of immigration reform. First, immigration reform is a priority for the administration. Second, proven successful programmes and legislation must be the foundation of any successful immigration plan.
Congressional republicans led by Senator John Kyl and Senator Lindsay Graham, recently pushed to revisit the 14th Amendment and proposed to change the Constitution to deny citizenship for children born in the United States to undocumented or non-immigrant parents. Those supporting repealing the amendment must have missed the second half of Mr Lance’s advice for successful government spending – don’t waste financial or legislative resources fixing things that are not broken.
Deporting the children of immigrants born in the United States would have tragic human costs, not to mention the financial and logistical burdens on an already overburdened deportation system. Further, such a measure would reap no benefits, except to appease the proponents of this over-broad unconstitutional measure to prevent immigrants from having children in the United States. President Obama has repeatedly emphasised that he is not going to change the Constitution of the United States – the 14th Amendment is not broken.
Another important programme offering immigration opportunities is the wildly popular EB-5 green card programme, or investor visa, which requires foreign nationals to invest either US$500,000 to US$1 million (depending on the situation) to purchase, create, or invest in a US business, and to create 10 new jobs in exchange for a green card. Senators John Kerry and Richard Lugar, recently introduced a related programme, called the EB-6 or “Visa Startup Act”, which would create US jobs by granting a two-year visa to a foreign entrepreneur raising capital from US investors or a US venture capital firm willing to create at least US$1 million in revenue or create at least five new jobs. The US investor or venture capital firm must contribute at least US$100,000 into the startup. As the recession slows and the economy recovers, investor visa programmes such as the EB-5 and EB-6 are vital not only to providing additional pathways to citizenship for foreign nationals, but also as a source of capital which will stimulate the domestic economy in an age of outsourcing and competitive globalisation. These programmes reflect the opportunities that exist not only as pathways for legal immigration, but also as creative means to benefit the US economy and job market.
Increased Enforcement Already Underway
President Obama’s proposed FY 2012 budget for the Department of Homeland Security sheds light on the misguided priorities of the administration as they seek to appease restrictionist sentiments. Increased funding for programmes (about US$94 million) to provide alternatives to detention for immigrants not subject to mandatory detention and who are not a danger to the public, immigrant integration programmes, and civil liberties oversights of enforcement programmes are overshadowed by huge budget allocations (about US$713 million) for increased border and interior enforcement. The enforcement-before-reform approach overlooks an opportunity to achieve the “stronger, safer America” goal by documenting the undocumented, bringing them out of the shadows, demanding that they become legal, pay taxes, learn English and become full citizens. This path is the way to improving interior security and strengthening the economy. The current administration’s polices undermine our economic interests by detracting a diverse workforce of foreign nationals, who if given the opportunity, would prefer to join the nation of immigrants as lawful citizens rather return to their country of origin. Millions of hard-working new taxpayers (including many seeking military service) would undoubtedly give the United States the lift it needs.
Many attribute the trend toward increased deportation and enforcement to pressure from the GOP. In reality, during the first year of President Obama’s administration Immigration and Customs Enforcement (ICE) deportations actually increased to about 10 per cent more than the Bush administration’s 2008 total and exceeded the deportations from 2007 by about 25 per cent. In addition to increased deportations, the Obama administration has pandered to restrictionist rhetoric by emphasising increased border security and increased enforcement measures. The more the administration detains and deports, the more we hear calls for greater enforcement.
Immigration and Customs Enforcement (ICE) Programmes
Current controversial enforcement policies include ICE’s 287 programme that encourages state and local law enforcement entity to work in partnership with ICE focusing on immigration enforcement within their jurisdictions ICE has also launched the so-called Secure Communities programme, which transmits information between the US Department of Homeland Security (DHS) and the Department of Justice (DOJ) to identify undocumented immigrants at the time of an arrest or booking into local law enforcement custody. The programme makes local police act as immigration agents, but has diminished trust between local law enforcement and the communities they are seeking to protect. The programme also appears to increase racial profiling as an incentive to make an arrest in order to “catch” undocumented immigrants.
In February 2011, the federal government announced audits of as many as a thousand companies that will be required to turn over their I-9 forms, which are used to verify an employee’s identity and employment authorisation, to the Department of Homeland Security. ICE has also established a large new employment compliance inspection center designed to tighten scrutiny on hiring of undocumented workers, and in the process has collected millions of dollars in fines from employers. Company audits have quadrupled since George W Bush’s final year in office, and mandatory use of the government’s not quite ready E-Verify programme that claims to confirm a worker’s employment authorisation, is now being touted as an inevitable reality in the future of enforcement.
Outlook and Opportunity
Despite the challenge presented by an increased emphasis on enforcement as a first step in reform, there is opportunity for resolution. At the executive level, President Obama continues to confirm his commitment to addressing, and to resolving the immigration issue. His recent state of the Union address conveys an awareness of the link between comprehensive immigration reform and economic growth. At the legislative level, Senators Lindsey Graham and Chuck Schumer have resumed the push for immigration reform in the Senate and have been building coalitions with business and immigrant interest groups. More importantly they have been reaching out to create a bipartisan group including Senator Lisa Murkowski who was one of only three republicans to support the Dream Act in December 2010. Although a solution is still in its infancy, rebuilding a bipartisan platform in the 112th Congress is a sign that the discussion is not over, despite calls for an enforcement-only approach. Both republicans and democrats agree that immigration reform is a top-agenda item.
Additionally, at the administrative level, the Department of Homeland Security has taken steps to ensure quality and consistency in adjudication. Director Alejandro Mayorkas has stated that his agency is dedicated to this goal, which will affect adjudication of H-1B worker and company transfer petitions, as well as employment-based immigrant petitions and applications for adjustment of status to permanent residence or green card status. Adjudicating petitions with more consistency is a significant first step to restoring balance in the system, that has been stymied by a “culture of no” that has increased daily since the horrific events of 9/11.
A fair and just system addressing the concerns of businesses, immigrants, and national security and economic interests is possible, but rests in successfully capitalising on what has always been the greatest natural resource of this country – its immigrants. Enforcement only policies fix the broken door by cementing it closed. Investor programmes that provide capital and create jobs such as the EB-5 and EB-6 programme, as well as revisions to employment-based pathways to permanent residency for talented graduates, and which encourage the best and the brightest to innovate and rebuild America, are but a few ways to benefit from the systems already in place. The law of conservation of mass states that matter cannot be created or destroyed. Similarly, the optimism, ingenuity and hard work of each generation of immigrants to the United States will not be destroyed, but increased enforcement may interfere with how effectively the US can capture and benefit from the energy of those seeking to make this land their home.