Copland and Brenner

Table of Contents

1. The Case for Comprehensive Immigration Reform
2. Homeland Security Begins at Home
3. State Department Revises J-1 Skills List
4. H-1B Update

1. The Case for Comprehensive Immigration Reform

   On April 8, 2009, The New York Times quoted a senior Obama Administration official as stating that the President plans to pursue immigration reform – including “a path for illegal immigrants to become legal” - this year. The President, as reported in the article, recognizes that such comprehensive immigration reform “is a potential minefield” involving an emotional and controversial issue. However, it is also an issue that he pledged to address during his campaign for the office of President.

   As is typical, opponents of immigration reform were fast and furious in their reactions. For example, Congressman Steve King (R-IA), senior Republican member of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, issued the following statement on April 9:

      “The Obama Administration has shut down worksite enforcement, effectively suspending law enforcement on employers who are hiring illegals. They have shifted the focus from intercepting illegal drugs and people coming from Mexico to intercepting legal U.S. guns on their way to Mexico. Now the Obama Administration has come out in support of amnesty for law breakers.
      “Obama is taking the United States of America into an abrupt, headlong lurch away from the foundations that made us a great nation.
      “The American people want this Administration to enforce existing immigration laws. Regardless of the guise under which it will be presented to the public, President Obama’s amnesty plan is a dangerous path for our nation that will sacrifice the Rule of Law.
      “In our current economic crisis, Americans cannot afford to lose more jobs to illegal workers. With more than 12 million illegal aliens living in the United States and over 7.7 million of those illegal aliens working in the United States, America cannot afford to grant amnesty to those that have broken the Rule of Law. American workers are depending on President Obama to protect their jobs from those in America illegally.”

   According to his House web site, Congressman King is, among other things, the sponsor of the English Language Unity Act of 2009, a bill that would establish English as the official language of the U.S.A. and require the federal government to conduct business in the English language. He was previously involved in Iowa’s passage of the English Language Reaffirmation Act in 2002, and a subsequent lawsuit to prohibit the state Secretary of State from printing voter registration forms in other languages. He chairs the Conservative Opportunity Society, described on his web site as “best known for energizing Republicans to regain the majority” of the House under Newt Gingrich in 1994.

   Having established King Construction in 1975 “and built the business up from one bulldozer,” the Congressman “designed a twelve-foot high concrete border wall to be difficult to tunnel under or scale, to reinforce the southern border.” In July 2006, he was asked “to demonstrate his wall design to the Homeland Security and Government Reform committee hearing on border barriers.” After the failed 2007 effort to enact comprehensive immigration reform, Congressman King issued a press release titled “King Thankful as Senate Rejects Amnesty, Returns Nation From Brink of Suicide,” which described “Americans all across the country [as] dancing in the streets with joy and relief.”

   Sadly, the misrepresentations in Congressman King’s April 9 statement and elsewhere will be taken as gospel by a xenophobic base more interested in perpetuating its creed than actually learning, and accepting, the facts. For example, study after study has demonstrated that immigrants do not take away jobs from American citizens. Many have cogently argued that the U.S. has achieved its place in the world because it is a nation of immigrants, not in spite of that fact. To suggest that U.S. law enforcement officers should not stem the tide of “legal U.S. guns” illegally on their way to Mexico, where they will be used by the drug dealers and coyotes he rails against, is absurd. And, as discussed below, worksite enforcement under the Obama Administration has been stepped up to target the root cause of illegal immigration – employers who knowingly hire illegal workers.

   Congressman King is not without problems in his own backyard. Postville, Iowa has become infamous for the May 12, 2008 immigration raid of an Agriprocessors, Inc. kosher pork plant that resulted in a number of criminal charges against human resources personnel, supervisors, and even its CEO. As stated in our June 2008 edition of Immigration News, “[a]s long as U.S. employers are willing to engage in egregious conduct such as that alleged against Agriprocessors, there will continue to be an economic draw of illegal aliens to the U.S.A. Clearly, fear of apprehension and deportation is not stemming the tide. As long as employers are not prosecuted for such conduct, they will continue to profess ignorance or deliberately defy employment verification requirements that have been in place for 22 years.”

2. Homeland Security Begins at Home

   As noted above, worksite immigration enforcement has not been “suspended” under the Obama Administration. In fact, on April 30, 2009, the Department of Homeland Security (“DHS”) announced sweeping policy changes regarding worksite immigration enforcement that should make violators of employment verification requirements tremble. While the guidelines themselves have not been released, DHS issued a Fact Sheet stating that changes will include the following:

   - targeting criminal aliens and employers who cultivate illegal workplaces by knowingly hiring illegal workers
   - focusing resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration
   - using all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment
   - obtaining indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office to prosecute the targeted employer, before arresting employees for civil immigration violations at a worksite
   - continuing to arrest and process for removal any illegal workers who are found in the course of worksite enforcement actions, in a manner consistent with immigration law and DHS priorities

   The release also states that DHS will look for evidence of mistreatment of workers, as well as trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other criminal conduct. “Existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers. This reflects a change from the previous threshold of 150.”

   Some have already taken DHS to task on what they view as omissions from the new approach. Marielena Hincapié, executive director of the National Immigration Law Center (“NILC”), is quoted as stating that “[i]t is simply unacceptable that these ‘new’ guidelines are the administration’s response to the millions of people demanding rational and humane immigration policies,” (http://mrzine.monthlyreview.org/nilc300409.html). Her concerns regarding “families who have been ripped apart, children who have been abandoned, workers who have courageously come forward to report labor violations only to be detained, and on local economies which have been severely impacted,” are valid. But the complaint of Nora Preciado, NILC’s employment policy attorney, that “the directive does not address the root causes of why employers recruit, hire, and exploit undocumented workers to begin with,” rings false. The motive is clear, pure and simple: there is profit to be gained by employers who knowingly violate these laws.

   This significant change in DHS policy may be a factor in winning over opponents of comprehensive immigration reform, but it should not be expected that the battle will be easily won. A major sticking point will likely involve how to address the 12 million or so undocumented or illegal aliens present in the U.S.A.

   According to the White House web site (www.whitehouse.gov), “President Obama supports a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.” As described in an April 13 New York Times editorial, the Administration intends to proceed “even if it means pushing the hottest of hot buttons: legalization, the dreaded ‘amnesty’ that sets the Republican right wing ablaze and makes many Democrats quiver.” Notwithstanding the trepidation that the battle ahead might cause, in addition to the tactical shift in worksite enforcement, there are other signs that a harmonic convergence may be under way.

   In an article that same day, The New York Times discussed a first-time agreement by the A.F.L.-C.I.O. and Change to Win, rival labor federations, “to join forces to support an overhaul of the immigration system.” As the article pointed out, 2007 efforts for comprehensive immigration reform were defeated when the two groups could not agree on a common goal. Their recent meeting of the minds “endorses legalizing the status of illegal immigrants already in the United States and opposes any large new program for employers to bring in temporary immigrant workers.” The business community, however, “remained committed to a significant guest-worker program,” such that the schism this time around may involve a difference of opinion between labor and the employers. Time will tell if reason, or inflammatory rhetoric, will rule the day.

3. State Department Revises J-1 Skills List

   By notice published in the Federal Register on April 30, 2009, the Department of State amended the Exchange Visitor Skills List applicable to certain aliens who have been admitted to the U.S.A. in J-1 status. The Skills List, established pursuant to Section 212(e) of the Immigration and Nationality Act, was first published in 1972, and was subsequently amended on June 12, 1984 and January 16, 1997. As described in the summary to the notice, the Skills List sets forth “specialized knowledge and skills that are deemed necessary for the development of an exchange visitor’s home country.” The updated list will be effective June 28, 2009.

   INA Section 212(e) provides (among other things) that no person who is admitted to the U.S.A. in J-1 status, or acquires that status after admission, is eligible to apply for an immigrant visa, adjustment of status, or nonimmigrant visas in the “H” or “L” classifications until he or she has “resided and been physically present” in his or her country of nationality or last residence for an aggregate of at least two years since U.S. departure. This so-called “foreign residence requirement” may be waived in cases involving the Skills List if the alien’s country of nationality or last residence provides written verification that it has no objection to such a waiver.

   Since the new list will be effective June 28, 2009, exchange visitors who enter the U.S.A. before that date shall continue to be governed by the 1997 Exchange Visitor Skills List, as amended.

4. H-1B Update

   On April 27, 2009, U.S. Citizenship and Immigration Services (“USCIS”) issued an update regarding filings subject to the congressionally mandated cap of 65,000 for fiscal year 2010. As of that date, the agency had received approximately 45,000 such H-1B petitions and, therefore, has continued to accept petitions subject to the general cap. Interestingly, by the same date USCIS had already received approximately 20,000 petitions submitted on behalf of aliens with advanced degrees. The first 20,000 of such “petitions are exempt from any fiscal year cap on available H-1B visas.” Noting that “experience has shown that not all petitions received are approvable,” the agency has continued to accept petitions filed for aliens holding advanced degrees. Updated information regarding H-1B cap filings is available on the USCIS web site, at www.uscis.gov.