Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

RFE Hell and Increased USCIS Filing Fees

Dear Director Mayorkas:

Last week in a speech you broached the subject of the possible need to increase filing fees because of a decrease in the number of applications received by USCIS this fiscal year. You also noted that there was over $100 million shortfall in your budget because of these decreased filings. I have some suggestions to meet your budget.

First, look at your budget projections from this last year. Last October, who didn’t see the recession? Why weren’t reductions in force made at that time? On April 1 when only 33% of the H-1B applications were filed as compared to the year before, why didn’t USCIS staff get pared down? A monumental increase in naturalization applications occurred before the Presidential elections (as they do every 4 years), who did not not see a decrease in naturalization applications for 2009! My heck, every business in America was laying off employees, but not USCIS!

Second, have a heart to heart talk with anyone who issues an RFE that requires more than 5 pages to respond to. This last week we submitted a 3,000 page (30 lb.) response to an RFE (see the picture above), which alleged that an Accountant was not a professional position! Director, what is the deal with your Service Centers? Is there simply too little to do and too many employees? The “service” we are receiving as your customers is not doing the American Economy any good.

Third, why are the local adjudications officers interviewing non-current priority date visa applicants, including on Saturdays in September! You are paying OVERTIME to examiners to interview people who cannot be approved for their green cards. What sense does that make?

I have many other ideas as well if you would like to chat. The bottom line is this. The agency you have just taken over is in serious need of a top to bottom review. You have a monstrous challenge ahead of you to bring this agency in line with the priorities it should have. Priorities that not only include national security, but also ensuring our own economic well being and competitiveness by promoting job growth and allowing companies to hire qualified workers, keeping families together through reunification, and bringing new citizens into the fold.

You need to get control of service centers, where officers are issuing, at increasingly frequent rates, Requests for Evidence that are not only unnecessary, but which are onerous and burdensome, and appear to be designed to make the employer give up his request for the visa application. You have local offices finding marriage “fraud” where no such fraud exists. You have CIS doing 25,000 random walk ins of legitimate U.S. employers of H-1B workers, disrupting the workplace asking questions about the H-1B employer, without regard to a lawyers appearance in the case in clear violation of the 6th Amendment. The list could go on about what your agency is doing wrong. And, while there are things USCIS does right, the reality is that rather than serving immigrants and their employers, you are punishing them.

So, before you raise your fees, I think you MUST first get your own house in order. You should not and cannot honestly balance your budgetary disaster on the backs of the employers and immigrants you are committed to serving.
With all sincerity, I wish you the best of luck in your new position.

Due Process Restoration Now!

There has been a lot of talk recently about what might be included in an immigration reform bill. Will there be a legalization/amnesty/forgiveness of “lawbreakers” rule? Will there be an expansion of employment based and family based immigrant visa numbers to solve the economically devastating backlogs we currently deal with? Will there be a mandatory E-Verify component? Will there be an interior enforcement focus? Will there be even more fences?

The topic that seems to be lost in all this speculation is something I consider to be the overriding component of reform–the Key to holding a reform package together. I am speaking, of course, of Due Process Restoration. Anyone who deals with immigrants for any length of time is intimately familiar with the disaster that is our immigration enforcement system. It is not just that previous administrations have done a horrific job at the enforcement that should have been taking place, but rather, the missing component to that enforcement. When is the last time an ICE officer worried about Due Process considerations? What is really destroying immigrant families–how about 212(a)(9)(B) and (C)? What about the concept of “civil” detention in real jails with real criminals for non-criminal immigrants? What about the detention of Asylum Seekers? What about the ludicrous requirements of REAL ID for asylum seekers?

These are all only a few of the regular violations of concepts most American hold sacred. When you tell the ‘average’ American about the system immigrants actually have to deal with, most are appropriately appalled. It is to those Americans that we must speak. I believe that if Senator Schumer has the courage to include Due Process Restoration in his “Comprehensive” immigration reform bill, it will be tragically necessary for us to defend these Due Process provisions of the reform package.

Take a look at this video, and sign up to support including Due Process Restoration in a comprehensive immigration reform bill.

It’s a Bird, It’s a Plane, It’s Jose Hernandez

The joys of social networking: anyone can say anything about anything and put it up for the entire world to read, whether they’re an average Joe making a passing comment about their favorite sports team, or an above-average Jose musing on comprehensive immigration reform from the international space station literally a million miles away – which is exactly what happened last week.

U.S. Astronaut Jose Hernandez officially became NASA’s first astronaut to “tweet” in Spanish, causing his popularity among Mexicans in the U.S. and in Mexico to skyrocket (pun intended), and giving him a platform from which to discuss his views on immigration reform.

Hernandez’s space travel was followed closely by Mexicans both on Spanish-language television and on Twitter, where his posts (both in English and in Spanish) covered everything from space travel to reviewing Mexico’s most recent World Cup Qualifier matches. Now that he is back on Earth, his “fans” are following him on a more serious topic – immigration reform.

Hernandez, a California native born of Mexican migrants who crossed the border illegally in search of a way out of poverty, learned to speak English at age 12, worked in the fields alongside his parents and applied 12 years in a row to become an astronaut before he was finally chosen in 2004, according to an AP article that appeared in the New York Times on September 14, 2009.

“The American economy needs them,” Hernandez said of undocumented workers in a recent telephone interview with Mexico’s Televisa network, “I believe it’s only fair to find a way to legalize them and give them an opportunity to work openly.” Hopefully, Hernandez will be able to generate some sort of buzz on the issue, and perhaps light a fire under Congress to begin talks of reforms, but in the meantime, it is nice to introduce a fresh face and a new American success story for immigration reform.

Raids Relations – The Changing Face of the American Workforce

A few weeks ago, Steven Camarota of the Washington-based think tank Center for Immigration Studies (CIS) presented a new report entitled “Jobs Americans Won’t Do? A Detailed Look at Immigrant Employment by Occupation”. The report, which was profiled in a front-page article in the USA Today on September 14, 2009, speaks to a couple of underlying truths which have yet to be addressed by this new administration: 1) The presence of immigrant workers in the American workforce is still a sore spot, and 2) To what extent will these workers be needed again when the economy turns around?

In the report, CIS examines the “before-and-after” scenarios of some of the meatpacking plants across the country that experienced work site raids by Immigration and Customs Enforcement (ICE). The report claims that despite staggering numbers of employees arrested at these plants during the raids, the plants were back up and running within a few months, thanks to the number of American-born or legal immigrant workers lined up and ready to assume positions that were commonly referred to as “jobs Americans won’t do.” Throughout the immigration debate, one of the sore spots for many Americans has been the idea that immigrant workers illegally present in the country were taking jobs away from Americans who were authorized to work, and, in the process, driving down wages for everyone. Throughout the 1990s and early 2000s, many groups quickly dismissed the allegations that immigrants were taking jobs away from Americans by claiming that the immigrants were doing jobs that Americans didn’t want: cleaning bathrooms, harvesting crops, constructing buildings, and slaughtering swine.

However, a closer look at the situation as a whole raises some new questions. Plant supervisors around the country have praised the work ethic of these immigrants, and many claim that the Latino immigrant workers far outlast American workers in slaughterhouse jobs. And everyone remembers the raid at the Agriprocessors plant in Postville, Iowa in May of 2008. The plant’s slaughter floor was largely staffed by undocumented immigrants, both Latino and Eastern European. After the raid, the plant all but shut down for lack of labor, among other issues. Even when the plant regained some momentum and was able to hire new workers, the workers they brought in were refugees from Somalia. Legal workers, yes, but not native-born Americans. This is not a unique scenario. Plants across the country have been filling the gaps with legal immigrants, primarily new arrivals, but still not native-born Americans.

The report does cite some instances where the American-born population has begun to assume these positions, but only fairly recently. After the Postville raid eighteen months ago, the plant still couldn’t find American workers to fill those jobs – even in America’s heartland (Iowa’s population is about 4% Hispanic). Today, the tides have changed a bit. The economy is in shambles, jobs are scarcer than they were a year ago, money is tighter, and after several months of being out of work, many Americans have realized that while slashing swine with a machete for twelve hours a day may not be ideal, it will put food on the table. As Mr. T. Willard Fair, President of the Urban League of Greater Miami puts it, “It has taken the greatest recession in a generation for poor Americans to line up to work in fields and factories. We’ll take anything now. We’re willing to be exploited for awhile.”

In short, Americans aren’t taking these jobs because they’ve had a sudden change of heart, they’re taking them because they don’t have a choice. But this brings to light another issue. What happens when the economy rebounds in a few years? What happens when those Americans who took plant jobs out of desperation find new, better-paying, more comfortable opportunities? Who will do those jobs then? This administration must examine the issues surrounding the number of H-visas available, for both skilled and low-skilled workers. As the American economy starts to rebound, we will need not only the best and brightest from around the world, but we will need to make sure we have enough labor to support the work that those people are doing.

Legal workers might be able to use the weak economy to their advantage for the moment, but the day will come when we will be right back where we started with undocumented workers, which means that now is the time to be thinking about these much-needed reforms, and how we can design them to benefit our growing economy.

“LIAR:” What The Healthcare Debate Means for Immigration Reform

During President Obama’s address to a joint session of Congress on Tuesday, Congressman Joe Wilson (R. SC), shouted “LIAR!” when President Obama stated that the proposed health care plan would not cover “illegal aliens.” Now, Joe Wilson said he should know this because he once was an immigration lawyer. Whether that meant immigration from or to South Carolina, I am not sure, but one thing is for sure, no one I know ever knew Joe Wilson the immigration lawyer. If by “immigration lawyer” Mr. Wilson meant that he once helped an immigrant get deported, I am not sure that really counts. But if “Joe the Immigration Lawyer” is like “Joe the Plumber,” then maybe he thinks he really was one.

After all, an immigration lawyer would likely be able to understand what exactly the law means when it says that only citizens and permanent residents are covered under the Obama plan. What has caused Joe Wilson to react like this, besides a serious lack of self control, is the provision in the proposed legislation that eliminates the requirement of using the “SAVE” system to verify whether someone who is an immigrant, is legally in the United States. Use of this program has stopped very few undocumented immigrants from getting public benefits, but has stopped literally thousands of U.S. citizens, mostly poor, from obtaining benefits because of their lack of accessible proof of their citizenship. has presented a short article on Seven Falsehoods About Health Care. One of those applies directly to this point:

False: Illegal Immigrants Will Be Covered. One Republican congressman issued
a press release claiming that “5,600,000 Illegal Aliens May Be Covered Under Obamacare,” and we’ve been peppered with queries about similar claims. They’re not true. In fact, the House bill (the only bill to be formally introduced in its entirety) specifically says that no federal money would be spent on giving illegal immigrants health coverage:

H.R. 3200: Sec 246 — NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS. Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.

Also, under current law, those in the country illegally don’t qualify for federal health programs. Of interest: About half of illegal immigrants have health insurance now, according to the nonpartisan Pew Hispanic Center, which says those who lack insurance do so principally because their employers don’t offer it.“Misleading GOP Health Care Claims” July 23 – by Brooks Jackson, Viveca Novak, Lori Robertson and Jess Henig.

I can certainly see both sides of the debate, and, frankly, neither side is being completely honest or clear. What is quite clear, is how immigration, and our broken immigration system, keeps coming up in the context of the debate of national agenda items, such as the health care debate.
Several weeks ago I blogged on the danger that the tone of the Health care debate had for the coming immigration reform debate. Calling the President a Liar during his speech to a joint session to Congress is Exhibit A in what we have in store for the coming debate. If Joe Wilson the Immigration Lawyer can misrepresent the consequences of legislative language as straight forward as these two particular sections, we have to be prepared for the extraordinary misrepresentations of any positive aspects of an immigration reform bill. Whether it is “amnesty,” “rewarding law breakers,” “open borders,” “Liars,” or even “destroyers of American culture” we have to understand how to phrase and present the response. Without a doubt, the response from those of us who understand the need to balance immigration reform, with security concerns, and with economic growth has to be not only vocal, but focused. We, as Real Immigration Lawyers, must know the language of the proposed legislation, we must know the myths that are out there, and we need to be vocal in our response.
Next week, more than 40 talk radio hosts are descending on Capital Hill for the FAIR Annual Scare the Crap Out of Congress Boondoggle. The outrageous claims of the downfall of America caused by illegal immigration, along with similarly nutty myths will be presented as facts. Actual real news organization will cite the Center for Immigration Studies as a legitimate source of information. We must be prepared to call into our local radio stations, whose hosts are in D.C. next week, and be prepared to present the facts of immigration. Not by sugar coating the problems that are caused by illegal immigration, but rather by pointing out which specific laws are broken (INA 212(a)(9) anyone?) and how having a comprehensive solution can actually fix the immigration pothole in the legislative superhighway. Immigration Lawyers it is time to Stand Up and be vocal and beat back the immigration myths.

DHS Wants Your Comments On Immigration!

Right now, the DHS is in the middle of its Quadrennial review, where, apparently all areas that DHS works on are subject to public comment and discussion. If you go to this page you can comment directly on a variety of DHS, including immigration issues. We understand that these comments are given directly to those in the highest levels of office at DHS.

Very few folks have been aware of this opportunity. Probably most important is the way this administration has phrased the debate: “Smart and Tough Enforcement of Immigration Laws – Ideas.” I invite everyone interested in immigration needs to be part of this public debate. Click on the above links, make your comment and demand real immigration reform, not twisted and ill-directed “enforcement” whose only purpose is to convince congressman who will still never vote for positive immigration reform to actually do so.