Musings on Immigration

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From Refugee to Riches in 30 Years

Once upon a time, there was a young boy named Sergey who lived in a faraway land known as the Soviet Union. He lived in Central Moscow in a tiny apartment with his mother, his father and his grandmother.

Sergey’s father Michael was very smart, especially in math and physics, and always dreamed of being an astronomer. However, because Sergey and his family were Jewish, they were often denied many opportunities; and so his father was not allowed to study physics or attend graduate school to achieve his dreams.

One day, Michael had to attend a conference in Warsaw, Poland, for his job. In Poland, he met dozens of other mathematicians like him, from places like France, England and the United States. Michael came back to his family and Moscow and said to them, “We must leave the Soviet Union and look for a better life somewhere else.” His wife agreed, and Michael applied for exit visas in order to leave the country.

Once the government found out that Michael had applied for visas for himself and his family to leave the country, they fired him from his job. Michael and his wife took temporary jobs while they waited to receive their visas. A group known as the Hebrew Immigrant Aid Society (HIAS) helped the family. Michael and his wife took turns watching young Sergey. In the meantime, Michael decided to teach himself computer programming. Sergey watched, even though he was only six years old.
HIAS helped the family in many ways. They helped the family understand the process of leaving the country, helped them prepare their visa applications, paid for their tickets out of the Soviet Union, and even gave them money to help them start their new life. Then one day, about nine months later, the visas arrived and Sergey and his family left the Soviet Union as refugees.

Sergey and his family ended up in the United States in the state of Maryland. Sergey went to school and studied a lot. He wanted to study computer science and math, just like his father.

While he was in graduate school, Sergey made a friend named Larry. They decided to start a business together. They wanted to create the biggest, best search engine for the internet that anyone had ever seen. They named their company “Google.”
Google became one of the most successful companies ever in the United States, and Sergey became very rich. Today he is the 26th richest man in the entire world, and he is worth over $12 billion!

Last week, Sergey was thinking about coming to the United States as a refugee. He remembered how full of hope his family had been in leaving their country and starting a new life. And he remembered how much HIAS had helped his family. He wanted to help other families like his start over and have opportunities to do great things.

Sergey and his wife decided to give $1 million to HIAS. The Chief Executive of HIAS, Mr. Gideon Aronoff, thanked him and said, “one of the most important things that Sergey Brin’s gift signifies, not just for HIAS but more importantly for the nation, is the possibilities inherent in being a refugee. The debate over immigration has frequently become so bitter that an element has been lost: refugees are as varied in their skill sets and contributions as the rest of us.”

Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays

I had a very upset client contact me this last week. He was angry . . . at the Visa Bulletin. He could not understand how, after the start of the new fiscal year, there was essentially no movement in the visa numbers. I tried to calm him by telling him that he just needed to be patient. Then I realized how patronizing that sounded. How much longer did he need to wait? He has an approved immigrant visa petition (EB-3) with an early 2005 priority date in the worldwide category. So, I decided to try to figure out when he might actually get his green card. I ask that you bear with me through this process. This is a LONG post, but one I think you will appreciate reading.

I have to warn you now, this math is a shot in the dark. I do NOT have all of the numbers of pending and approved cases in each category of employment based immigration. However, some estimate, based upon some pretty good numbers, is better than mere guesswork. Let me walk you through this analysis.

However, I first ask you to forgive me in advance, math is the reason I went to law school. Also, the USCIS simply has not released clear numbers (possibly for fear of letting folks know exactly how long their wait will actually be).
My focus for this analysis will be in the EB-2 and Eb-3 categories, since it is in those categories that our clients are most interested. There are four basic numbers we are looking for, NONE of them are easy to find. Let’s discover the basic numbers we will be using:

First, how many approved I-140 cases are awaiting a visa number? According to AILA’s recent liaison meeting with DOS, there are 198,186 “case ready” I-140 petitions awaiting visa issuance, in the EB-2 (52,584), EB-3 (139,737) and EW (5,865) categories. Case ready means (as best as we understand), that as soon as the petition is current, the Adjustment will be approved or consular processing will begin. Obviously, the EB-2 numbers are only for India and China.

Second, how many pending I-140 cases are there at the Service Centers awaiting adjudication? According to the June 2009, USCIS Production Update Report to Congress, USCIS had 85,970 pending I-140 cases awaiting adjudication. Unfortunately, USCIS does not break out the I-140 cases in this report between EB-2 and EB-3. These are the most recent numbers I could find.

Third, how many pending I-140 cases are at the District Offices? I have no idea! I cannot locate anywhere the numbers of cases at the local USCIS offices. No one knows. Really. There is no report that I can find where this number has been released. And, frankly, I do not believe that USCIS has an accurate count on this either (I do pray they get such a count soon).

Fourth, how many pending labor certifications are there at the DOL? This number is actually pretty sure. There are 62,100 pending labor certifications as of the September 22 stakeholder meeting with DOL (not counting pending appeals). Unfortunately, again, we do not know which of the categories (EB-2 or EB-3) the cases will fall under.

Now, it is time for the math. Assuming all pending Labor Certifications and pending I-140s are approved (yes, I know some will be denied and some are duplicates), there are at least a total of 346,256 individuals with approved or soon to be approved petitions awaiting green cards, not including their families. If we assume an average family size of 4 people (I believe this is a safe assumption), there are 1,385,024 people waiting on employment based green cards in the EB-2 and EB-3 categories.
I know the number is huge! And next we have to try to fit that number into the two separate EB categories. Unfortunately, we have two problems in doing this. The first problem we have is that we do not know how many of these I-140 cases are in the EB-2, or EB-3 categories. So, let’s use a little deductive reasoning here. Using experience and best guessing based upon the division we already know about in the numbers of cases from the DOS, lets say 26% are EB-2 (360,162), and 74% are EB-3 (1,024,917).

The second problem is that we do not have a per country breakdown. (I hope the USCIS has that breakdown). How to account for this? Again, let’s estimate based upon the DOS numbers, that India accounts for 70% of the EB-2 and 39% of the EB-3
numbers and that China accounts for 30% of the EB-2 and only 3% of the EB-3 numbers and the rest of the world accounts for 58% of the EB-3 numbers.

We also know the maximum numbers available in any given year for all family and employment based categories is 25,630 (with some caveats), and that there are only a total of 80,000 employment based immigrant visas in the EB-2 and EB-3 categories combined (with some flow down from other categories).

You can see we have leaped, jumped, guessed, and assumed our way to the follow conclusions:
India EB-3 wait for permanent residence for a labor certification filed today: 15.8 years. This generous estimate comes from the fact that an estimated 399,717 Indian Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants which would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories, so the wait time is probably longer.

China EB-2 wait for permanent residence for a labor certification (or NIW) filed today: 4.1 years. This estimate comes from the estimated 108,048 Chinese Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants that would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories.And these waits are from when the person STARTS the green card, not when they come into the United States.

Worldwide EB-3 wait for permanent residence for a labor certification filed today: Well, there are 594,451 people waiting in this queue. The limiting factor here will be the 80,000 annual limit on employment based immigration. Excluding per country limits and flow down from other employment based immigrant visa categories, this is at least a 8.1 year wait.

I can now tell my client a waiting date based upon, at least, some real numbers. But, I will still be wrong. The dates are not accurate, but at least it is not made up out of whole cloth. But we now all understand that we cannot look at the Visa Bulletin and actually determine how long the wait is.

The point of this whole exercise, besides telling my client how long he still might have to wait, is to point out the consequences of these numbers.

Line? What Line? These are employment based immigrants. Every single one has a job offer, an employer, and a certification that either there are no qualified, willing and able US workers for the job, or that the individual is so good, we do not even have to test the labor market. We need these people. We want these people. How many do you think will now just give up and go home?

This delay in legal, employment based immigration is a crisis for America. If you are an intending immigrant, and your immigration option is employment based, do you have the patience the wait 15 years for your green card? Can you do better in Australia, Canada, or even back home in your home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?

I believe these numbers have a purpose. The purpose is immigration reform, and not just a legalization. We all know that a broken legal immigration system causes illegal immigration. We need to fix the legal immigration system now! We need to modify the process, significantly shorten the wait and increase the numbers to meet the demand. We need to not include family members in the total calculated visa numbers. And, Yes, we need to make these change even in a struggling economy.

We must maintain the great benefits that positive, focused employment based immigration has delivered to America. The reality is that Congress must act to help save the future of American innovation and economic growth. And, they must do it now.

Nasty Debate Forms over Citizenship Question on the 2010 Census Monday

Trick-or-treat!

Immigration is stirring up trouble again in Congress. Just when we thought we were safe to put the issue on the back-burner for another few months, Republican Senators David Vitter (LA) and Bob Bennett (UT) have found a way to sneak it back into some upcoming legislation. And this time, the new alliances are being formed and the new lines are being drawn are almost spooky.

Sens. Vitter and Bennett are trying to attach an amendment to an upcoming Commerce, Justice and Science appropriations bill that would freeze Census Bureau funds if the organization does not add a question about the citizenship status of respondents to the more than 425 million forms before the once-a-decade count begins this coming April.

The Senators claim that the bill is necessary in order to exclude illegal immigrants from the census count so their numbers won’t affect congressional appointment or legislative redistricting, both of which are based on population. Vitter says that the inclusion of these non-citizens will increase the population count in some states, which would result in a loss of congressional seats for other states, including Louisiana.

Clearly, the proposed legislation has raised many questions, but not only from civil-rights and Latino groups. Even some Republicans signed a letter that was released last week criticizing Vitter’s amendment; and the consistently anti-immigrant group Center for Immigration Studies (CIS), a Washington-based research group, also came out against the proposed amendment. The group’s research director Steven Camarota said that Vitter’s amendment was not the right way to go about addressing the problem of illegal immigration, and that it was too late in the game to make significant changes to the 2010 Census.

Surprisingly enough, while many Latino groups have come out against the legislation, one group is talking about the possible merits of the legislation. The Rev. Miguel Rivera of the National Coalition of Latino Clergy and Christian Leaders said, “It’s basically the best thing to happen to us since sliced bread.” He goes on to explain that illegal immigrants should not be factored in when it comes to calculating electoral districts, but also thinks that this legislation could be a great way to convince Latinos to boycott the Census and apply pressure on Congress to pass a comprehensive immigration reform package sooner rather than later.

There’s no question that the proposed legislation has created some rather unconventional alliances. But here are a few more reasons why I think it’s just a really bad idea:

• The bill feeds off public animosity over the immigration debate to create an even more rigorous set of laws for immigrants, in turn creating a vicious cycle that perpetuates a dialogue of hatred while legislatively accomplishing nothing;

• Inquiring about immigration status may raise questions of the confidentiality of the information provided to the Census Bureau among citizens, and non-citizens, residents, and non-residents, alike;

• A citizenship question would likely impede Latino participation in the count, a group which is the largest minority in the United States today. Their lack of participation could seriously skew the results; and

• My favorite: former census directors have stated that adding another question this late in the game could not only delay the Census, but could add significant additional costs to the $7 BILLION ALREADY SPENT on the survey. Not with my tax dollars!

With any luck, the provision will not pass and the issue, for the moment at least, will be safe. However, it’s only a matter of time until the next member of Congress comes along with a new trick up their sleeve to sneak the immigration issue back onto the floor. What Congress needs to realize is that the real treat for everyone would be to have a respectful, honest discussion about how to seriously solve one of the nation’s scariest problems.

BALCA–Your PERM Case is Denied!

Over the course of the last year, the Board of Alien Labor Certification Appeals (”BALCA”)has been posting a series of appeal decisions. These BALCA decisions routinely deny the labor certification appeal, even for minor, de minimis errors of the employer and/or counsel. An example of today’s postings include the following:

BALCA Affirms Denial Based on Lack Of FEIN on Date of Filing for Domestic Household Employerhttp://www.aila.org/content/default.aspx?docid=30340 BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification. Matter of Edward J. Tierny, 2009-PER-00314 (7/13/09). AILA Doc. No. 09102061.

BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day
Requirement
http://www.aila.org/content/default.aspx?docid=30342BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. Matter of Spires Restaurant, 2009-PER-00125 (8/25/09). AILA Doc. No. 09102063.

BALCA Affirms Denial Based on Employer’s Failure to State Experience Requirement on PWD Requesthttp://www.aila.org/content/default.aspx?docid=30343 BALCA affirms the PERM denial based on the employer’s failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. Matter of Florida Restaurant Group, LLC, 2009-PER-00014 (8/25/09). AILA Doc. No. 09102064.


I could list dozens of other denials from BALCA on similar ticky-tack issues, but I think you get the point–BALCA does not care that you or the employer misread one line in a hundreds of pages of FAQs, regulations, or liaison minutes. You missed it and that is not DOL’s problem. No Soup For You. Refile. Get to the Back of the Line. We do not care how it affects your business. The real tragedy here is that BALCA gives you this decision 4-5 YEARS after you filed the original labor certification, adding insult to injury.

Some would say this is a reason to have a simplified immigration system as it relates to the permanent employment of foreign nationals in the United States. I cannot disagree. The promise of PERM–quick approvals and denials based upon “real world” recruitment, is an illusion, nothing more. PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!

Who would have thought that we would pyne for days of “regular” labor certifications! What a farce this system has become in the name of progress.

Cobb County 287 (g) Program- Frequently Asked Questions

1. I have paid my relative’s Cobb County bond- why can’t he get out?
Cobb County has implemented a 287 (g) program. Under this program, state and local law enforcement are authorized to identify, process, and when appropriate, detain people who may have violated the immigration laws. Once you pay the Cobb County bond, your relative will be placed under an Immigration and Customs Enforcement (ICE) detainer. The detainer provides ICE with a period of time to interview and assess the alien. This means that even if you pay the bond, he can’t leave the jail for 48 hours.
2. If I pay the county bond, what will happen?
Your relative should be interviewed by an ICE official in Cobb County within 24 hours of the payment of the county bond. Your relative will be moved to a section of the jail designated for immigrants and will be transferred out of the jail- generally within 48 hours of bond payment. Note that the ICE official may issue an immigration bond – payment of which will result in a release from jail.
3. If I don’t pay the county bond, what will happen?
Your relative will remain in Cobb County until the underlying charges are disposed of. He will remain in the immigration section of the jail and should then be interviewed by an ICE official within 24 hours.
4. How often does ICE pick up detainees from the Jail?
Mondays, Wednesdays and Fridays.
5. Where will ICE take my relative?
Cobb County will bus detainees to the Atlanta ICE Office. From there they will be sent to the various detention centers based on their country of origin.

Good, Let Them Die!

What a horrible name for a post, but I am simply quoting the comment of DLG to an article published today by the Associated Press noting that the soaring number of deaths on the Southern Border so far this year. DLG’s full quote is as follows:

Good, let them die. Maybe if enough of them die, they will start to think it isn’t worth it to sneak over the border. It isn’t our country’s job to make sure that they are safe sneaking in.


We have to understand, as someone who recognizes that a broken immigration system is one of the principal reasons why these people (and they are people, real human beings with families and children and parents) keep dying in our southern desert. Now, in case you think this is an isolated sentiment, here is the comment of “Illegal Foreign Nationals”:

Gotta love the news media and the ACLU, they keep calling these criminals immigrants by mistake. At least those that die aren’t stealing from america and the citizens of this country, except in funeral costs and rescue costs. We should have our military forces along the border to have better border security and keep these illegal foreign nationals out of this country.

It is deplorable to call these Mexican illegals immigrants when they had no immigration records or identification unless that too is forged. It’s too bad more of them aren’t dieing from bullet wounds for invasion and terrorism to america.

Our economy would not be in the mess it is if all illegals trying to cross our borders were caught, killed, or returned before they get in to the pockets of government agency’s. Americans would have jobs, paying taxes, and have some expendable incomes.And never refer to them as immigrants, they are criminals breaching our national borders intent on destroying our economy. By all definitions that is terrorism.


What is missing from the comments in this article, and in dozens of other articles around the country today, are two things. First, a recognition that our Immigration Laws are broken. And, second, compassion. Wishing death on people who want a better life for them and their children is simply not the American way.

Take a moment today to comment on one of these articles and put the message out there–Congress, Fix Our Broken Immigration System!