Announcement

Collapse
No announcement yet.

Blogging: The Immigration Line is Too Damn Long (and Slow) By Angelo Paparelli

Collapse
X
Collapse

  • Blogging: The Immigration Line is Too Damn Long (and Slow) By Angelo Paparelli

    The I-9 Audit Process Is A Game -- Alas, It Is Football, Not Soccer

    by Angelo Paparelli

    The Immigration Line is Too **** Long (and Slow)

    Steadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:

    • Why don't they just get into line like everyone else?
    • Why don't they wait their turn?
    • Why don't they just follow the law?
    • Why should we reward lawbreakers who disrespect our laws?
    • Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?

    All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than endure extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.

    The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reformapparently have swallowed these memes whole hog:

    [Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.

    The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized are nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:

    ["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.

    To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:

    The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.

    As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:

    Instead of dying in the desert, they might just die waiting to become permanent residents.

    Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system: 

    With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration "wait-your-turn" memes:

    [In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

    [As President Obama has said:] "Today we have an immigration system that is out of date and badly broken." 

    [Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

    A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

    The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

    No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

    According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:

    As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].

    The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.

    The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)

    The situation of getting "in line" is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:

    1. There are multiple lines, not just one;
    2. Unless you have a family or employer sponsor, there is no line whatsoever available;
    3. It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
    4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
    5. There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".

    The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The "line" flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

    We didn't always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows: 

    The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"): 

    The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

    The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.

    Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static "line."


    About The Author

    Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
      Posting comments is disabled.

    Categories

    Collapse

    article_tags

    Collapse

    There are no tags yet.

    Latest Articles

    Collapse

    • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko
      ImmigrationDaily

      If you are having difficulty viewing this document please click here.

      08-20-2018, 08:15 AM
    • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
      ImmigrationDaily
      Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
      08-17-2018, 11:12 AM
    • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
      ImmigrationDaily
      Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
      08-16-2018, 02:32 PM
    • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
      ImmigrationDaily

      Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

      by


      On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

      USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

      08-15-2018, 12:57 PM
    • Article: Update On Express Entry Immigration To Canada By Edward C. Corrigan and Selvin Mejia
      ImmigrationDaily
      Update On Express Entry Immigration To Canada by Edward C. Corrigan and Selvin Mejia On January 1, 2015 the Federal Conservatives introduced significant changes to Canada’s economic immigration program. Formerly called the Skilled Worker program the new program was re-branded as Express Entry which included Skilled Workers, the Federal Skilled Trades program, and the In-Canada Experience Program. Canada modelled its revamped economic immigration program on New Zealand’s. There is also an Atlantic Immigration program. In addition there is a separate Live-In Caregiver program where individuals can apply for Permanent Residence after two years employment in this category. EXPRESS ENTRY The initial object of the changes was to create a list of Applicants where the Federal Government could select the best and the brightest from the list of Applicants. The Express Entry was supposed have applicants who had an approved Labour Market Impact Assessment (LMIA) and a valid job offer from an approved Canadian Employer. Under the Comprehensive Ranking System (CRS) candidates were award 600 points for having an approved job offer. Applicants would have achieved a point score of around 1,000 with the 600 points for having a valid offer of employment under the CRS. The provinces in Canada were also allowed to select Applicants according to their economic needs and these applicants that were selected through the respective provincial nominee programs by a province were awarded 600 points to be added to their score. Ontario also has a program where graduates from an Ontario University with a Master’s or who were in a PhD. program would be approved and awarded 600 points which virtually assured that they would be approved and provided with an invitation to apply. There is a quota that governs this graduate program. LABOUR MARKET IMPACT ASSESSMENTS Things did not go according to plan with Federal Express Entry. Very few Applicants were able to attai...
      08-14-2018, 12:50 PM
    • Article: USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy By Cyrus D. Mehta
      ImmigrationDaily
      USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy by Cyrus D. Mehta The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II) . Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Prior to August 9, 2018, foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the pol...
      08-14-2018, 10:51 AM
    Working...
    X