Where Do We Go From Here: The New Face Of Comprehensive Immigration Reform

by

Gary Endelman and Cyrus D. Mehta







It may have taken the
Bolsheviks 10 days to shake the world but the presidential election last week
did it in one. The political calculus on comprehensive immigration reform
changed utterly and likely forever.



Hispanic voters accounted for 10% of voters
on November 6th, reaching double-digits for the first time, and
President Obama won them by a 71-28% margin. The number of registered Latinos
soared by 26% in the past 4 years to an astonishing 12.2 million. The Hispanic
rejection of Governor Romney contrasts sharply with the 44% of the Hispanic
vote won by former President Bush in 2004. The latter pushed for CIR in 2007 and
remains the only President ever to make a televised speech on immigration from
the Oval Office. Moreover, the last time that CIR passed the US Senate in 2006,
23 of the 62 Aye Votes, came from Republicans, including one from then Senate
Majority Leader Bill Frist of Tennessee.



Nor have Hispanics
always been in love with President Obama under whose administration
deportations reached record levels. Despite his 2008 promise to move on CIR,
the President had done precious little until this summer, something he had to
admit under tough questioning at a forum sponsored by the Spanish-language
Univision network.  Then came the
President’s Deferred Action for Childhood Arrivals (DACA) initiative and the
momentum for change took off.  On the day
after the election, an ABC News/Washington Post poll revealed a majority of all
Americans (57%) backed a pathway for citizenship to bring the undocumented in
from the shadows; among Hispanics the notion was even more popular (82%). Fox
News commentator Sean Hannity proclaimed that his position on CIR had “evolved”;
Arizona Governor Jan Brewer who rode to re-election on her state’s nativist
immigration law now thought that CIR was “fine and dandy”; libertarian Senator
Rand Paul  announced an intent to make
CIR a key plank in his run-up for 2016 and old-time immigration stalwarts like
John McCain and Lindsey Graham who had seemingly found their old views radioactive
in recent years now rediscovered them, eager to join in bipartisan CIR
discussions with their Democratic colleagues.



In his first news
conference after his reelection on November 14, 2012, President Obama
expressed confidence that he could pass an immigration reform
bill

early in his second term. He said that we should “seize the moment” buoyed by
the strong endorsement he received from Latino voters favoring him over Mitt
Romney.



Here is a transcript of
the section of the news conference dealing with immigration:



Q:
And also, what lessons, if any, did Democrats learn from this last election and
the Latino vote?



OBAMA:
Well, I think what was incredibly encouraging was to see a significant increase
in Latino turnout. This is the fastest-growing group in the country and, you
know, historically what you’ve seen is Latino vote -- vote at lower rates than
the broader population. And that’s beginning to change.



You’re
starting to see a sense of empowerment and civic participation that I think is
going to be powerful and good for the country. And it is why I’m very confident
that we can get immigration reform done. Before the election, I had given a
couple of interviews where I predicted that Latino vote was going to be strong
and that that would cause some reflection on the part of Republicans about
their position on immigration reform. I think we’re starting to see that
already.



I
think that’s a positive sign. This has not historically been a partisan issue.
We’ve had President Bush and John McCain and others who have supported
comprehensive immigration reform in the past. So, we need to seize the moment.



And
my expectation is that we get a bill introduced and we begin the process in
Congress very soon after my inauguration.



OBAMA:
And, in fact, some conversations I think are already beginning to take place
among senators and congressmen and my staff about what would this look like.
And when I say comprehensive immigration reform, it’s very similar to the
outlines of previous immigration reform. I think it should include a
continuation of the strong border security measures that we’ve taken. Because
we have to secure our border. I think it should contain serious penalties for
companies that are purposely hiring undocumented workers and -- and taking
advantage of them.



And
I do think that there should be a pathway for legal status for those who are
living in this country, are not engaged in criminal activity, are here to --
simply to work. I’ve -- it’s important for them to pay back taxes. It’s
important for them to learn English. It’s important for them to potentially pay
a fine, but to give them the avenue whereby they can resolve their legal status
here in this country, I think is very important. Obviously making sure that we
put into law what -- the first step that we’ve taken administratively dealing
with the DREAM Act kids is very important as well.



The
one thing that I’m -- I’m very clear about is that young people who are brought
here through no fault of their own, who have gone to school here, pledged
allegiance to our flag, want to serve in our military, want to go to school and
contribute to our society, that they shouldn’t be under the cloud of deportation.
That we should give them every opportunity to earn their citizenship. And so,
you know there are other components to it, obviously. The business community
continues to be concerned about getting enough high-skilled workers.



And I am a believer that if you’ve got a PhD in physics, or computer
science who wants to stay here, and start a business here, we shouldn’t
make it harder for them to stay here, we should try to encourage him to
contribute to this society. I think that the agricultural sector,
obviously has very specific concerns about making sure that they’ve got a
workforce that helps deliver food to our table. So there’re gonna be a
bunch of components to it, but I think whatever process we have needs to
make sure border security’s strong, needs to deal with employers
effectively, needs to provide a pathway for the undocumented here, needs
to deal with the DREAM Act kids.



While it is remarkable that the strong Latino support has
changed the dynamic on immigration reform, let us not forget that comprehensive
immigration reform should also encompass all others who have been mired under a
broken immigration system. President Obama did make reference to “[t]he
business community continues to be concerned about getting enough high-skilled
workers,” but he said it more as an afterthought. We completely and
wholeheartedly support a pathway to legalization and citizenship for the
millions of undocumented immigrants who have otherwise led productive lives in
the US and benefit the country in more ways than one. Immigration reform should
not be viewed as only a Latino issue, it is an American issue. The view that
reform is a Latino issue is not surprising d
ue to two reasons.
First, most Americans continue to think that immigration benefits the
immigrants not themselves. Second, because of that, business immigration is not
deemed to have the ethical legitimacy the same way that family migration has.
For that to change, for sweeping CIR to become reality, all of us must realize
that immigration is not a problem to be controlled but an asset to be
maximized.



Immigration reform
will surely benefit immigrants, but in turn, will also benefits America. It
will create a stimulus for the economy and make employers more competitive. We
therefore hope that immigration reform will ameliorate the plight of
beneficiaries of approved I-140 petitions who are stuck in the endless
employment-based third (EB-3) backlogs. These are people whose employers have
obtained labor certifications years ago, and who are in the pipe line for a
green card, but for the oversubscription in the preference category. Indeed,
the
wait for an India EB-3 whose labor
certification is filed today is anticipated to be 70 years
. This is dysfunction at its worst.  The wish list for reform is endless and that
is because the system is so broken. We clearly need to expand family-based visa
numbers too, and it is clearly inhuman to tolerate spouses of permanent
residents to be waiting for 3 years before they can get green cards.  We should bring back more due process as well
as give more discretion to the USCIS or the Immigration Judge to decide whether
an immigrant convicted of a crime should stay or be deported. The 3 and 10 year
bars have had the perverse effect of creating a larger undocumented population
in the US. Because of these bars, many are caught in a federal Catch-22. They
are unable to apply for green cards in the US, but if they return to their home
country to process for a visa at a US consulate they will be barred for 10
years.  Ironically, sluggish economic
growth has done what ever-stricter border enforcement could not. Illegal
immigration has consistently receded in recent years, spiking in 2000 under
President Clinton but down by a third by the time that President Obama took
office. Between 2005-2010, the Pew Hispanic Center estimates that as many
Mexicans departed these shores as arrived. Today,
net migration from Mexico is
non-existent
.



We focus here in
this blog on the need to also reform our employment-based immigration system. Future
blogs will focus on other reform proposals. Any CIR proposal needs to
contemplate an expansion of the number of green cards under the
employment-based preferences so that an employer is able to obtain the services
of a foreign national more quickly after the US labor market has been tested
through the labor certification process. We also need more temporary work
visas. The current 65,000 H-1B cap, along with the additional 20,000 H-1Bs
reserved for graduates with advanced degrees from US universities does not meet
the demands of US employers. Moreover, we 
eed to provide an incentive for foreign students whom we educate,
especially in STEM (Science, Technology, Engineering and Math) fields, to not
leave and compete with the US from their home countries.
Studies have shown that the US is losing in the competition for
global talent, and any reform proposal needs to stop this bleeding. There
should also be better oversight over officers who are bent on denying temporary
work visas because they have self-appointed themselves guardians of the economy
or because they do not like a certain business model, such as India-based IT
consulting, which is what the
Neufeld memo sought to do. Officers must faithfully apply the
law as intended by Congress. Finally, we also need to have a visa that will
encourage entrepreneurs and startups in the US.



In addition to broadly reforming the employment-based immigration system,
here are some additional pointers that can greatly improve the system we have
presently. Even if there is reform of the employment-based immigration system,
backlogs could still build up again the coming years. When the numbers in the
employment and family-based system were last  increased under the Immigration Act of 1990,
who would have envisaged that the EB-3 for India would be a 70 year wait!  As part of CIR,
INA §203(d)
should be modified to specify that family members should not be counted
separate and apart from the principal alien to stop double or additional
counting. Such double counting undermines the principle of family unity which
is at the core of our immigration values. Also, when the Child Status
Protection Act (CSPA) was enacted, the kind of visa retrogression we have today
did not exist. Congress never anticipated systemic visa backlogs particularly
affecting EB3 and EB2 for India and China. That is why they wrote the age
formula the way they did. Not until the priority date is current can the
pendency of the I-140 be subtracted from the chronological age to give you the
CSPA age.  In any CIR proposal this should be changed so that you only
look to the age of the child when the I-140 is approved. That would make the
CSPA relevant to backlogged categories, which is not now the case. We also
propose that INA § 245(a)(3) be modified to allow the filing of an adjustment
of status application without regard to the priority date. This could be
possible for both FB and EB beneficiaries who have an approved an I-130 or
I-140 petition.  Such adjustment of
status applications will be provisionally submitted with final approval
subject, as under current law, to the immediate availability of an immigrant
visa number.



With regard to H-1B
visas, the truth is that a cap on H-1Bs is a cap on the US economy and should
be removed. Since many Indian and Chinese students start work in the United
States as temporary H-1B workers, we propose the creation of a streamlined or
Blanket H-1B application process for large H-1B employers similar to the
Blanket L system under which work visa applications can be presented directly
to US Consulates abroad, thus bypassing the need for individual H applications
with the USCIS. Allow large H-1B employers to enter into centralized
application arrangements with US Consulates in connection with the Blanket H-1B
similar to what the USCIS now offers many corporate employers so that economies
of speed, efficiency, and informed adjudication can be achieved on a consistent
basis. It would also be a good idea to remove the six-year maximum imposed by
the Immigration Act of 1990 and transform the H-1B visa into what it really is,
namely a "pre-immigrant" instead of a "non-immigrant" visa
that it is not now and never has been. Also, end the ban on spousal employment
for H-4s that cruelly and unnecessarily puts the promising careers of countless
professional spouses into the deep freeze. There should be a broader more
accessible visa, unlike the very limited H-2B visa we have today, for essential
 factory, hotel, restaurant, construction
and farm workers. That will be the only way to ensure that the undocumented
population does not build up again.



If the labor
certification procedure will still exist in a CIR proposal, the notion of
minimal qualifications that is required when an employer files a labor
certification is wholly artificial and does not exist in the real world.
Although the points system was suggested in earlier CIR proposals in 2006 and
2007, a points-based system may not effectively match the skills of potential
immigrants with prospective employers. Those who wish to be productively
self-employed as entrepreneurs can avail of a specific startup visa.   CIR
is a good opportunity to broaden the application of the equally qualified
standard from academic to all PERM labor certification cases.  We also suggest removing the need for print
advertisements in all PERM cases since many employers, especially in IT,
advertise only on the Internet;   allowing
use of experience with the same employer, and eliminating the need for a fixed
job description that can never change no matter how long a wait till the green
card. Keeping a PERM application so static will be totally unrealistic for EB
backlogs if they again begin to accumulate.



The shocks waves of
November 6th are only a harbinger of things to come.  A new study by the Pew Hispanic center
predicts that, within 20 years, 40 million Hispanics will be eligible to vote
as compared to 23,7 million today. 
Hispanics are younger  and have a
higher birth rate than other groups. If the rate of Hispanic political participation
reaches the level of Whites and African-Americans, we could
experience a doubling of Hispanic voters by 2032.
Hispanic voters will constitute fully
40% of the growth in the American electorate between now and
2030
.
If the rate of Hispanic naturalization rises, this would be even more powerful
since 5. 4 million permanent residents of Hispanic heritage did not vote.  Nativists should also take note of the fact
that about 800,000 Latinos turn 18 each year. Furthermore, it was not just the
strong Latino turn out in favor of Obama. Even
Asian Americans, who make up 3% of the
electorate, overwhelmingly supported Obama.



The graying of America
may be the most serious domestic problem of the next quarter-century. As the
massive baby boomer generation slouches towards retirement, an aging population
needs the fountain of youth. Immigration may be the magic elixir. The US Census
Bureau estimates that the number of elderly people over age 65 could rise from
34.6 million today to 82 million by the year 2050. This trend will be most
evident between 2011 and 2030 when those baby boomers born from the late 1940's
to the early 1960's hit retirement age. Census experts predict that the number
of senior citizens over this period will soar from 13% to 20% of the
population. During the same time, the number of foreign-born people living in
the United States should dramatically increase, both in absolute terms and as a
percentage of the general population. Their number should grow from 26 million
today to 53.8 million by the year 2050, an increase from 10 to 13% of the
population. If these census statistics are correct, continued high levels of
immigration will be necessary to provide a large enough workforce to support a
rapidly aging America.  The Census Bureau
predicts the immigrants will become a majority in Texas within the next 14
years; five states will have a majority of non-White residents by 2025 and, in
the course of the next half-century, Latinos may comprise about 25% of the
entire US population. That's a lot of folks and they will no longer be
concentrated in a select number of states, such as California, New York, Texas,
or Florida, but will be distributed throughout the nation. They will be the
deciding votes in elections on all levels and their voice will be a strong and
powerful one in setting the political agenda. In 1998, the
National Immigration Forum joined with the Cato Institute to publish a study by StephenMoore on the fiscal impact of immigration. What he found
was startling and directly relevant to the problem so much on the mind of
Chairman Greenspan. Most immigrants arrive in the United States in the
floodtide of their working years; more than 70% of them are over age 18 when
they get here. Stephen Moore estimated that there were roughly 17.5 million
immigrants now in America whose education was paid for by their home countries,
not US taxpayers. He concluded that this represented an infusion of unearned
human capital worth some $43 trillion into the US economy. At a time when fewer
and fewer wage earners will have to be paying for growing retirement benefits
enjoyed by more and more elderly, it is worth remembering that immigration is one of the main forces keeping the
Social Security Trust Fund afloat. In 2007, for example, the Social SecurityTrust Fund realizeda net benefit of $120-240 billion from undocumented workers in the shadow
economy representing 5.4%-10.7% of the Fund’s total assets of $2.24 trillion. Immigration
is an essential strategy that responsible policy makers must use in a robust
way to solve the systemic problem of financing Social Security



For all these reasons,
there is no alternative to sweeping comprehensive immigration reform.  We are all in this together. The American
poet James Russell Lowell famously wrote that “once to every man and nation
comes the moment to decide.” This is our moment. The time to act is now.






This post originally appeared on The Insightful Immigration Blog on November 16, 2012.





About The Authors





Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan



Cyrus D.Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.









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