Friday, May 31, 2013

Grover Norquist and the Senate Immigration Bill

Like Grover Norquist?  I don’t particularly, I have to admit.  At least I don’t share his political views on most things (e.g. his goal is to shrink government to the size that it can be “drowned in a bathtub.”)  And I haven’t appreciated his “no tax increase under any circumstances” pledge that has been wrung from members of Congress and the immense power he appears to wield there.   I think government, any government, has a role to make its citizens safe.  It should protect the weakest and give opportunity to everyone, not just the ones with means.   This isn’t to argue for big or small government; only good government.
Nevertheless, I have to applaud his testimony to the Senate Judiciary Committee as an economist on the subject of comprehensive immigration reform.   We often focus on the moral aspects of immigration law in the U.S., but Mr. Norquist reminds us that the economics of immigration reform are really quite stark in the contrast between a roadmap to legalization for unauthorized immigrants (such as is being considered by the Senate), and an effective enforcement only policy. 
 He cites the Cato Institute study of 2009 which indicated that the incomes of U.S. households would increase by $180 billion per year if a legalization plan like that being considered by the Senate were adopted.   Another study  done for the Cato Institute shows a  $1.5 trillion growth in our gross domestic product over a 10 year period for adoption of a Senate type reform plan.
In contrast, studies have shown that an effective enforcement only model  would cause a $2.6 trillion decrease in GDP growth over the same decade.  Mr. Norquist also cites Douglas Holtz Eakin, former director of the non-partisan Congressional Budget Office, who conducted a study which concluded that significantly increasing legal immigration would boost GDP by .9 points annually.  Economists also estimate that deporting 11 million people would cost the government about $206 billion over 5 year period.   That’s the direct governmental costs of deportation alone.  The damage to the economy of an enforcement only program is much greater if we consider the effect on the GDP as described above. 
Mr. Norquist also pointed to some state examples.  Georgia passed a strong immigration enforcement bill which drove undocumented immigrants out of the state and left crippled the agricultural industry.  He cited $140 million in agricultural losses from one season, with crops left unpicked and rotting in the fields (with some 11,000 agricultural jobs left unfilled).  Georgia even tried to employ ex cons to pick the crops, but that didn’t work either.  Alabama suffered similar results with its (largely unconstitutional) enforcement laws.
In fact, studies show that immigrant workers are not competing with US workers at either the high end or the low end.  Their jobs complement the U.S. work force, and raise productivity and wages across the board. 
Now consider this.  Just a few days ago, more than 100 conservative economists signed a letter from the American Action Forum calling on Congress to approve an immigration overhaul, which includes a roadmap to legalization, highlighting the economic benefits to the country.
You may not like the moral implications of giving opportunity to those who came here without authorization.  I would argue that there is a higher moral calling to allow families to remain together and show hospitality to strangers and compassion for our neighbors.  We might disagree on this issue, but on the economic benefit to the U.S. of a better immigration policy, which includes a roadmap to citizenship for those willing to jump through the prescribed penalties and hoops, the conclusion from an economic perspective is inescapable.  Reform is better in every respect for America.

Friday, April 19, 2013

Boston and Immigration Reform

Like all Americans, I grieve for the victims of the Boston Marathon bombing.  I also grieve for what it does to the American psyche as terrorism once more raises its ugly head.  But as an advocate for immigrants, I also worry about how this incident will be used by immigration restrictionists to try to kill much needed immigration reform.  Xenophobia, like racism, is embedded deep in humanity (which is not at all to excuse it or commend it).  When American men gun down a congresswoman and her supporters, or shoot up a Colorado movie theatre full of people, or a Connecticut elementary school and its beautiful children, people think about mental illness and gun control.  When immigrants (no matter how long they have been here) commit an act of terror, we withdraw into xenophobia.  Forget the fact that statistically, the foreign born are much less likely to commit crimes in the U.S. than the native born.  Forget that even among criminal immigrants in the U.S., immigrants who have been here longer are more likely to commit crimes than more recent arrivals.  Once an immigrant commits a crime, we hear calls to shut down the border, as if anyone or any law can predict what somone admitted to the U.S. as a child refugee will do 10 years from now.  We demonize immigrant communities, even though those are the ones that can most help to solve these kinds of crimes. 

I saw it happen in 2001.  We are still recovering from the wave of anti-immigrant fear that covered the nation following the horrible events of 9/11.  Much of the problem in the current immigration system stems from Congressional refusal in the wake of 9/11 to re-authorize section 245(i) of the Immigration and Naturalization Act (INA), coupled with terrible, misguided 1996 legislation that created enormous bars to admission to the U.S. for visa violators, regardless of their relationships here.  Section 245(i) permitted non-criminal immigrants who had overstayed visas or entered illegally, but who were otherwise eligible to immigrate based on family or employer sponsorship, to pay a substantial fine and complete the immigration process.  Without that law, they were unable to regularize their status in the U.S., even though they had the relationships that we have recognized as warranting permission to remain here.  With no way to get right with the law again, they resorted to remaining here illegally.  Gladly they would leave, pay fines, and do whatever it takes to get legal status in the U.S., if there were a roadmap they could follow.  But Congress did not fix the legislative problem and they stayed, grew, and became part of an enormous underground culture.

Now we are on the cusp of fixing those legislative problems to create a better system of immigration to the U.S.  A fix that increases security, but also increases the possibilities of enormous benefit to the U.S. that comes from a better immigration policy.  We can’t let fear once more take over and keep us from doing the right thing.

Saturday, April 13, 2013

Immigration Rally Washington DC 2013

I’m writing this as I’m on my way back to KC from Washington, DC.  I went for AILA’s (American Immigration Lawyer’s Association) annual national day of action to lobby congressional offices for immigration reform.  I’ve made this trip many times in the past, but this time, our reception seemed different and there was a lot of excitement in the air.  On Wednesday, there was a rally in front of the Capitol.  I don’t know how many were there, but likely tens of thousands.  There was a sea of flags and signs waiving, chanting, and speakers (I’ll post pics later).  Fellow immigration lawyer Micki  Buschart and I made our way through the crowd with borrowed signs.  Most of the flags were U.S. flags, but also many flags from around the world,  including one I saw from Nepal (I had to ask the man what flag that was).  There were large contingencies from various unions present, which was encouraging, as well as teachers, the NAACP, Asian-American organizations, etc..  To look at the crowd, you could see that there were many there who had no voice and no real influence but wanted to support in whatever way they could.  I saw church groups, Budhist monks, and just a wide variety of people from lots of sections of American culture.  It was hot; over 90 degrees.  I had to borrow some sunblock.  After about 3 hours, I had to go back to the hotel, but the rally was still going strong.

The crowd was hopeful.  Me too, but I also had to remember that in 2007 we were also very hopeful and nothing happened.  Not even the Dream Act could pass even though it had very broad support among the public.  I remember political insiders telling me absolutely that comprehensive immigration reform was going to happen that year.  It did not.  Now we are hearing it again, so any optimism I have is still very cautious.

Still, I have to say the tone is much different now than it has been for the past several years.

The next day about 400 immigration attorneys and friends from around the country visited our congressional representatives.  Our delegation from Missouri and Kansas included Jim Austin, Ken Schmitt, Angela Ferguson, Micki Buschart, Lynda Callon, Erika Jurado (and some others not coming to mind right now).  We tried to hit as many from Kansas and Missouri that we could in one day. 
I'm also excited by the fact that next week, a coalition of religious groups will be visiting the Capitol to argue for immigration reform. In 2007, I don't remember churches, particularly evangelical churches, being as committed to helping the stranger as I see now.
Why reform?  Our current immigration laws do not meet our national needs and do not represent justice for our people.  There are millions of people in this country who have no other options to legally be a part of this great country.  They have family here.  Many have been here for decades.  They have employers that desperately need them and want them to stay. Yet they have no options under our present system.  There are also people here legally who have to wait decades for approval to stay permanently because of long lines and visa quotas.  Last year, over 80,000 parents of U.S. citizen children were deported, most of whom had no criminal violations.  We deported more people last year (over 400,000) than we ever have in our nation’s history.  Many of them had their only offense in being here without authorization, trying to support families and work in a system that did not offer them a path to remain here legally.  The current system is incredibly complex and devastatingly unforgiving.  

 Even those who have sponsoring employers and have never violated their status here find insurmountable roadblocks.  This year, professionals like engineers, teachers, IT and telecom specialists, all in demand, and who filed for their work visas on the first day available, will have to undergo a lottery to see who gets a work visa and who doesn’t.  Most of them are educated here in the U.S. and many will be sent home to find jobs that compete with U.S. companies.  It’s a ridiculous situation that hurts our economy.  One testimony before congress compared it to educating foreign officers at West Point and the Naval and Air Force Academies, and then sending them away to join some army of another country.  Makes no sense to educate people in fields we need, and then send them away to compete with us.

I’ve made this lobby trip several times in the past.  Honestly, there were several times where congressional offices didn’t want to discuss anything to do with immigration and basically kicked me out of the office.  I had many cold, rude receptions.  But elections make differences.  This time, even offices I knew would not ultimately vote for immigration reform, were still cordial to us and willing to hear us out.  Some that were rock solid in their opposition to anything that sounded at all like amnesty told us they would keep an open mind.  Some were very supportive of business immigration issues, but not family issues.  But I think we need to work on both, and do them together in a comprehensive, not piecemeal, way.

By way of very short summary of those offices I visited or heard about this trip from our delegation, McCaskill is “optimistic” for meaningful reform; Cleaver is 100% supportive, Moran and Yoder are interested in helping businesses, but skeptical about the family side of things;   Leutgemeyer , , , well, he had an autographed picture of Rush Limbaugh on his wall, but his office was still very cordial; Long, pretty much the same; Hartzler and Blunt the same as well.  I’m hoping to go to Graves’ office when I get back, but the last time I saw him, he was jointly appearing with Kris Kobach, so I don’t expect much there, but maybe we’ll be surprised.

So here’s where we are today, and things are going to change very rapidly.  The senate is in the final stages of drafting a bill right now.  I’m expecting it to be published either Monday or Tuesday.  The House is also working on a bill, but won’t start hearings on it until after the Senate is done.  The Senate has already scheduled a hearing on Wednesday for the bill, so we should see it and some summaries very quickly.  The hearings on the bill may take awhile.  The Senate will need to have a full debate on it.  Let’s hope it isn’t just a show with nothing happening, but they need to examine the parts of it very carefully.  Expect lots of compromise, including many provisions that are not good, but may be needed to ensure that something passes.

As for the contents of the Senate bill, expect it to provide much more border security, but also paths to eventual citizenship for people here.  There will likely be fines, long probationary periods, and lots of hoops to go through.  It will be tough on criminals, but maybe it will restore some discretion to immigration judges to consider other factors, like families, rehabilitation, etc.  The 3 and 10 year bars for illegal entries and overstays may still be there, but with better opportunities for waivers. 

Today we heard from representatives of the DOL, DHS, ICE, USCIS, as well as persons involved in drafting the bill from Senator Rubio and Melendez’s offices, but they could only be very general in what they said until the bill is published and debate starts.  Encouraging was the fact that both of the persons we heard involved in drafting the bill were former AILA attorneys, so they should have a good understanding of the issues and have some good sympathies for immigrants, although coming from two different political parties.  We heard a couple of times that there would be things in the bill that we would like very much, and some things not so much.  My attitude is, almost anything is better than what we have right now.

The bill itself is reported to be between 1000 and 1500 pages (Oh boy), so give it time for debate and don’t believe every rumor floating around about what is going on.  It’s a complex area of the law and there will be nothing very simple about what happens with this.  Expect penalties and long waits for those here without authorization, but eventually getting to be a part of the American Dream.  Maybe shorter waits for those in certain categories, like Dreamers and Agricultural workers. We are all, of course, very anxious to see the details.

Remember, there is no new law yet.  This is just the beginning.  The bill has to be published, then debated, then voted on. If it passes the Senate, the House of Representatives will look at its bill, debate it, and vote on it.  Then a committee will have to see if the two bills can be reconciled and approved so that there is only one bill.  If it gets that far, then it goes to the President, who must sign it before it becomes law.  Then the agencies, like USCIS has to publish forms and get ready to start taking applications.  A lot has to happen, but so far it is on the right track.  There will be groups that want nothing to happen other than enforcing our current unjust laws.  They will want to filibuster and kill the debate.  They will misrepresent the issues and the facts.  Let’s not let that happen and fight for a good and just law that will work for the U.S. and its immigration needs for years to come.

Thursday, January 31, 2013

Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform


A Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform


A bipartisan group of eight Senators have issued a document referred to as the “Bipartisan Framework for Comprehensive Immigration Reform.”  It purports to set out principals for developing a compressive immigration reform package.  This is very significant in that it is bipartisan, and involves key players in the past on the immigration issue, including Senators Schumer, McCain, Durbin, Graham, and Menendez.  It is significant also in that it is a comprehensive proposal rather than the piece meal proposals that have been debated over the past few years.  The last time Congress considered a comprehensive immigration reform package was in the 2007-2008 congressional term, which was rejected, even though supported by President Bush.  In some ways this is a better outline than we had in 2007 from an immigrant standpoint and I think that partly reflects the reality of the last election.


If you recall, there was a strong component in the GOP that took a very strict anti-immigrant position.  It opposed the Dream Act, any amnesty or path to legalization, and took a basically deportation first and enforce the borders policy.  Minorities, who are becoming a larger voting block significantly, rejected this approach in the presidential election (the GOP got only 21% of the Latino votes and less than that of the Asian American vote). 


In my opinion, Governor Romney made a serious strategic mistake in enlisting for advice people like Kris Kobach.  The positions taken by the GOP did much damage to perceptions of that political party and its attitude toward immigrants.  It is unfortunate because historically that was not necessarily the case.  I am glad to see Republican Senators like John McCain, Lindsey Graham and Marco Rubio weighing in on immigration reform.  At least McCain and Graham have been supportive of some of the previous attempts at immigration reform. 


It is also evident now that the President largely agrees with the principals laid out in the bipartisan framework, so let’s see what those are.


There are four basic legislative pillars. 


1.  Create a path to citizenship for unauthorized immigrants contingent upon securing the border and combating visa overstays.


Securing the Border.  The key words here are “contingent upon” and “securing the border.”  The path to citizenship is going to wait until there is confidence that the border has been secured.  What this means will differ greatly in the minds of many people.  Not long ago Secretary Napolitano indicated that she thought the border was the most secure it had been ever in the U.S. history, which threw cries of outrage from officials in Arizona.  Others point out that the benchmarks indicated in the 2007 legislation for securing the borders have already been met.  There are legitimate concerns that in some peoples’ minds the border will never be secured and thus the path to citizenship will never be implemented.


It all depends on how we define “securing the border.”  The Framework indicates a committee or commission comprised of governors, attorneys general and community leaders living along the southwest border to monitor the progress of securing the border. 


I am a bit apprehensive of this since I am confident that Governor Jan Brewer of Arizona will never agree that the border is secure as long as one person without authorization crosses it.  This is, of course, an impossible standard to fulfill.  That would be like saying that Kansas City will not be a safe place to work and raise a family until we can show that there is absolutely no crime in the city. 


I think what also bothers me about the way this is stated is that it almost implies that there is nothing being done right now to secure the border.  That is absolutely not the case.  Congress spends more money securing our border than it has in its history.  We deported more people (most of whom were non-criminal) last year than we ever have in our history and tens of thousands of those people were non-criminal parents of U.S. citizens.  Since the creation of the Department of Homeland Security in 2003, the budget for Customs and Border Patrol (CBP) has nearly doubled from $6 billion in fiscal year 2003 to $11.7 billion for fiscal year 2012. 


Nevertheless the Framework proposes to increase efforts of the border patrol with a focus more on technology such as drones rather than boots on the ground.  The Framework also proposes completion of an entry/exit system that can determine whether all persons entering the U.S. on temporary visas at airports and seaports have left the country as required by law. 


Probationary Legal Status.  The Framework also indicates that while the security measures are being put into place, they will require those who have come and remained in the U.S. without permission to register with the government.  This would involve a background check, paying a fine, and back taxes in order to earn “probationary legal status.”  The probationary legal status will allow them to live and work legally in the U.S. (similar, I think, to what we have with the beneficiaries of the “deferred action for childhood arrivals program”).  People with serious criminal backgrounds or who pose a threat to national security will be ineligible for legal status and subject to deportation. 


So although the probationary status can be attained before there is a determination that the border is secure, immigrants will not be eligible for a green card until that has taken place. 


Lawful probation immigrants will not be eligible for federal public benefits.  To get the green card, they will have to “go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the U.S. and current employment, among other requirements……..”   


This is a fairly high standard, even higher than what we expect of persons naturalizing in the U.S.  If an immigrant cannot show current employment, will they not be eligible?  What about the elderly or disabled? 


The “back of the line.”  Moreover, “go to the back of the line” is a very fuzzy concept.  I am not sure what line they are referring to.  There are certainly mass backlogs in visa number availability, but unless those numbers are increased by Congress the wait could be decades.


And what line do they stand in?  There is no line for persons who entered the U.S. without inspection and don’t have qualifying petitioning relatives.  The framework says that persons present without lawful status “will only receive a green card after every individual who is already waiting in line for a green card at the time the legislations has acted and received their green card.”


Well, if you are the brother or sister of a U.S. Citizen and you are from Mexico, the USCIS Ombudsman recently estimated that the wait for the visa number to be available is 131 years.  Does this mean that probationary immigrants have to wait until all of those visas have been processed?  If so, then I would not call this a “path to citizenship” unless we are willing to award citizenship posthumously. 


Regarding children, the Framework does indicate that people that entered the U.S. as children will not have the same requirements.  This is recognizing the principals of the Dream Act.  The Framework also intends to apply a lesser standard to people who have been working in the agricultural industry, which reflects some of the principals of the “Ag Jobs Act.”  Neither the Dream Act or Ag Jobs ever passed Congress. 


2.  Attracting the World’s Best and Brightest. 


Although the U.S. remains a magnet for the world’s most talented people, our immigration system has done a lot to discourage those people from coming in recent years.  The Framework recognizes the long backlogs and wants to do something about that although it is not clear what.  One significant statement is that they want to “award a green card to immigrants who have received a Ph.D., or Masters’ Degree in Science, Technology, Engineering, or Math from an American university” (the “STEM” fields).  This was something similar to what Governor Romney said in one of his campaign speeches. 


That kind of provision would be a tremendous benefit to U.S. employers who have trouble finding enough of the particular kind of talent they need and to professionals waiting for discouragingly long periods to complete the green card process (current estimates for certain professionals from India may be 15-35 years).  Many of our clients that have already have been waiting years and years in line to get green cards that are in the STEM fields could benefit greatly from such a proposition, although we have no details on how it might work.  For example, would they have to show a job offer or just the diploma etc.? 


3.  Strong Employment Verification.  The Framework will require a “fast and reliable” method for employers to confirm employment eligibility for their workers.  This sounds reasonable, but so far this kind of program, such as e-verify, has been a burden for employers and rife with errors.  Nevertheless, we can expect something like this to be required eventually.


4.  Hire lower skilled workers in a timely manner when Americans are unavailable or unwilling to fill those jobs. 


This would be significant because at the moment there is virtually no system for an employer legally to bring in a lower skilled worker for a permanent position.  That is primarily because of the backlogs.  An employer can go through the process of testing the U.S. labor market and demonstrating that there are no qualified and available U.S. workers for the position, and then still have to wait ten years or more to bring that worker in.  That is not a workable system. 


The Framework does indicate that they want a system that will allow more lower skilled immigrants to come here when the economy is creating jobs and fewer when the economy is not creating jobs.  This may sound appropriate, but sometimes the infusion of additional workers in a stagnant economy will provide a stimulus to the economy and actually create more jobs.  I am not sure the economic principal stated in the Framework actually holds up. 


The Framework also indicates that they want to “permit workers who have succeeded in the work place and contributed to their communities over many years to earn green cards.”  That is a good principal, but I am not sure how it would work.  Will this be different than the probationary legalization? 


Conclusion.  Of course, as in all things dealing with immigration, the devil will be in the details, but I see this as a very promising start to immigration reform.  Consider that only a couple of years ago Congress could not even pass the Dream Act which is supported by a large percentage of the American public.  It is quite astonishing and exciting then that we have gone from that low to the kind of principals espoused in this Framework in such a short period of time.  What a difference an election can make.