January 2012 Newsletter
IMMIGRATION uDATE:
LOOKING AHEAD AT THE NEW YEAR

January 13, 2012

DEAR CLIENTS AND FRIENDS:

As the Presidential primary races into frenzied overdrive, immigration reform has become one of the "hot topics" of political discourse. While the Congress remains far too polarized to pass sweeping and fundamental immigration reform, I detect a much more nuanced level of understanding on the need to revamp our immigration system in order to remain competitive in a fast-paced, interconnected, globalized economy, particularly given the fact that the competitiveness of the United States does not rest on manufacturing muscle, but rather on intellectual innovation and creativity. Every meaningful study has stated that legal immigration is a vital impetus for attracting the intellectual, human, and financial capital that hold important keys to our national future.

Our national revitalization going forward will require the sustained encouragement of entrepreneurial ventures, which are the single biggest source of new job creation and innovation. And that, in turn, can only be accomplished through enhancements in education, information technology/bandwidth, fiscal policy, and immigration. Whether it is the Ph.D. programs in the sciences or the Intel Science Talent Search for high school students, immigrant students form a disproportionate share – and in many instances, an outright majority – of the next generation of IQ entrepreneurs and innovators.

As Tom Friedman has noted, America is no longer in a competitive race with other countries for economic and scientific preeminence. The main competition is between you and your imagination – who, where, and under what circumstances can innovation transform abstract dreams into the new breakthroughs of today.

I suspect that regardless of who becomes the next President, we will see wide-ranging reforms to our immigration system if for no reason other than to position the United States to attract and reward the “best and the brightest” – that is, entrepreneurial and scientific superstars. Whether recruiting new professionals to my firm or recruiting creative entrepreneurial visionaries to the United States, it makes sense to expand the talent pool to the greatest extent possible. This indisputably leads to a global search for talent and with that goes the need to enact laws and policies that will lead foreign innovators to immigrate to the United States.

Until we get this overhaul of our immigration laws, we will continue to witness incremental changes to our immigration system. Here are five (5) current developments of particular relevance in the immigration arena:

1. Substantial advancements in the immigration quota backlogs for India and China;

2. Emerging move to eliminate per-country limits to immigration;

3. Greater prosecutorial discretion in our deportation system;

4. The race for H-1B visa numbers;

5. The Supreme Court tackles some immigration issues.

I. What is Going on with the Quota Backlogs for China and India?

The United States maintains quotas limiting the number of immigrants allowed into this country. In the employment context, these quotas exist on three levels:

1. An overall, worldwide limit of 140,000 immigrant visas based on employment positions;

2. A five-tier preference system that creates a hierarchy for the allocation of these visas; and

3. A per-country limitation to 7% of the total number of visas in any given preference classification.

There have historically been substantial backlogs in the preference classification for Advanced Degree Professionals from China and India. It is a simple situation of too many smart and highly educated individuals from China and India who see their professional future as best served through their relocation to the United States. So, whereas there have not been any backlogs whatsoever in the worldwide quota, natives of India and China have faced a frustrating multi-year delay in attaining permanent residence.

In the past three months, we have seen an almost three-year decrease in the quota backlogs for India and China, thereby bringing the backlog wait for these two countries to its current level of two years. This diminishment in the wait times is attributable to two causes:

1. Owing to the economic downturn and the corresponding drop-off in new hiring decisions, not as many new immigration cases have been filed; and

2. There was a huge influx of immigration cases filed in mid-summer 2007 that have now largely been processed and approved, thereby freeing up immigrant visa numbers.

It is difficult to understand why companies that have qualified highly skilled professionals from China and India (as well as the beneficiaries themselves) need to wait additional periods of time to attain permanent residence just because they are from India or China, particularly since there has not been a corresponding backlog for foreign nationals born in other countries of the world. Unfortunately, the amelioration of these backlogs would require an expansion of the overall numerical quota limits, and this is an issue that realistically will need to await action as part of an overhaul of the entire immigration system.

On the bright side, there is some progress in shortening the interminable waiting times in immigration cases for clients from China and India. I sincerely hope that we will not see a reversion in the future to lengthy and frustrating waiting periods.

II. Balancing Out the System

Related to the discussion appearing immediately above is a more fundamental question: Why in a globalized world do we continue to have per country limits on immigration? After all, from the standpoint of US businesses, what difference does the country of origin make to the immigration case of a critically needed foreign professional? Yet, our immigration laws continue to draw stark distinctions based on country of birth.

The U.S. House of Representatives recently passed legislation that would entirely do away with country-based immigration quotas. Right now, this legislation is bogged down in the Senate, and passage during this term of Congress appears to be rather dim.

But if passed, this legislation, known as the “Fairness for High-Skilled Immigrants Act,” would level the playing field, thereby making a foreign national’s country of origin irrelevant for employment-based immigration cases. On a positive note, it would mean that natives of China and India would face a shortened waiting time in their immigration cases. But on the negative side of the ledger, it would likely impose backlogs on the worldwide quota, meaning that foreign nationals from all other countries would likely face backlogs arising from the fact that the quantity of applicants exceeds the worldwide quota.

My own feeling is that quota restrictions for highly skilled foreign nationals do our country a major disservice. In order for foreign nationals to gain permanent residence under our employment-based system, either an employer needs to go through a lengthy and rigorous recruitment process to show the unique contributions of a foreign national and his/her high level of education and qualifications, or in certain instances, a foreign national can attain permanent residence by showing that his/her services substantially benefit the United States. It just seems to me that these are such high and exacting standards that it becomes senseless to impose additional periods of waiting over and above the requirement of showing that the attainment of permanent residence carries significant benefits to the sponsoring employer and, in many instances, the nation as a whole.

III. Mr. Dickens Meets U.S. Immigration

A recurrent theme in the novels of Charles Dickens is the disconnect between the severity of a crime and the level of harsh punishment to the perpetrator. Characters in his novels received harsh penal sentences or even corporal punishment for seemingly minor infractions. The Victorian legal code depicted by Dickens was steeped in tradition and grandiose embellishments, but ultimately bereft of logic, compassion, and justice.

These are some of the same elements in existence in our set of deportation (technically called “removal”) laws. While U.S. citizens hold certain unshakeable rights embedded in the U.S. Constitution and Bill of Rights, these fundamental protections do not necessarily apply to foreign nationals. In fairness, over the years – and particularly in the last 40 years – the courts as well as our legislative bodies have increasingly extended fundamental notions of fairness and justice (known as “due process”) to foreign nationals. Even with these enhancements, foreign nationals lack the full panoply of legal protections that lie at the heart of the American judicial tradition.

In addition to relaxed procedural protections and lower substantive standards when judging the right of foreign nationals to remain in the United States, our immigration enforcement agencies as well as the immigration courts are simply overwhelmed by a massive volume of cases. There are an estimated 11-12 million foreign nationals who allegedly are in this country without authorization. Such individuals live in all sections of the country and work in a wide variety of positions; many were brought to the United States in early childhood, so their lack of legal status is not the result of their own decisions, but rather the result of actions taken by other family members. In many, many cases, they have potential claims for legal status under either current or prospective law.

In short, this sub-population does not fit into any easy stereotype as they encompass everything from malfeasors (a fancy word for those who would harm this country) to criminals to individuals committing minor infractions to those who might well qualify for legal status if and when long-overdue reform measures are passed. Many have deep family connections in the United States, children who are U.S. citizens, and good, solid jobs in the community.

In the face of continuing Congressional inaction to reform our immigration system, the Obama Administration starting last June issued a series of directives intended to separate out relatively minor cases or removal cases having compelling factors serious cases, such as those involving criminal or terroristic activities.

At present, the Government is taking a two-pronged approach. First, the Department of Justice is reviewing roughly 300,000 pending removal cases to assess whether each case meets certain priority factors that would warrant further judicial action. The goal here is to clear up the seriously backlogged immigration court dockets and to better focus resources on high priority cases. Conversely, low priority cases will be administratively closed, although this action does not necessarily confer legal status or even employment authorization. In its second phase, the Department of Homeland Security is now issuing guidelines to identify which cases should be prosecuted and which ones should be held in abeyance since they do not warrant the expenditure of resources.

This notion of prosecutorial discretion is not unique to immigration. Rather, the Government utilizes its discretion in countless areas in deciding whether or not to prosecute someone. What makes this initiative unique is that it represents an effort to systematically create policies in anticipation of future changes in our immigration laws that would grant lawful status to certain classes of foreign nationals. While the Administration is barred under law from actually conferring lawful status without appropriate legislative enactment, it is fully within the discretion of the Executive Branch to focus its enforcement resources on cases of serious importance.

IV. Start Your Engines: The Race For H-1B Visa Numbers

The H-1B Temporary Worker visa is the workhorse of the immigration system for foreign professionals working in the United States. This is a temporary, nonimmigrant visa that is used by US employers to recruit foreign professionals working in a wide range of professional-level positions. This visa is attractive because it normally is rather quick to obtain and it provides a rather generous period of up to six years of immigration/employment authorization.

The challenge is that there is a quota limit of 65,000 H-1B visa numbers. Each year, this quantity is woefully insufficient to meet the demands of U.S. employers. In the period of strong economic growth in the mid-2000’s, the H-1B visa numbers became depleted nearly instantaneously. Even in the more recent years of economic slowdown, the H-1B visa numbers inevitably became exhausted. This past year the H-1B visa numbers ran out on November 22. Take note: applications for the new fiscal year open on April 1, 2012 for positions that will commence on October 1.

In a forthcoming newsletter, I will deal with the intricacies of the H-1B visa classification and provide some practice pointers on how to navigate this disconnect between the supply of and demand for H-1B visas.

What I want to impart now is simply the following: PLAN AHEAD. Employers should seek to identify those foreign nationals who will need H-1B visa coverage and then to the extent possible, start the H-1B sponsorship process. No one knows when the H-1B visa numbers will run out, but if history is a guide – and it certainly is – that these numbers will at some point in time become depleted. When that happens, the new H-1B visa numbers will not become available for some period of time – most likely, for several months.

V. The Supreme Court Weighs In

I am a U.S. citizen and implicit in this status is my right to feel confident that the government will not intrude in certain personal liberties unless there is very good cause that rises to the level of “probable cause.” In short, before my home can be searched or I can be arrested, the government needs to have much more than a hunch that there is something amiss. Rather, the government needs to have a high level of reasonable suspicion that is supported by relevant facts or circumstances.

Given the widespread frustration with federal immigration enforcement efforts and in an effort to staunch the inflow of unauthorized foreign nationals, various states have enacted restrictionist immigration legislation. Arizona has been at the forefront of these efforts to enact state-based immigration legislation in what has traditionally been an exclusively federal domain of action.

The Arizona provisions essentially involve two initiatives:

1) Employment: Acting under the state’s business licensing authority, Arizona has created tough worksite enforcement provisions and employer sanctions that are intended to remove employment opportunities in the state from unauthorized foreign nationals; and

2) Persona: Arizona has passed sweeping changes in its criminal code that not only makes it a criminal activity to be without valid immigration status, but empowers police officials to arrest suspected violators of these immigration provisions based on a standard of “reasonable suspicion” (defined pretty much as a “hunch”) rather than having to meet the time-tested standard of “reasonable cause.”

The U.S. Supreme Court in the case of Chamber of Commerce v. Whiting (May 26, 2011), has already upheld the commercial provisions of the Arizona immigration laws as a valid exercise of the state’s business licensing authority.

In the coming term, the U.S. Supreme Court in the case Arizona, et. al. v. United States has agreed to rule on Arizona’s tough anti-immigrant provisions that criminalizes unauthorized immigration status and gives the state’s enforcement agencies sweeping new powers to enforce these provisions, including a low bar to making arrests of suspected violators. There are three (3) central issues here:

1. Can a state enact criminal provisions based on immigration status or is this area of the law reserved exclusively to the federal government?;

2. If there is room for state action, has Arizona gone too far in creating criminal exposure for the status of being without authorization (after all, there is a difference between status, which is basically passive, and a criminal action)?; and

3. Even if the criminal penalty provisions are lawful, has the state impermissibly empowered its own enforcement agencies to act in a manner that violates certain time-honored due process protections that compel government agencies to meet a high standard of “probable cause” when making arrest actions that, by definition, lead to the loss of personal liberty?

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The implications of the Supreme Court’s decision will be immense in establishing the degree to which the states and, by extension, municipalities can enact restrictive immigration measures that target individual rather than corporate liberties. I will definitely keep the readership of this newsletter informed on future developments, so stay tuned.

As we enter this New Year, I expect that immigration will be a major issue in our national narrative. The conceptual problem that bedevils the immigration debate is that immigration is too often seen as a zero-sum game. The prevailing fiction holds that immigrants deplete our national treasure house and destabilize our society. Even assuming that this fear is true (and I would hold that the opposite is actually the case), that is not grounds to staunch immigration; rather, it is the imperative to reform our immigration system in a manner that will enhance our global competitiveness and restore our position as the world’s leading source of innovation, dreams, and ideas. Immigration has been essential to our nation for hundreds of years and continues to kindle the laudable spirits of our national character – innovation, meritocracy, risk-taking, pursuit of excellence, inclusiveness, and technological advancement.

As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to our attention. It is always a pleasure to hear from those whom we serve.

Cordially,

ROBERT D. ARONSON

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.