Posted by Angelo A. Paparelli on January 30, 2009

Fast and Slow Immigration Change

The first days of the Obama administration have already witnessed a new form of alternative energy. Long pent-up momentum has been released in the forward movement of rallying cries for comprehensive immigration reform. With no time to wait or patience, the President's campaign supporters urge quick action. Others urge action on backlog reduction at USCIS and the Labor Department.

In the yin and yang of immigration, however, immigration advocates are heartened by the negative energy of just-in-time scrutiny of the Bush administration's twilight adoption of immigration regulations. The new President's Chief of Staff has issued a memo that urges the Executive Branch department heads to review for 60 days all new and proposed regulations. The memo makes exceptions for national security and the public welfare. But it also raises fresh hopes that ill-advised initiatives like the federal contractor E-Verify mandate might be reconsidered or put on ice until the error-prone system is improved.

Like a gyroscope spinning in perfect balance, the Obama administration must channel the positive energy of reform. It must also rethink the failed Bush late-term policy of enforcement-only.

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Posted by Angelo A. Paparelli on January 30, 2009

Federal Contractors Get a Break from Immigration Stess: E-Verify Postponed

Federal contractors, Congress and the Obama administration have yet another respite, this time until May 21, 2009, to decide what to do about E-Verify. In a notice to be published today in the Federal Register, contractors and subs who enter into covered agreements with the federal government need not enroll for now in E-Verify.

Meantime, Congress needs to decide the fate of this controversial Web 2.0 method, jointly developed by the Social Security Administration and the Homeland Security Department, for employers to determine the right of new hires and some current employees of federal contractors to work in the United States. Although embraced by many in federal and state government, E-Verify is technically on life support; its enabling legislation sunsets in the first week in March. Yet House proponents of the program have slipped into that chamber's version of the economic stimulus bill racing to the President's desk a requirement that every private employer receiving stimulus money enroll in E-Verify.

E-Verify still sports an unacceptably high rejection rate of roughly four percent, disqualifying a sizable component of the workforce from the jobs for which they may be authorized. It also requires a substantial investment of employer staff time and lost opportunity costs to manage the strict deadlines to resolve the feared TNCs (in bureaucratese, "tentative non-confirmations"). The TNCs are issued by federal cyber-cops to allow authorized workers to fight the government's claim that they lack the right to work.

How does diversion of employer staff and mistaken, autopilot rejection of workers promote economic rejuvenation? The country is already moving quickly toward government control of the economy, with nationalization of banks and auto companies a real possibility. Can we afford to let the same government department that suffers the deaths of immigrants in detention stifle the national economy with a not-ready-for-prime-time program of authorized-worker rejection?

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Posted by Angelo A. Paparelli on January 15, 2009

Immigration Intrigues in the Interregnum

The end of one presidency and the start of another often spark strange behaviors in Washington, especially when spiked with the catnip of immigration.

Remember the Nannygates of years past when Zoe Baird and Kimba Wood (Clinton nominees for Attorney General) and Linda Chavez (Bush's Secretary of Labor Designate) all fell from grace for housing or employing unauthorized foreign workers. Strangely, however, this year, Treasury nominee, Timothy Geithner, is defended for payroll tax violations by Republicans who whisper nary a word about his foreign housekeeper's expired work permit.

Witness also George Bush last week speaking to a group of Texas reporters and regretting that he pushed his failed bid to privatize Social Security in 2004 rather than fight early and hard for immigration reform: "I'm very disappointed that [comprehensive immigration reform] didn't pass . . . not for political standing or for Latinos, but because it was best for the country." Mr. Bush, in today's Farewell Address to the Nation, still seems to understand that America "is a nation that inspires immigrants to risk everything for the dream of freedom."

Yet his Administration in the past fiscal year doubled federal prosecutions of immigrants rather than aggressively pursue serious crimes. As one unnamed prosecutor told the New York Times:

“'A lot of the guys I work with did nothing but the most complex cases — taking down multigenerational crime families, international crime, drug trafficking syndicates — you know, big fish,' said the prosecutor, who did not want to be identified as criticizing the department he works for. 'Now these folks are dealing with these improper entry and illegal reentry cases.' He added, 'It’s demoralizing for them, and us.'”

This same mania over immigration enforcement was also apparent at today's confirmation hearing for Arizona Governor Janet Napolitano, the Obama pick for Secretary of Homeland Security, an encounter that the Immigration Policy Center likened to a "tea party" that left precious time for serious discussion of the new Administration's policies on comprehensive immigration reform:

"Serving more as a tea party than a rigorous cross examination, confirmation hearings are notoriously poor venues for deep policy discussions. The Governor has a wealth of relevant experience and a deep understanding of all of the issues about which the Senators questioned her. However, the hearing left little room for drilling down into the specifics of complex policy issues. While discussion of enforcement was plentiful, questions and (therefore answers) about what to do with 12 million people living without documentation in the U.S. were in short supply."

As we approach the cool and collected era of "no drama" Obama, the new President should recognize that the problem of the vulnerable underclass of immigrants lacking legal status will not go away. The Migration Policy Institute reports that, despite the imploding U.S. economy, undocumented immigrants are staying put, notwithstanding anectdotal evidence to suggest that they're homeward bound. The solution, then, is not to repeat the mistake of Bush's temporizing on immigration. Just as the incoming President is reading history books to find ways to fix the economic mess we're in, he should likewise be sure to remember recent history, or as George Santayana reminds us, we all may be condemned to repeat it.

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Posted by Angelo A. Paparelli on January 07, 2009

Immigration Tipping Point

For several months, I've looked into the immigration tea leaves and seen the need to make a major career change. Immigration law has reached game-changing inflection points in the past: The 1986 Immigration Reform and Control Act of 1986; the Immigration Act of 1990; The Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Each time, developments swept over me, and (luckily) I surfed the waves without a fall into the sea, traversing from solo practice to large, full-service firm, to immigration boutique. While I don't claim the power of clairvoyance, I sensed that my past approach of largely reactive behavior might not work out so well this time. My tea leaf reading told me that:

  1. The Labor Department, ICE, CBP, State and USCIS (and its FDNS investigators) would continue to focus aggressively on immigration compliance and enforcement, thereby creating a growing demand for lawyers with a depth of bench and broad-ranging expertise in the allied areas of immigration and labor & employment law.
  2. These conjoined practice areas would also see opportunities for client representation involving immigration-related employment discrimination and government audits to enforce an enhanced array of worker protections.
  3. The likelihood in the near term of dramatic changes to the legal immigration system and statutory reforms to solve the problems of illegal immigration.
  4. The demands of globally dispersed enterprises for (i) the worldwide positioning of lawyers through alliances of name-brand immigration experts organized in project teams, (ii) the scalability of service levels based on rising or falling need for immigration legal services; and (iii) use of technology and insourced and outsourced LPO (legal process outsourcing) solutions in ways that promote cost efficacy and innovative value-added services.
  5. Blue Ocean strategies for devising 21st Century solutions to the changing demands of enterprises for global mobility management, and of individuals and families pursuing the American Dream, however defined (whether in the U.S. or in another country that likewise stands as a land of opportunity and freedom).

With these likely trends in mind, and jazzed for new challenges, I'm winding up my 11-year immigration boutique, Paparelli & Partners LLP, and have happily taken my entire team with me to a very innovative immigration group (with whom we are molto simpatico on culture and values) at the 750+ lawyer firm, Seyfarth Shaw LLP. Wish us well. The future is an exciting prospect.

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