Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

With the Obama Administration and lawmakers in both parties promising to fix our dysfunctional immigration system, it's time for a reality-based understanding of global migration and a fresh choice of words.  

As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:

Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent. 

Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.

Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency.  We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.

Consider too these dictionary definitions:

alien /ˈeɪlijən/adjective

1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to 

▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.

2: from another country :foreign

▪ alien residents

3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy

4: from somewhere other than the planet Earth 

▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.

alienate  /ˈālēəˌnāt/Verb

1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: "the association alienated its members".

1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed

2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law

3: to cause to be withdrawn or diverted

Synonyms: alien, estrange, disaffect, disgruntle, sour

When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:

Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."

But times and phrasings have changed.  We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians.  So, "aliens" -- the word -- must go.

We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity.  Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.  

If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto":

America need not surrender its sovereignty.  It need not open the borders for all to enter.  It must make hard choices, yet do so with respect for the dignity of all.  As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":

We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . . 

We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . . 

We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .

To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .

When the rights of migrants are denied the rights of citizens are at risk.

Dignity has no nationality.

On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:

We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.

Let's start by banishing bullying words, hate speech and statutory epithets.  Let's stop the name-calling and start the welcoming.

[Blogger's Note:  This week's guest column is by Jennifer Oltarsh, an immigration lawyer practicing in Manhattan. She writes about how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.]

Immigration Law -- Moving away from Individual Rights

By Jennifer Oltarsh

Immigration laws are increasingly more complex.  When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.

Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects  very poorly on this country.  These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system.  Many of these laws have ultimately proved to be an embarrassment.  A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed.  Under this law all Chinese were banned from immigrating to the United States and to naturalize.  Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902.  This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II.  130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.

In 1996 two laws were passed with the goal to deprive judicial review and discretion.  The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review.   Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation.  As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well.   As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.   

This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy.   The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA.  The law is based on the false premise that we need mass detention and deportation to keep dangerous "criminal aliens" off our streets.  In reality immigrants are less likely to commit crimes than native-born Americans.    Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses.   In the 15 years since IIRIRA's passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained.  Taxpayers pay for these detentions.  The detention include thousands of immigrants and permanent residents who pose no threat to the community.  It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.

We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety.   Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!

The failure to take individual circumstances into account has always resulted in untold human costs.  We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society. 

Last week, the American Council on International Personnel (ACIP) convened its 40th annual symposium in Pentagon City VA, just outside Washington DC, an event attended by scores of immigration managers and corporate counsel hailing from Fortune 500 and Forbes 100 companies.

A week earlier, on the other side of the globe, hedge funds and institutional investors following the IT consulting industry in India read "Access Denied," a report co-authored by the CLSA U and this blogger for clients of Credit Lyonnais Securities (Asia) "to help fund managers understand the latest industry trends, investment theories and macro developments that impact the markets and sectors in which they invest."

Ironically, the same questions monopolized the ACIP's panel discussions and corridor conversations, while also garnering the attention of CLSA U's clients:  

• Why are the Departments of Homeland Security and State fighting an undeclared immigration war on the consulting industry and its customers?  
• Why has the L-1B visa for persons with "specialized knowledge" -- a category readily available to "Intracompany Transferees" since 1970 -- suddenly become virtually unattainable if the foreign citizen (especially if coming from India) will be stationed at a consulting customer's worksite?  
• Why does an Administration that claims to be a friend of job-creating businesses cause projects to be delayed or cancelled, contracts to be breached and American job opportunities that would have been created to become so much collateral damage?

The war's drone attacks have increased dramatically since last year (although early casualties have been inflicted since at least 2008 when the USCIS Administrative Appeals Office issued its supposedly "non-precedent" GST decision, which offered eager adjudicators a pretext to shoot down the expansive interpretation of specialized knowledge in place since Immigration Act of 1990 and, in effect, extralegally reserved the L-1B category exclusively to persons with "unique  knowledge".

This year and last, organizations as disparate as the AFL-CIO's Department for Professional Employees (DPE), the American Immigration Lawyers Association (AILA), the Economic Policy Institute (EPI), the U.S. Chamber of Commerce and 63 businesses representing the crème de la crème of Corporate America -- not to mention Senators Chuck Grassley and Dick Durban -- jumped into the fray, taking sides and writing letters to the President or to Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS).

Director Mayorkas -- who I lauded recently in this blog -- addressed the ACIP's audience, promising that draft guidance (allowing public comment before becoming final) would be released "any day." In response to a question I posed expressing concern over the immigration agency's historic "antipathy toward business," he denied that a war was underway, or that any anti-business attitude prevailed among adjudicators.

“I have not found an institutional antipathy towards business or to any particular community,” he said in response to an audience member's question regarding the level of support USCIS will give to explicitly pro-business policies. “What I have seen is interpretations of law that don't necessarily understand sometimes the way business works and the challenges that businesses face and what the purpose of the particular visa category is.”  Source: Elliott Dube, Reporter, Bureau of National Affairs.

As we await the promised L-1B guidance on specialized knowledge, insiders report that USCIS may buckle under the weight of this war of letters and try to restrict the category notwithstanding any relevant change in law or regulation since 1990. They suggest that the agency might try to find dry gunpowder in the L-1 Visa Reform Act of 2004 to shoot down the broad definition of specialized knowledge. 

That law, however, offers USCIS no basis to restrict specialized knowledge; it merely prevents the stationing of an L-1B worker primarily at a worksite owned or controlled by another entity where either (a) the worksite entity controls the work of the petitioner's employee; or (b) the placement is “essentially an arrangement to provide labor for hire” for the worksite entity rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

The first part of the change duplicates existing law. Under the doctrine of "deemed employment," if the worksite entity were to control the individual's work while knowing that it had not petitioned USCIS to employ a foreign worker, the act of deemed employment would violate the Immigration Reform and Control Act of 1986. The second part of the 2004 change is also duplicative.  A foreign individual who participated in “an arrangement to provide [the worksite entity with] labor for hire” would not meet the definition of specialized knowledge and thus could never acquire an L-1B visa. 

As USCIS recognized in its implementing guidance, nothing in the L-1 Visa Reform Act of 2004 changed the definition of specialized knowledge:

[The] alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(D) . . . .

So, perched in our bunkers waiting for this war's next wave -- a battle for talent, a battle to enable projects that will create jobs for Americans -- anxious non-belligerents ask, will it be bombs away or bombs put away?