Posted by Angelo A. Paparelli on October 02, 2011

Suffer the Children: Immigration Heartlessness and Hypocrisy

Thumbnail image for frowning child 2.jpgA recent televised debate revealed an immigration fault line within the GOP. Texas Governor Rick Perry's many challengers for the Republican presidential nomination railed against his decision to extend in-state tuition rates to undocumented college students, brought to the U.S. as children, who graduate from the Lone Star State's high schools. His initial reply:

“If you say that we should not educate children who have come into our state for no other reason than they've been brought there by no fault of their own, I don't think you have a heart.”

The line stung many conservative "activists [who] hear ‘you have no heart’ as a dog whistle for ‘you people are racist,’ which obviously enrages them," according to Steven Duffield, a former staffer to Sen. John Kyl who oversaw the writing of the 2008 Republican platform.  Within days Perry, while still defending the Texas tuition law, apologized:  “I was probably a bit over-passionate by using that word and it was inappropriate.”

The relevant questions are not really whether conservatives lack the same missing anatomical feature as the Tin Man in the Wizard of Oz or whether racism drives opposition to college tuition support for children brought to America illegally by their parents.  Rather, the fundamental issue is whether a legitimate principle animates the opposition. 

One voice reliably opposed to immigration, Mark Krikorian of the Center for Immigration Studies (CIS), which claims to espouse "low-immigration, pro-immigrant policies," suggests that we need to get beyond "weepy sentimentality" and instead focus on hard-headed realism:  

The case of in-state tuition for illegal aliens who arrived here as children is a case in point. These are clearly the most sympathetic illegal immigrants, which is why advocates have been exploiting their stories in the quest for a general amnesty.

Our hearts tell us to make accommodation for children who were brought here illegally at a very young age and who know no other country (in-state tuition specifically is just a stalking horse for amnesty for these young people in the form of the so-called DREAM Act). That is a noble and proper sentiment.

But our heads tell us that all amnesties reward lawbreaking and serve to attract more illegal immigration. It is for this reason that amnesties must be avoided and why the push for "comprehensive immigration reform" has failed repeatedly, and will continue to fail.

Curiously, however, Krikorian and others of like mind did not repeat that "all amnesties reward lawbreaking," when the Internal Revenue Service decided this month to waive interest, penalties and audit exposure, and accept only one-tenth of the employment taxes otherwise owed by employers who participate in its "Voluntary Settlement Classification Program." Known as the VSCP, the program is an amnesty for businesses that may have wilfully treated employees as independent contractors, thereby avoiding Social Security contributions and taxes.  Nor did Krikorkian and his ilk object when the IRS twice granted wealthy tax cheats amnesty in the form of immunity from civil and criminal prosecution who voluntarily revealed the existence of untaxed off-shore bank accounts and paid back taxes.

When scofflaws flout their tax obligations yet are thrice forgiven by the IRS, Krikorian ought to be complaining to high heaven that federal coffers are unjustly deprived of needed revenue and that these tax amnesties "serve to attract more illegal" behavior.  His CIS colleague, Steven Camarota, has certainly shown no reluctance to allege (no matter how inaccurately) that undocumented immigrants hurt law-abiding taxpayers, but is likewise reticent when IRS announces serial amnesties that benefit businesses and the wealthy and make fools of law-abiding Americans who comply with the tax laws.

On a scale of culpability, tax cheats line up nearer to mobster Al Capone, convicted of federal tax evasion, whereas DREAMers, who want no more than to gain a college education, are truly innocent and should be shown "hospitality" because we may well thereby be entertaining "angels unawares."  Instead, the federal government repeatedly forgives tax violators with nary a peep heard from the anti-amnesty crowd.

Even more alarming, this week a federal judge, appointed by Republican President George H. W. Bush, upheld portions of a vile Alabama law that requires schools to investigate the immigration status of kindergarten through 12th grade students, notwithstanding the 1982 Plyler v. Doe decision which struck down a Texas statute barring undocumented immigrant children from primary and secondary school.  In recalling Plyler, a Washington Post editorial, "Targeting Schoolchildren," zeroed in on the damage that legislatively inscribed hatred of the other (and their children) will cause:  

In turning the schools into immigration registrars, Alabama’s new law flies in the face of good sense and settled law. The Supreme Court has specifically prohibited such registration schemes by the states aimed at immigrants, legal or illegal. And, in a ruling almost 20 years ago, it conferred on undocumented students an unfettered right to a public education through high school.

The court did so for sensible reasons. It noted that there is no legal precedent in America for punishing children for the actions of their parents. Writing for the court in a 1982 decision squashing Texas’s attempt to exclude illegal immigrants from public schools, Justice William Brennan said, “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”

Apparently, Alabama didn’t get the message. By forcing schools to collect and report data on the immigration status of students and their parents, the state will frighten kids away from attending school.

True to form, CIS heralded the Alabama ruling: 

This decision further helps the legal landscape, generally speaking, for states and localities beating open-borders and leftist warfare by litigation. It improves the prospects of other laws recently enacted in other states withstanding vicious legal attacks.

CIS is quick to bandy the "open borders" epithet (I've been falsely dubbed an "open borders type" in a CIS blog post last summer).  But this self-styled "non-partisan" screed-poster that accuses opponents of the anti-kids Alabama law as "leftist," and Republican presidential contenders who oppose DREAMers, ought to wake up and realize that the biblical remonstration to "suffer the children" did not mean to torment them. 

Posted by Angelo A. Paparelli on July 10, 2011

Race to the EAD: Revitalizing Depressed American Cities through State Immigration Initiatives

Gratiot near Mack in Detroit.jpgAs economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration. 

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act. 

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

Posted by Angelo A. Paparelli on June 11, 2011

Immigration Voyeurism: An Early Peek at Rep. Lamar Smith's Mandatory E-Verify Bill

peephole.jpgAs early as last January, Rep. Lamar Smith, Chair of the House Judiciary Committee, outlined plans to hold hearings to investigate the Obama Administration's policies on immigration-related worksite enforcement and propose a bill that would require employers to enroll in E-Verify, the Federal online screening tool that purports to verify work eligibility. 

True to his word, hearings on worksite enforcement and E-Verify have been held. And at last, a draft of a mandatory E-Verify bill, current as of June 8, is circulating on Capitol Hill.  Tentatively titled the “Legal Workforce Act” (LWA) and labeled a "Discussion Draft," the proposal would profoundly change hiring processes in the United States, and introduce expensive compliance obligations on all employers.  It would also increase the burdens on federal and state courts and on public and private prisons by creating a host of new LWA criminal penalties involving sentences to run consecutively (read: longer incarceration periods). 

Curious readers can take an early peek at a few key provisions of Rep. Smith's proposal:

  • Mandatory Use Phased in.  Employers would be required to enroll and use E-Verify by a set deadline based on the number of current workers.  From the date LWA is enacted (if ever), E-Verify would be required within: 30 days for covered federal contractors; six months (for employers of 10,000 of more personnel); 12 months (for firms with 500 to 9,999 employees); 18 months (20 to 499 workers); two years (1 to 19 workers); and three years (for employers of farm workers).
  • E-Verify Use Only for New Hires. Except for federal vendors who must verify current employees assigned to a covered federal contract, the LWA will only apply to new hires.  Also, it will not apply to farm workers returning to a former employer.
  • No Preemption of AZ-style E-Verify Laws. LWA would permit the proliferation of state laws and local rules mandating E-Verify use as recently blessed by the Supreme Court in U.S. Chamber of Commerce v. Whiting: "A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system".  
  • Weakened Good Faith Compliance Defense.  The LWA enfeebles the Sonny Bono amendment, enacted in 1996, which gives employers 10 days to correct technical or procedural Form I-9compliance failures after ICE points them out.  Although the Smith proposal would extend the curative period to 30 days, it would apply the defense only to compliance errors that are "de minimus."  Good faith compliance would be available, however, for E-Verify queries that failed because the online system was unavailable at the time.
  • Criminal Penalties for false I-9 attestations and improper use of E-Verify.  Individuals would face criminal penalties of up to two years and fines for knowingly furnishing a social security number or DHS-approved ID or authorization number that does not belong to the person or submitting such a number in an E-Verify screening. Helpfully, however, the LWA waives a good faith first violation of the unlawful hiring rules.
  • Change in retention period.  Employers would now be required to hold on to electronic or paper verification records for the later of five years from date of hire (currently it's three years) or one year from date of termination.

Gallagher smashing watermelon.jpgBack in January, Rep. Smith characterized mandatory E-Verify usage as something of a no-brainer, or in business-speak as low-hanging fruit, suggesting that 70% of Americans would agree with his assertion.  Given the sweeping harshness of the LWA, however, U.S. employers, proponents of immigrant rights and the American people must do more than just talk about Rep. Smith's "Discussion Draft."  The fruity guantlet from the right has been hurled into the political arena.  It's time to give it the Gallagher treatment.

Posted by Angelo A. Paparelli on May 29, 2011

10 Immigration Predictions: The Foreseeable Consequences of the Supreme Court's Arizona E-Verify Decision

elephants.jpgThe U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when five Justices used a four-word exception to the Immigration Reform and Control Act of 1986 (IRCA) -- an act which, among its extensive provisions, banned the employment of foreign citizens whom the employer knows lack work permission -- to trample the immigration landscape. The majority ruled, based on the exception, that IRCA is not the final or sole word on the extent of punishment for unauthorized employment. 

Relying on an IRCA exception for "licensing and similar laws," the 5-3 majority decided that Arizona may use the threat to revoke a business license as a means to punish AZ employers for the unauthorized hiring of foreigners and to require all the state's public and private employers to enroll in the Feds' E-Verify online work-clearance database. 

Among the dissenters, Justice Sonia Sotomayor challenged the use of this squib of an IRCA exception as a means for the majority to undermine the "carefully constructed [and] uniform federal scheme for determining [unauthorized employment]." She cited an earlier case which observed that Congress "does not . . . hide elephants in mouseholes." (Ironically and perhaps poetically just, all of the Justices in the majority had been appointed by presidents of the Republican party, whose avatar is the pachyderm.)

What does the decision, U.S. Chamber of Commerce v. Whiting, mean for large and small employers?  Here are my predictions (I welcome any comments or critiques below or on my Twitter page): 

1.  Expect that mandatory E-Verify will spread to more states. As shown in this link, states are all over the map on their divergent requirements concerning E-Verify. Some -- like AZ, SC and MS -- require it of all employers.  Others limit it to public entities and state contractors.  The Supreme Court's decision essentially green lights the states to regulate facets of immigration compliance that fall within traditional state police powers. The only requirement is that the state law find a connection to the broad police power over licensing. In essence, what was largely an exclusively federal domain, will now expand -- with the Court's blessing -- into the inner workings of most businesses. Expect state and city micro-management of immigration to the Nth degree. 

2.  Expect some states to require E-Verify use as to current workers. As many states rush to enact laws mandating E-Verify, it would not be surprising if one or more extend its scope.  Except for certain federal contractors and subs, E-Verify may not now be used to verify the work eligibility of current employees.  While the extension of E-Verify at the state level to current workers would technically violate the terms of the E-Verify Memorandum of Understanding that employers must sign, such a stretch would not be a surprise.  Consider Utah's recent legislation which adopted a guest worker program notwithstanding that -- at least until the Whiting decision -- the authorization to grant work permission had been seen as exclusively a federal power. Note as well that Florida's governor has issued an executive order expressly encouraging the state's employers to use E-Verify to check the work status of current employees.

3.  Expect higher rates of discrimination claims.  The dissenters in Whiting predict that employers will follow the path of seemingly least resistance by becoming hyper-vigilant in inspecting job applicants' documents of identity and work eligibility while finding subtle or overt ways to resist hiring persons who look or sound foreign or demanding to see specific documents or more documents than legally required.  Although the majority noted that such discriminatory acts are already prohibited at the federal level, the likelihood is that the immigration agency charged with antidiscrimination prosecution and enforcement will be understaffed and short on resources to deal with the anticipated flood of complaints of unfair or illegal practices.    

4.  Expect more court battles over the extraterritorial reach of state immigration laws.  What happens when poorly phrased state immigration laws come into contact with multi-state employers? Must a multi-state employer use E-Verify only as to its AZ new hires, or does AZ's E-Verify law require that company to use the online system as to new employees nationwide? What will courts decide if a company chartered in AZ loses its license to do business in that state, and as a result, is disqualified to maintain its licenses to engage in business in other states?  These are but a few of the foreseeable claims likely to congest the state and federal courts as state immigration laws proliferate after Whiting.

5.  Expect a public backlash over state enforcement of the immigration laws.  The devastating tornadoes in Missouri and Alabama likely caused the loss or destruction of many U.S. citizens' documents of identity and work permission. When such citizens try to pick up their lives by moving to other states (where mandatory E-verify is in force), how will they prove their right to work?  Such citizens are not likely to go gently or quietly into the good night. They will scream to high heaven, and the media will listen and publicize their complaints.  Other citizens, though not facing the effects of natural calamities, will likewise be erroneously rejected by E-Verify, as the National Immigration Law Center predicted last April in testimony before Congress. They too will rise in protest if denied employment to which they are entitled with jobs already hard enough to find in the current economy.  

6.  Expect some states to back away from immigration enforcement and instead seek federal waivers for immigration benefits. Just yesterday, Republican Gov. Rick Snyder of Michigan, perhaps signalling a trend in the opposite direction, expressed his opposition to an AZ-style immigration enforcement bill, noting that it would be "divisive" and bad for business.  As noted above and at length in this blog before, Utah has passed legislation creating a guest worker visa program (that will require a Federal waiver).   

7.  Expect that states will seek more snitch visas or favorable discretion for stool pigeons from the federal government.  The "S" visa category (what we in the trade call the Snitch Visa) allows any state or local law enforcement official to seek special immigration benefits, including a work permit, to allow a foreign citizen to participate as a witness in a criminal prosecution.  Federal immigration authorities can also exercise prosecutorial discretion and grant work permission at the request of a state or local police agency or prosecutor.  In states where immigration policing is a high priority, just as with the justly maligned Secure Communities program, criminal prosecutions under state immigration laws will likely generate requests for special privileges and leniency to foreign workers who agree to rat out alleged immigration violations of their employers.

8. Expect a battle royal in Congress over mandatory federal E-Verify. The business and pro-immigrant communities will not take lying down the likely GOP push to make E-Verify mandatory for all employers nationally.  While this push, if enacted, would take the wind out of the states' sails, opposition to the move would point to the persistently high rates of false positives and negatives in E-Verify and the budget busting consequences of a national mandate.  

9. Expect busier days ahead for immigration lawyers.  Notwithstanding that the demand for H-1B visas this year has been underwhelming, lawyers practicing immigration law have reason to be hopeful that business will pick up.  The already mind-boggling complexity of federal immigration law will become more complicated, perhaps by a factor of 50, as the states get into the act. This quantum leap doesn't take into account the cities and regional governments that may have politicians, even now, planning a Barletta-like push for fame and higher office by espousing "mouse-that-roared" immigration ordinances.

10.  Expect that Congress or the President will act. Before we reach the point of proliferating and conflicting 50-state and countless-municipal "solutions" to America's dysfunctional immigration laws, this blogger -- always a glass-half-full type -- envisions that statesman-like behavior or public outcries will cause action at the federal level to end the nonsense. Businesses cannot function, and lawfully-authorized American citizens and residents cannot find jobs, if we balkanize our immigration polcies. I say, fingers crossed, that cooler heads will prevail. 

Posted by Angelo A. Paparelli on March 20, 2011

America's Creaking, Crotchety Immigration System -- Not Ready for the Globalized World

Few observers predicted the profundity of global political changes in the first quarter of 2011.  

The Middle East, still the source of most of the world's energy, has witnessed civilian protestors toppling despots and prompting autocrats to invite foreign-state and mercenary armies to quell peaceful demonstrations and slaughter citizens. Libya's never-predictable Muammar el-Qaddafi, having nearly routed indigenous rebels centered around Benghazi, faces a UN-authorized no-fly zone and aerial attacks mounted at the behest of the Arab League, an organization now critical of air assaults that may provoke a full-blown war.      

Japan, no longer the world's second largest economy, is shaken by a 9.0 earthquake and tsunami that caused the deaths of probably 10,000 or more citizens and devastated the northeastern countryside. The resulting radiation fallout from severely damaged nuclear plants now contaminates the food supply and threatens public health. The devastation has also rocked the nuclear energy industry and called into question whether fission power will replace fossil fuels anytime soon.

With these events capturing public attention, President Obama is in Brazil, the worlds seventh-largest economy, the global leader in sustainable bio-fuels and ninth-largest oil producer with huge off-shore reserves.  The President hopes to return home with business deals that produce American jobs and secure access to less volatile sources of energy.  Whether or not he succeeds on this trip, he could not have failed to hear the sharp criticism leveled against American policy by Brazil's President, Dilma Rousseff, who chided the U.S. for its past "empty rhetoric."  As The New York Times reported, a "deeper relationship [with Brazil]," she said, must "be a construct amongst equals."

The two presidents failed, however, to reach an agreement that would allow Brazilians to enter the U.S. as business visitors or tourists under the Visa Waiver Permanent Program. Nor did President Obama endorse Brazil's call for a permanent seat on the UN Security Council, although on his state visit to India -- according to the NYT -- he "lent support to that country’s hopes for a permanent seat."

In this world of ever-erupting turbulence, a functioning immigration system would serve to promote America's foreign policy and economic interests, while honoring its tradition as a nation hospitable to hard-working immigrants.  Beyond securing the border against terrorists, criminals and ne'er-do-wells, an efficient and effectual immigration system would encourage investment, innovation and job-creation.  It would provide orderly systems for family reunification and refuge for the persecuted.  It would also bear marks of humility and wisdom, recognizing that our diversity is our greatest strength and that our actions abroad often stoke the push factors propelling and compelling people to breach our borders.

The present immigration system in the U.S. merely pays lip service to these objectives while suffering from malign neglect and willful meanspiritedness. Despite a 1986 federal law prohibiting employers from hiring workers whom they know or should know lack the legal right to work, the agencies charged with enforcement have yet to agree on the definition of "employment." Notwithstanding a 1996 law punishing illegal overstays, these same agencies continue to split hairs over the distinction between violation of nonimmigrant "status" and "unlawful presence," have yet to publish a rule defining what it even means to "maintain [legal] status," and still assert that a foreign citizen can be work-authorized yet have no immigration status. 

Most of us in this nation of immigrators bewail the system but do little to insist on adult conversations among lawmakers that might lead to pragmatic and humane solutions. In a time of focus on deficit reduction, we want more border security but would never tolerate a tax increase to pay for it.

Yet the candle-lighters among us, who'd rather not just curse the darkness, see a few glimmers, of luminosity. 

Business leaders in Utah, Colorado, Nebraska, Florida, Kansas, Oklahoma and, yes, even Arizona, have beaten back efforts to make state immigration laws still more draconian.  A leading labor union blasts the Administration's senseless and expensive immigration enforcement policy, while the Organization of American States faults us for inhumane immigrant detention practices.  A Tea Party leader -- Dick Armey -- says that if necessary to care for his babies he would break the law, ironically, on essentially the same grounds that spur unauthorized migrants to cross the border looking for work.  Hispanic members of the GOP propose a comprehensive and largely workable 12-point plan for immigration reform. Mainstream reporters such as NBCs Tom Brokaw are beginning to focus attention on America's brain drain -- the loss of talented foreign workers who've become so fed up with the quota backlogs, visa-screening delays and hassles on reentry to the U.S. that they take the education we provided them and leave to compete with the U.S. from their native lands. A new Start-Up Visa bill has emerged (but not as user-friendly as the U.K.'s) to woo foreign investors.

Although movement on immigration reform in Utah is heartening, the country cannot have the states enacting 50 versions of foreign policy or an equal number of immigration codes.  Only the federal government is positioned to steer a unified course on immigration. We can start by asking why the prosperous and rapidly growing BRIC countries (Brazil, Russia, India and China) are shut out from the E-2 treaty-based nonimmigrant visa category.  This entrepreneurial visa allows foreign investors from select treaty countries to start U.S. businesses quickly with whatever minimum amount of capital would ordinarily be sufficient to begin operations and start hiring, rather than invest the minimum $500,000 and create the ten jobs needed for the investor green card, the EB-5, with its costly tax consequences as the added price for permanent residency.

America has waited too long to revamp its immigration laws.  The usual three pillars of comprehensive reform (border security, worksite enforcement and legalization for the unauthorized in our midst) are not enough to make America globally competitive and enticing.  How many more whirlwinds of global change must jostle and buffet us before our leaders in Washington realize that we are falling from our perch as top dog?  Economic prosperity and job creation must be our prime immigration policy, with pragmatism and humane treatment closely in tow.  The sane voices must grow louder and more insistent. Outspoken business and union leaders, and one Tea Party icon, coupled with contrary-to-type Hispanic conservatives, and constant prodding from new economic powerhouses abroad -- all are a promising start.

Posted by Angelo A. Paparelli on March 05, 2011

Granular and Possibly Grand Immigration Reform

Ever since studying Constitutional Law years ago, I've never really resolved in my mind the tension between federal supremacy and states rights. Most days, I see the need for national uniformity of law and lean toward federal power.   At other times, I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.

The issue arose again this week in an offhand reply I Tweeted to an anonymous, conservative-leaning polymath, who carries the Twitter name "euandus," in response to his blog post (with identity still masked) entitled, "Immigration and Federalism in the U.S.: Should States like Arisona (sic) Participate?"   

The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration."  Chazkazoid, an apparently precocious college student, wondered aloud why Georgia, in trying to outdo Arizona, proposed a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").

I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having "50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation." My hope has been that the U.S. Supreme Court in the already-argued case of U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to neuter the federal preemption doctrine by attempting to regulate immigration.  After reading the transcript of oral argument in Candaleria, however, I've become less hopeful that preemption will prevail.

The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle.  (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to state. And, yikes, how would I ever learn 50 state immigration codes?) 

Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration," that gave me cause for modest hope.  Utah state Senator Curtis Bramble, a Republican from Provo, has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress.  Sen. Bramble's bill would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the Utah Department of Workforce Services for a temporary work permit. The bill, assigned number 288 (as amended), is premised on the Utah Compact.  The Compact rests on five principles:

FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries. We urge Utah’s congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.

FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.

ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.

A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt Lake Chamber of Commerce, explained her support to Riley in his Wall Street Journal op-ed: 

Utah has a growing economy that's ready and able to put people to work. Our business leaders are saying, 'Let's not diminish our labor supply.  Let's not reduce our customer base.  Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'

Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria is decided in Arizona's favor). Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category.  (Utah, by the way, is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)

While Utah moves forward on a humane and pragmatic state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:

Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.

For my part, I see less reason for optimism.  I join in the "stinging rebuke" leveled in the March issue of Arizona Attorney by my former partner and recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership" of official Washington in the passage below (emphasis mine):

Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?

The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action.  Indifference, anyone?

. . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?

However, not everyone stood down.  CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history.  . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration.  The groups who hijacked the immigration conversation will never be appeased.  Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?

Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to] inventive lawyers representing them."

It's not too late for the Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing.  Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role in immigration policy, our pusillanimous "leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or at least grant Utah and other states the right to fix our dysfunctional system. 

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POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level.  One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes.  The federalism/states-rights tension continues.