Monthly Archives: January 2009

BLAMING THE “MEDIA”

We live in a 24/7/365 news cycle.  Between the internet and 24 hour news channels, there always has to be something to keep our interest.  Recently, real problems faced by Americans have taken attention away from the “illegal immigrant” problem.  However, when there is a quiet news cycle, for whatever reason, the immigration issue, and particularly the demonizing of the undocumented, garners high ratings for television and radio personalities and otherwise respectable new organizations. 

The issue of fairness in the media is an interesting one.  Given the constant need for news and to keep the audience’s attention, reporting has to be entertaining sometimes at the expense of being informative or even accurate.  When reputable news organizations such as CNN or Fox News have broadcasts that focus on the evils of immigration, day in and day out, “the most trusted name in news” has an effect on viewers’ perceptions.  The audience, for the most part, is not going to “fact-check” what is said and often takes the rhetoric as true – especially when it is being constantly repeated. 

Many people who are much smarter than I am are blaming the media for exacerbating the economic crisis that the US is currently facing.  The constant bad news is causing consumers to fear spending which contributes to the overall vicious circle and greater losses in terms of company profits and jobs as a result of consumer fears.   

Wherever the “media lens” is focused will showcase the bias of the reporter or producer of a particular piece.  For instance, when on-screen images of undocumented individuals being arrested by CBP as they exit a van are combined with the incident of a single undocumented individual who committed a crime, and the reporter’s voice refers to the problem of “criminal illegal aliens”, all the while the anchor, with a tone of disdain and disgust talks about how the government is not doing anything to enforce the laws to rid the nation of the “criminal illegal aliens”, it sends a message that while perhaps not inaccurate, is certainly biased and should arguably not be coming from “the most trusted name in news”.     

WHITE HOUSE DIRECTIVE REQUIRES ICE AGENTS TO OBTAIN HIGH-LEVEL APPROVAL BEFORE ARRESTING FUGITIVES

According to an article on cbsnews.com:  “The government’s Oct. 31 directive was ‘effective immediately and until further notice,’ and required that immigration agents obtain approval from ICE field office directors or deputy directors before arresting fugitives.  An approval would depend on an internal review that would consider, among other issues, ‘any potential for negative media or congressional interest.'”

I just came across this article today and find it interesting that media interest is a factor in deciding who ICE will arrest.  Does it not seem that some of the raids late in the Bush administration were motivated by the media and wrong-headed political motives?  The tone that the media together with the previous administration allowed to dominate the immigration debate has had far-reaching consequences for all immigrants, documented or otherwise.  Let us hope that President Obama will implement policies that are more humane while we await Comprehensive Immigration Reform later this year or in 2010.     

USCIS DELAYS RULE CHANGING ACCEPTABLE I-9 EMPLOYMENT VERIFICATION DOCUMENTS

According to the USCIS:  “U.S. Citizenship and Immigration Services (USCIS) announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008.  The rule streamlines the Employment Eligibility Verification (Form I-9) process.” 

WILL THERE BE A DEMAND FOR H-1Bs IN THIS ECONOMY?

The following is not legal advice and is for general informational purposes only.  For advice on your unique situation, please contact a qualified immigration lawyer. 

Despite the dreadful state of the economy, H-1B season is fast-approaching.  Over the past few years the demand for H-1Bs has far exceeded the supply, will the trend continue this year?  Or will H-1Bs remain available throughout the year? 

Considering that there were two or three cap-subject petitions filed for every available visa over the past couple of years, my guess is that the allocated visas will be used up, but perhaps not within the first week as has been the trend. 

If U.S. workers have been laid off, additional considerations come into play that may affect the Labor Condition Application and thus the ability of some employers to file a petition.  However, a more common scenario may simply be that the employers do not need the foreign workers. 

Despite what anti-immigrants say, hiring H-1B nonimmigrants is frequently more expensive than hiring U.S. workers because the H-1B nonimmigrants must be paid the greater of either the prevailing wage or the actual wage paid to similarly situated workers.  When legal and filing fees are taken into account (filing fees currently range from $320 for some Training-Fee Exempt H-1B extension petitions to $3320 for some new H1Bs that are filed using the USCIS Premium Processing Service), companies that choose to legally hire certain nonimmigrants, most likely need these workers.

Given the current economic environment, some employers will understandably look to minimize expenses by hiring qualified U.S. Workers who will accept the positions without al the additional restrictions, paperwork and costs associated with hiring H-1B nonimmigrants.

I will blog about anecdotal evidence from our firm and others as to what the demand for H-1Bs seems to be for the next fiscal year. 

If your company does plan to hire cap-subject nonimmigrant workers, you should still file as soon as permitted, which is April 1, 2009 with a start date of October 1, 2009.  You should consult an immigration lawyer sooner rather than later to ensure that all of the requirements are satisfied and the documents are in order.  Late March will be too late to address these issues.

WORKABLE IMMIGRATION SOLUTIONS IN THE MIDST OF A GLOBAL FINANCIAL CRISIS?

President Obama has taken charge, Congress has a majority of Democrats in both the House and the Senate so immigration reform is a sure bet, right?  Not so fast.  Considering that two wars and an economy that many in the media incessantly repeat is on the brink of collapse, immigration reform may not happen this year. 

Even if CIR were to happen, if an element of reform is an earned legalization program, it might be difficult for foreign nationals to find employers willing to sponsor them and even if they do, unless the economy improves, there will be many times where qualified US applicants will apply for the positions thereby defeating the employment labor certification application.

I am a huge proponent of immigration reform and a great fan of President Obama.  If the President and his senior staff were to use their best judgment and do what is best for America, immigration reform should be somewhere on the list, but definitely not the first priority.  It is a tricky situation because Obama made it clear that he supported immigration reform throughout his campaign, a good bill would probably pass both houses of Congress and even Senator McCain would rally members of his party to support it in the Senate, where a slot has been reserved to debate the issue.  On the flip side, Americans are losing jobs and the prospects for the economy seem bleek, at least for the immediate future.  It would be a wasted effort for hundreds of thousands if not millions of labor certifications to be filed in the current climate where the DOL is backlogged beyond belief and many times there are several minimally qualified US applicants for a single open position in which case a labor certification application cannot be filed.  There are also rumors that the DOL will start implementing supervised recruitment of some applications, which will  likely delay the process even more.   

Objectively, the new Administration and Congress should focus on doing whatever it takes to get the economy back on track and perfect a CIR bill behind the scenes to present when the time is right.  Obama strikes me as a multi-tasker and getting the ball rolling on CIR now would probably mean many months before the law takes effect by which time the economy may very well have improved.  Moreover, certain aspects of our immigration system could be reformed immediately, such as the DREAM Act.  Hopefully, the President saves some of his political capital to spend on CIR.  In the meantime, members of teh Administration, the government agencies involved and Congress should start working out the kinks.     

HOW TO FILE A COMPLAINT AGAINST CUSTOMS AND BORDER PROTECTION

If you feel you have been mistreated or abused by a CBP (Customs and Border Protection) officer, the agency has a system set to address traveler complaints.  According to cbp.gov:  “The U.S. Customs and Border Protection (CBP) currently has in place four primary programs to address and respond to customer complaints and compliments. They are the Passenger Service Representatives, Comment Cards, Customer Service Center, and a program where port directors and supervisors personally respond to telephone and verbal complaints.”

Although going through immigration is not checking into the Ritz, a certain standard of behavior by the officers is expected.  If you encounter problems, follow the agency’s procedures to complain. 

Most CBP officers are courteous and are simply doing their jobs.  However, as with any occupation, those who make a habit of being rude, unprofessional or abusive to custoners should be replaced.  In this economy, finding qualified people to perform those duties should not be too difficult.  Inspired and qualified?  Go to careers at CBP, they may be hiring now!

WILL THIRD TIME BE A CHARM FOR COMPREHENSIVE IMMIGRATION REFORM?

According to an AFP article:  “After two failed attempts in 2006 and 2007, immigration reform could finally be pushed through both houses of the US Congress starting in September, civil rights activists said.”

I think the chances of passage are greater than it was in the last two attempts mainly because:  (1) the make up of Congress is more pro-immigrant; and (2) elections will not be imminent.  A lot may depend on the economic environment at the time.  If unemployment remains at such a high level, CIR is less likely to make it through both chambers of Congress. 

We need to reform the current system on so many fronts that the task is daunting.  Hopefully lawmakers learned from the last few attempts so a new and improved CIR bill will need less debate and the proposed timing means the issue will be less politically-charged.