Author Archive

Seeing the Forest for the Trees in the Immigration Debate

shutterstock_229516540U.S. immigration law is a myriad of statutes, regulations, policies, memos, practices and procedures which span a wide variety of practice areas. The immigration debate playing out in the media is largely focused on the refugee, humanitarian, and family-based areas of immigration law. But this is only part of the picture. Immigration law also includes employment- and investment-based immigrants, seasonal/agricultural workers, the transfer and employment of high-skilled and professional workers, and short- and long-term visas for executives of global organizations, actors, athletes, and entrepreneurs.

This dichotomy of the perception of immigration law is not unique to the U.S. The Guardian recently examined this issue in the U.K., suggesting the main divide is whether someone is an expat or an immigrant; and concluded that the distinction is based on race. Looking at the issue in Hong Kong, a Wall Street Journal blog attributes the divide to differences in social class, country of origin, and economic status. In the U.S., the National Academies of Sciences, Engineering, and Medicine released a report entitled The Integration of Immigrants into American Society, a comprehensive look at US immigration, which, probably most accurately, points to status in understanding this divide. Legal status, or more acutely, the lack of legal status limits opportunities of integration, access to social services, housing, education, and employment. The key difference in the perception of immigration may therefore be an effect of the cause –the lack of viable, realistic legal immigration options for U.S. families and employers.

Continue reading ‘Seeing the Forest for the Trees in the Immigration Debate’ »

From Systems to Substance, Digital Innovation is Welcome News for Immigration

shutterstock_276868460Last week, the Office of Management and Budget released a plan for modernizing and streamlining the legal immigration system.   Much of the focus was on the potential positive impact of digital innovation.  Recommendations included the creation of a cross-agency digital services team to support the implementation of the modernized immigrant visa project.  This team would be charged with improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization.  The plan rightly points out that “currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions.”  Or in many cases, the same information must be sent separately, and in different formats, to several agencies, several times.  Take for example the H-1B nonimmigrant visa category for specialty occupations.  This category alone requires coordination between the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) and Customs and Border Protection (CBP).

The DOL piece of the puzzle, the Labor Condition Application (LCA), has had an electronic option since 2002 and is today entirely online.  An employer may submit an LCA, post notice of filing and receive approval of certification from DOL without a single piece of paper.  However, the five-page LCA, once certified, must be printed out, signed and sent to one of USCIS’s Service Centers in Vermont or California as part of the H-1B petition.  Continue reading ‘From Systems to Substance, Digital Innovation is Welcome News for Immigration’ »

The Unexpected Virtue of Ignorance

shutterstock_250501696Or (Thank You Sean Penn for Starting the Immigration Discussion at the Oscars)

I love film.  I love the Oscars.  To me, the Oscars, unlike the other award shows, represent the best of all aspects of the highly competitive, brilliant, and inspiring film industry.  As an immigration lawyer with an artistic client base, I am always interested to see nominees from around the world coming together in Los Angeles to celebrate the universal brilliance of film at the Academy Awards.  This year in the Dolby Theatre we again heard the talented winners accept their Oscar statues with many accents for their work on films written, produced, filmed, edited, and distributed in the U.S. and internationally.  We saw dual nationals, Julianne Moore (U.S./U.K.) win best actress for the New York based Still Alice, Mathilde Bonnefoy (France/U.S.), for best documentary, Citizenfour, Canadian Craig Mann and Brit Ben Wilkins accept the award for sound mixing for the New York based Whiplash and the international team of The Grand Budapest Hotel, with winners from Italy, France, and the U.K. garnering artistic awards in costume design, original score, and hair and makeup.

Unique this year, however, was the truly international compilation of the all American story of Birdman:  Or (The Unexpected Virtue of Ignorance) which was awarded best picture, cinematography, directing and original screenplay.  Birdman is all American in that its subject is the U.S. entertainment industry, recognized the world over as “Broadway” for the best of theatre and “Hollywood” for film, based on the short story by American treasure, Raymond Carver and shot entirely in New York City.  The Birdman team, including an Argentine writer, Mexican director, producer and cinematographer and British actors, along with their American colleagues, created the best film of the year as judged by their peers.  This achievement is in itself the American dream.  As Alejandro González Iñárritu, multiple Oscar winner for Birdman, so elegantly stated:

“I want to dedicate this award for my fellow Mexicans…the ones that live in this country who are part of the latest generation of immigrants in this country, I just pray that they can be treated with the same dignity and the respect of the ones who came before and (built) this incredible immigrant nation.” (Associated Press)

Yes, immigrants did build this country; they also built our entertainment industry, seen as the best, or at least the most influential, in the world.  Indeed, many of our most legendary directors including Frances Ford Coppola, Stanley Kubrick, Martin Scorsese, Mel Brooks, Robert Zemeckis, and John Houston are sons or grandsons of the immigrants of the early 20th century – those huddled masses who in their own time fought discrimination, marginalization and language barriers, but who, unlike today’s immigrants were welcomed by laws which enabled their integration into the U.S.   The current state of our immigration laws, with the unreasonable barriers and limitations on work visas and green cards, the limitations for those who enter without inspection and the crippling three and ten year bars is holding back those who come to this country in search of the American dream and depriving their children of the same opportunities afforded to the children of the immigrants of the early 20th century.  I don’t know how Alejandro González Iñárritu came to the U.S. or if he has a green card, as possibly inappropriately (or even ignorantly) stated by Best Picture presenter, Sean Penn, but he is clearly extraordinary, and accordingly would most likely be eligible for a work visa or green card under our current immigration laws.

While welcoming the best and brightest can be beneficial to the U.S., let’s not forget all those who came before us who were not extraordinary in their fields – those hard working young men and women seeking a better life; those whose children and grandchildren grew up to be legends of the film industry.  A brilliant director/screenwriter/ film producer/composer/immigrant has challenged us to look at the American dream in both his Academy award winning film and his acceptance speech; he has challenged lawmakers to enact laws that treat immigrants with dignity and respect worthy of this incredible nation.

I urge Congress to take up this challenge, to educate themselves about these important issues instead of repeating rhetoric aimed at creating more confusion and condemnation rather than educated debate and effective change. Our country has prospered in large part because of the contribution of immigrants and their children – those who had the next big great idea – whether it be in the arts, business, economics, finance, law or any other field. That is inspiring to me, just like the Oscars.

 Written by Anastasia Tonello, AILA National Treasurer

Welcoming Brilliance to Our Shores

Image of the Nobel Prize Medal. Source:

Image of the Nobel Prize Medal. Source:

Birds do it, bees do it, even educated PhDs do it…

In this case, I’m not referring to falling in love as in the popular song from the 1930s, but migrating.  There are many aspects to what drives people to leave their country of birth and make a new country home.  When people rail against immigrants, I have to assume they don’t understand the economic and cultural benefits that our country has gained from so many over the years. Do they think that you can determine at birth what someone will accomplish? High skilled immigration is vitally important but if one focuses solely on those we know have reached a certain pinnacle, we are leaving out many more that could achieve great things if given the opportunities that so many of our residents take for granted.

One of the pinnacles of intellectual success has been awarded over the last several weeks: the Nobel Prize. The Nobel Prize Committee just completed announcing the winners of its prestigious awards for chemists, physicists, doctors, economists, writers, and those interdisciplinarians whose work overlaps into one of the fields.

What fascinates me, as an immigration attorney with feet in both the U.S. and U.K. for my practice, is that so many are immigrants.  For the U.S. alone, the Institute for Immigrant Research at George Mason University in Virginia, notes that from 1901-2013, “30.7% of these U.S. awarded Nobel Prizes are garnered by persons who immigrated to the United States.” That percentage far exceeds the proportion of the U.S. population which is foreign-born, which in 2010 the U.S. Census Bureau estimated at 12.9%.  Again and again we see that immigrants contribute to a nation’s wealth and this is no exception.

Three of this year’s winners are particularly interesting examples.  Shuji Nakamura, originally from Japan was awarded for his work in Physics with the University of California, Santa Barbara (USCB).   As UCSB reports, Dr. Nakamura was born and educated in Japan, coming to the US as a visiting research associate; he has since made his career in the U.S. and his research has led to the development of a lamp that might help the estimated 1.5 billion people worldwide without access to a power grid.

John O’Keefe, a native New Yorker, who was this year awarded the Nobel Prize in Medicine for his work with University College London, is quoted as saying immigration rules are “a very, very large obstacle” to hiring the best scientists.  While he was referring to the U.K. immigration rules, this statement could easily be projected to the U.S. where immigration laws drafted decades ago have not kept up with business, technology or the reality of the global economy.  And finally, another winner from the U.K., Malala Yousafzai, is also an immigrant.  Originally from Pakistan, Ms. Yousafzai is the youngest Nobel Laureate in history and is in the process of receiving honorary citizenship from Canada.

What these Nobel Laureates show us is that the best and the brightest are mobile and the U.S. must be able to compete for talent on a global stage.  The U.S. needs an immigration system that works at every level, high to low skill and everywhere in between, a system that takes into account the market needs and the importance of family reunification. We don’t have that now, and it is incredibly disappointing that Congress has yet to do its duty and pass good legislation that will make a real difference for all.  Who knows, should Congress act, they may find themselves recipients of the Nobel Prize for conferring  “the greatest benefit on mankind.” – common sense immigration reform.

Written by Anastasia Tonello, AILA Treasurer

What the Tony Awards Can Teach Us About Immigration

This year’s Tony Awards will be presented on Sunday, June 8 in New York City.  I’ve always been a fan of the ceremony and, having seen a fair number of the nominees, I was struck by the strong intersection between Broadway theatre and immigration this year.

Take for example, A Raisin in the Sun, nominated for Best Revival of a Play, Best Actress and Best Director.  The play opens with Langston Hughes poem, Dream Deferred: 

What happens to a dream deferred?

Does it dry up

like a raisin in the sun?

Or fester like a sore–

And then run?

Does it stink like rotten meat?

Or crust and sugar over–

like a syrupy sweet?

Maybe it just sags

like a heavy load.

Or does it explode?

The title of the poem including the words “dream deferred” immediately struck me as relevant to the current immigration debate with the DREAM Act and Deferred Action for Childhood Arrivals in the news.

Similarly, the struggle and eventual success to bring our great nation from segregation to equal rights, both incredibly difficult and long overdue, closely parallels the struggles of many immigrants today.  Political debate and the conversation around immigration reform are reflected in another one of one of this year’s Tony nominees, All the Way.  This Best Play nominee follows President Johnson’s herculean efforts to convince Congress to enact the Civil Rights Acts of 1964. The political landscape may have changed, but perhaps President Obama could take a lesson in manipulation, or at least negotiation, from Tony nominee, Bryan Cranston, the actor portraying LBJ in motivating Congress to act.

In addition to the political parallels, this year’s ceremony, hosted by Hugh Jackman, originally from Australia, includes the nominees who  mirror academia and the business world; the list of the best of the best on Broadway includes not only Americans but natives of Switzerland, Cuba, Ireland, former Yugoslavia, Canada and the U.K.  In the technical categories, a non-U.S. citizen is included in the short list of every category barring one.

Broadway theatre is widely acknowledged as the best in the world.  It is a mixture of cultures, perspectives and stories which reflect our country, the American people and their dreams.  Broadway itself is the child of immigrants.  The names most closely associated with the Broadway tradition are largely those belonging to some of New York’s earliest immigrants in the late nineteenth century.  If you’ve ever watched a Broadway musical, and marveled at the production, then you owe some thanks to Florenz “Flo” Ziegfeld Jr., the child of a German father and French mother, he grew up in Chicago and is considered an “American icon” and father of the modern musical show.

Fred Astaire’s father was from Austria—you may not recognize his given name of Fred Austerlitz. Julia Elizabeth Wells – also known as Broadway legend, Julie Andrews – hails from the U.K.  Audrey Hepburn, Ann-Margret, Alan Cumming, Rita Moreno, Sophie Okonedo and so many other immigrants have brought their talents to The Great White Way.  Countless producers, managers, choreographers, technicians, and playwrights also helped establish and continue the proud Broadway tradition of world-class entertainment.

Last year, part of Broadway itself was named “Juan Rodriguez Way” in honor of a freed slave from the former island of Hispaniola, now the Dominican Republic, who became the first non-native immigrant to ever settle in present day Manhattan in 1613. Broadway continues to inspire immigrants who make this country their own.

So on Sunday evening, when the Tony Awards are presented, I will not only be enjoying the spectacle of theatre, but also a proud tradition and industry which has welcomed and celebrated immigrants since its earliest days.

Written by Anastasia Tonello, AILA Secretary

H-4 Work Authorization: A (First) Step in the Right Direction?

shutterstock_170161988On May 6, 2014 DHS announced proposals to “attract and retain highly skilled immigrants.”  Along with my other business immigration colleagues, I was thrilled when the news broke.  While it isn’t comprehensive information reform, it is a step in the right direction.

Let’s look at the issue of work authorization for spouses of H-1B workers, which got the most press following the announcement.  I have seen quite a few articles in which immigration advocates and experts express disappointment with the proposals noting that the change is minor and not that big of a deal.  But let’s look at this provision more closely.  According to DHS Director Mayorkas the changes would benefit as many as 97,000 spouses in the first year and about 30,000 a year after that.

Consider that the entire annual cap subject H-1B allocation is 85,000 and according to the Department of State nonimmigrant visa data more H-1B visas are issued every year than any other work visa.  This proposed rule is therefore pretty significant in the grand scheme of nonimmigrant work visas.  From my corner of the world of immigration law, there is indeed cause for celebration.

But looking at the proposals, and perhaps giving some inspiration to the administration, why not provide work authorization to all H-4 spouses (or dare we wish, all spouses of nonimmigrant work visa holders)?  Under 214(a), the Department of Homeland Security has the authority to make these changes broader and better.  Here’s why the change, again while welcome, is so limiting –

To qualify, the principal applicant beneficiary must have been granted an H-1B extension under AC21 or an immigrant petition must have been approved for the H-1B principal applicant.  In practice, this means the H-1B worker will have already been in the U.S. for six years in this status.  Alternatively, the sponsoring employer would have to have completed its portion of the permanent residence process for the individual, which in my experience is not normally in the first years of the H-1B but more commonly when an H-1B is extended or nearing the six year maximum.  In addition, a lengthy process must have been completed before the spouse can qualify for work authorization: a PERM Labor Department application must have been filed, which realistically takes six months to prepare; the PERM must then be certified, which will take months; the immigrant petition must be prepared and filed with USCIS, and USCIS must approve that petition—a process that currently takes four to six months, and has been known to take considerably longer.  This therefore leaves thousands of H-4 spouses who won’t qualify under the new provision or who will likely need to wait years before they do.

This particular change will therefore provide a benefit to a large number of H-4 spouses, but why stop with a narrowly carved out subsection?  Changes are welcome, and we can do more.  Let’s do it.

Written by Anastasia Tonello, AILA Secretary

Could Religion Be the Common Ground for Immigration Reform?

The Catholic Church is no stranger to the headlines.  As a Catholic I am often disappointed by its focus in the media and its presentation and stance on many issues.

However, since the selection and inauguration of Pope Francis, much of the conversation in and around the Catholic Church has changed.  Last month, when the Pontiff met with President Obama, immigration became the latest issue to make international headlines from the self proclaimed “Pope of the Poor”.  Pope Francis highlighted the struggles of migrants and the often inhumane U.S. immigration policies and laws.  A ten year old girl from Los Angeles, who was able to speak to the Pope, shared the story of her father who had been in detention and who she hadn’t seen for two years.  Shortly after the story broke, her father was released from detention.  USCIS claimed the two events were unrelated – perhaps it was the Pope’s first miracle?

To me, this time the Catholic Church is on the right side of the debate.  Other recent efforts by the Church to draw attention to the need for reform include the Mass held at the border on April 1, led by Cardinal Sean O’Malley, which brought together family members on both sides of the border fence to remember those who had died trying to cross the border into the U.S.

Across the country, many Catholic leaders are repeatedly and publicly enjoining their congregations to see immigrants as people first, as human beings who are imperfect, as we all are, most of them just trying to build a better life for themselves and their families and calling for immigration reform.

These Catholic voices are joined by thousands of others of varying faiths.

They are joined by Jewish leaders who recognize the relevance immigration has played in their religion’s histories, teachings, and U.S. experiences. They are joined by Methodists who see the destruction that our current broken system brings to communities.  They are joined by Muslim faith leaders who underscore the dignity of the human life and experience and the need for laws that respect that dignity.

In one recent multi-denominational vigil in Los Angeles, all of those faiths and more were represented, all calling for immigration reform and the change necessary to keep families and communities together.

Faith leaders, who may disagree on the finer details of dogma, agree that immigration is a moral issue and one that impacts those of all faiths.  This has not gone unnoticed by President Obama who on April 15 met with faith leaders to discuss immigration with the hope of reaching consensus across party lines.

People of faith, like Pope Francis, see the universality of the human condition. He calls on all of us to show compassion for our fellow man. Immigration reform done right would reflect that compassion.  Perhaps religion, which we too often see as a source of division, can this time serve as a bridge to unite us and serve as a basis and foundation for immigration reform.

Written by Anastasia Tonello, AILA Secretary

Top Ten Similarities Between March Madness and the U.S. Immigration System

shutterstock_71304997As a native Hoosier and Indiana University graduate, I have always loved March Madness – the idea that any team could find a place and then potentially win or, at the very least, upset, the tournament is exciting and inspiring.  Additionally, I love lists.  Competition and the fast pace of both the games and the eliminations make March Madness a unique and inclusive sporting experience.  That said, this year was disappointing for Indiana basketball, and without my team participating, I have not been as involved.  With a bit of perspective, and inspired by another Hoosier, David Letterman, I have been pondering the top ten similarities between March Madness and U.S. immigration.  Drum roll please…

10. Competition – In March Madness, 12th seeded Harvard can eliminate 5th seeded Cincinnati; in the immigration March Madness (aka H-1B filing season), an Art History graduate from an unranked regional college could beat out a Nuclear Engineer from MIT.

9.  Randomness – In March Madness, just because you made it out of the first round, don’t expect to make it to the final four.  In immigration, just because you got picked in the H-1B lottery doesn’t mean you’ll survive adjudication.

8.  Seeds/Preferences – March Madness organizes the 68 participating teams into regions and seeds; the highest ranked teams play the lowest ranked teams giving the teams with the best records the best chance to make it to the final four.  Immigration has preferences and chargeability; some preferences move faster than others, and chargeability means that some nationalities “beat” others by virtue of lower demand.

7. Cinderella stories – Dayton defeats Ohio State!  DREAMers – those brought to the U.S. as children can apply for work permits under Deferred Action for Childhood Arrivals (DACA)!

6.  Athletes are the stars – in March Madness the players and coaches make the magic happen.  In immigration, athletes and most well known artists, actors and musicians get access to O or P visas–not subject to the same numerical limitations or delays as H-1Bs.

5.  Politics run high – no matter what IU’s seed is or chance of advancing, I could never pick Michigan or Purdue to beat my alma mater.  Just like some members of Congress don’t want to hand others the “win” on immigration reform.

4.  The President weighs in – Barack-etology had Duke and Ohio State advancing.  He didn’t make that happen. President Obama’s views on immigration reform legislation are simply not authoritative because he isn’t in Congress.

3.  The cards are unfairly stacked – Consider the chances of 16th seeded Weber State beating #1 seeded Arizona.  Sure, it’s possible, but very difficult.  For a foreign national to get through the labor certification process, an employer must show that no U.S. worker is available, qualified and willing to take the job.

2.  Uniquely American – college sports played at this level with the amount of marketing and revenue only happens in America – and we’re also the only country with this mismatched patchwork of laws and policies masquerading as an immigration system.

1.  Even if you aren’t interested, you can’t escape either one – office bracket pools, televised games showing everywhere, social networking blasts with comments and commentary – How could you not have heard that Duke was upset by Mercer?  Same with immigration – articles, blogs, social commentary – our immigration system is constantly the subject of media attention.

At least with March Madness, on April 7, 2014, we will have a national champion.  With immigration – the madness isn’t contained to one month.  Without action by Congress, U.S. immigration madness will continue.

Written by Anastasia Tonello, AILA Secretary

One Year Later

shutterstock_109271837A year ago, Sandy tore through the New York area, leaving destruction and damage in her wake and lives upended.  The subway flooded, power was out in much of the city, and life ground to a halt for millions.

As Sandy was approaching, I had been in London celebrating a significant birthday.  Emerging from a post celebratory haze, I was alerted to the storm though a wave of updates and concerned messages from friends and family.  Somehow, my flight back to New York was uninterrupted but on arrival to JFK, I felt as if they were closing the door behind us.  The airport was empty – flights were not departing and those who had arrived were quick to find a way home, or to somewhere else, depending what zone home was in.

One of those places battered by Sandy was a small island on the south western tip of Manhattan – a tiny island of infinite value: Ellis Island.  As the gateway to a new life for millions upon millions, Ellis Island represents to many a new beginning and life in the U.S.  Holding much history, those paths tread by so many who were, poor, tired, hungry and troubled, but yet yearning – yearning for a new life and new opportunities; yearning for what they saw as a chance for a better life for themselves and their family.

Ellis Island, exposed in the New York Bay, was overpowered by Sandy and flooded, closing down the Ellis Island Immigration Museum for a year.  As I read the reports that the museum has been reopened and visitors are again welcome, I feel hope.  Not just hope that this landmark has been restored and that thousands will continue to be moved by it, but hope that this year we may see the passage of an immigration reform bill that would reflect the hope that Ellis Island itself represents.

It is trite to say it, but America is a country of immigrants.  Many of us are able to trace our families back to Ellis Island in a time when the U.S. immigration laws welcomed immigrants.  Prejudices, fear, and mistrust were surely also waiting for those new immigrants, but at least our laws recognized the need for the labor, ingenuity and diversity that immigration brings and continues to bring today.  Indeed, according to a 2012 Kauffman Foundation study approximately 25% of U.S. companies were founded by immigrants nationwide, and approximately 50% in Silicon Valley.  These numbers, however, are declining, due largely to an antiquated and unrealistic immigration system.

2013 presents an opportunity to overhaul our broken immigration system and replace it with one that can address reality.  I fear I will be standing here, one year from now, regretting the lack of success in immigration reform.  We cannot let the storm of rhetoric from restrictionists wash us away.  We need to keep the power on and the momentum going so that one year from now, we can look back and know that families have been restored, businesses are succeeding, and people have come out of the shadows like so many before them.