Archive for the ‘Legislative Reform’ Category.

H-1B Cap Slows U.S. Innovation

The Fiscashutterstock_192420653l Year 2016 H-1B random selection process for skilled workers is over.  As with many other immigration lawyers around the country, I am dealing with employer fallout over the loss of badly needed skilled professionals whose petitions weren’t selected.  Many of these would-be H-1B beneficiaries are already working for the employer in a status called Optional Practical Training.  Optional Practical Training is an employment authorized status permitted for 12 to 29 months after graduation from an accredited U.S. university.

This post addresses the plight of  U.S. based employers who produce products and services for the U.S. economy including legitimate management consulting firms who work with clients to install and improve management technology and go on to new projects.   These employers are to be distinguished from the perceived type of employer mentioned in recent New York Times pieces.  While the entirety of those situations aren’t yet known, what I do know is this: the H-1B visa was not intended to displace U.S. workers and there are regulatory safeguards in place.  In fact, the H-1B visa has contributed to the productivity of many employers in ways that have then led to many more jobs for U.S. workers.

It is hard to tell an employer that a star employee will no longer be authorized to work for them in the U.S.  They don’t understand how random and arcane the process is, particularly that this year there were only enough H-1B visas available to cover about 25% of the 233,000+ petitions filed for fiscal year 2016.

I’ve worked on a number of H-1B cases over the years and the employers I work with are doing their best in a confusing process. Here’s an example – one client requires a special skill set offered in a program at a top rated university. In recruiting at this institution, they discovered that only one US worker was enrolled in the program, so hiring a U.S. worker with the skills required is virtually impossible from the outset.

Other employers are scrambling looking for alternative work visas and when that fails, to figure out the legalities of contracting for remote services to be performed abroad for key employees.  These are but two of thousands of compelling examples of what U.S. employers are dealing with.  I’ve had multiple employers tell me that if they could find US workers to fill their open positions, they would gladly hire them and avoid this “visa morass.”

More than half of the H-1B petitions filed are for occupations in the STEM (Science, Technology Engineering and Mathematics fields).  Many of those whose employers have applied for them graduated from U.S. universities with STEM degrees! According to the Institute of International Educational Exchange, two thirds of foreign students studying at US universities are pursuing degrees in STEM or business fields; 84.8% of them have attained U.S. Master’s or Doctorate Degrees. Now that we’ve educated them, shouldn’t we do our best to keep them in the U.S. to become job creators?

Today, the U.S. is in an international fight to maintain hegemony in innovation and technological advances.  These highly skilled foreign students that we have educated can pick from a number of welcoming countries nipping at our heels to pass us as the world’s leading innovators.  They are a significant – and vital – part of our continued growth in cutting edge industry; indeed, according to Todd Park, the former U.S. Chief Technology Officer, every foreign-born graduate with an advanced STEM degree is associated with, on average, 2.6 jobs for American workers.  And, by some estimates, according to Mr. Park, immigration was responsible for one-third of the growth in patenting in past decades; these innovations contributed to increasing U.S. GDP by 2.4 percent.

The problem with the H-1B shortage stems from the Immigration Act of 1990 (Immact 90).  For the first time, annual numeric caps were imposed on the H-1B visa initially permitting a limit of 65,000 visas per year. What appeared to be a generous figure in 1990 soon became a huge headache for employers. In 2000, the American Competitiveness in the 21st Century Act exempted certain non-profits, primarily institutions of higher education and governmental research groups from the cap.  It also temporarily increased the H-1B cap to 195,000 for FY 2001 through 2003.  This was an acknowledgement that the existing H-1B cap was woefully inadequate and one can only conjecture that it was anticipated that by the end of this cap increase, a solution to the problem would be forthcoming.  It was not. After the H-1B returned to the draconian limit of 65,000, a permanent increase of 20,000 for holders of U.S. Masters Degrees was enacted.  A total of eighty-five thousand H-1B petitions is still woefully inadequate for our nation’s increasing demand for highly educated workers, especially in the STEM fields.

Static numerical limits for visas and green cards are fraught with problems.  A fixed numerical cap established almost 25 years ago doesn’t anticipate the needs of a growing economy. Another example of short-sightedness in visa limitations can be seen in the green card context. The Immigration Act of 1990 also abolished the old employment-based 3rd and 6th immigrant visa system and set up a five tier employment-based system with increased immigration numbers.  Again, many of these categories have become badly backlogged over time, particularly for those chargeable to the India and China country quotas.

A reform of our current system is badly needed if we are going to continue to retain the talent that we educate and utilize their abilities to help our economy’s growth. Every day, week, month, and year that goes by and Congress doesn’t pass immigration reform is another day, week, month, and year where our nation stagnates instead of grows.

Written by Deb Notkin, AILA Media-Advocacy Committee Vice Chair and former AILA President

Game Changer

Dushutterstock_147037244ring a recent campaign event in Nevada, Hillary Clinton blindsided the 2016 Presidential contestants by stating her unequivocal support for comprehensive immigration reform (CIR) and a clear path to citizenship for the undocumented migrants in the U.S. She also stated the obvious – that when immigration restrictionists talk about legal status “that is code for second-class status.”

A week later – Hillary’s husband, Bill, followed suit during an appearance on Univision and stated his own support for a path to citizenship and referred to the policy of “inclusive governance” as “not rocket science.”

Indeed – as a nation of immigrants – we should encourage and celebrate the possibility of having more citizens.  New blood not only brings innovation, but also supports our industries, and enriches our culture.  Even the idea of long-term or permanent non-citizens is an insult to our Founding Fathers who released this country from the clutched fists of a British government which sanctioned the idea of  having “Subjects” as opposed to free Citizens.

To be sure, I am not a Clinton cheerleader.  Though I voted for Bill Clinton, I am also sober to the many mistakes made under his watch: NAFTA, DOMA, DADT, and of course IIRAIRA, to name a few.  However, I am excited to hear Hillary Clinton speak about CIR because we need to have this discussion once again.

As we all know, in 2013 a reform oriented bipartisan immigration bill passed the U.S. Senate by a vote of 68-32.  Though not perfect, we had a bill we could work with.  Unfortunately, it was never taken up by the House and succumbed to an agonizingly slow death by expiration date when the new congressional session began.

The national conversation then turned to border security, only the Southern border of course, and also to the executive actions taken by President Obama on immigration policy.  The actual way forward, the way to solve the immigration problem, unfortunately got lost in all this noise and useless bravado.

I am not naive.  I understand that to pass any bill, we need both a President and a Congress who are willing to work together.  But I also understand that we live in a democracy where according to a May 2015 CBS/NYT poll, 57% of Americans want the undocumented migrants in this country to be able to apply for citizenship while only 29% want them to leave. We also have the 2016 elections coming up – a chance to vote for a whole new set of Representatives in Congress and a new president in the White House.

That is why I was excited to hear Hillary Clinton bring up CIR.  I am equally ecstatic that Bill Clinton, the very person whose signature is on the dreaded IIRAIRA, is also keeping this discussion alive.  People need to see the obvious: that it is morally reprehensible and financially impossible to remove the entire undocumented community and torpedo the unity of countless families.  Moreover, our security as a nation demands a full accounting of everyone residing within our borders.  It is also a fool’s errand to keep talking about baby steps on immigration reform without acknowledging that the final product cannot be anything short of a path to full U.S. citizenship for those who have already contributed in countless ways to our prosperity.

I hope that the Clintons’ remarks will end the national inaction on immigration and reboot the necessary conversation on CIR.  The restrictionists have, for far too long, drawn the battle lines on this issue.  I am glad to see the reformists reclaim the debate at the onset of our upcoming electoral process.  As an immigrant who is an immigration attorney, I believe the immigration reformists along with the American people at large will be the winners at the end of this Game of Thrones.

Written by Ally Bolour, Member, AILA Media-Advocacy Committee

Another Kind of Obstacle Course

Interesting pshutterstock_136036019iece by Kristina Wong in The Hill last week (Army already enlisting ‘Dreamers’ as Congress debates immigration) about 50 DACA recipients (“illegal immigrants” as the author calls them) joining the United States military. The US military has long tapped skilled people to join its ranks, whether they be citizens or not.  Our country’s military has a long history of non-citizens fighting shoulder to shoulder with American citizens from the War of 1812, the Civil War and both World Wars.

The Military Accessions Vital to the National Interest (MAVNI) program was created, as Wong states, to “recruit people with medical training or who speak a critical language.”  In short, the MAVNI program’s purpose is to increase military readiness which is vital to the national security of the United States.  Skilled people increase this readiness and security and we should thank and applaud these young Dreamers who desire to serve our country and protect our freedom.

Instead Representative Mo Brooks (R-Ala.) used this opportunity to denigrate these young skilled recruits while also risking our readiness and security for his political benefit by stating about the enlistment of Dreamers: “the Rules Committee has the power, and indeed the duty, to prevent such a threat to our national security.”  I believe we should be glad that Rep. Brooks was not in Congress during WW II, as political games seem more important to him than obtaining the essential skills to win a conflict and protect our country by using all of the assets this great country has to offer.

In February of 1942, as the U.S. war effort in the Pacific faced a determined enemy, one exceptionally skilled at breaking US military code and learning US military strategy, it seemed as if no code was safe.  Along came Philip Johnston and he approached the Marine Corps with an idea to recruit Navajo American Indians from a California reservation and use the Navajo language on the battlefield as code.  He was confident the enemy would never be able to break the code.  After some internal discussion, the 382nd Platoon of the US Marine Corps was born several months later.  The code was never broken and we know the result. The military tapped the skills of the Navajo, a historically underutilized and overlooked but available asset until that point in the war, and it made a significant difference.

The purpose of MAVNI, Congressman, is to protect the United States by using all assets available to our great country regardless of politics, race, religion, creed, nationality and immigration status. For someone who trumpets national security’s importance so often, why are you standing in the way?

Written by Matt Maiona, Member, AILA Media-Advocacy Committee

Borderland Preservation or Destruction?

shutterstock_269393675If you can look past the ugly politics in Arizona, it is truly a beautiful place to live and work. I have resided in Tucson, Arizona, for most of my life and there are times when I’ll be driving, hiking or running in the surrounding wilderness and the scenery is breathtaking. The saguaro cactus, the javelina, the bobcats and the rattlesnakes are some of the unique aspects of the Sonoran Desert ecology.  Sadly, over the past decades this stunning background has been slowly decaying with increased militarization and more border patrol vehicles, drones, surveillance and detection equipment scattering the desert panorama. If the border security bill, S. 750, becomes law—and it just passed out of the Senate Homeland Security Committee–it would further eviscerate the beauty of the millions of acres of federal land in the Yuma and Tucson Border Patrol sectors.

S. 750 (“Arizona Borderlands Protection and Preservation Act”) is a bill that was written by Arizona Senator John McCain. In spite of its name, it may very well have the opposite impact on protection and preservation of the desert. It would give 100% access for the “functioning and operational capability to conduct continuous and integrated manned or unmanned, monitoring, sensing, or surveillance” by the U.S. Border Patrol. That includes national parks, national forests, national wildlife refuges, national monuments and other public lands. This bill permits widespread deployment of communications, routine motorized patrols and surveillance that could encroach upon the sacred tribal lands of the Tohono O’odham and the Pasqua Yaqui.

S. 750 is a bad idea and should be opposed!

Most frightening from an immigration viewpoint is the completely infeasible sealed border that Sen. McCain wants in the bill, a standard that DHS Secretary Johnson says is “unworkable” and that N. Korea and other totalitarian regimes with a shoot to kill practice can’t even achieve. Instead of attempting to pass piecemeal border security bills, Senators McCain and Flake should be re-focusing their immigration-related efforts on trying to rekindle the push for comprehensive and common-sense solutions. The business community is struggling to bring or retain high-skilled workers in the wake of the 2015 H-1B filing debacle where 233,000 applications were filed and more than 2/3rds of these applications (plus the filing fees) are being rejected due to an antiquated quota system. Ultimately, this only hurts our nation’s economy.

The agriculture community has been pressing for their own visa reforms and the need for a modernized guest worker program and potential path to a green card.  The family-based immigration system is a mess and in dire need of changes. Millions of hard-working, deserving undocumented individuals remain in limbo. So, rather than trying to push for a straight border security bill that would ultimately increase the militarization on the border and have a negative impact on the desert environment, I respectfully ask that the two Arizona senators look at the bigger picture as they did in 2013 and avoid the unworkable border-security-above-all approach to reform.

Written by Mo Goldman, Chair, AILA Media-Advocacy Committee

Without Good Counsel

shutterstock_271782686On April 21, 2015 – a Harvard University graduate student, Rebekah Rodriguez-Lynn,  published a column in the Los Angeles Daily News titled: “How U.S. immigration laws helped tear my family apart.”

Ms. Rodriguez-Lynn is a U.S. citizen and a resident of Southern California; she shares her story, beginning with her marriage to the love of her life, an undocumented Mexican citizen who had crossed over to the U.S. without authorization at age 17.  They had a baby boy and they later moved to Cambridge, MA so she could attend a Harvard graduate program.  She was living the American dream – except that her husband did not have the proper documents.

Wanting to legalize her husband’s immigration status, she eventually filed an Immigrant Petition – Form I-130 – for him that USCIS promptly approved a few months later.  Following a routine process USCIS sent the case to the U.S. Consulate in Cuidad Juarez (CDJ), Mexico for final adjudication of the immigrant visa. After receiving a notice for a visa interview, the family travelled cross-country from MA to CA and down to CDJ.  Her dream of living happily ever after with her family was suddenly shattered though when the visa officer informed her husband that he was subject to a lifetime bar due to his previous unauthorized entries to the U.S., a decision which they could not appeal.  That bar has separated her family for over 10 years.

It is no secret that our immigration laws are broken beyond repair.  On Twitter #RepealIIRAIRA should be trending!  However, that is not the point of this blog.

For over 2 years, without any cause, the State Bar of California has been targeting immigration attorneys with allegations of fraud.  State Rep. Lorena Gonzalez (D-SD) has made it her mission to “protect” immigrants from attorneys who she claims, without a shred of evidence, are systematically defrauding immigrant communities.  She wants to regulate immigration attorneys more than any other lawyers in the State via AB 1159.  The goal of the law is “to prevent unscrupulous practitioners from taking advantage of immigrants’ hopes and taking money for services they could not perform.”

Noble goal, but unfortunately, immigration attorneys are lumped together with notarios.  Since notarios essentially practice law without a license, the State Bar does not have any sway over them.  Perhaps realizing this fact, the State Bar of California released a goal-oriented outreach campaign which warned the public that per AB 1159 it is illegal for immigration lawyers and consultants to take money for services related to federal immigration reform until Congress acts.

When information like this is disseminated, through the State Bar or the offices of our legislators, it confuses people. If a Harvard graduate student made the mistake of not consulting with an immigration lawyer regarding her husband’s case, perhaps because she did not trust an attorney, then anyone could make the same mistake.

It is unconscionable for our public officials – including some members of Congress – not to acknowledge that immigration laws are some of the most unforgiving in our legal system. They should actively encourage their constituents to consult with qualified immigration attorneys if they have any immigration issues. Perhaps if they admit to the reality that our immigration laws are so complicated that only an immigration lawyer may make sense of them they will find the courage to finally fix the problem so families like Rebekah Rodriguez-Lynn’s aren’t separated for life.  #RepealIIRAIRA.

Written by Ally Bolour, Member, AILA Media Advocacy Committee

148,000 Missed Opportunities

shutterstock_148806083I’m just now fully coming out of the chaotic, hectic darkness that has clouded every H-1B season for the past many years.  Once again, I find myself struggling with “Immigration PTSD”  – Post Traumatic Submission Disorder.  The cause of this syndrome is two-fold.  First, I live with the dreaded anticipation that the number of submissions will be such that not even a fair percentage of my submitted applications have a realistic hope of selection.  To make matters worse, I live in fear that, heaven forbid, I have made a minute non-material error, which will cause even a selected application to fail. Sadly, my fears are once again well founded.

This year the USCIS received 233,000 applications for 85,000 available slots.  Thus, 148,000, almost two thirds, of the petitions received in the first five days of April will be rejected out of hand without any review. A lottery has been held and the unpicked petitions so painstakingly pulled together by immigration lawyers, with help from innumerable paralegals and legal assistants, and dutifully delivered on time by FedEx, UPS, or the U.S. Postal Service, will be returned.

The data shows that the number of submissions is a direct reflection of the fact that American employers desperately need the workers for whom they petitioned. Simply, they need these foreign workers to help create products, technology, ideas, and innovations.  No employer in its right mind would go through this process or angst if they did not.  Further, as American Immigration Council Executive Director Ben Johnson recently testified in a  Senate Judiciary Committee hearing, those high-skilled immigrant workers have been shown to go on to create even more jobs, thus building our economy and contributing to the success of us all, not just the company for which they work.  Hopes will be dashed, business plans will crumble, and instead of surging forward with the right personnel, companies will be stalled again for another year while they try to make do.

Finally, and perhaps one of the greatest sources of stress for those trying to assist employers and better the economy, is that hopes will be dashed not just because the numbers alone do not and cannot possibly account for the number of workers needed, but because the process is one that does not allow for one, literally not one, error.

Our immigration system is broken, not just by its antiquated numerical limitations but also by its process.  A missed checkbox is grounds for denial, and although denial is not mandated for such errors, it is permitted.  Unfortunately, permission has become a license to kill an otherwise clearly approvable petition.

Transpose a number in a check so that it is off even by only one dollar and USCIS will reject the application. Tax filings, patent applications, and almost any other type of application can be amended.  While the law does not bar corrections to immigration applications, that opportunity is simply not afforded to filers. To err is human, except in the context of immigration, at least for applicants.

It doesn’t have to be like this. Congress could tie the H-1B visa cap to actual market demand. It’s not a crazy concept. When we had an economic downturn, demand fell, so the H-1B visa cap was reached in months instead of days. Why can’t we have the same sort of rising cap when our economy is doing well?  Similarly, our system does not mandate strict liability or compliance.  We do not need Congressional action to dictate that leniency, where permitted, be provided. The laws, common and good economic sense, do that already.  The H-1B visa system is long overdue for an overhaul – Congress should get started today.

Written by Leslie A. Holman, AILA President

How One Life Was Changed at NDA

AILA_Keychain_FrontNational Day of Action (what used to be called “Lobby Day”) is an AILA tradition that goes back a number of years. I’ve participated many times, and each time it is different. Each time I come out heartened by some Congressional visits, disheartened by others, but always feeling a part of something greater and ready to keep fighting for my clients.

One of my clients was directly impacted by my NDA participation a few years ago and I wanted to share that story.

It was back in 2010 when our group met with Rep. Velasquez. It’s unusual to get an appointment with your actual legislator, so most often we meet with one of the legislative aides. But this time it was with the Congressional Member herself.

It was just after the terrible Haiti earthquake.  I had a client, a United States Citizen dad, here in New York who was trying to get his newborn child to the US.  The child was born and she and mom were released from the hospital one day before the quake hit; the hospital collapsed in the quake the next day.

We had been trying for months to get the birth certificate or some other proof to the US Embassy in Haiti so that we could get the visa issued. Obviously, the embassy was swamped with requests and work related to the quake, which we understood, but there were some incredibly frustrating delays and run around with the Post that lasted for months.

While we were talking to Rep. Velasquez at our meeting, educating her about immigration reform and how important it is to fix the broken system, I happened to mention this case as an example.  Suddenly her eyes lit up. She jumped out of her chair and called her aide into our meeting and told him to get my name and number and that she would see what she could do. As soon as I got back to the office the next day I gave the aide the details and file number.

The child was in New York a month later.

This sort of result is the exception, not the rule. These meetings are not to ask for help for individual cases, but to educate and advocate on immigration issues. But I used a concrete example in this meeting to illustrate a point, and got this amazing and exceptional result. No one should come to NDA solely for this purpose, but what a story!

So despite the deadlock in Congress, I will be at NDA this year again, as usual. Because you never know when a comment you make in a meeting can inform a congressional hearing question, even months later. You never know how sharing your card with a legislative assistant can lead to being asked for information when a bill is being drafted. And you never know how an offhand comment can reunite a family.

Written by George Akst, NDA Attendee and AILA Member

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To register for NDA 2015, go to Agora and sign upit’s free!

Could Negotiated Rulemaking Save H-2B?

shutterstock_191505380Businesses that rely on seasonal, nonagricultural labor have had a hard time recruiting US workers as the economy has improved and overall unemployment and underemployment have fallen. These businesses — from seafood producers in Louisiana, Alaska and Maryland to resorts in Colorado and Maine to landscaping companies all over the U.S. — have relied on the H-2B visa program to supplement their US workforce during their seasonal peak loads. These businesses are trying to use a program that promotes legal workers coming from Mexico and other countries where a season working in the US can provide meaningful support to families, which also reduces pressure to immigrate illegally.

Unfortunately, a court fight about the program’s regulations has shut it down completely as of earlier this month. The H-2B program operated for decades without a formal regulatory framework, relying on informal guidance and practices in place since the program was first created. In 2008, United States Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) issued regulations to codify some aspects of the program and change others to make it more user-friendly.  By making it easier to hire legal workers from abroad if US workers were unavailable, DOL and USCIS hoped to reduce the pressure on businesses to hire illegal workers to meet their labor needs.

These regulations were challenged in court by worker’s rights groups, objecting to parts of the regulation dealing with how the minimum wages for workers in the program were set. New regulations were proposed by DOL in 2010 to address the wage issue and were to have gone into effect in 2012, but appropriations riders have prevented it from doing so and litigation continues, incorporating additional challenges to this rule.

The present impasse has resulted in a complete shutdown of the H-2B program, an unprecedented situation that has businesses and the workers they were planning to bring to the US in a bind. Since one appeals court held that DOL could not allow employers to use private wage surveys to determine the minimum wage to be offered, and another appeals court went further to hold that DOL had no authority to make rules about the program at all, DOL and USCIS both said they were unable to operate the program and ceased taking new applications, just as employers were gearing up for the summer season.

Over the weekend, it came out that the Department of Homeland Security (DHS) and DOL are rushing through the process of a new rulemaking that will be issued jointly, likely in response to the appeals court order that DOL has no independent rulemaking authority over the H-2B program. An Interim Final Rule would allow processing of applications to be restarted. No matter what the rulemaking says, however, chances are good that either the business or worker groups or both will be unhappy with parts of it, so litigation will continue.

Is there a better way? The H-2B program only applies to nonagricultural employment, and similar strife between growers and worker advocates made rulemaking for the H-2A program for temporary agricultural workers difficult. Because of the strong demand for immigrant labor in the agricultural industry, however, the need for an updated statutory framework for H-2A was recognized in the early 2000’s, when discussion of the bills that eventually became the Senate’s 2005 comprehensive immigration reform bill began. At that time, recognizing that both business and worker groups would have to support the statutory framework in order for it to have any hope of passing, they joined together to work with a bipartisan group of legislators to craft what became known as the “AGJOBS Bill.” By working together growers and worker groups were able to craft a statutory framework that both sides were comfortable supporting, though neither side got everything it wanted.

Given the current tension between seasonal businesses and the worker groups, perhaps the time has come to step out of the courtroom and come to the negotiating table. Coming up with a compromise framework will not be easy – but then many said the growers and workers would never be able to agree on AGJOBS. Indeed, at this point the result need not even be a statutory framework (which is fortunate given that AGJOBS has not been able to pass separately from broader immigration reform). Because an interim Final Rule will have to be open for notice and comment by the public, a negotiated rulemaking between the agencies and a unified, compromise regulatory framework supported by both businesses and worker groups will put an end to the litigation and provide a sound framework for a temporary worker program that protects job opportunities and wages for US workers seeking seasonal work, while giving access to legal temporary workers to businesses who have been unable to find such US workers.

A functioning H-2B program is in America’s interest. Such a program promotes a legal workforce, supports jobs in the US, and grows the economy. While comprehensively reforming the immigration statute will be difficult, coming together to support regulatory reform for the H-2B program should be something businesses and worker groups can join in together.

By William Stock, AILA First Vice President

Updated 3/18/2015

It’s Our Security, Stupid

shutterstock_126785846I find myself in the unusual position today of agreeing with Rep. Peter King (R-NY) in his NY Daily News Op-Ed Wednesday (Guest column: Brooklyn terror suspects show it’s insane to not approve money for Homeland Security ) where he argues that security of the United States is too important and that funding the Department of Homeland Security (DHS) is essential to protect our country.  He is right.  As we sit back and watch the latest drama unfold on Capitol Hill, one cannot but wonder why funding our national security would ever become a political issue.  Clearly it is in our nation’s best interest to fund the agency which is responsible for protecting the homeland from terrorist attack.   Now more than ever Congress should recognize that terrorism can happen in the West and is being called upon by radical leaders abroad.  All they need to do is look at our friends in France, Holland and Canada to see recent examples of attacks on innocent civilians and local police.  Moreover, recently the terrorist group Al Shabaab called for an attack on American civilians in shopping malls such as the Mall of America.  Rep. King points out the need to fund DHS based on the three individuals who were arrested recently in New York City who planned to travel to Syria to fight with ISIL or attack American civilians in New York if they could not reach Syria.  Rep. King is properly putting the people of New York and America ahead of a political agenda.

Regardless of one’s position on the legality of President Obama’s Executive Action memos or immigration in general, we should all be able to agree as Americans that the safety and protection of the people of the United States is a priority regardless of political party.  As I write this, Congress is on a path to fund DHS for only three weeks.  It is unfortunate that members of Congress continue to gamble with national security and our lives to advance individual political gain.  We can only sit back and grit our teeth as the critical votes start to line up before a dysfunctional Congress that is putting party politics before American lives and wellbeing.

Rep. King correctly notes that “you don’t have to be a genius to carry out a terrorist attack.”  You also don’t have to be a genius to understand that national security and the safety of America is more important than petty partisan politics.  Rep. King gets it. Unfortunately, it seems there are not enough members of Congress who want to stand up and represent the American people rather than their individual parties and anti-immigration politics.  We can only hope their selfish gamble doesn’t cost American lives.

Written by Matthew Maiona, Member, AILA Media Advocacy Committee

Who Are We Turning Away?

Helping handA pregnant woman, separated from her husband in a time of regional conflict and instability, flees the central region of her country with a single suitcase and her 2 year old daughter and 1 year old son. The goal is to travel by train to the closest major southern land border in the hopes of reuniting soon with her husband who is fighting far away from home. Every day, people gather around the border crossing waiting for the gates to open and the glimmer of opportunity to cross into another sovereign land. If you miss the timing and fail to cross, the consequences may be worse than death. With her suitcase in one hand and her 1 year old son holding her other, her two year old daughter grabs onto her mother’s dress as the crowd pushes forward trying to get through. Immovable by the throngs of bodies pushing, the pregnant woman lets the crowd sway her and her children through to the protection promised by the neighboring country.

Once on the other side, she reevaluates her surroundings acknowledging the luggage in one hand, her son in the other and only then is aware that her daughter no longer clings to her dress. She screams amongst the shouting crowd, “Where is my daughter? Where is she?” On the other side of the crossing is the two year old daughter with her eyes only able to see the back of people’s legs unaware of where her family went. With a quick motion, she finds herself atop the shoulders of a man she does not know, a man wearing a business suit walking past the crossing. Disoriented, she is still unaware of where she is or how she lost her mother and brother. This little girl cannot tell time and does not know how long it took before she could her hear her mother’s cries and reunited with her. Without even realizing, this little girl is forever labeled by her mother as “lucky” in their native language. And the identity of the nice gentleman in the business suit is never discovered.

The tale told is not a unique story. Although it happened in 1949, it continues to be a story relatable in our present day. As a young child, I remember my grandmother recounting the horrors of a civil war that destroyed her comfortable life. I never understood what my grandmother meant when she said repeatedly that my mother was so very “lucky.” She rarely talked about everything that happened during that time that pitted Chinese against Chinese. I would only hear snippets growing up. But as I got older, I heard more from other family members, even as my mother told me she had a difficult time remembering much of anything during her younger years in Hong Kong.

When she passed away unexpectedly in 2011, I was in charge of taking care of all the family matters with her death. I vividly recall going through her unorganized stacks of important papers kept all over the house and finding a photocopy of a document titled “Refugee Resettlement Land Allocation” something or another. And in this document was a blurry photo of my mother and her family; her as a preteen and my youngest auntie in my grandmother’s arms.

My mother and her side of the family never lamented how they lost everything in the fighting. Instead, they talked about how grateful they were to be alive and the chances they took to ensure the family’s survival. Despite living in a shanty on a hill in Hong Kong, they were grateful for the British Colonial government’s generosity in allowing them to have a place to call their own, to be safe from harm.

I have spent almost 7 of my 8 years of practice as an immigration attorney hearing stories no different from my family’s own history. What my clients seek under the U.S. asylum law is no different than what my family sought when they asked for refuge in Hong Kong. My clients just want to be able to live their lives in safety, to give their children of the opportunities they didn’t have, to move on from a limbo state of violence and begin anew.

But things have gotten much harder. For instance, in 2008, my asylum clients could reasonably expect to have an interview and receive a decision within 4 months. Now, a current client finds themselves in a U.S. asylum system where the wait may be well over two years just for an interview to present their case before an asylum officer. In the meantime, they are ineligible to apply for work authorization until their case has been pending 150 days. And even once that deadline has passed, many face further delays and cryptic reasons for the inability of the U.S. immigration service to process their request.

In my practice, I find myself telling clients that they may wait years before an interview is scheduled. I find myself having to give them cold hard numbers to understand the uphill journey they will set themselves on if they decide to apply for asylum. I tell them that in our jurisdiction, the asylum office has over 10,000 backlogged cases waiting for an interview. I tell them that an average 900 new cases are submitted monthly with only 300-600 cases interviewed that same month.

During this time, they find themselves physically safe but still in a state of panic thinking of their families that stayed behind. The only way for them to bring their children or spouses away from the dangers in their country is for them to win their case. Unlike what my mother and her family went through, my clients find themselves living in limbo never knowing how long or when they may be able to tell their stories. They spend each day wondering when and if they can ever reunite with their family members in safety.

How did my family story end up? Well, at the age of 17, my mother was recruited to train as a nurse in England. She eventually immigrated to the United States in the late 1960’s and brought my grandmother, two aunts and two uncles to the U.S. My mother’s family was small. They only had each other. If my mother tried to bring over her family in the present day, it would most likely only be my grandmother that would be allowed to immigrate. The decades long wait times for brothers and sisters would eliminate any possibility of a timely reunification. What would be lost would be an entire generation of people. Every child from my mother and her siblings (we were all born in the U.S.) went on to graduate from colleges such as Notre Dame, University of Chicago, Vanderbilt, University of Southern California and University of Texas. This is what the U.S. loses out on when delays in adjudications go on for years.

As the immigration debate intensifies into politics, what often gets forgotten are the individuals, the living beings, affected by the current broken system. As rhetoric takes aim at increasing funding for enforcement and a growing police state near the borders, people lose sight of the lack of resources and funding needed to help people who are waiting in limbo.

Politics has gotten in the way of what truly matters in this debate: fixing the laws to reduce wait times, reinforcing existing infrastructure to allow the immigration agency and its employees to adjudicate cases, giving people the opportunity to have their cases heard and allowing people to begin their lives. Immigration is about people, not politics, and President Obama should do all he can to make our system work.

Written by Tammy Lin, AILA Media Advocacy Committee Member