Immigration has been a raging issue in America for at least 30 years. The 1986 Immigration Act solved little since we are still confronting problems. Along our southern borders, a flood of children continue attempting to come here because of loose interpretation of the William Wilberforce Act of 2008. That is just the tip of the iceberg of problems we need to remedy in the immigration arena. These challenges were defined to me by an expert in the field.
Warren Winston has been a client of mine for 30 years. That was five years after he became an immigration attorney in 1979. That year he joined a law firm specializing in entertainment and immigration law. He was eyeing a career as an entertainment lawyer. When the hostages were taken in Iran in November 1979, his firm was flooded with immigration cases and his fate was sealed. Thirty-five years later he knows first-hand every aspect of the challenges that exist within the system.
We cannot have a legal immigration system without the assets and personnel to be able to efficiently approve the immigrants allowed under the current law. Winston described the decrepit court facilities, overcrowded courts without sufficient personnel to handle the workload, and inadequate systems to process the immigrants we do allow. Immigration Judges are often forced to postpone cases because government lawyers either don’t have the immigrant’s files or are not prepared to complete the cases. Requests for short continuances are often granted, but for years instead of months because of overwhelmed court calendars.
Winston described a system not set up to function successfully. Exemplifying this is that judges must use translators through telephone speakers whenever a court-approved translator is not available or otherwise continue the case. In Los Angeles, there are sizable ethnic communities that speak all the different dialects that the court encounters who could help immigrants present their case to the judge. Yet the court, when a translator is not available, must use a translator in Washington via the telephone. Instead they could utilize local retirees who speak the applicant’s dialect for minor daily fees. The immigrants often cannot discern the translator’s accent over the phone. Winston tells me that frequently, when he walks out of a short hearing, his client tells him that the translator has made a mistake and incorrectly translated an important statement to the judge. Winston stated “The translator needs to understand the applicant so the lawyers and the judge are told exactly what was said. If the translator is not in court, he cannot properly communicate with the applicant, who can’t correct the translation to the judge.”
Congress established a program administered by the US Citizenship and Immigration Services to encourage foreign investors by giving them lawful permanent resident status -- green cards. This happens when they create new businesses by investing at least $500,000 and hire ten full-time American employees. These initial investor petitions, which were targeted for processing within six months, are now backlogged over 13 months. That does not include the eight-month average period at U.S. consulates to obtain immigrant visas after the petition is approved. Winston said “That means that an investor who has committed their investment capital to a new American enterprise designed to create ten new permanent full time jobs must wait almost two years to arrive as an immigrant. That has caused some of these investors to take their capital to other countries like Canada without these delays.”
There has been a well-known struggle regarding hi-tech workers applying for H-1B visas. A lot of these applicants are academically-qualified professionals, most of whom obtain graduate degrees from U.S. universities. They can’t get visas for years because Congress drastically reduced the number of H-1B visas. Winston stated he agreed with what Mitt Romney had said, “If you get an advanced degree we want you to stay here, so I’d staple a green card to the diploma of anyone that gets an advanced degree here.” We should say “Welcome to the United States of America! We want those people in our country.” Unfortunately, the opposite is happening as they have to participate in an annual lottery for an H-1B, a temporary work visa, not a green card. Winston said “this is because Congress has reduced the annual allocation of H-1B visas and, more importantly, the visas are not going to the intended graduates.”
The lottery opens on April 1st of each year for jobs starting on October 1st, and companies like Facebook, Oracle, and Intel file boxes of applicants. The time for processing the petitions picked in the lottery, then approved and processed for the H-1B visa takes six months minimum even when the companies would gladly pay higher fees to expedite the process. Last year, there were about 172,500 applications made with just 85,000 accepted. Many people have advocated a change in the system to lift the cap on these visas.
I asked Winston how much of these deficiencies were addressed in the Immigration bill that passed the Senate. He stated that most of them were. The bill provides for a significant increase in resources, initially at the border. But as we all know, Republicans are concerned that President Obama will not abide by the border enforcement first provisions in the Senate bill. They are also concerned about The Undertaker railroading the process in a Conference Committee. Senator Reid threatened to attach the comprehensive Senate bill to the House bill being passed to deal with the current child immigrant crisis on the southern border. As I have stated previously, I am confident if the Republicans take control of the Senate next year, they will pass multiple bills dealing with the various deficiencies in the current system.
I asked Winston to address his overall concerns regarding the system. “The legal immigration system is broken. First, because of the backlogs for immigrant visas for people who have played by the rules and filed petitions for their families and employees many years ago. They have been waiting decades for quotas that have not been adjusted to meet current conditions. Second, because the backlogs in employer-based cases are an insult to a company that follows the rules and applies for both temporary and permanent foreign professionals.”
Our immigration system is a mess, but you know that. Come January, Republicans will hopefully start to right this chaotic system. Then the President will have to work with Congress to the benefit of all involved.
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