Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

The NYT editorial board is out today with yet another very strong piece on the wide-reaching economic arguments supporting immigration reform legislation that includes the legalization of the people currently located in the U.S.  without valid immigration status.  The key grafs: 

The unions, at least, understand that there is a better way. They see immigration reform as an issue of worker empowerment. If undocumented immigrants undercut wages and job conditions for Americans — and many do, by tolerating low pay and abuse and bolstering an off-the-books system that robs law-abiding employers and taxpayers — it is because they cannot stand up for their rights.

“Workers don’t depress wages. Unscrupulous employers do,” said Terence O’Sullivan, president of the Laborers’ International Union of North America. Unemployment in his industry is above 21 percent. Nearly two million construction workers are out of work. So what does Mr. O’Sullivan want? Reform that allows immigrants to legalize. “If we can free them so they can come out of the shadows, we can not only improve their lives, but all workers’ lives,” he said.

When framed in terms of the economic benefits to all American workers (especially laborers), rather than nativist misinformation, immigration reform and the legalization of currently undocumented workers just makes sense. 

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On Thursday, April 16, 2009, the DOL published an amendment to its current H-2A visa regulation.  My thoughts and a summary of the new Final H-2A rule can be found here.  The most recent amendment to the Final H-2A Rule states that employers requiring H-2A temporary agricultural workers to start work before January 1, 2010 (rather than July 1, 2009), will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2)(2009).  Stated briefly, the transition procedures provide that a prospective H-2A employer should first file its temporary H-2A labor certification application and then conduct recruitment for U.S. workers.  As always, I recommend that everybody read the full text of the new, Final H-2A rule for themselves. 

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It's been a great couple of weeks for the immigration reform effort.  First, last week President Obama announces that he's determined to live up to the promises he made on the campaign trail and begin facilitating a national dialogue in support of immigration reform.  But the administration knows that immigration reform is one of the most challenging issues around, especially during an economic downturn, so it got out ahead of the predictable uproar by offering a helpful and clear-headed frame around the issue.  Basically, the administration said this:  immigration reform isn't an effort to add millions of new workers to the workforce, it's simply an effort to recognize those who are already in the workforce.  An argument of this nature has the benefit of being both reasonable and true.  How about that? 

And then earlier this week we learned that the A.F.L.-C.I.O and Change to Win, two vital segments of the American labor movement, had forged a compromise to support  the reform effort, including a disciplined path to citizenship for the undocumented. 

Why would two previously warring factions of the labor movement, two groups who represent many 'laborers' in the truest sense of the word, come around to be on the same side of this issue?  Well, as the NYT pointed out in its April 14, 2009, editorial, "[e]ven in a bad economy--especially in a bad economy--getting undocumented immigrants on the right side of the law only makes sense."  The editorial furthers the argument thusly: 

The country has suffered mightily in the meantime.  American workers and businesses continue to be undercut by the underground economy.  The economic potential of some of the country's most industrious workers is thwarted.  Working off the books--and living in constant fear of apprehension--they earn less, spend less, pay less in taxes and have little ability to report abuses or to improve their skills or job prospects. 

The ingredients of reform are clear:  legalization for the 12 million, to yield bumper crops of new citizens, to make it easier to weed out criminals and to end the fear and hopelessness of life in the shadows; sensible enforcement at the border that focuses on fighting crime, drugs and violence; a strengthened employment system that punishes business that exploit illegal labor; and a future flow of workers that is attuned to the economy's needs and fully protects workers' rights.

In other words, the writers of this editorial get it.  The legal American workforce doesn't gain anything by allowing the underground economy to exist in its current state, especially on the 'lower', less educated end of the skill spectrum.  If a scrupleless employer is faced with the prospect of hiring a likely undocumented worker for $6.50/hr., or a fully documented worker for $8.00/hr., who do you think he's going to hire? Nine times out of ten he'll choose the guy willing to work for less, the guy with no legal protections.  To say that immigration reform and the legalization of millions of undocumented workers is somehow going to hurt the legal American workforce is exactly wrong.   The tough part, however, is helping people see beyond their learned biases and come to terms with this basic economic reality. 

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I'd be remiss if I didn't point out today's most important immigration-related news item, which currently sits at number 4 on the NYT's most read list.  In case you haven't already heard, President Obama says that he will begin this year trying to forge comprehensive immigration reform legislation. 

Given the fact that President Obama is trying to simultaneously save the global economy, reform our health care and energy systems and resolve two major battles abroad, the most common response to this immigration news is likely to be "Why Now?" 

In my mind, it's fairly simple.  Last year while campaigning Obama made a number of pledges to voters of all ethnicities that he would begin attempting to address our country's broken immigration system during his first year in office.  Latino voters, in turn, turned out in disproportionately large numbers for Obama.  Today's announcement is simply his effort to live up to that promise.  In other words, in this corner you'll find courage and honor.

Now our President isn't naieve, he knows that the poor souls at Numbers USA and the misleadingly-named FAIR will be screaming at the top of their lungs about Obama wanting to give jobs to foreigners at a time when too many Americans are without work.  So it seems that the Administration will provide an effective frame on the issue by pointing out that Obama's plan would not add new workers to the American work force, but that it would recognize millions of illegal immigrants who have already been working here. 

Plus, ever the community organizer, he is actively encouraging advocates for immigrants to build grass roots support within their communities for the issue.  The article points out: 

That is why Representative Luis V. Guiterrez, a Democrat from Mr. Obama's hometown, Chicago, has been on the road most weekends since last December, traveling far outside his district to meetings in Hispanic churches, hoping to generate something like a civil rights movement in favor of broad immigration legislation. 

I think that's exactly the right approach to take in this situation.  A controversial topic like immigration reform is never going to happen unless millions of like-minded people will it into existence.  If you want to get involved and you live here in Iowa, a great place start is here. 

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Here's a link to the Employment and Training Administration's list of FAQs regarding the proposed suspension of the current H-2A regulation.  At this point, however, the FAQs really just say that the current regulation remains in force until the end of the comment period and until such time that the Department has had a chance to consider the submitted comments. 

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Yesterday's the DOL caused a good deal of confusion and anxiety by announcing the proposed suspension of the new H-2A regulation.  Apparently word of the confusion and concern somehow worked its way up through the hierarchical org chart that is the DOL, because today my sources are telling me that DOL brass produced a modicum of internal clarity by further directing that all local SWAs continue to process H-2A cases under the transition rules of the new H-2A regulation...until further notice.  Of course, the comment period for the proposed suspension is a whopping 10 days long.  So after 10 days, we could be back to last year's H-2A regulation, or we could still be operating under the so-called transition regulation.  Got it?  So now that we've cleared that up we can all go back to enjoying St. Patrick's Day.  Which is great, because it seems we'll definitely be needing the luck of the Irish to get us through this H-2A season. 

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I received word early this morning that the U.S. Department of Labor announced a 'proposed' suspension of the new rule implementing changes to the H-2A visa program.  As many of my readers know, the new final H-2A rule appeared in the Federal Register on Dec. 18, 2008, and took effect on Jan. 17, 2009.  I summarized the new regulation here.  The formal DOL announcement concerning this sudden proposed suspension is here. 

Under 'normal' circumstances the H-2A program is extremely complicated, rife with bureaucratic delays, expensive and non-user friendly.  Suffice it to say, it doesn't help the situation much when the government adds this considerable dollop of confusion to the recipe. 

The press release does provide a teeny tiny glimmer of helpful, instructive information in saying that, "[t]he Labor Department's Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period."  By what criteria the applications will be adjudicated and whether they'll be adjudicated on a timely, consistent basis is another matter altogether. 

One would assume that the current existent rule will carry the day until the 'proposed' suspension actually takes effect.  It sure would be helpful if the DOL would step to the plate and provide some much needed assurance and communication to that effect.  Sigh.   What a mess.  Let me know what you're hearing. 

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This week the New York Times is putting a spotlight on a series it calls "Remade in America", which explores the impact of immigration in the United States.  The first issue they tackle is on the question of how to best educate immigrants.  The series also features an cool interactive map (ie., "immigration explorer") that uses 2000 census figures to show where immigrants have settled across the country, as of 2000. 

Interestingly, the map indicates that 22,144 (or 5.9% of the total population) residents of Polk County (where Des Moines is located), Iowa, are foreign-born.   Johnson County (where Iowa City and the University of Iowa is located) appears to have the second largest total at 7,026 (or 6.3% of the total population) foreign-born residents.  I believe Buena Vista county had the largest percentage of foreign born residents in the entire state with 12.4% of their overall population (or 2,541 foreign born residents).  How, you ask, does Polk County, Iowa, compare to other larger metropolitan centers in our general vicinity?  Well, we are less diverse than Hennepin County, Minnesota (ie., Minneapolis/St. Paul), where 110,046 (or 9.8% of the total population) foreign-born people resided in 2000.  On the other hand, Polk County is more diverse as an overall percentage than the greater Kansas City area (ie., Jackson County).  As of 2000, 4.2% of Jackson County was foreign born, while 5.9% of Polk County's residents were identified as foreign born.   It'll be interesting to see how these statistics change when the next census is taken in 2010. 

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Last summer former Agriprocessors supervisor Martin de la Rosa-Loera pleaded guilty to aiding and abetting the harboring of undocumented immigrants.  The 43 year old was sentenced on Tuesday to 23 months in prison, followed by two years of supervised release.  Other top managers will face trial in September 2009. 

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