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

The Supreme Court on Tuesday released its first four decisions in argued cases this term, which also happens to be Justice Sonia Sotomayor's first term.  All four decisions were relatively minor, but one stands out on account of Sotomayor's word choice.  According to the New York Times, Justice Sotomayor's opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, included the Supreme Court's first use the term "undocumented immigrant".  In contrast, the term "illegal immigrant" has apparently appeared in a dozen earlier decisions.  

Though many will make much of this utterance, I doubt that Justice Sotomayor labored over this particular word choice.  It's not that I think that her word choice is insignificant, but I doubt that she consciously devoted much thought to how she'd describe people who are allegedly in the United States without proper authorization.  Rather, as the daughter of Puerto Rican parents who moved to the United States during World War II, Judge Sotomayor relates to the immigrant experience, whether it be of the 'documented' or 'undocumented' variety.  Language is the process through which we define the world around us and our role within it.  In choosing (consciously or not) to pen the phrase "undocumented immigrant", rather than "illegal alien', Judge Sotomayor humanizes individual people who too often are dismissed and described with words designed to create the impression of a faceless mass of criminality.   Not too shabby for her first opinion. 

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The Immigration Policy Center (formerly American Immigration Law Foundation) is a great organization that provides highly valuable practice advisories to immigration lawyers while also lobbying for pragmatic immigration laws and providing a vitally sane voice on the economic and cultural impact of immigration in the United States.   In other words, an important part of their mission is to disseminate quality, objectively verifiable information that disputes common myths about immigration here in the U.S.

To this end the IPC has recently released the result of research and analysis which shows immigrants, Latinos, and Asians are clearly an important part of Iowa's economy, labor force, and tax base.  Immigrants and their children are a growing economic and political force as workers, consumers, taxpayers, and entrepreneurs.  Immigrants and their children will continue to play a key role in shaping the economic and political future here in Iowa. 

Highlight's from IPC's research and analysis include: 

• In 2007 Iowa was home to 117,437 immigrants;
• 34.5% of immigrants in 2007 (or 40,473 people) in Iowa were naturalized U.S. citizens who are eligible to vote;
• Latinos accounted for 4.0% (or 119,522) and Asians 1.6% (or 47,809) of Iowa's total population in 2007;
• The 2008 purchasing power of Latinos totaled $2.4 billion and Asian buying power totaled $1.7 billion in Iowa in 2007;
• Unauthorized immigrant families in Iowa paid between $40 million and $62 million in state and local taxes in 2007;
• If all unauthorized immigrants were removed from Iowa, the state would lose $1.4 billion in expenditures, $613.4 billion in economic output, and approximately 8,819 jobs. 

As you can see, Iowa isn't the homogeneous state many assume it to be.  Immigrants' economic, cultural and political impact on Iowa will only continue to grow in the coming years. 

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On Monday the New York Times posted an interesting piece detailing the story of Hosam Husein Smadi.  Mr. Smadi was recently arrested in connection with a plot to allegedly blow up a Dallas skyscraper.   Mr. Smadi had been illegally in the country for a quite a while, and should have been removed long ago. 

Mr. Smadi's story highlights what administration officials fear is a common immigration situation--every year millions of people use a temporary visa to gain entry to the United States, but the government suspects that thousands of them never leave.  Mr. Smadi appears to have been one of these people. 

Since 2004 the U.S. government has put systems in place to check all foreigners as they arrive, no matter how they arrive.  Customs officers now take fingerprints and digital photographs of visitors from most countries, and instantly compare them against law enforcement watch list databases.

In addition to the biometric measures, most entrants are also given something called an I-94 card.  The I-94 card is a small square card that is supposed to be stapled into the person's passport.  The I-94 card is supposed to record and reflect when and where the person arrived in the United States, and also present a date that says when the person is supposed to exit the United States.  Then, when the person actually departs from the United States, they're supposed to turn the I-94 card back over to the government officials.  The NY Times piece says that this check-out procedure often doesn't happen. 

In fact, last year alone, 2.9 million foreign visitors on temporary visas like Mr. Smadi's checked into the United States, but never formally checked out.  Some or perhaps most of these people may actually have vacated the country but failed to turn over their I-94 card.  That said, the government has no way to be certain.  Overall, government officials believe 40 percent of the estimated 11 million illegal immigrants currently in the U.S. came on legal visas and overstayed.  The government has a very difficult time tracking these people down.  

Obviously this situation brings about serious security concerns.  But homeland security officials say that a series of pilot programs operating since 2004 have failed to yield a reliable exit monitoring system for the whole nation.  Apparently they have not yet found the technology to support speedy exit inspections at land borders.  Last year airlines balked at an effort by the Bush Administration to make airlines responsible for taking fingerprints and photographs of people exiting the U.S.  So, in the meantime, the quest for a universal exit monitoring system continues. 

Law enforcement agencies are left with the unenviable task of trying to weed through the masses to figure out who has overstayed their visa, and whether or not they pose a security threat.  Senator Charles Schumer (D-N.Y.), chairman of the Judiciary Committee's subcommittee on immigration, says he is trying to steer money from the economic stimulus program to build an exit montioring system.    Given this situation's obvious gravity, it's surprising to me that Sen. Schumer's efforts haven't gained more traction. 

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Shahrzad Eram Soleimanlou, of Falls Church, Va., was sentenced last week to 41 months in prison for defrauding her immigration clients of approximately $1 million from June 2000 through December 2005.  She'll be required to pay $1 million in restitution. 

Apparently Soleimanlou's scam involved lying to immigration applicants by telling them that money was required to establish something akin to a bond to demonstrate to officials that the applicants had the financial ability to support themselves and would not become a financial burden on society.  She'd then steal the money and use it for her own purposes. 

Hucksters and scam artists like Soleimanlou have traditionally been and, sadly continue to be, a real problem in the world of immigration law.  Immigration laws are so complex and immigration clients are often so vulnerable that snake oil merchants like Soleimanlou have long exerted a corrosive and parasitic influence on the immigration system.  Obviously they steal immigrants' money and they oftentimes destroy any legitimate claim to relief that might have once existed for an immigrant, but they also damage the reputation of legitimate, hard-working and ethical immigration lawyers.   The more prosecutions of this nature the better for everyone.   Hopefully the new Administration will make such prosecutions an enforcement priority. 

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As many of you know, if an alien wishes to fully immigrate to the United States, the alien is required to submit to an HIV test as part of the overall medical screening process.  Moreover, the USCIS currently has the power to deny visas to those applicants who test positive for HIV or AIDS.  This roadblock also prevents those otherwise already legally located in the United States from adjusting status to a permanent resident if they are determined to have HIV/AIDS, no matter how far along they are in the immigration process.   

This era appears to be nearing an end.  Yesterday the USCIS issued this memo which instructs USCIS officers to place a hold on any green card applications which would otherwise be denied simply because of the applicant's HIV status.  The hold will remain in place until the arrival of the final Health and Human Services rule change, which will completely eliminate the HIV/AIDS ban.

As observers have noted, the guidance memo shows that the Obama administration is very close to a final repeal of the ban, and is now instructing agencies to be ready for a pretty significant change in policy.   

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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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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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Our friend Lexington, over at Economist.com, calls the Obama administration and the Democratically-controlled Congress "dumb" for restricting companies' ability to hire H-1B visa workers.  Citing a Kauffman Foundation study, Lexington's reasoning is persuasive: 

Chinese and Indian immigrants founded more than half of all high-tech companies in Silicon Valley.  Immigrants co-founded Google, Intel, eBay and Yahoo.  Immigrants contributed to more than a quarter of US global patent applications.  Immigrant companies employed 450,000 workers in 2006 and generated $52 billion in revenue. 

Indeed.  I'm hard-pressed to see how it helps our struggling economy to actively discourage highly-talented and entrepreneurial immigrants from coming to our country and setting up lucrative, high-tech job creating, tax revenue generating businesses.  Furthermore, as Lexington points out, it's not just the short-sighted and protectionist immigration instincts that will ultimately stymie our economy.  We're also losing highly-skilled immigrants to our global competition: 

Americans have always assumed that skilled immigrants would do anything to get a bite at the American dream.  But other countries [namely China and India] are producing high-tech clusters that offer bright people plenty of opportunities.  They are also putting out welcome mats for the talented rather than building bureaucratic obstacle courses. 

Our country's immigration policies say a lot about us.  Sadly, our immigration laws are currently saying that we don't understand what it takes to stay ahead of the global competition.  I truly don't believe that Obama is a protectionist at heart, but right now our immigration policies are communicating exactly the wrong message at a very dangerous time for our economy and country as a whole.   

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In catching up a bit from last week, I'd like to commend President Obama and Congress for passing the "Legal Immigrant Children's Health Improvement Act" (ICHIA) as part of the SCHIP reauthorization. 

Under the former law, LEGAL immigrants were generally barred from utilizing Medicaid and the State Children's Health Insurance Program for 5 years after they entered the United States as LEGAL immigrants.  The new ICHIA legislation authorizes states to waive the senseless and cold-hearted 5 year waiting period. 

Given the fact that the expansion of this program will prevent hundreds of thousands of law-abiding, tax-paying U.S. residents from having to inefficiently seek medical treatment through the emergency room, and thereby promote pro-active health care and health care cost containment, it's difficult to imagine that anybody would be against this program.  Alas, they were.  So congrats to President Obama and the congressional leaders who stepped forward to help make this happen.  While ICHIA is the first pro-immigrant legislation signed by President Obama, my most sincere hope is that it won't be the last. 

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Behold, the high-flying world of people who hold multiple passports from different countries.  Whether for ease of travel, ease of work or perceived notions of safety, the NYT seems to think that more and more people are nowadays holding passports from multiple countries all at once. 

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At yesterday's confirmation hearing Janet Napolitano signaled what some in the media are calling a "clear break" with the outgoing Bush administration's worksite enforcement protocol and priorities.  I'm not sure I would term it a clear break, but her comments do portend a shift in emphasis.  This much seems clear:  the stepped-up level of worksite enforcement employers around the U.S. have been experiencing over the last 2-3 years will continue.  In that way Napolitano isn't at all changing the agency's direction.  However, Napolitano stated clearly that DHS' emphasis under her watch would shift away from the prosecution of illegal workers and will double-down, instead, on the prosecution of the employers who hire the illegal workers.  So that, apparently, is where the new administration's policy change will most manifest itself.  

In short, employers beware.  My best advice to employers is to get in touch with your attorney and arrange to get yourself a serious worksite immigration and hiring practices compliance program.  Spending a little bit of your resources right now on compliance training will save you many nights of sleep and, in some cases, may even prevent the prosecution of you and your staff. 

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While re-reading my earlier post below, it strikes me how far and how quickly we as a country have traveled in what appears to be our mindset and general reaction toward the politics of immigration.  It doesn't take a legal scholar to observe the fact that the topic of immigration and "immigration reform" serves today as a prominent flash point in our greater social conversation.  Witness the fomenting of Lou Dobbs, and the extent to which both presidential candidates avoided the topic whenever possible during the general election campaign...and this with the Hispanic/Latino population emerging as one of the (if not THE) new, electorally-desirable political constituencies!   We could of course debate for days why and how the topic of immigration stokes the visceral fires that it apparently does, but that's not really the point of this post. 

The point of this post is to point out that it hasn't always been this way.  We haven't always had communities waiting with baited breathe, wondering whether their town would be the next torn apart by an ICE raid.  We haven't always had Minute Men independently patrolling the border.  We haven't always had employers caught on the one hand with barely-functioning H-2A and H-2B programs, and on the other with extremely aggressive worksite enforcement raids. 

In fact, until 1986 no law made it illegal for an employer to hire an undocumented worker.  Can you believe it?!  I986!  And moreover, in 1952 Congress actually passed a law which said that it was specifically NOT illegal to hire an undocumented worker.  (Immigration & Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163)).  According to Stephen Yale-Loehr, this law became known as the "Texas Proviso", which meant that employers were free to hire whomever they chose, without having to verify an individual's eligibility to work.  If an unauthorized worker was among the ranks of their employees, nobody knew the difference and the employer was free to go about business as usual. 

Caveat:  I'm certainly not operating under the delusion that, from an immigration perspective, everything was great back in the 1950s or before.  In fact, opportunistic employers have taken horrendous advantage of undocumented laborers since the dawn of our modern economy.  To this very day we're still fighting the battle to make worksite conditions safer all over our country. Instead, my reason for highlighting the fact that it wasn't until 1986 that we had a law on the books criminalizing the hiring of undocumented workers is to bring some much needed perspective to our country's legislative approach to dealing with immigration.  As we move toward forming a plan for comprehensive immigration reform, we should keep in mind that our legislative framework for dealing with undocumented workers is fairly new, but in the relatively brief amount of time the laws have been on the books we've seen them act as a contributing cause to a great deal of human suffering and economic stagnation.  We've changed our immigration laws in the recent past and we can do so again--hopefully this time with common sense solutions that allow our country to once again remember that we all, at some time, were immigrants. 

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Yesterday Karina Pilar Freund, the former Agriprocessors' human resources employee, did in fact plead guilty.  However, as I had speculated, it sounds like Ms. Freund benefited from some degree of prosecutorial leniency.  Under the original conspiracy to harbor charge Freund could have faced a maximum of 5 years imprisonment.  Instead, yesterday at the Federal Courthouse in Cedar Rapids, IA, Freund pleaded guilty under an agreement with prosecutors to a misdemeanor count of aiding and abetting a pattern or practice of hiring undocumented immigrants.  I believe this would fall under the IRCA misdemeanor violations, probably 8 USC section 1324(a)(f).  According to her attorney, Mark Brown, Freund will now face a maximum sentence of up to 6 months in prison and a fine of up to $3,000.00 for each unauthorized immigrant involved in the offense. 

I certainly don't mean to create the impression that Freund is getting off lightly.  The open-ended "per unauthorized alien" nature of her fines could really add up.  And obviously, the prospect of any time spent in jail shouldn't be minimized.   To understate things a bit, prison isn't designed to be an enjoyable place.   Plus, the news articles indicate that Freund (along with other Agriprocessors officials) is scheduled to go to trial next April on more than 9,000 charges alleging child labor violations at the plant. 

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As we all know, Immigration & Customs Enforcement (ICE) raided the Agriprocessors kosher slaughterhouse in Postville, IA, in May 2008 and in the process arrested 389 allegedly undocumented workers.  Since that time details have emerged concerning the alleged criminal and immigration violations commited by the Agriprocessors' mid and upper level leadership.  Employees being targeted include the former CEO Sholom Rubashkin, former operations manager Brent Beebe and former human resources employee Karina Freund.  Two other former Agriprocessor supervisors have been indicted but are currently on the lam.  For various practice-related reasons I've made the editorial decision to largely stay away from this story, but I think it's time to now dive in as the pleas come rolling in and the trial dates move closer and closer. 

With indictments being brought against mid level HR employees and supervisors, this case serves as a perfect example of the treacherous web of immigration-related liability that can spread throughout a company.  As an HR employee or a supervisor of any level of a company operating with a high-risk workforce, you're simply deluding yourself if you believe that federal authorities are only interested in prosecuting the Big Bosses and CEO Muckety Mucks. 

To recap, the charges to date against the Agriprocessor workers include:  conspiracy to harbor undocumented workers for profit, harboring and aiding and abetting document fraud, aiding and abetting aggravated identity theft and bank fraud. 

In order to prove the conspiracy to harbor undocumented workers charge, the government will have to prove the following:  1) an agreement with at least one other person; 2) the harboring of at least one unauthorized alien; and 3) simply one act furthering the goal of the conspiracy.  The maximum period of imprisonment is 10 years, while the maximum fine on this charge is the greater of $250,000.00 or 2x the financial gain achieved through the conspiracy. 

As for the aiding and abetting aggravated identity theft charge, the government will have to provide proof of the knowing transfer, possession or use of a means of personal identification of another without lawful authority during the commission of specified felonies, including false presentation of citizenship, fraud, etc. 

Presumably none of these charges will be an easy lift for the government, but I think it's safe to say that the discovery process will shed some light on the direction this trial is headed.  Both sides are currently combing through an abundance of documents, including:  all Agriprocessors' personnel office files, 10 binders containing I-9 forms, 12 binders of grand jury testimony, electronic discovery that would equal 100 banker boxes if in paper form and at least 10 boxes of records on the bank fraud charges.  As a slightly modified version of the saying goes, the proof will likely be in the paper. 

Today news sources are telling us to expect Karina Freund, the former HR employee, to plead guilty.  Originally she was chaged with conspiracy to harbor undocumented immigrants and haboring, aiding and abetting the harboring of undocumenteds for profit.  I'll keep you posted on the specifics of Freund's plea, but I'm willing to bet we see some limited leniency from the government toward Freund in exchange for Freund's cooperation with the ongoing investigation and subsequent prosecution. 

As for the remaining defendants, U.S. District Chief Judge Linda Reade has indicated that the trial will start Sept. 14, 2009.  With that said, the prosecuting U.S. Attorney, Peter Deegan, has recently intimated that the investigation is ongoing and that there will likely be a superseding indictment with additional charges filed in January 2009. 

Whether you're an immigration lawyer, criminal lawyer, human resources employee or manager of any level, this impending litigation will serve as a case study in the potential modern day pratfalls and liabilities involved with the combination of an employment environment and a high-risk workforce.  Stay tuned...

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This week our friends at The Economist take a look at the way the economy's downturn is affecting migrant laborers in the United States by viewing the dynamic though one man's eyes. Carlos Pirir, a Guatemalan, used to make good money at a high-rise construction job in downtown Miami.  According to Mexico's central bank, over 20% of Mexican migrants in America work in construction.  Now, with decently-paying construction jobs harder and harder to find, Mr. Pirir competes for labor jobs on a day-to-day basis .  Whereas Mr. Pirir used to send $600.00 per month in remittances home to his wife and seven children, now he is only able to afford $200 per month.  In fact, it should come as no surprise, but Latinos are among this economy's hardest hit.  Some economic statistics and the immigration-related impacts, as cited by The Economist:  

• The unemployment rate among all Hispanics rose to 8.8% in October, well above the national unemployment rate of 6.5%;
• The Mexican government said last week  that the number of its citizens who left to live abroad this year was down more than 40% compared with 2006; and
• The American Border Patrol says it caught 18% fewer people in the fiscal year that ended in September than in the one before.

Apparently Mr. Pirir has seen enough.  He's saving money to pay for his return travel home to Guatemala. 

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Within the last hour or so word has leaked out that Gov. Janet Napolitano (D-AZ) may be President-Elect Barack Obama's pick to head the Department of Homeland Security (DHS).  I don't think I can stress the degree to which  Gov. Napolitano would be a phenomenal pick to head this agency. 

DHS is the overarching administrative agency that controls and has jurisdiction over all matters of immigration policy in the United States.  Both the United States Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) are sub-agencies under DHS.  As a consequence, whomever Obama picks to head DHS is going to play an integral role in trying to foster a comprehensive immigration reform legislative package.  And as I said earlier, I can hardly think of a better pick than Gov. Janet Napolitano.  

First off, as Governor of the border-state Arizona, Napolitano has had a first-hand, acute experience with the immigration problems plaguing our country.  She understands the realities of the challenges caused by thousands of people crossing over her border from Mexico into the United States.  She knows the strains this places on infrastructure and, I think, she understands the great human toll border-crossing places upon the people who try to make the treacherous walk across into the U.S.  She was the first governor to call for National Guard troops to secure the U.S. Mexico-border. 

Back in  June of 2007 Napolitano penned an Op-Ed piece in the New York Times that really gives  insight into how she thinks about comprehensive immigration reform.  In short, she gets it.  While she strongly supports border security, she also believes that a functional guest worker program needs to be implemented in advance of fences being built.  She's against the unworkable "touch back" provisions.  And while I know this may sound pie-in-the-sky, my sincere hope is that she'll be able to marshal the resources necessary to make USCIS an efficient and functioning governmental agency.  Gov. Napolitano, hire the people necessary to bring those priority dates current!

All in all, if this appointment comes through, it signals that the Obama administration is very serious about addressing the sticky thicket that is immigration in the United States.  It's extremely encouraging. 

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In an echo of my earlier post below, the Pew Hispanic Center recently issued results of a new survey showing that illegal immigration dropped significantly over the course of the last year. In fact, for the first time in over a decade, the number of people entering the U.S. through legal channels was higher than those entering illegally. 

As a related financial consequence, central banks from Mexico to Brazil are reporting the biggest decline in remittances sent from the United States in more than 10 years. Remittances are the money immigrants in the United States send back to their relatives in their home countries.  The World Bank estimates that remittances worldwide total $300 billion or more per year. 

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The U.S. Census Bureau recently released its figures from the 2007 American Community Survey.  The annual ACS survey has replaced the more commonly-known census, which was only administered once every 10 years.  As you might imagine, the ACS provides reams of frequently-updated social, economic and demographic data about our nation. 

One of the headline-grabbing bits of information to emerge from this year's ACS is that the number of immigrants entering the United States decreased dramatically from 2006 to 2007.  In 2006 we attracted 1.8 million immigrants.  In 2007, the number was approximately 500,000 (Ed. note:  the ACS claims that its estimates for immigrants include those in the country legally and illegally because the agency does not ask about legal status--official figures put the number of illegal immigrants in the U.S. at approximately 12 million.).   

According to the new data, 14 states showed declines in the estimated number of immigrants from 2006 to 2007, including:  New Jersey, New Mexico, Vermont and South Dakota.  I'm searching for Iowa-specific data and will update when and if I find it. 

So, the logical question is, what's going on here?  Why is this happening? Are we no longer the beacon of light, attracting the huddled masses, yearning to breathe free? 

In my view there are a number of factors that correlate with this downturn in immigration.  Now mind you, I'm not claiming that there is a direct causal connection between the events, but I think its fairly safe to say that they are partially interconnected. 

Factor #1--The Fee Hike:  As a starting point, the downturn in the number of people immigrating to the United States needs to be viewed in the context of The GREAT PROCESSING FEE SPIKE of 2007.  For those of you who might not follow these issues on a daily basis, in January of 2007 USCIS announced that it would soon dramatically increase the fees applicants and petitioners had to pay in order to have their paperwork reviewed and processed by the USCIS.  In many cases this amounted to an increase of hundreds or thousands of dollars of extra costs for families and companies.  As a result,  families and companies alike rushed to file any and every case that possibly could be filed before the fee hike took effect.   This, in turn, caused a huge swell in the number of people attempting to immigrate to the United States.  One figure indicated that more than 460,000 people applied for their citizenship during the month of June 2007 alone.  It's probably safe to say that numbers were also likely inflated a fair bit during April and May.  In sum, there clearly has been a precipitious fall off since last year in the number of people immigrating to the U.S., but last year's numbers were also inflated due to the swell caused by USCIS' processing fee hike.  As we move a couple of years into this newly-inflated processing fee regime we'll be able to judge more accurately whether the costs imposed by the government are serving as a deterrent to legal immigration.  Stay posted. 

Factor #2--Downturn in the Economy:  Economic opportunity has always been the engine that drives immigrants to the U.S.  With the jobless rate passing 6% (the highest rate since 2003) it makes a fair bit of sense that immigration rates have correspondingly slowed a bit.  In particular, the slump in the housing and construction sectors has been one of the largest factors stemming the flow of immigrants into the country. 

Factor #3--Increased Enforcement (ie., ICE Raids): Postville, Iowa.  Laurel, Mississippi.  These are just a few examples of the ICE raids that have rocked virtually every region of our country over the course of the past twelve months.  By design these raids have generated gobs of news headlines and, in turn, caused families and employers all over the country to wait and worry in a state of suspended anxiety.  A recent Pew Hispanic Center survey detailed the extent to which the raids have taken a psychological toll on the Latino community in particular.  No doubt these ICE raids have caused plenty of otherwise likely immigrants to stay the heck away, while causing some who are already here to conclude that this environment simply isn't worth the trouble.   

Most of my readers have probably by now figured out that I view healthy immigration numbers as an integral part of our country's on-going success.  But I'm not particularly worried about the dip we've seen from last year to this.  As I've explained above, the governement's fee hike, our current economic plight and the increased ICE raids have all contibuted to cause this year's numbers to fall somewhat dramatically.  But, in my view, there's hope.  At least two of the deleterious factors should be temporary.  Maybe as I write this Congress is getting their act together enough to pass a reasonable bailout (er, economic stabilization) bill.  And maybe after November 4, 2008 we'll have the congressional and presidential leadership necessary to achieve pragmatic immigration reform.  One can always hope...

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