Gary Endelman's thought-provoking article "Earned Legalization: A Points
System for Essential Workers" has prompted three letters to the Editor
today. We have four more letters to the Editor on a variety of topics in
immigration. Immigration Daily is happy to serve as a forum for the
exchange of opinion for the immigration law community. Scroll down to read
the notable letters today, and better still - write a Letter to the Editor
yourself - our email address is email@example.com.
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practices forward in 2003. The high-power panel hardly needs introduction:
- Dan Kesselbrenner is the Director of the National Immigration Project
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- Lory Rosenberg is the Director of the Defending Immigrants Partnership
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- Norton Tooby is a criminal defense attorney practicing in Oakland,
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INS Publishes Final Rule For Overhaul Of Foreign Student Visa Regulations
Christina LaBrie writes about the INS Final Rule affecting international students.
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Immigration Law News
DOL Issues TEGL 14-02 Notification of OMB Approval of State Alien Labor Certification Activity Report
The Employment and Training Administration of the Department of Labor issued TEGL 14-02, a notification of the Office and Management Budget's (OMB) approved extension of the State Alien Labor Certification Activity Report (Form ETA 9037) to State Workforce Agencies.
The INS Communique's July, August, and September/October issues are now available.
OIG Investigative Report On Norfolk Ship Jumping Incident
The Department of Justice Office of the Inspector General (OIG) presented its findings in a report describing its investigation regarding the actions of INS employees in connection with a "ship jumping" incident that occurred in Norfolk, Virginia, in March 2002.
Defendant's Mistaken Impression About Sentence Is Insufficient To Render Plea Involuntary If Court Advises Of Longer Sentence
In US v. Lupian-Barajas, No. 02-2777 (8th Cir. Jan. 14, 2003), the court said Defendant's reliance on attorney's mistaken impression about length of sentence was insufficient to render involuntary his guilty plea for illegal reentry as long as the district court had informed him of the maximum possible sentence.
Removal In 8 USC 1326 Is Physical Removal Not Order Of Removal
In US v. Luna-Madellaga, No. 02-10157 (9th Cir. Jan. 15, 2003), the court said Defendant was subject to enhanced penalties under 8 USC 1326(b)(2) for removal that was subsequent to a conviction for commission of an aggravated felony, where the removal that followed such a conviction was accomplished through reinstatement of a prior removal order pursuant to 8 USC 1231(a)(5). The court also said that "removal" mentioned in 8 USC 1326 refers to the alien's physical removal, not the order of removal.
Supremes To Rule On Indefinite Detention
The Houston Chronicle reports that the Supreme Court will rule on
indefinite detention of permanent residents who have committed
Undocumented Is All-American
The Wilminton Star of Wilmington, NC reports on an immigrant who is the
beneficiary of a private bill
Special Registration Akin To Voluntary Registration Of Jews In 1930s
An opinion column in the Des Moines Register compares Special Registration
to the voluntary registration of Jews in Germany in the 1930s.
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Letters to the Editor
I applaud Gary Endelman's efforts to think out of the box on the legalization question but I do think the devil will truly be in the detail. The most obvious problem: how do we avoid becoming swamped with additional workers seeking to" earn" legalization. Recall, in a earlier article Gary argued persuasively for the repeal of IRCA's employer sanctions. With no inhibitions whatsoever on the employment of out of status workers why wouldn't the same dynamic the created the existing underground economy create a new one?. I don't think I'm being a racist or a troglodyte to suggest that there is essentially an unlimited number of third-world world workers (many in the Americas)who will to work at well below the prevailing wage. Without some control on the system, we are relegating unskilled workers to permanent wage stagnation or even depression and relieving employers of any incentive to develop more effecient labor saving technologies. This is not just an unskilled worker issue. Look at the nursing "shortage." I have read credible arguments that the nursing shortage is largely a result of low wages and poor working conditions. Do we continue to denude the third world of all its most skilled health care workers in order to keep our hospital bills down? However appealing it may seem, a world-wide free market in labor is neither desirable or realistic. That said, at least Gary is asking important questions which is more than can be said for most people in Washington.
Gary Endelman's article, Earned Legalization: A Points System
for Essential Workers, is an interesting thought, but falls flat on its
face for two key reasons.
First, Gary bases his assumption that there need not be any direct
connection to an individual employer on the following statement: "There
would be no requirement for any employer to demonstrate they have been
unable to recruit US workers or have been paying the prevailing wage.
Everyone knows this has not been happening. Indeed, this is precisely
why most undocumented workers were hired in the first place." He refers
to this as a "cycle of exploitation."
Gary forgets that the Social Security Administration has sent out
"mismatch" letters regarding, what was that now, eight million
employees? We also have heard of a recent proposal for a "totalization"
agreement with Mexico. The anti-immigrant forces bemoan the fact that
this would give U.S. social security benefits to those who worked in the
U.S. illegally. Think about that for a minute. How does one get on the
social security rolls if they were working illegally, under the table,
as Gary suggests? They don't. They get on the rolls by working with a
social security number that is either not valid for employment or not
their social security number and they pay Social Security taxes. How
does an employer "exploit" someone they do not know is illegal?
Attorneys across the US have had employers bring in someone to see the
lawyer to "do something." They have just gotten a "mismatch" letter and
the employer does not want to lose that worker. The lawyer explains the
labor certification process and the employer is ready to go forward.
Why? Because they are paying the person above the prevailing wage
already and there is really a shortage in the particular occupation.
But the lawyer has to then inform the employer about the lack of
the 3/10 year bars, and the fact that due to the alien constantly
traveling, he has a "permanent" bar under INA 212(a)(9)(C). Add to that
the fact that, as was the case with so many individuals from Mexico
during the last amnesty, the alien doesn't want a green card. He just
wants to work here until he can finish building that home he has under
construction in Mexico.
Gary states that the "marketplace, not another layer of DOL regulations"
should govern and I agree. The problem is, and this is the second
reason this proposal will fail, is that he wants to create bureaucracies
is every State of the union. That is the last thing we need.
A simpler solution would be to move up the Registry date making it
permanently 14 years (and at the same time change Cancellation back to
the old 7 years/extreme hardship). Then remove the double temporary
requirement from theH-1A and H-1B category, at least as far as NAFTA
countries are concerned, if not for all. Remove the H-2B cap and also
amend the INA to say that 212(a)(9) does not apply to citizens of NAFTA
Eugene J. Flynn
Mr. Endelman claims it is necessary to free the "essential", i.e. unskilled, uneducated worker, from wage bondage to an unscrupulous employer. To this
end, he proposes not only a program to legalize illegal workers, but to
facilitate the legal importation of such workers.
Mr. Endelman ignores the obvious implications of a virtually unlimited
supply of such labor for (1) wage levels and living conditions of such
workers, and (2) the social costs for the US taxpayer. Employers are
to take advantage of unskilled and uneducated illegal immigrants not only
because of their illegal status but because there are so many of them
willing and able to bid down the price of the work. If one illegal worker
displeases, there are thousands more to replace him or her, at a lower
Legal or not, an essentially endless supply of fungible labor can only
drive down the employee’s bargaining position with the employer. It is
employers only who benefit. It would also be employers who benefit when
burden of caring for the working poor immigrant becomes the responsibility
of the State and Federal governments. Already, even with limitations on
importation of unskilled workers, we find that large numbers of legal
immigrants are qualifying for welfare programs, when, historically, we have
required that immigrants be self-supporting. Two years or so ago, when
Congress was considering welfare reform, there was discussion of
the number of years an immigrant had to be here to collect welfare from 10
to 5. President Bush (who supported the move) and his team offered data
that that one change would place 360,000 more immigrants on the welfare
roles. And that was before the economy dipped. Not to mention the
additional medical and educational costs of importing low-wage workers and
their families. And of course, Mr. Endelman wants to focus only on the
economic, not the social implications of importing large numbers of workers
from primarily Third World countries, many of whom will retain
ideas such as female circumcision, bride buying, female subjugation to man,
slavery, and religious intolerance.
"Legalization" of any type, be it a blanket amnesty or a "points system",
simply a bad idea. It encourages more illegal immigration by offering an
alternative route to legal status in the US—a route which penalizes
immigrants who follow the rules and attempt to immigrate legally from the
start. Then, there’s the little matter of fraud. Fraud was rampant in the
much smaller 1986 amnesty program. The GAO has also found that the H1-B
program for importing skilled immigrants had high levels of fraud by both
employers and employees. There is no reason to believe that authorities
could any better administer a legalization program, especially without
detracting from the processing of applications for legal immigrants.
"Legalization" will only hinder security efforts, by diverting resources,
and by having to deal with even more people who try to immigrate illegally.
The letter of "angie" is based on personal observation and fact and should not be misconstrued as disgruntlement. The views are well expressed.
Your editorials sometimes favor immigration. Your are priviledged to your own opinion and I have never known it to interfere with a fair and unbiased presentation of news and opinions of others, even those that are prejudiced and unsigned.
Richard E. Baer
I sadly disagree with Panravee Vongjaroenrat's assertion in the 1-15-2003
issue of Immigration Daily that people with ties to terrorist groups are
unlikely to rush to register. If the recent history of Immigration Canada
is any indication, truth is truly stranger than fiction and terrorists have
been registering AS terrorists in order to enhance their odds of their
acceptance into the Dominion and it has made sense to do so. I am not
making this up. For a recent article on the practice, see The National Post
of Thursday, January 9, Mark Stein, "Terrorist Class Immigrants", which
discusses the practice and refers to a previous article on it way back in
1999. (One can see more evidence of the practice showing up in Canada's
late 1990s trial of the Air India Bombers, who stressed they were Sikh
militants in their immigration applications.) The Post article makes for
I would also like to apologize to those readers who may have been left with the impression that I advocate police state tactics in my letter in the 1-14-03
issue. My point was only that registration is required by states with
serious security concerns, like police states and states at war. Just
because the police states are evil and states at war may be paranoid does
not mean they are always stupid. Unfortunately, they are often highly
effective. Therefore registration should not be dismissed out of hand as
stupid. Like any public policy it has costs and benefits, including costs
to human dignity. These should be weighed. Dismissing the policy out of
hand gives its proponents a free ride because they do not have to respond
to a thoughtful critique.
Honza J. F. Prchal
I'm not surprised that, as "Justin" noted, the Southern Poverty Law Center (SPLC) "linked" Tom Tancredo to "neo-Nazi and other anti-immigrant hate groups". They are, after all, "devoted to tracking hate-groups of all kinds". They're able to spot 'em anywhere. Anyone, or any group, who is moderate or conservative would probably be a good candidate for "hate" scrutiny, using the standards of the SPLC.
John H. Frecker
To set the record straight, Douglas G. Rivlin, Director of Communication National Immigration Forum in his letter to the Editor states: "The Public Agenda and the Carnegie Corporation of New York are releasing a poll of immigrants with interesting results on assimilation, integration and other issues (click here for Public Agenda's press release)."
However, reading that press release (if it is credible - sorry, I'm a cynical old lawyer) actually, although cryptically claims only that the Carnegie Corporation (http://www.carnegie.org/ ) provided grant money to them, but does not claim the Carnegie Corporation participated in the poll, released the poll, or endorsed the results of the poll, which the press release seems to suggest. In fact, although cryptically noted, the survey and its results appears from the press release to be fully the work of an organization called "Public Agenda", which claims in the release to be " . . . a national nonpartisan, nonprofit public opinion research organization located in New York City, is well respected for its influential public opinion polls and its balanced citizen education materials." Whatever that rhetoric means.
Furthermore, the release goes on to say that the source of the data is apparently contained in a publication entitled "Now That I'm Here", authored by Steve Farkas, Ann Duffett and Jean Johnson, and claims that it is based on a national telephone survey of 1,002 foreign-born adults aged 18 or older who came to live in the US when they were at least 5 years old. Now, obviously, this is an unabashed plug for the sale of the publication, but hey, this is capitalism at its best . . . get a grant from a charitable institution, conduct a survey, write about it, and sell it anywhere you can - and pocket the cash, but let us not be misled into thinking the Carnegie Corporation endorses the poll, but rather accept or reject the poll's purported results based upon the credibility of the grant-hungry organization who claims they took the poll . . . . misleading, poorly written press release and all. You'd think that if grant money paid for the research that they would release the data on the internet for free but hey, even students need to eat.
Unrevealed in Mr. Rivlin's letter is that his organization, Communication National Immigration Forum, which can be accessed at www.immigrationforum.org is that the Forum is an organization dedicated to "embrace and uphold America's tradition as a nation of immigrants" and "advocates and builds public support for public polices that welcome immigrants and refugees that are fair and supportive to newcomers in our country."
David D. Murray, Esq.
Newport Beach, CA
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