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GOP Senate Win Could Revive State Anti-Immigrant Laws And End H-1B. By Roger Algase

Rating: 7 votes, 5.00 average.

Update: November 7, 11:22 am

Judging by the aggressive and combative statements made by the two main Republican Congressional leaders, incoming Senate Majority Leader Mitch McConnell (KY) and House Speaker John Boehner (OH) warning President Obama of dire consequences if he expands relief from deportation through executive action, the Republicans apparently feel that their hard line anti-immigrant rhetoric and blocking of comprehensive reform have paid off at the polls in the midterm election. And who can blame them for drawing that conclusion?

Now that they have won control of both houses of Congress and have some reason to believe that the mood of the country is with them, will they stop with trying to give back power to the states to pass their own punitive, racial profiling anti-immigrant laws, which the Supreme Court had taken away from them in large part in Arizona v. US (2012)?

Will the Republican-controlled Congress be content with merely stopping, rolling back or defunding DACA and trying to end H-1B as we know it by turning it into a labor certification program (something which the Democratic-controlled Senate already took a giant step toward doing in passing S.744 in 2013)?

Or will it go after an even bigger prize, one that Republican politicians has been promoting up until the 2012 presidential election but had been mainly silent about since - namely ending birthright citizenship for all children born in the US regardless of their parents' immigration status - or lack of it?

It is a common misconception among immigration advocates that birthright citizenship is written in stone, having been embodied in the 14th Amendment after the Civil War. The reality is that this momentous right hangs by the slender thread of an 1898 Supreme Court decision, U.S. v. Wong Kim Ark, which could easily be overturned by a conservative Supreme Court.

I have written about this decision previously and will do so again in an upcoming post. If Republican leaders use the midterm election as a cue for pursuing a vigorous anti-immigrant agenda, as they appear to be threatening to do, while using their newly acquired power to block any appointments by pro-immigrant judges, we may be hearing a good deal more about the Wong Kim Ark decision.

Updates, November 5, 7:15 am and 11:18 am:

Helped by at least $100 million, or possibly much more than that, of Koch brothers' money, and GOP voter suppression in a number of states, the Republicans have battered the Democrats by taking control of the Senate and taking over many governorships, even in normally Democratic states such as Maryland, Massachusetts and Illinois. Significantly, Democrats who ran away from immigrant rights, such as Kay Hagan in North Carolina, found that this did not help them from losing anyway.

(Not too long ago, Kay Hagan's office provided valiant and unstinting help to one of my clients in an immigration matter for which I will always be grateful notwithstanding.)

In contrast, New Hampshire Democratic Senator Jeanne Shaheen went against the Republican trend and held on to her Senate seat while standing up for immigrants against the attempts of her Republican opponent, Scott Brown, to demonize them.

Among other consequences of the GOP Senate takeover mentioned below in my original post, Alabama Republican Senator Jeff Sessions is now set to head the Senate budget committee. Sessions is one of the strongest opponents of immigration in Congress. His attitude toward immigration can justly be compared with those of another well-known Alabaman, Governor George Wallace, toward civil rights in the 1960's.

It remains to be seen how much damage Sessions will be able to do to immigrant rights as the head of this powerful committee. As also mentioned in my original post, there may good reason to expect a Congressional onslaught against both unauthorized and legal immigration in the new, Republican-controlled Congress. The only defense may turn out to be President Obama's veto pen. Will the president who has already deported a record number of minority immigrants be willing to use that pen?

We can also look for more state voter ID and other voter suppression laws aimed at keeping minority and other likely pro-immigrant voters away from the polls in the 2016 presidential election. No one who supports immigration can expect the next two years to be an easy time.

There will also no doubt be much anguished discussion on the Democratic side about whether Obama's relentless rush toward more and more deportation and family breakup, and failure to expand the scope of executive action over immigration. might not have antagonized so many Latino and Asian-American voters that members of these two fastest growing demographic groups may have stayed home in droves, thereby contributing to the Democratic mid term debacle.

My original post follows:

Alan Lee's November 3 Immigration Daily Article: Alarming Developments to Occur if Pro-Immigration Forces Do Not Vote on November 4th in Battleground States is a dire and timely warning of some very bad things to come for immigrants and immigration advocates if the Republicans take over the Senate Tuesday's election.

Mr. Lee focuses on the Republicans' increased ability to block immigration reform if they win the Senate, not only by making it impossible to pass any type of comprehensive reform bill, but by defunding or outlawing any executive orders helping unauthorized immigrants, or even impeaching the president if he tries to grant immigration benefits or relief from deportation through executive action.

These would be dire consequences indeed - but the reality of a Republican Senate takeover could actually turn out to be even worse - much worse - than those described in the above article. This is because if the Republicans control both houses of Congress, they would not only have the power to block any progress on immigration reform - whether by legislation or executive action - but they would have the power to turn the clock back on immigrant rights. Even worse, they could more "forward" - into a draconian Brave New World of police state type immigration enforcement in which all the worst nightmares of persecution of unauthorized or out-of-status immigrants could become a reality.

This is not fantasy or hyperbole. It is merely an objective, sober description of a bill which already passed Chairman Bob Goodlatte's (R-VA) House Judiciary Committee last year known as the Strengthen and Fortify Enforcement Act.

The following is a description of the main provisions of that bill according to a July 11, 2013 article in Bloomberg Businessweek entitled: Four Immigration Bills House Republicans Approved While No One Was Looking:

Here is the extract:

"4. Strengthen and Fortify Enforcement Act - The granddaddy of them all, because it deals with the Republicans' big issue, border security. State and local enforcement would have the power to arrest and detain undocumented immigrants, which is left up to the feds right now. State and local governments would also be able to write their own immigration laws and devise their own ways of civilly and criminally punishing the undocumented. It [would] become a federal crime to be found in the country illegally (right now it's a crime [only] if you're caught trying to enter)."

http://www.businessweek.com/printer/...ne-was-looking

In other words, welcome back Arizona's infamous S.B. 1070 racial profiling immigration law, and its even more punitive counterparts in states such as Alabama, which had for the most part been struck down by the Supreme Court on federal preemption grounds.

Welcome back also, criminalizing the entire immigration system, such as the Republican-controlled House attempted to do when it passed the notorious Sensenbrenner H.R. 4437 immigration bill in 2005 - a bill which never made it to the Democratically-controlled Senate.

But haven't we always known that the Republicans are tough on illegal immigration? However, at least, we might be able to expect some movement from a Republican-controlled Congress toward making legal immigration easier, once the GOP's objectives on enforcement/border security have been met. After all, this is something that Republican House leaders, including Goodlatte and Speaker Boehner himself, have been promising ever since last year, if not earlier.

But think again. Who will become Chairman of the Senate Judiciary Committee, which has primary responsibility for immigration, if the Republicans take over the Senate? None other than Senator Charles Grassley (R-Iowa), a bitter foe of the H-1B program, one of the pillars (though a badly damaged one, due to the visa shortage), of legal immigration by skilled workers.

According to COMPUTERWORLD Malaysia (October 14): Obama's H-1B reform plan draws Grassley's ire: Grassley recently released a letter containing the following proposal for H-1B:

"All employers, not just some, should be required to offer the job to a US worker who is equally or better qualified."

http://www.computerworld.com.my/print-article/68606/

In other words, H-1B would be turned into another labor certification program. That would be the end of this vital skilled worker visa as we know it.

But, assuming that the Republicans take control of both houses of Congress, they would never be able actually to enact drastic anti-immigrant measures such as those described above as long as there is a Democratic president in the White House with his veto pen, right?

We cannot be so sure. If the Republicans control both the House and the Senate, what would stop them from shutting down the government if the president refuses to sign radical anti-immigrant measures such as the ones described above?

Or what would stop the GOP from attaching such a measure to a "must pass", veto-proof defense appropriations bill, such as was done with IIRIRA in 1996? If the Republicans take control of the Senate, blocking immigration reform legislation or executive action, as Alan Lee warns about in his article, could become the least of the worries that millions of immigrants and their supporters across America might face.
_____________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has more than 30 years experience in helping employment-based and family based immigrants achieve successful results based on his personal handling of each client's case and fighting hard to protect their rights.

Roger's practice includes H-1B and O-1 work visas, J-1 trainee visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com

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Updated 11-07-2014 at 11:49 AM by ImmigrationLawBlogs

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Comments

  1. Someone12's Avatar
    Amazing....here is living proof from an immigration attorney that he much prefers to sell out American jobs to any dothead with a pulse...imagine somebody who is outraged that an AMERICAN company should have to offer a job to an AMERICAN first....anyone now think that my assessment/opinion of immigration attorneys is incorrect? It's all about billable hours...nothing more. But if ole Rog believes that American jobs should be given over to anyone from another country who is willing to (a) work for 35 cents on the dollar, compared to an equally, if not more skilled American and (b) who will agree to use any means and story that an immigration attorney may suggest to fool USCIS and consular officers, then let's start with the job that has the least respect in America...below garbage collector and stable mucker...yep....immigration attorney. All those in favor???? Wow...lots of hands up out there!
  2. Secretshopper's Avatar
    [QUOTE=Someone12;bt40160]But if ole Rog believes that American jobs should be given over to anyone from another country who is willing to (a) work for 35 cents on the dollar, compared to an equally, if not more skilled American[/QUOTE ]

    That would be a great argument if keeping out skilled immigrants produced American jobs. American jobs happen when American employers solve an immediate problem, and that solution sometimes requires different talent, like h1b holders. When problems get solved, business sell products, and people get hired.

    It's not so complicated, nor so simple as your post suggests. We need immigrants. Immigrants replace an aging population in the US, and augment skills we have, with skills we don't.

    When you fix a car, do you limit yourself to the wrenches you have or do you get the tool you need to do the job? If you code, do you only use UPPER CASE because by gosh, it was good enough for COBOL, or do you use all the tools you have and build new ones if you need them?

    If that h1b has skills the Americans don't, then get some knowledge transfer going. Everyone wins.

    Because if your company can't bring in H1B visa holders, they can also ship the work to India, Malaysia, or elsewhere. Then, we lose all the jobs.
  3. Someone12's Avatar
    It is a huge fallacy to believe that there are no American workers for the H1b jobs....and if your argument is that if a company cannot use the H1B, they will outsource said job, that strongly suggests that the H1B provides a cheaper employee, not a better one.
    Let's start by outsourcing immigration attorneys....you know, for a test run.
    The H1B program, which started out focusing on the 'best and the brightest' is now used for the 'most desperate and cheapest.'
    Immigration attorneys, in their quest for billable hours, draft job descriptions that attempt to disguise the fact that the job being offered is a 'specialty occupation'....like....night manager at a dry cleaner's, or produce manager at a grocery store...or a nanny as some sort of 'infant care engineer'..the list goes on and on, with the end result that jobs are being sold to almost anyone with a pulse, who will work for 1/3 of what should be paid to an American worker...of course, immigration attorneys don't sell their services for 35 cents on the dollar...they charge full freight for doing relatively little.
    There is no shortage of skilled American workers...there are shortages of American companies willing to pay said American workers the salaries they should command...that's why so many American companies seek H1B workers...to save money, not improve the quality of a product or service..the entire program is rife with fraud and abuse, serves to enrich immigration attorneys at the expense of American workers, and because the company saves money on salaries, they use some of the savings to stuff the pockets of their legislator(s) to vote in laws to let this vicious cycle continue...yea, let's start by bringing in foreign immigration attorneys whose hourly billing rate is say, $75 instead of $400...then let's see how 'supportive' American immigration attorneys would be of the H1B program.
  4. ImmigrationLawBlogs's Avatar
    Someone12 seems to be running out of gas. His previous anti-immigrant rants used to be more original and creative. This one just repeats the same tired, worn-out falsehoods about H-1B "cheap labor".

    Tell that to employers of some of my H-1B clients who are earning six figure annual incomes, or close to it, for doing work which, judging from his posts, is no doubt well beyond Someone12's level of ability.

    This is not to say that Someone12 is completely without talent. If writing fiction about immigrants and their lawyers is considered to be a specialty occupation, he could qualify for H-1B many times over.

    Roger Algase
    Updated 11-05-2014 at 09:47 AM by ImmigrationLawBlogs
  5. Someone12's Avatar
    Whereas, IMHO, ole Rog would easily win 'Fairy Tale Author of the Year' with some of his exaggerated claims he has likely made on behalf of his 'six figure' clients ($9999.99)
    Please tell the listening audience, Rog, why you feel the need to sell out your fellow Americans each and every day? Oh yes....that's right...it's all about the money....the $4000 or so you charge to fill out a few 'color-in-the-dot forms and insert a new name into the boilerplate cover letter used to buffalo USCIS 'adjudicators' for each H1B application....no wonder immigration attorneys want an unlimited supply of these visa types...they have only one altar upon which they worship....the altar of Billable Hours.
    So go ahead Rog...tell American workers why you think they do not deserve an interview and priority consideration ahead of some clown with an online diploma whose credentials are questionable....love to hear you tell a room full of Americans why you think they are so unworthy.
  6. ImmigrationLawBlogs's Avatar
    One of my H-1B clients annually earns more than twenty times the amount Someone12 mentions in his latest post as an "example" of a "six figure" salary. (His example actually consists of only four figures, not counting the cents.)

    A good percentage of my other H-1B clients have been paid well above the prevailing wages required for their positions according to the US Department of Labor.

    Someone12's respect for the facts is in reverse proportion to his ignorance of even the basics of the way that H-1B works and the complexity involved.

    Let him for a moment imagine himself in the position of a foreign engineer, computer professional or financial specialist hoping to be approved for H-1B.

    If he could dream even for a second of trying to prepare the papers dealing with the complex legal issues involved on his own, without seeking the help of a capable and experienced H-1B lawyer, then he would be an even bigger fool than his posts already make him appear to be.

    Roger Algase
    Attorney at Law
    Updated 11-05-2014 at 11:23 AM by ImmigrationLawBlogs
  7. Someone12's Avatar
    Years ago, I worked as a paralegal for an immigration attorney, and one of my responsibilities was to prepare H1B applications. On average, I could do one, ready for my ethically challenged boss's signature, in under 3.5 hours, including making photo copies of bogus diplomas and other 'filler', coloring in those dots on the I-129, pasting in the client's name and a few boiler plate job descriptions into the cover letter, fill out the LCA, apply postage and drop in the mail box. After seeing this sort of nonsense perpetrated for nearly a year, I left to find more ethically satisfying employment. This clown had several equally ethically challenged colleagues, most were AILA members as well. Says a lot about that group. His methodology was far from unique.
    The most 'complex' legal issues faced was making sure the client's check cleared the bank. In general, once you've done one H1b app, the rest are comparatively easy to do (no doubt ole RA will vehemently disagree)...but one does not need to keep researching the INA on every application...the same sections of law are rinsed and repeated. One does not have to convince the Supreme Court that a particular client is worthy and adhering to every point of law before getting an application approved. While the process once it leaves the office can be time consuming, that has little to do with some 'complex' law, but instead due to the time it takes to ship the package to some stay-at-home housewife in Idaho, who, so I've heard, is a contractor for USCIS...she is paid about 3 times as much for approving an application than for denying one...guess what the approval rate is? And it's hard to believe that some stay-at-home mom living in the boonies has a thorough grasp of Spanish, Chinese or other foreign languages, and has the skill to translate as necessary, any foreign diplomas or bank accounts or doctored up resumes from foreign countries, so the bar for approval is quite low...and many immigration attorneys know this, so their cover letters are (IMHO)designed to prevent said mom from looking too deeply into the entire pile of papers before rubber stamping the application.
    I suppose they randomly choose an application, perhaps one out of twenty, for some RFE, just to make it appear that some meaningful adjudication process is going on...but in reality (IMHO), there is little oversight. Notice that every time USCIS makes noises about looking deeper into potential fraud in the H1B (and many other employment based visa categories), who starts whining first and the loudest? Yep...no surprise here....immigration attorneys...who just cannot seem to understand why no one is willing to take them at their word.....
    Most immigration attorneys want the American public to believe that immigration laws are 'complex'....necessitating the intervention (@$400 an hour!) of some practitioner, who, like some TV evangelist proclaiming to know what some deity wants or thinks, reinforces this falsehood to anyone willing to listen (interpreting the INA, like those evangelists interpret the bible) so they won't feel like they are being bilked when the fee for services invoice arrives (on average, about $4000, which in theory, should represent at least 10 billable hours).

    With my cooperation as well as some other folks, this charlatan was eventually disbarred. For all I know, he has moved on to something more noble, like chasing ambulances.
    While I don't doubt that some percentage of H1B visa holders are legit, from stem to stern, the fact remains that a significant percentage of H1B recipients are (a) not qualified and (b) not being paid according to the LCA (a totally worthless document that is nothing more than a 'promise' by the employer to pay the prevailing wage....rarely enforced), and (c) are occupying a job that is far from being a 'specialty occupation', yet they have employment, have displaced an American worker, thanks to some immigration attorney. Surely we must owe Rog and others of his ilk our most sincere thanks for their efforts....
    Yours truly
    The Bigger Fool
  8. ImmigrationLawBlogs's Avatar
    For once, I will agree with one of Someone12's points, to the extent of stating that some H-1B and other immigration attorneys rely on paralegals entirely to prepare the paperwork without checking the documents themselves.

    In my opinion, this may border on professional malpractice and may also raise ethical problems. But this is not because of the alleged ease and simplicity of preparing H-1B or most other types of immigration applications.

    It is for the opposite reason - even though the forms themselves may seem simple in many cases, the underlying legal issues, all too often, are far from simple.

    To give just one example, many H-1B cases are denied because USCIS does not agree that the offered job is a specialty occupation.

    No one who has ever read an RFE or AAO decision on this issue, let alone one from a federal district court, could possibly argue that this question is a simple one.

    To put it differently, maybe it should be a simple one in many cases, but the USCIS - not the immigration bar - has turned it into a nightmare..

    I blogged about this extensively this past summer in dicussing an H-1B case with the California Service Center, which was ultimately successful after strong, aggressive opposition from the CSC was overcome.

    There are many such examples by other attorneys, not only in H-1B cases, but in L-1, O-1, 1-140, PERM and almost every other employment-based case imaginable, not to mention family and other types of immigration related cases.

    Without challenging the sincerity or accuracy of Someone12's report concerning his/her own experience as a paralegal, that is only one small part of the picture concerning the complexity of most, if not all, immigration cases.

    Asking a paralegal to take sole responsibility for an H-1B case is like asking even the most highly skilled, competent and professional nurse to perform surgery.

    No matter how talented and well trained, he or she would not be equipped to do this. The same is true with paralegals preparing immigration papers without proper attorney supervision.

    Roger Algase
    Attorney at Law
    Updated 11-05-2014 at 01:35 PM by ImmigrationLawBlogs
  9. Someone12's Avatar
    For once, I cannot disagree with Mr. Algase.
  10. ImmigrationLawBlogs's Avatar
    I could mention some real horror stories I have heard from people who not only had their immigration papers prepared by paralegals working for lawyers without proper supervision, but who received advice on crucial legal issue from law firm paralegals without ever being given the chance to meet or speak with an attorney. Some people received very serious consequences as a result.

    I am sure the Someone12 would agree with me that there must be a very special place in the lowest circle of hell for immigration lawyers who allow this to happen, especially since, as Someone12 also accurately points out, the legal fees that the clients often have to pay for these "legal services" are far from inexpensive.

    Roger Algase
    Attorney at Law
  11. Someone12's Avatar
    I was never called upon to provide legal advice, but quite often a client was in the boss's office for very little time....30 minutes or so being the average...I was not always a party to those conversations. I did sit in on a few, and the 'hints for success' being offered by said boss was one of the primary reasons I eventually moved on...there was rarely a follow up visit by any client.
    When some petitions were about to be returned to USCIS (usually when a thorough consular officer discovered a giant gap between the facts listed in the application and the woeful lack of qualifications shown by an applicant) , and the client called, concerned that things were not going the way they were promised, I mostly heard a lot of reassurances, but little of substance. I imagine that the ratio of this clown's returned petitions that were sustained as being questionable at best, was one of the primary factors that led to his disbarment.
    Taking money from someone under false pretenses should, as Mr. Algase points out, merit a front row seat in front of the furnace...when people put their trust in someone, and that same someone takes the money and runs, I agree that whatever karmic forces may be in play in the universe as we know it should be focused squarely on those scammers and fraudsters.
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