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Attorneys lay out immigration reform wish list

Attorneys lay out immigration reform wish list

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WASHINGTON, DC — When congressional lawmakers return from the summer recess Monday, they could decide to take up an issue that has stalled in Washington for decades: immigration reform.

Although the momentum that existed earlier this year among lawmakers of both parties in both houses of Congress to overhaul the nation’s immigration system has slowed, attorneys say fixing the broken components of that system is crucial for their clients and American businesses.

From revamped employment requirements to streamlined visa eligibility to reduced criminal penalties, lawyers have a wish list of provisions they hope lawmakers in Washington include if they do ultimately send a bill to the president’s desk.

“Given the high stakes involved in immigration cases, restoring credibility to this system is an essential element of any truly comprehensive plan for immigration reform,” said Melissa Crow, director of the Legal Action Center, the litigation and legal advocacy arm of the American Immigration Council in Washington.

The Senate passed an immigration reform bill back in June. The measure, S. 744, would among other things: create a path to citizenship for those already in the country illegally; boost border control and security; expand E-Verify — the federal electronic employment verification system — and mandate its use by all employers within four years; lift the cap on and expand eligibility for the H-1B high-skilled worker visa program; create a new W visa for up to 200,000 workers in lower-skilled industries such as construction and hospitality; and change family-based sponsorship requirements.

But the House has not taken up the Senate version, and some lawmakers have indicated that if the lower chamber acts at all on the issue, it may be with a series of smaller bills rather than sweeping legislation. So far, House lawmakers have yet to move on any measure, piecemeal or otherwise, making the prospect of immigration reform uncertain.

‘Culture of compliance’

David A. Martin, a professor and immigration scholar at the University of Virginia School of Law, said that any successful immigration reform legislation will need “smarter enforcement more focused on sound priorities.”

“We do need a bill and an implementation effort that is careful about both sides of it,” said Martin, speaking on a recent panel on immigration reform sponsored by the American Constitution Society in Washington. “It’s not just a matter of legalizing populations that become an important part of our communities over the years, although that is a very important part of the bill. It’s also about creating a circumstance, a situation, a new culture of compliance, a new focus on enforcement so we don’t get into the same situation [of noncompliance] a few years down the road.”

Employment attorneys expressed optimism over some sections of the Senate bill aimed at reducing the battle over employment visas and giving employers easier and more reliable methods of verifying workers’ eligibility.

The current employment-based visa system’s bureaucratic problems and resulting long delays can stymie employers that recruit specific candidates from foreign schools or groom students through internship programs for specialized positions. If those difficulties are not addressed, employers seeking qualified applicants will still face a process that is often “disruptive and demoralizing,” said Rodney Malpert, co-managing partner of the Phoenix office of Fragomen, Del Rey, Bernsen and Loewy LLP.

He said a bill that would make the worker visa process faster, more streamlined, and lift the limits on highly-skilled workers would not only help big businesses better compete with their international competitors, it would also help small firms that need qualified talent to be more innovative and successful.

“Anything that makes the immigration process simpler and less expensive and less lengthy is going to benefit startups and smaller employers,” said Malpert. “It is much more difficult for them to navigate the complex and often mystifying immigration process.”

Employers would also like to see reforms to E-Verify. The system, initially designed to be mandatory for most employers, has been criticized by employers and business groups who claimed that inaccurate and incomplete data often results in false results that place employers in peril of being penalized even when they hire qualified workers.

Sen. Al. Franken. D-Minn., added an amendment to the Senate bill designed to address some of these issues. The measure, if adopted, would require annual audits of the E-Verify system to ensure the accuracy of its data, reduce the penalty for a first-time violation during any year following a year in which reported E-Verify errors are high, and create a new Office of Small Business and Employee Advocateto help small businesses and employees who are experiencing problems with the system.

“While I support having employers use E-Verify, we don’t want any new requirements to hurt our small businessesor legal employees,” Franken said when his amendment was adopted in June.

Call for safeguards

Immigration attorneys would like to see any reform package address the often harsh collateral consequences of convictions on defendants’ immigration status and boost safeguards in the immigration prosecution process.

Crow said she hopes to see a bill that gives immigrants facing deportation many of the same procedural safeguards as criminal defendants.

“Immigrants facing deportation don’t have the right to a speedy trial, the right to examine evidence in the government’s files, or the right to appointed counsel,” Crow noted.

Criminal attorneys complain about the collateral immigration consequences that can flow from even minor criminal convictions.

“A prosecutor’s duty is not just to achieve a conviction, but also to achieve justice,” said Robert M.A. Johnson, a retired prosecutor for Anoka County, Minn., former president of the National District Attorneys Association and expert on collateral consequences of criminal sentences.

Johnson recalled the case of a 19-year old with no prior criminal history who was arrested for joyriding with friends in a stolen car. The defendant, who had been brought into the country by his parents when he was an infant, could have faced deportation if convicted of a felony.

At the time, the prosecutor had the flexibility to work with federal immigration officials to ensure that the charge would not result in the man being deported from the only home he had known.

But 1996 the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-Terrorism and Effective Death Penalty Act, with their mandatory deportation provisions for most felonies, removed that flexibility.

Johnson said he would like to see immigration reform address the need to regain flexibility and cautioned against any measure, such as the amendment offered by Sen. John Cornyn, R-Texas, that would automatically prohibit anyone convicted of misdemeanors such as drunk driving from obtaining citizenship.

That amendment was ultimately rejected by the Senate, but a similar provision could still be offered by the House.

“If police focus on the immigrant community they are going to find a lot people who have committed these offenses [are] good folks who have just gone astray,” Johnson said.

He also urged the imposition of increased judicial review for deportation orders.

“Immigration decisions should be subject to the same judicial review as other administration agency decisions,” Johnson said. “In fact, it should be greater [because] the consequences are so much greater.”

— Follow Kimberly on Twitter

 

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