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The Year Ahead: What 2002 will bring for Immigration
by Gary Endelman

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.


As we usher in the new year, what immigration news and trends can we expect? Not being endowed with the gift of prophecy, and determined if I did have it to head straight for the Vegas casinos on the next plane, let's try to make some semi-educated guesses.

The fundamental way in which most Americans perceive immigration has changed. Before September 11th, immigration policy was seen either as a political problem or as an economic strategy, but few looked upon it in terms of national defense. Yet, it is transparently evident now that this is precisely how the nation thinks. Regardless of what it is - the restoration of 245(i), the survival of third country visa processing at US Consulates in Canada or Mexico, the future of labor certification, to choose just three of countless possible examples - America asks not whether an immigration measure is good or bad, but safe and prudent. Since September 11 the overarching goal of all US policy, including immigration policy, is to make the nation more secure from terrorist attack. Even if a proposed immigration initiative makes the economy more competitive, is desired by traditional allies abroad, or streamlines the existing immigration system to enhance simplicity and speed, it has no chance unless it makes our homeland defenses more robust and vigilant. In 2002 we can expect an intensification of this emphasis on national security, and those who seek to change our immigration policy must start from this basic premise. When the issue becomes not how immigration can help America, but how the nation can protect itself from the threat of another September 11th, whether any positive changes can be realized in 2002 will depend on the ability of those who seek such change to divorce immigration in the public mind from the World Trade Center and Pentagon attacks. If we cannot, then not only will future gains, such as the expansion of immigrant quotas, be impossible, but the security of past accomplishments, the H-1B quota expansion comes readily to mind, suddenly becomes dangerously vulnerable.

This all means that the crucial battles for 2002 will be fought not only on Capital Hill but in the popular media and throughout the nation whenever and however the issue of immigration will be raised. The pro-immigration forces which have favored an inside the Beltway strategy in recent years will have to change. It will no longer be enough to play defense and react to whatever new set of regulations or procedures INS or DOL seeks to put in place. Forging consensus with other interest groups and winning the assent of powerful legislative barons will still be necessary, but they will only be part of the solution. Unless we can first convince the nation that our suggestions are another weapon against Osama and his army of the night, no amount of Washington-insider expertise will carry the day.

This has profound implications for the immigration bar. These technical experts, who know better than anyone how the nuts and bolts of the system really work or fail to operate, have always concentrated not on policy but on the specific case before them or the problem of the moment. The sheer volume and complexity of immigration-related regulations reinforce this tendency as does the lack of time or interest in shaping the future. Lawyers have all they can do to handle what exists now and strive to make that work for their client's best interests. That is how they get paid and what they get paid for. They do not have the luxury to worry about tomorrow. Well, friends, in 2002 this is no longer a luxury. Immigration lawyers and their professional organizations must rapidly shift gears to invest as much energy, time, and talent in thinking outside the box to explain how immigration makes America more secure as they do in using the immigration erector set to build the structure they need. However clever we are as technicians, our clients in 2002 need us to figure out not only what the present means, but, more importantly, what the future holds and how we can get there.

As that noted political philospher Yogi Berra once said: "When you come to a fork in the road, take it!" That sounds like good advice for 2002. It should be a very interesting year.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.