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United We Stand: Defending Immigration Now

by Andres Benach

Recently, the New York Times picked up a story that immigration attorneys have been worrying about for weeks. Both Gary Endleman in Immigration Daily and Business Week have described growing hostility towards L visas. Lawyers who practice in employment-based immigration are, of course, used to the controversy surrounding the H-1B program but have been caught largely by surprise by the increasing hostility toward use of the L. With the L controversy hitting the Times and burrowing deeper into public awareness, it may be time for immigration attorneys and advocates to consider how we got to this point. Put simply, how did immigration foes become so powerful and emboldened that they feel confident enough to take on the formerly non-controversial visa essential to the operation of American multinational corporations?

An easy answer is that employers are doing more Ls. As H-1B processing has become more onerous and costly and with the impending decrease in H-1B numbers, employers are using the L wherever possible. Throw in the ability to avoid a labor certification with most L-1A holders and the choice becomes clear for many employers when choosing between H and L. As more L visa holders enter the U.S. workplace, forces that once opposed the H-1B program now have a new foe in Ls.

I suspect, however, that that is only part of the answer. The rest of the answer lies in the successes that anti-immigrant advocates have had in the nearly nineteen months since September 11, 2001. Having won the passage of the Patriot Act, implemented SEVIS, detained immigrants as "material witnesses" without charging them, established the Special Registration program, dismantled the Board of Immigration Appeals, successfully defended IIRIRA's mandatory detention provisions, and instituted lengthy mandatory delays at US embassies and consulates worldwide, immigration foes should feel confident enough to take on this popular visa.

The anti-immigrant community benefits from a certain simplicity in its goals and philosophies. They do not like immigrants and they think that the U.S. should have less of them. To them, immigrants are a danger to national security and the safety of our community, a drain on our economy and resources, or a threat to our culture and our language. This blanket supposition covers all immigrants. An H-1B software programmer is barely better than an undocumented foreigner who commits a crime in the United States. Thus, they see the battle against immigrants as a cumulative effort. First, they reason, resolve the issue of threats to our national security and the safety of our street. Second, move on to our economic security and attack those immigrants, who, although not a threat to our personal safety, are a threat to our economic well-being. Finally, get rid of the mass of undocumented aliens who we see everyday but are invisible in our community. These steps are all part of the same battle against immigration.

However, immigrant advocates are a horribly conflicted bunch. We talk about "good" immigration and "bad" immigration. Some of us view challenging removal and detention of foreigners, defending aliens who have committed crimes, and protecting refugees as morally superior to practicing employment-based immigration. Others of us cringe at the defense of criminal aliens and view their role as helping American business remain competitive in the world by attracting and recruiting the best and the brightest the world has to offer. Thus, although we both represent many of the same people, we often do not see our common ground. The former group may not be particularly concerned with the upcoming drop in H-1B numbers and the gathering storm around Ls, whereas, the latter group was able to continue practicing while the government detained and deported people at an astonishing rate and dismantled the reviewing role of the Board of Immigration Appeals. These attacks are attacks on immigration and not on the L visa or the process of administrative review.

Today's reality is that immigrant advocates have not had a lot of victories lately and immigrant foes now feel confident enough to take on America's biggest corporations on L and H visas. The only way that immigrant advocates are going to take them on is by recognizing that we are all in all of these fights together. We need to abandon our belief that the issue of immigration may be divided between the "legal" and the "illegal." In an era where the President speaks of the moral absolutes of "good" and "evil," immigration advocates must speak in unison in affirming that immigration is a good thing for the United States. We need to recognize each other's issues as our own and join the battle over issues that divide us such as 245(i), mandatory detention, the H-1B cap, delays in consular processing of nonimmigrant visas, with the same level of vigor. Immigration is what is under attack today. No matter what we part of immigration law we may practice in, immigrants are our clients and they are under attack. As lawyers and advocates, we need to recognize that even if our own clients do not feel the effects of these attacks at this time that the foes of immigration have not been contented to stop with their current victories and will keep on working until they are beaten or they achieve their goal of severely restricting immigration to the U.S. With each victory, they grow more emboldened and stronger.

About The Author

Andres Benach is an associate with Maggio & Kattar, P.C. Andre provides business immigration counsel to well-known corporations in the information technology and manufacturing sectors, among others. In addition, he maintains an active and diverse asylum and litigation practice. A 1998 graduate of George Washington Law School, Mr. Benach worked on immigration matters in his final year of law school in the Office of the Deputy Attorney General at the U.S. Department of Justice. Mr. Benach previously directed the legislative advocacy efforts for the New York Chapter of the American Immigration Lawyers Association. Mr. Benach is fluent in Spanish.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.