John McCain is walking a tightrope these days trying to not simultaneously lose Hispanics and anti-immigration GOP base members, two constituencies that lifted President Bush to victory in both 2000 and 2004.
The NY Times has an excellent editorial this morning discussing an issue I've raised many times before - the flawed databases that are the backbone of the E-Verify and Social Security No-Match systems. While the case for using the systems is logical, the assumption has to always be that the systems actually are accurate. And therein lies the problem. If millions of legal workers - many of them US citizens - are falsely identified as being illegally in the US, we've got a problem. If the Social Security Administration or Department of Homeland Security had the resources to actually clear up discrepancies in a timely manner, a small false positive rate would be acceptable. But they don't. Today they only have to deal with a small number of people trying to make corrections and it can take months to solve the problem. Now multiply this group by 2000% or so.
I have mentioned a simple solution to this that will allow both E-Verify and the No-Match rule to expand like the government is hoping. When a worker lodges a protest with SSA or DHS that the system has falsely labeled them as unauthorized, then that the worker should be authorized to continue working until DHS or SSA actually gets to the bottom of the error. In other words, put the burden back on the government to actually deal with the mess they most likely created.
Some may be concerned that illegal workers would use this as an opportunity to continue working illegally. However, the reality is that when an employer alerts an employee to a discrepancy, the illegally present worker almost always takes off. The odds of an illegal worker going to DHS or the SSA to try and lodge a protest - and risking being picked up and deported - are pretty remote.
Now that employers are starting to get tough on checking that employees' social security numbers match their names, some employees that are illegally in the country are getting around that by simply making sure that their names actually do match their numbers. How do they do it? They steal (or borrow since there may be some consent involved) the identity of a legal worker.
Immigration and Customs Enforcement just conducted a sweep of five chicken plants yesterday and arrested 280 workers in one such alleged identity theft scheme. The employer, Pilgrim's Pride, cooperated with ICE officials and no company employees were charged. If this sounds familiar, it is is similar to what happened in 2006 at the Swift meatpacking plants around the country.
I certainly don't condone this. But I will say that as the pressure on workers mounts, you should expect to see more of this as well as more employers paying workers in cash. And a system that encourages identity theft or working under the table is bad public policy. We need immigration enforcement. But until we deal with the question of why employers and employees are willing to such risks, we're never going to solve the problem. The reason this is happening is pretty straightforward - we lack a legal way to meet the demands of the market. A tiny percentage of workers and employers might choose to break the law even if a legal and manageable way to import workers was available. But most would not. Until we have a workable guest worker program that matches up supply and demand, we will continue to see a black market.
The New York Times is reporting on the sweeps as well.
The OPT rule that came out recently had a provision allowing OPT work cards for F-1 students to automatically be extended until October 1st in cases where H-1B change of status applications were filed and selected in the lottery. Many people filed cases without requesting a change of status and they are not covered under the rule. However, USCIS has decided to make it easier to convert the cases to change of status and has provided email addresses to make the requests. Information explaining what to do is in the attached memorandum.
America's highest ranked female table tennis player will likely be journeying back to her native China to compete in this summer's Olympics. Jun Gao provides some inspiration to those of us born in the late 1960s. She's turning 40 in just a few months and is still knocking off players half her age. The American will have some very tough competition from her Chinese counterparts who occupy the top five positions in the world rankings.
Gao has been a star in the game for decades. She won a silver medal in doubles for China in the 1992 Olympics in Barcelona and then retired from the game and moved to the US. She was back in action soon enough, however, and has been competing for the US National Team since 1996. She's been to the last several Olympics and has numerous world and national titles.
I consider myself fairly knowledgeable about US history, but knew nothing about this story. It's important that we learn this history since mistakes resulting in the deportation of US citizens is becoming more and more common.
Indian-born physician Ranjan Duara's groundbreaking research made headlines around the world today and probably was greeted by groans from many. The Mount Sinai Medical Center researcher led a team that has discovered that people who are prone to Alzheimer's Disease can actually hasten the disease's onset if they smoke or drink too much. The New York Times reports that Dr. Duara has two explanations for what may be happening. First is the role of smoking in cardiovascular disease. The second is a link between smoking and oxidative stress, an increase in damaging free radicals in the body.
Those of you filing adjustment of status applications in the coming weeks should remember that the I-693 medical exam form is being updated and physicians must fill out the new form for examinations taking place after May 1st. If a physician signs the old form before May 1st, you can submit the old version. Make sure your physician is aware of the change as some of them may not know about the change.
Seventh Circuit Judge Richard Posner, one of the country's most influential jurists (and a professor at my alma mater, the University of Chicago Law School) has some tough words for the state of the nation's immigration courts. The National Law Journal reports
Federal judge Richard Posner, one of the most widely cited appellate judges in the United States, blasted the nation's asylum adjudication system as "inadequate" and offered a number of remedies for it in a speech Monday.
Posner, who sits on the 7th U.S. Circuit Court of Appeals, said administrative law judges who serve in the immigration courts are ill-trained and insufficient in number. He also said the bar that represents applicants doesn't have enough qualified lawyers, and that the Board of Immigration Appeals, which has 11 members, is too small. In recent years, Posner has offered glimpses of his dissatisfaction in opinions from the bench as well.
"This is a system of adjudication that is clearly inadequate," Posner said.
The Department of Homeland Security has announced it plans to release a rule that will extend the US-VISIT entry/exit tracking system to exits from the US at airports and seaports around the country. Previously, the ability of DHS to implement an exit tracking system was considered doubtful given the costs and complexities involved.
The announcement was met with mixed reactions. The proposal would require airlines and cruise lines to collect the biometrics and pay the expense themselves. The cost for this would cost an estimated $2.3 billion over a ten year period, according to DHS, but airline industry spokespersons believe the number will be much higher and is a cost the airlines cannot afford right now while they struggle with high fuel costs, increased safety concerns and more and more passenger complaints. The Washington Post reports
Doug Lavin, regional vice president for the International Air Transport Association, which represents major U.S. and international carriers, said the government, not airlines, should collect fingerprints. "This is ludicrous," Lavin said. "We can't afford anything in the billions to support a program that should be a government program."
Fingerprinting an estimated 33 million departing foreign passengers a year will result in "delayed departures, missed connections here and around the world," Lavin said.
The Travel Industry Association which represents the entire travel industry including the airlines, issued a more conciliatory statement that acknowledges the need for the exit tracking system while noting that the cost should be borne by the government and not the travel industry:
The Travel Industry Association is committed to working with the Department of Homeland Security and other interested parties to ensure that a biometric air exit system is developed as expeditiously as possible. TIA believes that an air exit system will encourage and enforce compliance with U.S. immigration laws and allow the Department of State to develop meaningful data on visa overstay rates.
A stalemate between government and airlines – which threatens to end expansion of the Visa Waiver Program in 2009 – is not an acceptable outcome. Therefore, TIA will rally the travel community to support the quick implementation of a biometric air exit plan that meets homeland security goals and does not add new burdens to an already challenging air travel process.
About The Author
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com
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