Temporary Worker Statutes, Detention of Aliens and Complicated Procedures For the Proposed Naturalization Program
On Monday night, in what has been described as a balancing act of policy and politics, George Bush gave a Presidential address to the nation on the topic of immigration reform and border security. The presidential speech covered five areas, 1. Border Security 2. Temporary worker program, 3. Employer accountability, 4. Necessity of addressing illegal immigrants present in U.S. 5. Honoring a U.S. tradition of immigration.
The president described the United States as a nation of laws and also a nation of immigrants. He seeks to resolve the issues of illegal immigration through reforms of our system as well as a renewed effort to enforce immigration laws at the border and with employers.
The president reported over six million individuals who have been apprehended and turned away at U.S. borders and ports of entry. He also stated that there was additional work to do and announced plans to increase border agents from 12,000 to 18,000 agents by the end of 2008. In the interim period the president promised to station 6,000 National Guard troops in supporting roles such as fence building, patrol roads, surveillance and intelligence activity and training. The president stated this was not an effort to militarize the border but part of efforts of both Mexico and the U.S. to limit smuggling, drug trafficking and illegal immigration.
The president also announced the end of the government's "catch and release" program in which significant numbers of immigrants from more distant areas of the world such as Asia, Africa or South America were not detained pending removal from the U.S. but simply released with notice to appear for deferred inspection or removal proceedings (deportation). The president has promised renewed efforts to have countries to accept the return of immigrants, build sufficient detention facilities to hold persons, and end catch and release at the Southern Border. This policy initiative could create a sudden and dramatic change in the treatment of immigrants from the Philippines, Indonesia, Pacific Islands, China, India and other countries who's citizens, in the past were not necessarily held in detention pending further action by USCIS or ICE.
The president described a "temporary worker" also described in the past as a guest worker program which emphasizes matching workers to employers and authorizing limited periods of residency in the United States. The ultimate strategy with this program is that workers will not be forced to reside in the U.S. illegally because of border enforcement. The traditionally large number of immigrants who would normally work in the U.S. and return home would no longer face the disincentives to returning home created by strict border controls. Many pundits credit the increase of border enforcement with a corresponding increase in aliens who come to the U.S. to stay instead of keeping to traditional seasonal patterns of entry and exit to and from the United States.
Separate from the temporary worker program is a legalization initiative which the president calls for the ability to apply for citizenship for those who can show a history and "roots" in the United States, payment of a penalty for violation of immigration laws, payment of taxes and show a record of employment and an ability to speak English. Based on these comments and prior debate in Senate committee most practitioners expect applicants to have to provide a five year history of presence in the United States, a clean criminal record, proof of tax payments, and payment of penalties in line with current penalties paid for visa overstays in the amount of $1,000.00. Another emphasis in the legalization discussion is the idea that processing these naturalization applications will not be overnight, but will take time and force applicants to wait their turn with respect to persons who "played by the rules and followed the law". This position is reinforced by the White House policy statement which states the need for priority to immigrants who obeyed immigration law and procedures. It is not clear what this means however as waiting periods for legal immigrants vary dramatically based on whether they are sponsored by a spouse (three year wait) family member (five year wait) or even longer processing times connected to consular processing and or labor certification.
The president placed great emphasis on assimilation and English as the primary language of U.S. society and business. It is reasonable to expect that the standards will be imposed with regard to English aptitude tests in connection with the proposed legalization process. Finally the President placed great emphasis on the need for a civil debate and cooperation in drafting fair and effective legislation. He recognized the historical contributions of immigrants over the years as well as current efforts by immigrants some as members of the U.S. Military in Iraq.
Many political commentators state that it is easier to grant amnesties than enforce the law. Congress in response seems determined to load the legalization process with enough requirements, such as length of stay, payment of penalties and providing proof of continuous employment to quiet these critics. Unfortunately, these requirements promise to create an enormous burden on USCIS to verify each of these requirements many of which require documentation of presence in the U.S. payment of taxes, criminal record checks and employment history. With this administrative burden applicants should expect delays, bottlenecks and difficulties in filing.
These documentation requirements in addition to English proficiency tests will present real challenges to legalization applicants. It will be crucial for applicants to be extremely careful, accurate and detailed when the time comes for filing applications under the new laws. Until that time many immigrants should consider their current immigration options with informed and qualified legal counsel.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly, managing its Beverly Hills Office. Mr. DuPont is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a member of the Beverly Hills Bar Association (BHBA) has been recently appointed Chair of the BHBA's Immigration Law Committee.
Mr. DuPont has successfully prosecuted several immigration cases through the Federal District Court and Ninth Circuit Court of Appeals which have resulted in positive changes to regulations, policies and practices of the Immigration Service. He currently assists clients seeking to immigrate through family petitions, employment, extraordinary ability in the arts, athletics, sciences and entertainment. Mr. DuPont is well known in the legal community for his work compelling action on delayed cases or wrongfully denied immigration cases in the U.S. District Court.