A New Day Coming For Immigration Reform?

Sunday, March 1, 2009 - 00:00

Editor: Would you first tell our readers something about your background in immigration law?

Ruthizer: I have been practicing immigration law for more than 25 years, and I concentrate my practice in the field of business immigration law. In addition to practicing law, I also teach immigration law at Columbia Law School, and I am a past national president and general counsel of the American Immigration Lawyers Association. I continue to serve as a lifetime member of the Board of Governors of that organization, and I am very involved in the development and reform of immigration law and policy. At Kramer Levin, I am the Co-Head of the firm's Business Immigration Group together with my partner, Mark Koestler. We are an eight-lawyer group with a number of support staff, and we represent a broad range of corporate clients located throughout the country.

Editor: This immigration section is not something that's common to other law firms, I understand.

Ruthizer: Well, it's still certainly unusual, though not unique to be part of a large general practice law firm. I made a decision many years ago that it was smarter to practice together with other first-rate practice groups. I regularly consult with my colleagues in the employment law, tax, and corporate groups to solve our clients' problems.

Editor: Do you expect to build the group beyond the eight lawyers or do you see a need to enlarge the staff?

Ruthizer: When the economy rebounds, I expect we'll be adding to our professional staff. But we don't want to be the largest immigration practice in New York. We want to continue to provide very personalized immigration law services to our clients. We want our lawyers to be very proactive in identifying and analyzing issues, and resolving our clients' matters before they turn into problems. That's the formula that's allowed us to build such a strong practice over these past many years.

Editor: Last week Kramer Levin sponsored a seminar for employers regarding recent changes to I-9s. What are some practices you recommend employers apply in anticipation of the April 3 implementation?

Ruthizer: There are a couple of things that are going on. The I-9 form will be a little different, and employers will no longer be able to use expired documents. The bigger issue is with the Department of Homeland Security's E-Verify work-authorization system, which we believe is likely to become mandatory for all U.S. employers in the not-too-distant future. E-Verify is a DHS program for employers to electronically verify with DHS whether a new hire is authorized to work in the United States. Right now it is voluntary, but we believe it will become mandatory in the near future. All employers need to understand how E-Verify works, and what their obligations will be. If, for example, a new hire who is a U.S. citizen is not in the government database and is rejected by the E-Verify system, the employer will not be permitted to employ that person.

Similarly, employers need to be concerned about Social Security "No Match" letters. Those are the letters that the SSA sends out to employers when SSA is not able to match an employee's Social Security number to its database. Under regulations that the government issued, but which have been temporarily blocked by a federal court, employers would have very strict timelines and requirements spelling out how to deal with the issuance of a No-Match letter, and setting out the penalties for non-compliance.

Editor: How do employers protect themselves from sanctions?

Ruthizer: Well, they do it by knowing all of the many complexities of the employers sanctions laws and regulations and by knowing how to complete the forms, how to store them and for how long, when to update them, and how to determine whether they are sufficient to prove identity and work eligibility. If an employer does all of those things, then the employer is going to be protected from a charge of employer sanctions and from complaints of immigration-related discrimination claims. The employer has to know what documents it can request, when it should and should not be completing I-9 forms, when a little knowledge can be a dangerous thing, and how to guard against over-zealousness that can lead to a discrimination complaint being filed against it.

Editor: The current economic crisis has become a priority in the country. How is this influencing immigration reform?

Ruthizer: In economic hard times, protectionist reflexes always come out. Some people say we need to protect American job opportunities first without recognizing that by restricting the immigration of non-citizens who are very skilled and highly educated professionals, we are shooting ourselves in the foot by not allowing our companies to hire the best and brightest persons available. Very often these are persons in fields we desperately need to develop in areas as diverse as environmental engineering, teachers of mathematics and the sciences, economists, and many others who have so much to offer to American companies. Most economists who have studied the data have concluded that by allowing more skilled and educated professionals, the U.S. will create, not take away, jobs for Americans. But it's difficult to persuade some members of Congress and some of the general public that immigration is a positive benefit to the country when it is properly designed and managed.

Virtually all American companies know how valuable employment-based immigration is to their operations and continued growth. But too few companies want to go on record before Congress calling for the liberalization of our laws to permit the greater transfer of brain power to our country. For example, American employers have been restricted for the past several years to a woefully inadequate quota of only 65,000 H-1B visas for foreign national professionals each year. In an economy the size of the U.S., and even in a depressed economy as we have now, this makes no sense. We don't hasten our economic recovery by keeping out the very talented and highly educated foreign national professionals that our companies need to get us back on our feet. And, I'm convinced that once more companies start becoming more vocal about this, Congress will listen.

Editor: High-end business immigration is a key focus of recent immigration legislation. How is unlawful immigration also being addressed? Does it have a significant impact on what you do?

Ruthizer: Undocumented immigration does have an adverse impact to the extent that people, including myself, do not approve of persons who violate our laws. We do not like the idea that people, no matter how hard-working they are, are just going to thumb their noses at the law. But it's important to also recognize that the current law is very restrictive, and that many people who are undocumented immigrants are filling jobs that few Americans want to do. My bottom line is that we have to have a system that allows for lesser-skilled workers to come to fill needs in the workplace, but at the same time we have to devise a much smarter system to significantly reduce the number of people coming to the U.S. unlawfully. In short, we need comprehensive immigration reform that will deal fairly with the many persons who are here unlawfully, expand and reconfigure the immigration categories to meet the needs of American employers, and manage our employment sanctions system in a much smarter and more effective way.

Editor:What steps can be taken to discourage this reverse "brain-drain," in which foreign nationals come to the U.S., work for a few years and then have to return to their home countries?

Ruthizer: I like the spirit of what New York Times columnist Tom Friedman has often said about immigration. He said, when non-citizen students pick up their Ph.D. degrees, we ought to be giving them green cards with their diplomas. While that is not literally going to happen, we do want to be moving in that direction. We should be capturing the very best talent the world has to offer, and put it to use benefitting the national interest of our country. That's a whole lot smarter than educating these persons and then having them flee our leading universities to go to Canada, Australia, the U.K. and other countries that prize their talents and knowledge.

Editor: The quota last year for H1B visas was about 60,000.

Ruthizer: Yes, it is way too small given the size of our economy and the needs of our employers. So we really need to have Congress look at that and increase the quota to a more realistic number.

Editor: Certainly other countries such as Great Britain have a very different system. Someone had advocated an alternative points-based selection system to determine who may become a permanent resident.

Ruthizer: A number of countries have point systems. There is some good and bad with that, and I would be willing to try it on a test basis for a part of the immigration system. The potential problem with a point system working in our country is that we wouldn't be ensuring that the persons who qualified would be the ones needed by the employer community to fill needed positions. You look at the diversity visa lottery now in which 50,000 people each year can qualify just by putting their names in the computer hat for a drawing. It's an insane system in my judgment, but you have 6 or 7 million people vying for those 50,000 slots each year. So the problem with the points system in the U.S. is that it is going to do two things: 1) it's not going to meet the needs of U.S. employers for well-educated and experienced professionals, and 2) it also isn't going to meet the needs of our companies for non-professional workers. It rewards people with Ph.D.s, but not sushi chefs or Jaguar mechanics.

One change that I advocate would be to change the current standard for measuring whether any U.S. workers are minimally qualified for a job being sought for permanent residence for non-citizens. Under the current system, a company is not able to hire the most qualified applicant, as is the case for real-world recruitment. A better test would be whether the foreign national applicant is better qualified than any U.S. applicant for the position. That is a fairer and more efficient test that would replace an outmoded system, now almost 60 years old, that penalizes excellence.

Editor: I am very concerned about the "buy America" sentiment in this country, and I think that extends to immigration as well.

Ruthizer: It does, and there was a very interesting piece that was featured on the front page of the New York Times Business Section a few weeks back that pointed out that for a stimulus recovery to work, the U.S. is going to be dependent on technologies developed by many foreign-based countries, as well as by U.S. companies with international operations. Many of these environmentally sound "green" technologies are not yet available in the United States, and they require the expertise of very skilled foreign national employees now working abroad. So that is where I want political winds to blow, and to move away from this parochialism that resonates with some people who are not familiar with these realities.

Editor: Thank you, Ted. You have given our readers a lot of food for thought.

Please email the interviewee at truthizer@kramerlevin.com with questions about this interview.