Can We Fix A Broken Immigration Policy?

Monday, May 3, 2010 - 01:00

Editor: Please tell our readers about your practice and what attracted you into the immigration law specialty.

Patrick: My practice is limited to immigration, and the bulk of it is business or corporate immigration. My firm has offices in the United States and in multiple jurisdictions around the world. I have been doing this almost thirty years. I was at the U.S. attorney's office in New York City as chief of the immigration unit under Rudy Giuliani. I went into private practice in 1986 and joined Fragomen as a partner in 1990, and now also serve as general counsel of our firm. I chose immigration law because it is rewarding, challenging, never boring and is always changing.

Editor: Immigration reform is moving to the front burner in Washington with the proposed Schumer-Graham bill. What should the goal of comprehensive immigration reform be?

Patrick: The primary goal they have articulated is what is in the best interests of America. Senators Graham and Schumer both appreciate that we need to bring some sense to America's approach to immigration, along with a continued effort for legitimate enforcement programs, both at the borders, especially after 9/11, and inside America. The interior enforcement, as it is often called, involves people who are working without authorization. You can't have legitimate interior enforcement if you don't have a reasonably airtight program for employers to be able to identify whether someone who is seeking work is authorized. Another very important issue to address is the treatment of the undocumented immigrants currently working and living in our country. Last but not least, another issue is a sensible admissions program that allows as immigrants both temporary workers and permanent immigrants and green card holders in numbers and categories that make the most sense for America. What we have now is insufficient in all of those areas.

Editor: Focus a little bit on the question of the borders.

Patrick: It is understood there needs to be more than just physical border enforcement for any program to be effective. People come to America to work using false documents. I am not suggesting that we don't need to continue to focus on appropriate resources for border enforcement, we do, but there is no question that we need to reduce the magnet of job opportunity for people who cross the border illegally.

Editor: That raises the question of biometric identity cards. What is the status of the debate at present?

Patrick: To Schumer and Graham's credit they have made that priority one. They recognize there will be no comprehensive immigration reform if we don't have meaningful employment verification programs. They are proposing a biometric identification card that would presumably be tamper proof. How long that would take to implement is hard to say - the Schumer-Graham folks are talking about ten years. The critics are ready to pounce, saying we already have E-verify, a database program, so we don't have to wait ten years for it to be put in place. Schumer and Graham counter that E-verify doesn't have a biometric component, so it is too easy for someone to use someone else's identification, whereas the Social Security biometric card would solve that problem.

Editor: What is the position of the civil liberties lobbies?

Patrick: Schumer and Graham haven't put their bill forward, so the civil liberties folks have yet to react, but there will be fierce opposition to any privacy data being collected either in a central place or on a card. Schumer and Graham counter that the data kept on a card would be minimal and would not be in a centralized database.

Editor: What is the biometric data that is suggested?

Patrick: The fingerprint seems to make the most sense.

Editor: What has held back comprehensive immigration reform (CIR)?

Patrick: " Held back" is a euphemism! President Bush tried immigration reform and was "held back" by many in his own party. President Obama made the pledge that he would attempt immigration reform in his first year of office and hasn't done so. There isn't a tougher political issue today than immigration reform. We even heard from Majority Leader Harry Reid of Nevada first expressing his strong support for completing CIR this Congress, only to concede a few days later that the issue may just be too volatile for an election year, and that it may have to be a lame-duck session project. Senator McCain, who championed this issue for many years, has not taken a leadership role in the ongoing negotiations. In fact, the only position we've seen from McCain this Congress (2008-2010) is a 10-point border security initiative that he and fellow Arizona Senator Jon Kyl released in April.

Most Americans want their questions answered regarding the integrity of the system if they are to support CIR, from the border to the worksite. Any proposal must try to balance meeting the needs of the U.S. economy against protecting American jobs. It is an emotional issue when the economy is hurting and jobs are hard to come by. Bush couldn't get it done. Will Obama? I don't believe either the President or Congress will be able to accomplish immigration reform without people crossing the political aisle.

Editor: How should America handle the 12 million undocumented immigrants currently in our country?

Patrick: Schumer and Graham have recognized that attempting to put them on buses and send them out of the country isn't in America's interest. America's interest is to have them all register immediately and, if they don't, they're never going to have another chance for relief. Once registered, they will have to go through a vetting process that would require them to acknowledge they have either overstayed their visa or entered illegally, and thus have done something wrong. They would have to pay taxes for the time that they've been here. They certainly shouldn't go ahead of the line of people who have been waiting and waiting to be called. So all those factors have to fall into place for these 12 million to be able to remain here, but if we can get them on record and paying taxes, I would suggest that we will be a stronger and safer country.

Anything we do involving legalization (no one wants to use the word amnesty) has to be tough, but it needs to be fair. The last thing we can afford to do is talk tough and fair, but fail to deliver.

Editor: How many people are admitted from outside the United States in a year now?

Patrick: We currently admit as lawful permanent residents about a million people per year. According to the DHS Office of Immigration Statistics, over the past three years, roughly 65 percent get green cards through family-based petitions, about 15 percent on employer sponsorship and another 15 percent as refugees, with the rest on other miscellaneous categories.

Editor: Do the proposals contemplate that, once those who are here illegally and working have registered, they could continue to work, contribute to social security and pay taxes and any penalties under their true names, even if it takes 10-12 years to process them?

Patrick: The Schumer-Graham proposal does require the currently undocumented immigrants to pass background checks and be proficient in English before going to "the back of the line." Granting them a green card faster than people who have been waiting on line would make a mockery of the program. At the same time, the only way this can work would be if there is incentive for the undocumented population to come out of the shadows, so some form of interim status makes sense and has been part of past legislative proposals.

Editor: There seem to be two different categories: one is the lawn service chap and the other is the computer science Ph.D.

Patrick: Yes, but the real question is what does America need - to fill a labor shortage or to recruit and retain the best and brightest from around the world? How to determine the right level of immigration is a thorny question. Organized labor has suggested the idea of a commission to determine the admission level for all temporary workers. Businesses have some misgivings. We need to know how such a commission would respond to the needs of a global marketplace to get the right talent to the right place at the right time, and not just deal with numbers and statistics.

Editor: The prospect of yet another government agency determining whether there is an adequate supply of gardeners or physicists is troubling.

Patrick: Where this ends up is anybody's guess, but the unions have said, if Congress and the administration want labor's support for immigration reform, employers can't just hire anyone they want. On the other hand, the unions stand to gain the additional members from new immigrant workers.

Editor: A further complication is whether to allow people who have gotten approval to work in the United States to bring extended family with them. What constitutes immediate family under present regulations?

Patrick: In the case of foreign nationals who obtain a green card through any means, if the spouse or children under 21 are not included in the original petition, then the permanent resident must petition separately for the family members in a new process. In addition, keep in mind that not all family relationships serve as a basis for permanent residence. Also, U.S. citizens and U.S. permanent residents are treated differently for family reunification purposes. For U.S. citizens, there is a category called "immediate relatives" which include only spouses, children under 21, and parents (if the citizen son or daughter is over 21). There is no numerical limit for these immediate relatives.

For all other familiar relationships, such as a spouse, parent or child of a lawful permanent resident or a sibling of a citizen (permanent residents may not petition for siblings), the visas are subject to not only visa category quotas but per country quotas as well. The same quotas apply to virtually all employment-based visas also. The result is an absurdity where on one hand, there is tremendous backlog resulting in years and years of waiting, but at the same time there are unused visas left every fiscal year. What is the point of having a category for employment or family unification if you have to wait 15 years? Family unification has always been a cornerstone of American immigration policy, but we've created an unrealistic process.

Editor: Have the immigration bar, and you personally, been consulted on any of these proposals?

Patrick: We've offered ideas to members of Congress and their staff, as well as to White House officials both in the Bush and the Obama administrations. A lot of credit has to go to Ted Kennedy prior to his departure from the Judiciary Committee. I believe we owe it to ourselves to have an immigration policy that serves the interest of the country in every respect - first and foremost enforcement and security, but also for the betterment of America in terms of our businesses and our communities. Many, many people in this world want to live in America for reasons that have to do with visions of opportunity, the richness of our diversity, and our willingness and ability to attract and bring in people of different backgrounds, religions, talents and skills. We have recognized for a long, long time that we need immigration reform. Can we do it right after one of the most contentious debates in recent history, involving healthcare? It's going to involve some heavy lifting by the President of the United States. I'm hoping there is enough leadership in support of the Congress and that the President appreciates that this is not just about getting the Hispanic Caucus. It is about making America better.

Please email the interviewee at mpatrick@fragomen.com with questions about this interview.