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May 31, 2011

IT CEOs pitch for a better immigration policy

Four IT industry leaders called on May 19 for a new immigration policy. They touch on a number of issues, including dysfunction in our relations with foreigners who earn graduate degrees here. “Today foreign nationals account for 50% of master’s degrees and 70% of Ph.D. degrees in electrical and electronic engineering in the U.S. Yet, our antiquated immigration laws numerically limit the numbers of these individuals, by the thousands, from entering our country annually. What kind of strategy is it to train the world’s best and brightest in our great universities – and then require them to leave?”

The authors are members of the President’s Council on Jobs and Competitiveness

Their statement in full:

America needs a 21st century immigration policy

President Obama’s recent focus on immigration highlights America’s “broken” system and its impact on our economy. Fixing it requires Republicans and Democrats to show political courage and implement reforms to expand and strengthen the American economy. As members of the President’s Council on Jobs and Competitiveness, we share his deep concern that our nation’s ability to compete economically is being damaged by the two parties battling over immigration laws and policies.

To some, the link between immigration reform and economic growth may be surprising. To America’s most innovative industries, it is a link we know is fundamental.


The global economy means companies that drive U.S. job creation and economic growth are in a worldwide competition for talent. While other countries are aggressively creating policies and incentives to attract a highly educated workforce, America has stagnated. Once a magnet for the world’s top minds, America now faces a “reverse brain drain” and is no longer the first choice for many entrepreneurs creating new companies and jobs.

America needs a pro-growth immigration system that works for U.S. workers and employers in today’s global economy. And we need it now.

First, we need to invest in homegrown talent that is educated and trained in the critical science, technology, engineering and math fields. The U.S. education system must be improved, top to bottom, so that our most precious resource – our children – can compete in the increasingly global world economy. Statistically our K-12 students are falling farther behind students in Korea, China and elsewhere in the physical sciences. We can and must do better.

Second, the United States must allow employers to recruit and retain the world’s best brains. We need a pro-growth based green card system to replace the current system that is plagued with years-long backlogs. Waiting a decade or more during the H1B specialty visa and green card process demoralizes the next great American immigrant Nobel laureate. More of them are returning to their home countries, like China and India, and driving new scientific breakthroughs and innovations there.

Third, we should staple a green card to every advanced diploma in critical fields to keep foreign-born students graduating from a U.S. university or college here in America, working for our future. Today foreign nationals account for 50% of master’s degrees and 70% of Ph.D. degrees in electrical and electronic engineering in the U.S. Yet, our antiquated immigration laws numerically limit the numbers of these individuals, by the thousands, from entering our country annually. What kind of strategy is it to train the world’s best and brightest in our great universities – and then require them to leave?

America’s cutting-edge job creating industries – from computing to biotech – rely on immigrant scientists, engineers and entrepreneurs to remain competitive. And as the President said in his speech, they are responsible for founding iconic companies like Google, Yahoo and eBay.

According to a Kauffman Foundation study, 40 million jobs have been created in the past 25 years by high growth U.S. entrepreneurial companies. Of those, according to a Duke and UC Berkeley report, more than a quarter of U.S. technology and engineering businesses launched between 1995 and 2005 had a foreign-born founder. And in 2005, companies created by immigrants produced $52 billion in sales and employed 450,000 workers, so getting this right is paramount.

Silicon Valley offers a good example of the impact foreign nationals make on U.S. innovation – and the arduous process companies must go through to retain them. With 80% of Intel R&D conducted in the U.S., employing people with specific expertise in U.S. facilities is imperative. Right now, there are software engineers in the UK, who cannot come to work in a U.S. Intel facility until visas are available in the next fiscal year. And experts in next-generation mobile technology who must remain in Finland, rather than joining an Intel research and development team in the U.S.

At Facebook, Javier Olivan was instrumental in creating the technology that has translated the site into more than 70 languages, connecting people and businesses in the U.S. with markets around the world. Despite making a significant contribution to economic growth, Javier was lucky to be able to stay in this country. The year he applied for an H-1B visa, there were 150,000 applicants and only 65,000 visas.

U.S. employers must look ahead to coming talent shortages and plan their workforce needs years in advance. They need policy certainty from Washington to know they will be able to hire the very best talent to meet the demands of the global innovation marketplace. It is time for Congress and the Administration to pass bi-partisan immigration reforms. In particular, taking quick action to attract and retain science and engineering talent is critical to the growth of our economy.

Let’s create a pro-growth immigration system that works. Our global competitiveness should not be a partisan debate, it should be a top American priority.

The writers, Steve Case, CEO of Revolution, John Doerr, Partner, Kleiner Perkins Caufield & Byers ; Paul Otellini, CEO of Intel Corporation, and Sheryl Sandberg, COO of Facebook, are members of the President’s Council on Jobs and Competitiveness.

May 30, 2011

Tougher ICE enforcement against employers


This has been the story since the start of the Obama administration: prosecution of employers, not their illegal workers. The New York Times has an update. ICE can no longer raid employers except with a prosecution plan in place with the Department of Justice.

The article in full:

A Crackdown on Employing Illegal Workers
By JULIA PRESTON

TUCSON — Obama administration officials are sharpening their crackdown on the hiring of illegal immigrants by focusing increasingly tough criminal charges on employers while moving away from criminal arrests of the workers themselves.

After months of criticism from Republicans who said President Obama was relaxing immigration enforcement in workplaces, the scope of the administration’s strategy has become clear as long-running investigations of employers have culminated in indictments, convictions, exponentially increased fines and jail sentences. While conducting fewer headline-making factory raids, the immigration authorities have greatly expanded the number of businesses facing scrutiny and the cases where employers face severe sanctions.

In a break with Bush-era policies, the number of criminal cases against unauthorized immigrant workers has dropped sharply over the last two years.

Among the employers who have felt the impact of the administration’s tactics are two owners of Mexican restaurants in the Chuy’s Mesquite Broiler chain, which are popular for their laid-back Margaritaville mood and their broiled mahi tacos. On April 20, immigration agents descended on 14 Chuy’s restaurants in coordinated raids in Arizona and California, detaining kitchen workers and carrying away boxes of payroll books and other evidence.

But at the arraignment days later in federal court here, no immigrant workers stood before the judge. The only criminal defendants were the owners, Mark Evenson and his son Christopher, and an accountant who worked with them, Diane Ingrid Strehlow. If the Evensons are convicted on all charges against them of tax fraud and harboring illegal workers, they each could face more than 80 years in jail.

Of 42 illegal immigrants caught in the Chuy’s sweep, only one was charged with a crime, and it was not related to the raid. Thirteen workers were processed for immigration violations — which are civil offenses — and detained or deported. The others remained in this country as witnesses or to seek legal status through the immigration courts.

Under President George W. Bush, immigration agents frequently conducted high-profile factory raids, leading away scores of unauthorized workers in handcuffs, often to face jail time for document fraud or identity theft before being deported. After a raid in Postville, Iowa, in 2008, nearly 300 immigrant workers went to federal prison.

The Chuy’s prosecution contrasted with the application by state and county authorities of a law that Arizona adopted in 2007 to punish employers who hire illegal immigrants; the measure was upheld by the Supreme Court on Thursday. Despite the political furor over that law, only a handful of cases have been brought against employers under its terms, which provide mainly for civil penalties. But state authorities have continued to bring criminal cases against illegal immigrant workers, leading to their deportations.

The Obama administration’s record on workplace enforcement has been fiercely debated in Washington since President Obama announced that he would try, against steep odds, to pass an immigration overhaul this year. Administration officials say that their audits and investigations of employers have laid the groundwork for a system that would dissuade companies from hiring illegal immigrants.

“We have steadily increased our efforts to investigate and prosecute employers who violate the law on a serious and grand scale,” said John Morton, the director of Immigration and Customs Enforcement, also known as ICE. The next step, administration officials said, is to open a pathway that would allow millions of illegal immigrants in the country to live and work here legally.

Republicans, pointing to the decline in arrests of unauthorized workers, say the administration is failing to remove those immigrants from the work force just when Americans are grappling with high rates of unemployment.

“While President Bush’s so-called get-tough strategy clearly did not do enough to remove illegal workers, President Obama’s strategy is much worse,” said Representative Elton Gallegly, Republican of California, who is chairman of the House Judiciary Committee’s immigration subcommittee.

Secretary Janet Napolitano of the Homeland Security Department halted the flashier raids in 2009. Until this year, ICE’s leading tactic was “silent raids,” audits of companies’ hiring documents. If immigration inspectors found irregularities suggesting that immigrant workers’ identity documents might be false, managers had to dismiss the workers or risk prosecution.

Last year, according to government figures, the enforcement agency started 2,746 workplace investigations in addition to the audits, more than double the number in 2008, the last full year of the Bush administration. Fines totaling about $43 million, also a record, were levied on companies in immigration cases.

Department of Homeland Security officials, speaking anonymously in order to discuss internal policy, said immigration officers were no longer authorized to carry out workplace raids unless they cooperated with federal prosecutors to prepare criminal cases against the employers. Last year, 119 employers were convicted.

In March, Rick M. Vartanian, the president of a furniture company in California, was sentenced to 10 months in prison for hiring illegal immigrants. A federal investigation is also under way into hiring practices at the Chipotle chain of Mexican fast-food restaurants.

Dennis K. Burke, the United States attorney for Arizona, who led the Chuy’s prosecutions, called them a “game changer” for the state. During a lengthy inquiry, investigators, including undercover operatives, discovered that the Evensons were keeping two sets of books: one for waiters and cashiers, Mr. Burke said, and another for Mexican kitchen workers.

According to the indictment, a customer complained to Mark Evenson that he was employing illegal immigrants. “I need to hide you in the kitchen,” Mr. Evenson is said to have told one Hispanic employee he knew to be undocumented.

Mr. Burke said prosecutors saw that they could accuse the Evensons under the severe penalties of the tax code — “the hammer,” as he put it. Charged with evading more than $400,000 in taxes on wages for some 360 unauthorized immigrant workers, the Evensons together face more than $10 million in fines if convicted on all counts. They have pleaded not guilty, and their lawyers declined to comment, saying they awaited evidence from prosecutors.

Unusually, even immigration lawyers who represented Chuy’s workers spoke favorably of the federal handling of the case.

“ICE was nice,” said Delia Salvatierra, a lawyer in Phoenix who represents two workers who were in the process of gaining legal status when they were detained. “It was as benign as it can get,” she said. Officers released the two workers so they could pursue their cases in immigration court.

The two of them, who are brothers, said they came to the United States from Mexico in the 1990s. Both had worked most of the time since in Chuy’s restaurants. The eldest, Alejandro Díaz Ojeda, 36, learned to cook the Chuy’s menu. Then he taught his brother, Javier, who is 30.

The brothers said they had been treated well. “I became very fond of the company,” Javier said.

Their experience, however, suggests how the Evensons kept their menu prices famously low. The brothers said they were paid an hourly wage — Javier made $9.50 after 14 years — by payroll check for the first 40 hours a week. Any overtime was paid with a different check, with no taxes deducted and no higher rate, they said. Both brothers said they often worked 70 hours a week.

The severe charges against the Evensons registered broadly with Arizona executives, business leaders here in Tucson said. But they said the case was mainly a cautionary lesson for managers who knowingly hire unauthorized immigrants.

“If companies are paying workers under the table,” said Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, “we encourage the federal government to throw the book at them.”

May 27, 2011

Supreme Court: key provision in Arizona immigration law is OK


Yesterday 5/26 the U.S. Supreme Court upheld Arizona’s 2010 immigration law, SB 1070, in particular the provision under which businesses are penalized for hiring illegal workers. (The Court did not rule on the most publicized part of the law, which is to authorize police officers to inquire about immigration status.) This ruling will likely accelerate state initiatives to create their own immigration law enforcement programs.

The case is Chamber of Commerce of America vs. Whiting et al. Here is the key passage from the decision:

The [Federal] Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio- late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).

IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsi- bility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.

Against this stautory background, everal States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.

The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly pre- empted by federal immigration law, and that the mandatory use of E- Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.

Held: The judgment is affirmed.

Justice Breyer’s minority opinion says, “Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. (excepting professional licenses, and water and environ- mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre- emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work- ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”

According to the New York Times, “The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”

The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”


Chief Justice Roberts wrote that the word “licensing” should be read broadly to allow states to supplement federal efforts to prevent the hiring of illegal workers. His decision was joined by Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and, for the most part, Clarence Thomas.

The NY Times article in full:

Justices Uphold Law Penalizing Hiring of Illegal Immigrants
By ADAM LIPTAK
Published: May 26, 2011

WASHINGTON — The Supreme Court on Thursday upheld an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.

The 5-to-3 decision appeared to endorse vigorous state efforts to punish employers who intentionally hire illegal workers. The majority opinion, written by Chief Justice John G. Roberts on behalf of the court’s five more conservative members, said that Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia had recently enacted laws similar to the one at issue in the case.

The decision did not directly address a more recent Arizona law that gives the police greater authority to check the immigration status of people they stop.

The United States Court of Appeals for the Ninth Circuit blocked enforcement of that law in April, and the case may reach the Supreme Court soon.

The challenge to the Arizona law that was the subject of Thursday’s decision was brought by a coalition of business and civil liberties groups, with support from the Obama administration.

They said the law in question, the Legal Arizona Workers Act, conflicted with federal immigration policy.

The act was signed into law in 2007 by Janet Napolitano, a Democrat who was then the state’s governor. Ms. Napolitano is now secretary of the Department of Homeland Security.

The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”

The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”

Chief Justice Roberts wrote that the word “licensing” should be read broadly to allow states to supplement federal efforts to prevent the hiring of illegal workers. His decision was joined by Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and, for the most part, Clarence Thomas.

Peter J. Spiro, who teaches immigration law at Temple University, said the majority’s broad reading would be consequential. “In some ways, this becomes an exception through which states can drive a truck,” he said. “It’s definitely going to embolden anti-immigration constituencies to work through state capitals.”

There is reason to think that those constituencies will meet with some success, judging from the fact that 13 states filed a brief supporting Arizona.

But Robin S. Conrad, a lawyer with the U.S. Chamber of Commerce’s litigation unit, said in a statement that “the decision does not give states or local governments a blank check to pass any and every immigration law” and that only state laws consistent with the federal one were permissible. The Chamber of Commerce was a plaintiff in the suit.

Ms. Conrad added that “businesses from Main Street to Wall Street are overwhelmed by a cacophony of conflicting state and local immigration legislation” and that Congress should bring order to the area.

Cecillia D. Wang, a lawyer with the American Civil Liberties Union’s Immigrants’ Rights Project, also urged a cautious reading of the decision, saying that it was narrowly tied to the Arizona law. The A.C.L.U. was part of the odd-bedfellows coalition that had challenged the law.

Jay Sekulow, a lawyer with the American Center for Law and Justice, a conservative public interest law firm that filed a brief urging the court to uphold the law, said the ruling was “a victory for Arizona and other states” that “provides a realistic roadmap” for enacting legislation that does not run afoul of the federal law.

Justice Stephen G. Breyer, in a dissent joined by Justice Ruth Bader Ginsburg, said the word “licensing” in the federal law should be read narrowly to mean “employment-related licensing systems” and not all licenses. “Why not an auto licensing law?” he asked of the majority’s interpretation. “Why not a dog licensing law?”

Chief Justice Roberts responded that Congress could easily have limited the phrase had it wanted to. “If we are asking questions,” he added, “a more telling one may be why, if Congress had intended such limited exceptions to its prohibition on state sanctions, it did not simply say so, instead of excepting ‘licensing and similar laws’ generally?”

Chief Justice Roberts wrote that the Arizona law was a measured response to real problems and that “licensing sanctions are imposed only when an employer’s conduct fully justifies them.”

He added that there was no reason to fear that the state law would lead to discrimination against Hispanics who were in the United States lawfully.

“The most rational path for employers,” the chief justice wrote, “is to obey the law — both the law barring the employment of unauthorized aliens and the law prohibiting discrimination — and there is no reason to suppose that Arizona employers will choose not to do so.”

But Justice Breyer said the state law disrupted a carefully calculated balance between competing Congressional goals and that it “seriously threatens the federal act’s antidiscrimination objectives.” The state law increased penalties for hiring illegal workers, he said, but it left “the other side of the punishment balance — the antidiscrimination side — unchanged.”

The decision, Chamber of Commerce v. Whiting, No. 09-115, also upheld a second aspect of the Arizona law, this one making mandatory an otherwise voluntary federal program, E-Verify, that allows employers to validate whether potential employees are authorized to work.

In his dissent, Justice Breyer said it was a mistake to require use of a “pilot program” that was “prone to error.”

Justice Sonia Sotomayor wrote a separate dissent. Justice Elena Kagan recused herself from the case because she had worked on it as United States solicitor general.

“I cannot believe,” she wrote, “that Congress intended for the 50 states and countless localities to implement their own distinct enforcement and adjudication procedures for deciding whether employers have employed unauthorized aliens.”