Executive Branch tightens up legal immigration


The Customs and Immigration Service has been tightening up the flow of legal immigration. This from Bernard Wolfsdorf, past national president of the 14,000-member American Immigration Lawyers Association (AILA), Joseph Barnett, both of Wolfsdorf Rosenthal LLP:

“USCIS is now issuing lengthy detailed requests for evidence contesting every issue and requiring unreasonable quantities of proof in regard to any application for an immigrant or non-immigrant visa or adjustment of status.

“USCIS is adjudicating nonimmigrant visa applications with the goal to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” Immigration petitions should include an argument on how the issuance of a visa or other immigration benefit promotes these policy goals.”

The Wall Street Journal adds, “H-1B applications for positions at the lowest pay level are getting particular scrutiny, with the government questioning whether the foreigner holds required specialized skills, according to several immigration attorneys. A directive from the agency specifically questions whether a computer programmer is a specialty occupation that qualifies for the visa. Many of these applications are being denied, attorneys say.”

The WSJ cites the following other changes in administrative practice:

*Eliminate a provision that spouses of H-1B workers have the right to work.

*Kill the Optional Practical Training program, which allows foreign graduates from U.S. colleges in science and technology an extra two years of work authorization, giving them time to win an H-1B visa.

*USCIS directed last month that adjudicators no longer pay “deference” to past determinations for renewal applications. This means an applicant’s past approval won’t carry any weight if he or she applies for a renewal.

*The agency is conducting more applicant interviews, which critics say slows the system. The agency spokesman said this process will ramp up over several years and is needed to detect fraud and make accurate decisions.

*In the spring, the agency suspended premium processing, which allowed for fast-track consideration to those who paid an extra fee. This option wasn’t resumed until October, meaning many workers who qualified for a coveted H-1B visa had to wait months for a decision.

Biggest settlement ever for hiring undocumented workers

The government settled in September with a company for $95 million over past used of undocumented workers. This is the largest settlement ever with an employer over illegal employment.

The Trump administration is, in effect, going after employers with the threat of huge fines, and avoiding the worksite raids which, around 2006, caused terrible press. This strategy is consistent with my prior comments that this administration will drive as far as possible to throttle immigration through Executive Branch initiatives that do not require the participation of Congress.

The government’s press release includes: “Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania pleaded guilty today [Sept. 29, 2017] to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

“The $95,000,000.00 recovery, including $80,000,000.00 criminal forfeiture money judgment and $15,000,000.00 in civil payment, represents the largest payment ever levied in an immigration case.

“According to court documents, from 2010 until December 2014, Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, hired and rehired employees in many regions in the United States accepting identification documents it knew to be false and fraudulent. A six-year HSI audit and investigation revealed that the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit. With a motivated work force, including unauthorized aliens willing to be relocated and respond to weather related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market. Asplundh provided all the incentives to managers to skirt immigration law.”

Trump voters and the sharp rise of cultural diversity from nil

Tom Edsall writes about how Trump won many localities which saw their minority populations from virtually zero in the past 15 – 20 years.

“Where are the overwhelmingly white localities experiencing the most rapid rate of minority population growth, although the absolute numbers themselves are small? They are in the part of the nation’s heartland — Wisconsin, Michigan, Ohio, and Pennsylvania — where Trump earned enough Electoral College support to win the presidency even as he lost the popular vote.”

In my own research I have recorded, “For the first 80 years of the 20th Century, immigrants stayed largely along the coasts and the Mexican border. After 1980, the immigrant population rose almost three times and spread into most counties in the country. Sixty-two million people speak a language other than English at home today.”

A study published in 2010 showed that anti-immigration sentiment increased noticeably in communities with relatively rapid in-migration and much faster in these communities when immigration became a national political topic.

The Center for Immigration Studies looked at the foreign-born populations in each county for 1990, 2000 and 2014.

In 1990, one could correctly guess the counties with an immigrant share of at least 5% by estimating what the nation’s county map look liked during Kennedy Presidency: New York City and New Jersey, southern New England, Washington DC, South-Central Florida, Chicago, the three rows of counties along and away from the Mexican border and three counties away, California, and isolated counties bordering Canada. The only concentration that might surprise people are happened in many counties in Washington State.

CIS reported that between 1990 and 2014 the number of counties in which at least a fifth of the population over 17 was foreign born rose from 44 to 152. Now almost all the counties along, west and south of a line from Seattle to Houston have at least a 5% immigrant population. So do many southern and upper Midwest counties. Since 1990, the immigrant share of adults has more than quadrupled in 232 counties (usually starting with very low rates such as 1% to 3%). The Center speculates that resistance to immigration is especially strong in small towns where the foreign-bon population became visible in recent decades.

Georgia’s Stewart County went from under 1% to 23% immigrants. In the ten years from 2000 through 2010, the Hispanic population went from 1.5% to 24%, causing the county to increase its total population for the first time since the 1900 census.

Foreign temp farm workers close to 10% of farm wage workforce

Rural Migration News reports that temporary farm workers have more than doubled in numbers in the past few years, and are approaching 10% of the entire wage workers in farming.

The H-2A program has since 1987 allowed farmers anticipating too few farm workers to apply for certification to employ guest workers. The H-2 program was created in the 1952 Immigration and Nationality Act.

Between the 1950s and the 1990s, most H-2/A workers were Jamaicans who hand cut sugar cane in Florida and picked apples along the eastern seaboard. The number of H-2A jobs certified fell after the Florida sugar cane harvest was mechanized in response to worker suits alleging underpayment of wages. In FY1985, the US Department of Labor certified 20,700 jobs to be filled by then H-2 workers, including 10,000 in sugar cane.

In 2012, when DOL certified 85,248 jobs to be filled by H-2A workers, 5,400 certified employers offered an average 33 weeks of employment for an average 43 hours a week.

Farm employers must pay the Adverse Effect Wage Rate, which is the average hourly earnings of field and livestock workers reported to USDA by farm employers the previous year. AEWRs for 2017 range from $10.38 an hour in the south to $13.79 in the Plains states, above federal and state minimum wages. Farmers would like to end recruitment, housing, and wage requirements.

Since the 2008-09 recession, farmer requests for H-2A workers have increased, and the number of jobs certified to be filled by H-2A workers could top 200,000 jobs in 2017.

Average employment covered by unemployment insurance on US crop farms is almost 900,000, including 560,000 workers hired directly by crop farmers and 331,000 workers brought to farms by crop support services. If 160,000 H-2A workers are employed an average 26 weeks in FY17, they would be equivalent to 80,000 full-time workers, and H-2A workers would be nine percent of all workers employed on crop farms.

Potential DREAMERs – over one million

The Migration Policy Institute has released a report which looks at the original Executive Order creating the deferral for young unauthorized persons who achieve certain personal milestones, and two alternative approaches offered by Republican congressmen. The potential number of covered persons in all cases well exceeds one million persons.

Profile of leader of the Coalition of Immokalee Workers

“Greg Asbed has spent much of his life fighting horrific labor abuses, including slavery. An organizer and human rights strategist, he co-founded the Coalition of Immokalee Workers, a group that pioneered a system for overcoming brutal conditions in American agriculture. Last week, the John D. and Catherine T. MacArthur Foundation awarded Mr. Asbed a genius grant.”

Thus starts an article in the NY Times on an interview with him. The following are excerpts:

“Mr. Asbed’s group, based in Immokalee, Fla., the state’s tomato capital, has reached agreements with Walmart, McDonald’s and a dozen other major buyers of farm products to take part in its Fair Food Program. The companies pay a small premium for each unit of crop they purchase, sometimes referred to in shorthand as a “penny per pound,” and the growers agree to abide by a code of conduct on issues like worker safety and pay, which the premium funds.

Asbed said, “I’m a first-generation Armenian-American. My grandmother moved to Syria from Turkey, but not of her own volition. There was the Armenian genocide; she lost her whole family except for one sister. She managed to survive the genocide by being bought and sold twice by the age of 13 — once to the Kurds, then by the Kurds to an Armenian family, which was my grandfather’s family. I have always felt a certain responsibility, as a bearer of DNA that was forged in the crucible of genocide, to the idea of universal human rights.

I went to Haiti after school and worked for three years with a peasant movement that was trying to build democracy.

My wife was working with farmworkers in Pennsylvania, and she got involved with some Haitian workers who were facing some pretty horrible conditions. They needed a translator, so I got involved. That was the first time I’d actually learned about what happened just beneath the surface of our food system. And it was pretty eye-opening.

There was an opening in Immokalee at the legal services office. We worked in the community down here from 1991 on.

As you started to pull at the thread, became massive — hundreds of people, up and down the East Coast working in forced labor and in unimaginable conditions. That was the extreme — slavery, modern-day forced labor — but generational grinding poverty, and pretty unconscionable labor abuse, was the norm.

It wasn’t something that we could confront face to face. It was actually at the top of the food system. There were these massive fast-food chains and supermarket chains that had an unprecedented level of market power over their suppliers.

So we realized we were going to have to take the conditions that we saw and confront those corporations with those conditions.

Taco Bell’s target market was 18 to 24-year-olds. And 18 to 24-year-olds are people who still believe in justice, still believe change is possible. Students organized what was called the “Boot the Bell” campaign. So they signed to pay the premium and to only buy from growers who comply with the code. That was in 2005. It took four years.

The Florida Tomato Growers Exchange was dead-set against it. There were actually a couple of farms that agreed to sell to Taco Bell, to pass on the “penny per pound.” The F.T.G.E. said that any of its members who participated in the Fair Food Program would be hit with remarkably large fines. Growers stopped participating.

What we did during that time was continue on two fronts. One was continuing to get more and more companies to sign Fair Food agreements, even if the program was halted. That included McDonald’s, Burger King, Subway. On a parallel track, we continued our antislavery work. More and more cases were taken to court, working with federal authorities, and more and more crew leaders were put behind bars. The names of a couple of farms where those workers were came out on the court record.

If we could stop campaigning today and dedicate all our resources to building the program out, extending its protections to tens of thousands more workers, we would prefer that infinitely to having to campaign to get companies to join. Unfortunately, we’re forced to continue campaigning. Some have shifted purchases to places where sexual violence against women is endemic.”

Congress to act by itself on DREAMERS?

A New York Times editorial today notes that, in the face of a hardline, punitive White House position on immigration, Congress could decide in a bi-partisan way to protect the DREAMERs, and set a foundation for more immigration policy-making.

the White House issued its hardline demands on Sunday as a condition for re-installing legal protection for DREAMERs.

Today’s editorial says, “So what can Republicans do? Start by working across the aisle on sensible immigration legislation. That would begin with what got this entire discussion started: a deal to protect the Dreamers. It would not include Mr. Trump’s border wall, a nonstarter for Democrats that Republican budget hawks also oppose.

No matter what the final package looks like, it needs to get to the floor and be put to a vote — which depends on the House speaker, Paul Ryan, and the Senate majority leader, Mitch McConnell, embracing higher principles than fear of their Tea Party rebels. This doesn’t need to be so hard: There’s a sympathetic population that needs immediate help, there are blueprints on the table that might find bipartisan consensus, and there is a ticking clock.”

Trump sets annual refugee cap lower than ever

The White House announced late last week that for Fiscal Year (FY) 2018, beginning Oct. 1, 2017, the United States will only admit a maximum number of 45,000 refugees . This represents the lowest refugee admissions ceiling ever set by the U.S. government, despite record numbers of forced displacement around the world. The UN Refugee Agency estimated 65.6 million people were forcibly displaced at the end of 2016.

This from Royce Murray, Policy Director at the American Immigration Council.

Those visas will be allocated with 19,000 for Africa; 17,500 for the Near East/South Asia; 5,000 for East Asia; and 2,000 for Europe and Central Asia. Latin America and the Caribbean were only allocated 1,500 visas. Unlike years past, there is no “unallocated reserve” of refugee visas which previous administrations routinely authorized to provide flexibility to the U.S. Refugee Program for unexpected refugee flows.

This new refugee cap is a 59 percent reduction in the refugee ceiling set by the Obama administration, who allocated 110,000 visas for refugees in FY 2017. The annual refugee cap since the late 1990s has wavered between about 65,000 and 90,000. The cap has never been below about 65,000 since before 1980.

Senator Grassley (R-IA), the Chairman of the Senate Judiciary Committee, and the ranking member, Senator Feinstein (D-CA) criticized the administration in a joint letter, stating, “We are incredibly frustrated that the annual consultation for refugee admissions, which is required by law, was finalized just one day in advance… It is simply unacceptable to read in the press that the administration had reached its decision on the refugee cap before the mandated meeting with Congress had even been scheduled.”

Immigration behind Trump victory in 2016

Thomas Edsell writes on how immigration was a root cause issue for Trump’s victory. Those communities which went from very little diversity to a lot swung over Trump.

He writes: In Michigan, for instance, exit poll data showed that those who believe immigrants to the United States “hurt the country” voted three to one for Trump. Those who said illegal immigrants should be deported voted for Trump by better than five to one. The same pattern can be seen in exit poll data from Wisconsin, Ohio and Pennsylvania, which, while not part of the Midwest geographically, resembles it politically.

Democratic strategists were unprepared for the depth of the upheaval that shifted the balance of power across the Rust Belt.

Edsell cites these examples of communities in which immigration grew sharply and voters swung from voting Democratic to Trump. He refers to a diversity index which is a measure of race/origin diversity in a locality. Diversity indexes for some states are Michigan 42, Wisconsin 35, Ohio 36, and Pennsylvania at 41, all rank in the bottom twenty — i.e., the least diverse — of the fifty states. The diversity index for the entire country is substantially higher at 63. California 79, Nevada 73, Texas 70, and New York at 70.

Erie County, In 2012, the county backed Obama over Mitt Romney 57.1 to 41.2; four years later, Trump carried the county 48 to Hillary Clinton’s 46.4. From 2000 to 2015, the diversity index for Erie rose from 19 to 29.3. That’s a 54 percent increase, nearly double the national rate of increase, 28.6 percent.

Adams County, Wisconsin, voted for Obama over Romney by 53.9 to 45.1. Last year it backed Trump 58.9 to 37. From 2000 to 2015, the diversity index for Adams County rose from 7 to 21.3, a 204 percent increase. Macomb County, Michigan: 51.3 to 47.3 for Obama; 53.6 to 42 for Trump — its diversity index jumped from 16 in 2000 to 34.5 in 2015, a 116 percent increase.

Ben and Jerry’s agrees to compact with dairy workers

After three years of lobbying and negotiation Ben and Jerry’s agreed with Vermont-based Migrant Justice over a Milk with Dignity pact. In 2014, Migrant Justice began the Milk with Dignity campaign with large corporations, such as Ben & Jerry’s, to promote justice for dairy workers. It is modeled after the Fair Food Program in Florida a program. The agreement includes:

Farmworker-Authored Code of Conduct: Farms in Ben & Jerry’s supply chain must meet the standards defined by farmworkers in wages, scheduling, housing, health and safety, and the right to work free from retaliation;

Farmworker Education: From day one, workers in the program will be educated on their rights under the code of conduct and how to enforce them. Workers will become frontline defenders of their own human rights.

Third Party Monitoring Body: The newly-created Milk with Dignity Standards Council (MDSC) will enforce the agreement by auditing farms’ compliance with the code of conduct, receiving, investigating and resolving worker grievances, and creating improvement plans to address violations. The MDSC will work with farmers and farmworkers in order to problem-solve issues as they arise seeking to improve communication and participation in the workplace. It may suspend a farm from the program if the farm is unwilling to meet the standards in the code of conduct, creating strong market incentives to improve conditions and make workers’ human rights a reality.

Economic relief: Ben & Jerry’s will pay a premium to all participating farms in their supply chain. The premium provides workers with a bonus in each paycheck and serves to offset farms’ costs of compliance with the code of conduct.

Legally-binding Agreement: Ben & Jerry’s has signed a legally-binding agreement that defines the program as a long-term contract enforceable under law.

The agreement with Ben and Jerry’s is modeled after what the Coalition of Immokalee Workers struck with tomato growers in Florida. In 2011, CIW launched the Fair Food Program (FFP), a groundbreaking model for Worker-driven Social Responsibility (WSR) based on a unique partnership among farmworkers, Florida tomato growers, and participating retail buyers, including Subway, Whole Foods, and Walmart. In 2015, the Program expanded into tomatoes in Georgia, South Carolina, North Carolina, Maryland, Virginia and New Jersey, as well as Florida strawberries and peppers.

Under the FFP:

CIW conducts worker-to-worker education sessions, held on-the-farm and on-the-clock, on the new labor standards set forth in the program’s Fair Food Code of Conduct;

The Fair Food Standards Council, a third-party monitor created to ensure compliance with the FFP, conducts regular audits and carries out ongoing complaint investigation and resolution; and

Participating buyers pay a small Fair Food premium which tomato growers pass on to workers as a line-item bonus on their regular paychecks (Between January 2011 and October 2015, $20 million in Fair Food premiums were paid into the Program).