NEW INDIAN GOVERNMENT RULE REQUIRING RENUNCIATION OF INDIAN CITIZENSHIP AND SURRENDER OF INDIAN PASSPORTS OUTRAGES OVERSEAS INDIANS

By Cyrus D. Mehta

The new rules requiring overseas Indians to renounce Indian citizenship and surrender the Indian passport after they have taken up the citizenship of another country misinterpret the provisions of the Indian Citizenship Act, 1955. The guidance, including Frequently Asked Questions, can be found on the website of the Indian Consulate in New York, http://www.indiacgny.org/php/showHighLightDet.php?h_id=138&key.

According to the guidance, the Indian passport must be surrendered within 90 days of US naturalization even if the US passport is obtained later. A fee of $175 has been imposed to surrender the Indian passport. Additional monetary penalties are imposed on those who failed to surrender the passport within three years of acquiring US citizenship or for travelling on the Indian passport or applying for its reissuance after US citizenship. The new rules are especially harsh on those who may have obtained US citizenship many decades ago and who may have lost their Indian passports. An applicant who has lost, damaged or surrendered his or her Indian passport to a foreign government must furnish certified copies of the following documents:

1. Details of last held Indian passport (Passport No., Date of Issue & Place of issue). The onus of providing details rest on the applicant.

2. Official documents submitted to authorities of new country at the time of obtaining citizenship/naturalization & documents used for entry such as US Form I -130.

3. Notarized letter explaining reasons for loss.

4. Police report.

Failure to comply with the surrender policy will likely deprive a person of Indian origin to obtain an Indian visa, an OCI/PIO card or other consular services.

The provision for termination of Indian citizenship is separate and distinct from the provision for making a declaration of renunciation. While renunciation of citizenship is covered in Section 8 of the Citizenship Act 1955 and has to be applied on a prescribed form by a citizen of India, automatic termination of citizenship, which occurs when one takes up the citizenship of another country, is covered under Section 9 and requires no formal application to the Indian government.

It is clear that a person cannot use the Indian passport to travel when he or she becomes a US citizen as Indian citizenship has automatically terminated under Section 9. There may also probably be a basis for establishing rules requiring surrender of the passport that has been rendered invalid under Section 9, although it is unfair to penalize a person for failing to surrender the passport when there was no established procedure to do so prior to the recent guidance. However, the Surrender Form, http://www.indiacgny.org/UserFiles/Renunciation%20Form(2).pdf, requiring renunciation of Indian citizenship, does not make sense. One cannot renounce citizenship when it has ceased to exist. Under Section 9, Indian citizenship was automatically terminated when the person took up the citizenship of another country. On the other hand, Section 8 provides for a citizen of India to renounce Indian citizenship, and it should be noted that the words “who is also a citizen or national of another country” were deleted from Section 8 by Act 6 of 2004. Thus, a person who is no longer a citizen of India cannot renounce Indian citizenship.

Rule 13 of the Passport Rules, 1980 states that “[a] person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him.” Rule 13 further states, “Provided that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.” Section 12 (3) of the Passport Act, 1967 states that “[w]hoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”

This rule, which the Indian government appears to be relying on, is ambiguous and appears to apply more readily to one who holds a valid Indian passport and is applying for another, rather than one who ceases to have a valid Indian passport by operation of Section 9 of the Citizenship Act and has been issued a US passport. In any event, the Indian consulates in the US never had a formal procedure for surrendering a passport until the recent guidance. Even when a person applied for the OCI card and handed in the Indian passport with the intention to surrender the document, the Indian Consulate merely cancelled it. We are now told that such a cancellation will not be considered a valid surrender of the Indian passport, and a person who in good faith handed in the Indian passport earlier will have to pay additional penalties above the $175 basic fee for surrender.

It is important that the Indian government continues to maintain goodwill with the overseas Indian community. The new rules merely antagonize the community and there is absolutely no need for this. There surely is a better way to implement a surrender policy of invalid Indian passports on a prospective basis, without also requiring renunciation, rather than the clumsy and arbitrary way it has been handled so far. The Global Organization of People of Indian Origin has launched a campaign requesting the government to reconsider the retroactive enforcement of the new rule, http://www.gopio.net/news_052510.htm.

(The author thanks Ramya Mahesh, associate at Little & Co., Advocates and Solicitors, Mumbai, India, for her invaluable assistance)

AN UNCERTAIN TRUMPET: TERRORISM AND LOSS OF AMERICAN CITIZENSHIP

By Gary Endelman and Cyrus D. Mehta

After the foiling of the plot of would be Times Square bomber in New York on May 1, 2010, Faisal Shahzad, and the terrorism inspired through the preachings of Anwar al-Awlaki, an American citizen operating out of Yemen, there have been calls to strip Americans of their citizenship if suspected to have ties with terrorist organizations. The urge to strip citizenship is nothing new. Even shortly after the founding of the nation, there was concern about the status of those who had remained loyal to the British during the Revolution. And until the latter part of the 20th century, it was not uncommon for the State Department to strip Americans of their citizenship if they voted in a foreign election or took up the citizenship of a foreign country.

Shortly following the heels of the Times Square incident in New York, Senators Lieberman and Brown have proposed a bill, the Terrorist Expatriation Act, which would expand Section 349 of the Immigration and Nationality Act. Section 349 provides for loss of US nationality or citizenship for various expatriating acts. Under Section 349, a person can lose citizenship, among other things, for obtaining naturalization in a foreign state, entering the armed forces of a foreign state as an officer or if such armed forces are in hostilities against the United States, obtaining employment in the government of a foreign state after acquiring the nationality of that foreign state or making a formal renunciation of nationality before a consular officer. Section 349 also provides for loss of nationality if one is convicted of treason or related subversive acts. While Section 349 provides very broad grounds for expatriation, it requires that the individual voluntary perform these expatriating acts “with the intention of relinquishing United States nationality.”

Senators Liberman and Brown, in their proposed Terrorist Expatriation Act, http://lieberman.senate.gov/assets/pdf/TEA_full.pdf, add expatriating acts such as providing material support or resources to a foreign terrorist organization (as designated by the State Department) or engaging in purposefully and materially supporting hostilities against the United States or purposefully and materially engaging in supporting hostilities against any country that is directly engaged with the United States in hostilities engaged by the United States. Since the Senators proposed their bill, most from the left and right of the political spectrum have been critical, including no less than conservative commentator David Frum, http://tiny.cc/g29bn

Why should the Lieberman-Brown proposal trouble all of us even though polls show that it is supported by a majority of Americans? Some will argue that it adds an additional expatriating ground to a statute that has been on the books for a very long time. Moreover, this statute, Section 349, still requires that the government bears the burden through a preponderance of evidence that the expatriating act was committed with the intention of relinquishing United States nationality. So what’s the fuss about especially when the expansion of Section 349 is supposed to protect us against terrorists? Supporters of such proposals must constantly be reminded of a seminal Supreme Court decision, Afroyim v. Rusk, 387 U.S. 253 (1967), which involved a challenge by an American who had been expatriated because he voted in a foreign election. Justice Black who wrote the majority opinion held that Congress does not have any power, express or implied, to take away an American citizen’s citizenship without his assent. The majority essentially rested on the expansive protection in the Fourteenth Amendment:

We hold that Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color or race. Our holding does no more than to give this citizen that which is his own, a constitutional right to remain in a free country unless he voluntarily relinquishes that citizenship.

Id. at 268. Indeed, prior to Afroyim, and a subsequent decision, Vance v. Terrazas, 444 U.S. 253 (1980), Section 349 was broader, and it was only in 1986 that Congress amended the statute to include a demonstration by the government that the expatriating acts within were performed “with the intention of relinquishing United States nationality.” However, notwithstanding this limitation, Section 349 is still broad because it does not require any administrative or judicial action. An American citizen who applies for a renewal of his or her passport overseas at a consulate can be prevented from doing so if suspected of performing one of the enumerated expatriating acts under Section 349. Thus, if Senator Lieberman’s proposal took effect, one suspected of providing material support or resources to a foreign terrorist organization would be stripped of United States citizenship through a finding by a junior consular official. This might be the case even if a doctor gave emergency medical assistance to a dying terrorist or if a grandmother unwittingly provided food to a group of people who belonged to a terrorist organization after they knocked on her door. Indeed, someone like Dr. Samuel Mudd who treated John Wikes Booth’s broken leg after the assassination of President Lincoln and who was ultimately pardoned, http://en.wikipedia.org/wiki/Samuel_Mudd, could potentially lose citizenship if he were to treat a terrorist today. Moreover, it could also snare a lawyer who provided legal advice to a terrorist organization on how to promote its political agenda through peaceful means. Of course, the person stripped of citizenship could still seek administrative review and have access to the courts, but the Lieberman-Brown proposals would give broad leeway to the government official to determine that there has been a loss of citizenship first before any recourse can be taken. Another constitutional objection, actually two of them , to the Lieberman-Brown proposal are : (1) one can lose citizenship status for taking action to the detriment not of the United States itself but to an ally of the United States. We know of no other instance where United States citizenship can be lost by action taken against another country;(2) the well-settled doctrine of void for vagueness. What is meant by "hostilities"? A "conflict subject to the laws of war" the concept of "conflict" is nowhere defined; which "laws of war" would apply and are there "conflicts" that would NOT be so subject?


We do not know how it would be possible for the United States government to prove that anyone provided material support to alleged terrorist activities with the intention of giving up United States citizenship as opposed to viewing such action as a protest against specific policies of the United States government. This is not, using the gloss to Afroyim that Justice White provided in Terrazas, a "fair inference from proven conduct" but goes way beyond it. It eliminates via the backdoor the intent requirement from INA 349 expatriation test and seeks to return the law of expatriation to where it was before Afroyim so that the decisions on loss of citizenship become an issue to be decided not by the intent of the citizen but by the government in its conduct of US foreign policy, a return, in other words, to proposition rightly criticized by Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, namely that "citizenship is not a license that expires upon misbehavior." Interestingly, the high water mark of the idea that loss of citizenship can be decided by the government without reference to the intent of the citizenship as an aspect of foreign policy, Perez v.Brownell, 356 U.S. 44, involved voting in a Mexican election - the very act that the Court in Afroyim found insufficient, which in that case involved voting in an Israeli election. What the Liebermann-Brown proposal does is to equate an expression of political opinion through material support of a terrorist organization, even if considered criminal conduct, into an intent to expatriate.

We further remind the supporters of the Lieberman-Brown bill that, when the loss of citizenship is at issue, "a statute which attaches such a penalty to certain conduct should be construed strictly to avoid an imposition which goes beyond the manifest intent of Congress." In re Rego, 289 F.2d 174, 176 (3rd Cir. 1966) (citing United States v. Minker, 350 US 179 (1956)). The involuntary deprivation of citizenship deprives one of "all that makes life worth living." Ng Fung Ho. v. White, 259 US 276, 284 (1922). When arising under, and protected by, the Fourteenth Amendment, US citizenship is a condition or status "which a citizen keeps unless he voluntarily relinquishes it." Afroyim v. Rusk, 387 US 253, 262 (1967). The reason for such a rule derives from the fundamental truth that, as Mr.Justice Black so eloquently articulated it, "in our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship." Id. at 257, See also Nishikawa v. Dulles, 356 US 129, 138-139 (1958) (Black, J.). The whole point of Vance v. Terrazas is that, without more, the voluntary performance of a statutorily-designating expatriating act is not sufficient to cause or justify an involuntary loss of US citizenship. For Danny Terrazas to lose his US citizenship it was not enough for him to swear allegiance to Mexico to avoid conscription; Uncle Sam also had to prove that he "also intended to relinquish his citizenship." Vance v. Terrazas, 444 US 252, 261 (1980) .While it is undeniably true, as made clear in INS Interpretation 349.4(b) that service in the armed forces of a foreign state then engaged in hostilities against the USA is "highly persuasive evidence of the intention to relinquish United States citizenship required for expatriation under the Afroyim principle," how much less probative of such an intent is non-combatant support in the absence of any declaration of war and outside the context of formal military combatants.

None of the expatriating acts in the Liberman-Brown proposal first require a conviction. Indeed, a somewhat parallel expatriating provision, Section 349(a)(7), requires a conviction under 18 USC Sections 2383, 2384 and 2385 relating to acts of treason or attempting to overthrow the United States government by force or for bearing arms against the United States. And even after the conviction, the government must demonstrate that there was an intention on the part of the perpetrator of such subversive acts to relinquish United States nationality. There is no reported case of a person convicted under any of the above provisions being found to have expatriated himself or herself. Even a bill proposed in the Israeli Knesset will strip a person of Israeli citizenship after being convicted of terrorist activity or espionage on behalf of a terrorist organization although it does not require an intent to relinquish such citizenship, http://tiny.cc/6ii58. The proposed bill of Senators Lieberman and Brown, will make expatriation easier, thus violating the protection of the Fourteenth Amendment, as enunciated in Afroyim and many other Supreme Court decisions, which will only further erode the rights of American citizens. Our constitution protects the citizenship of law abiding and criminal alike. Other countries will also be tempted to pass similar measures to strip persons of citizenship on broad terrorism related grounds in a post 9/11 world, but the sponsors of such potential laws must be reminded that citizenship stripping provisions will not dissuade terrorism, and will instead, ultimately undermine the rights of their own citizens.

Finally, international law also rejects statelessness and there exists a UN Convention on the Reduction of Statelessness, http://www.unhcr.org/refworld/pdfid/3ae6b39620.pdf, which sets forth narrow grounds under which a person can be stripped of citizenship as well as the ability to seek a hearing in case of such an eventuality. When a citizen is stripped of citizenship, it results in statelessness, if he or she does not have another nationality. As the nation state has become the primary vehicle for defining political identity, statelessness has come to mean a reduction to anonymity and a consequent inability to express or protect the personal freedoms basic to political life. It is the ultimate exile. Governments have universally abhorred the possibility of statelessness. Even Chief Justice Warren married this abhorrence with his theory that the Fourteenth Amendment deprived Congress of the power to denationalize in Trop v. Dulles, which was then rejected in several Supreme Court cases but ultimately became the majority view in the Afroyim case. In Justice Warren’s view, denationalization constituted cruel and unusual punishment in violation of the Eight Amendment because it resulted in statelessness.

Citizenship is the most precious right under United States law. What if the Lieberman bill becomes law? What then? These cases demand an attorney’s best effort. Learn the facts, know the law and work hard for your client. Do not necessarily accept the interpretation advanced by the State Department. Always remember the bottom line: citizenship is not lost by ambiguity or inaction. There are few victories you will savor more than preventing or reversing a loss of citizenship determination.

STUDY SHOWS THAT H-1B AND L-1 WORKERS ARE PAID HIGHER WAGES THAN THEIR US-BORN COUNTERPARTS

Here is a refreshing new study on H-1B wages. It is refreshing because unlike most other studies that take pains to show that H-1B workers are paid less than US workers and depress the labor market, this one by Professors Lucas and Mithas of the University of Maryland’s Business School demonstrates quite the opposite. H-1B and L visa workers in the IT Industry were paid 6.9% more than their American counterparts, and green card holders took home more than 12.9% than their American counterparts. This study confirms what we immigration lawyers have always known - that US employers seek out workers on H-1B and L visas because they are really good and not because they can get away by paying them cheaply. We also know that employers are not going to go through the hoops and hurdles of filing an H-1B or L visa petition, pay filing and attorney fees, take pains to comply with all of the complex regulatory requirements (including paying the prevailing wage for H-1B workers and those being sponsored for green cards through labor certification), and respond to burdensome requests for evidence, unless they believed in the worth of this foreign worker. Then, sponsoring this same person for a green card through the onerous labor certification process is even more difficult. Of course, opponents of the H-1B and L programs such as Ron Hira will continue to gripe and poke holes at the study, as the article in CIO suggests, but I am glad that our anecdotal experience has been backed up by a solid peer reviewed academic study. Hopefully, USCIS officials and Congressional folks will also read this study, and refrain from trying to restrict the H-1B program through burdensome memos, like the January 8, 2010 Neufeld Memo, or pass legislation to restrict these visas like Senators Grassley, Durbin and Sanders have been doing.

http://www.cio.com/article/594381/H_1B_Visa_Holders_Earn_More_Than_U.S._Born_IT_Professionals_Study_Claims


H-1B Visa Holders Earn More Than U.S.-Born IT Professionals, Study Claims
– Stephanie Overby, CIO
May 20, 2010

One of the biggest complaints about the federal government's H-1B and L-1 visa programs is that they could be used by corporations to hire skilled workers born outside the U.S. at wages lower than the U.S. market rate. Indeed, anti-H-1B visa activists say the program depresses American IT workers' salaries and robs them of jobs.

But new research from the University of Maryland seems to contradict anti-H-1B visa activists' claims about the immigration program's impact on American wages. In fact, the research suggests that foreign-born IT professionals with temporary skilled worker visas actually earn more than their American counterparts, not less.

Hank Lucas, professor of information systems at the University of Maryland's Robert H. Smith School of Business, and assistant professor Sunil Mithas examined the effect of immigration policies on IT salaries using data from online salary surveys conducted from 2000 to 2005 by InformationWeek and management consultancy Hewitt Associates.

After adjusting for educational qualifications, work experience, and other individual characteristics, Lucas and Mithas found that IT professionals without U.S. citizenship earned 8.9 percent more than American citizens. Tech workers on temporary visas, such as the H-1B and L-1, were paid 6.8 percent more than those with U.S. citizenship, and green card holders took home 12.9 percent more than their American-born counterparts, according to Lucas' and Mithas' research, published this month by the Institute for Operations Research and the Management Sciences.

The professors say restrictive visa policies resulted in even higher salary premiums. In years when applications exceeded the annual caps for H-1B visas, salaries for all non-U.S. citizen IT workers—that is, visa or green card recipients—rose relative to the salaries of American-born IT professionals, say Lucas and Mithas.

Mithas says the study was driven by the lack of compelling data around claims that foreign-born IT professionals are taking away jobs from American workers. "Much of the immigration debate in this country ignores skill levels," says Lucas, adding that the influx of non-U.S. citizens has a much different impact on job availability and wages for unskilled labor than it does for skilled workers. U.S.-born citizens and foreign workers can potentially benefit from an influx of skilled workers, Lucas says.

H-1B Salary Survey Ignites Controversy

The Lucas-Mithas research deviates from the findings of other studies investigating the effect of temporary visa programs on the salaries of U.S. IT professionals. According to Lucas and Mithas, H-1B visa holders earned an average of $75,358 from 2000 to 2003, compared with the average U.S. citizen's salary of $66,836. (The InformationWeek survey did not ask about visa status in 2004 and 2005). But according to the U.S. Citizenship and Immigration Service (USCIS), the median salary for H-1B visa holders in computing professions during the 2000 to 2003 period was just over $50,000.

"It [seems]strange to me that the authors would depend on sampled data when we have the whole census of new H-1B recipients' salaries reported [by] the USCIS, at least in aggregate terms," says Ron Hira, associate professor of public policy at the Rochester Institute of Technology. "For computing occupations those data show low wages relative to Bureau of Labor Statistics wages for Americans. The median salary for new H-1Bs is comparable to the entry-level wages for freshly minted bachelors in computer science, as reported by the National Association of Colleges & Employers. So half the new H-1Bs are being paid at- or below entry-level wages."

Lucas and Mithas say the USCIS and BLS numbers aren't granular enough to make meaningful comparisons. "You don't get a good sense of who these people are, what is their educational background, how long have they been in IT, what industry are they working in," says Mithas. "If you don't have data at an individual level, you don't know if you're comparing apples to apples."
Hira suggests there may be a self-selection bias at play when using a sample population. The data Lucas and Mithas used comes from 50,000 IT professionals, including 809 temporary visa holders, who opted to participate in an online salary survey. The researchers say the overall sample and sample of non-U.S. citizen foreign-born IT professionals in their study is reasonably representative of the U.S. population.

While those numbers may line up, it's unlikely that H-1B or L-1 grantees who depend on their employers for their visas and who earn lower than average wages would participate in such a survey, says Hira. "The [Lucas-Mithas] report may be able to control for some additional factors that affect wages, but there is no doubting the USCIS characteristics data ," says Hira. "It is a census, not a sample."

Lucas admits that selection bias could be a factor in any survey, but he remains confident in his data. "In situations like this, there's always the possibility for the sample not to be truly random," he says. "But I feel more comfortable with this survey with 50,000 respondents than I would if we did a random sample of a couple hundred IT professionals on our own."

Why Corporations Pay More for H-1Bs

Lucas and Mithas say their research proves that corporations use foreign-born IT professionals as a complement to, not as a cheaper substitute for, their American workforce. But the data does not provide any explanations for why employers would pay non-citizen IT workers more.
Lucas and Mithas have their own theories. For one, they think companies recruit foreign IT professionals for skills or expertise that they can't get from American workers, whether it's a stronger work ethic, multi-cultural experience, or willingness to travel.

"We were searching for an explanation, and it wasn't education or anything we could measure. So it had to be something intangible, like how aggressive you are or how much of a risk taker," says Lucas. "I'd have to say it's motivation. You have to be motivated to break out of the rut you're in, get out of the city you were born in, go to another country and work in IT."

Hira is not buying it. "There's no doubt in my mind that, in general, H-1B workers are underpaid. That's why the offshore outsourcing majors rely almost exclusively on H-1Bs rather than hiring Americans," he says. "Plus they are beholden to their employer, making it more difficult for them to protest against poorer [wages and] working conditions."

Hira notes that it's possible the compensation among IT workers on temporary visas falls into two camps: "lots of low wage workers and a good portion of high wage workers."

B. Lindsay Lowell, director of policy studies for Georgetown University's Institute for the Study of International Migration, has been analyzing the salaries of H-1B visa holders in science and technology using data from the National Science Foundation's National Survey of College Graduates. He has found that H-1Bs are paid lower average wages during the first three years of their permitted stay, but once they reapply for another three years or change employers, they may earn more than comparable U.S. citizens.

"The NSCG is an odd survey itself, but it's the largest random survey of graduates in the United States," says Lowell. "The reason we think there's an increase in wages is due to a change in bargaining power on the part of the H-1B. Of course, the first three years still reflects a savings to the employer."

Jacob Funk Kirkegaard, a research fellow at the Peterson Institute for International Economics, examined the Department of Labor's database of labor condition applications (LCAs) and surmised that many large U.S. corporations and educational institutions frequently offer their H-1B recipients salaries substantially above the prevailing U.S. wage. However, he says, "offshoring/outsourcing type IT services providers" aggressively pursue all legally available paths to cut labor costs, including paying foreign workers only the legally mandated 95 percent of the prevailing wage.

"That suggests another point I've long argued, and which is supported in my and others' research," says Lowell, "which is that the H-1B labor market is softly segmented with different types of employers who pay less than the mainstream to the H-1Bs in their employ."
Lucas and Mithas consider the LCA data unreliable because it does not provide actual salary data, and many approved LCAs don't result in the granting of an actual visa.

"There are an awful lot of anecdotes of this or that company bringing in foreign workers and paying them less than the going wage, but you can't take that and generalize it to thousands of people," says Lucas. "We'd love to get inside of Infosys and Accenture and get detailed individual information, but privacy concerns enter into this, and they wouldn't want to give us the information anyway. They're afraid, no matter which way the research comes out, they'll be criticized."

More Research Into H-1B Wages Needed

There are as many as 700,000 temporary high-skill foreign professionals in the United States on visas today (approximately 500,000 in the H-1B category alone), and 60 percent of them work in IT, according to some estimates. More detailed data from USCIS or some other source would go a long way toward settling the debate over whether or not these visa programs depress the wages of IT professionals.

"This may be a good thing for the DHS or GAO to do," says Hira.
© 2010 CXO Media Inc.

WHY LAWYERS AND ALL OTHERS SHOULD BOYCOTT ARIZONA

By Cyrus D. Mehta

I was most proud when the American Immigration Lawyers Association (AILA) decided to pull its Fall conference out of Scottsdale, Arizona within minutes of the passage of Arizona's SB 1070, which makes it a criminal offense for failing to carry alien registration documents, and authorizes law enforcement to determine the immigration status of a person “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States. " In addition, the law mischievously allows any legal resident of Arizona to sue an official or agency within the state that restricts or puts limits on the enforcement of SB 1070.

On the other hand, I am surprised that the ABA plans to go ahead with the Equal Justice Conference in Phoenix, Arizona from May 13-15, despite pressure from participants and speakers, including the New York City Bar Justice Center, http://tiny.cc/q69gc, to move the conference elsewhere. I too was a panelist and withdrew from the EJC, along with speakers from the City Bar, Legal Aid and the Fragomen Law Firm, that would showcase an innovative joint pro bono project between the City Bar Justice Center, AILA and Legal Aid to provide legal assistance to immigrant detainees at the Varick Street Detention Center. In its press release earlier today, http://bit.ly/cwCShz, ABA's President Carolyn Lamm acknowledged that SB 1070 "infringes on civil rights and belies our nation's principles of justice to all," but then went on to state that the EJC brings together various components of the legal community to deliver services to the poor and that "[w]e are not going to allow these efforts to be even temporarily derailed by an unjust law. Doing so would have a further detrimental effect and run contrary to ensuring the principles on which our nation was formed continue to thrive."

Immigration lawyers were the first to realize the draconian consequences of SB 1070, which would ultimately diminish the civil liberties of all persons. Since then, others have also followed with boycotts including the 10,000 strong Alpha Phi Alpha last Friday, which said that it would relocate its convention in July from Phoenix to Las Vegas. Even ABA's partner, National Legal Aid and Defenders Association (NALADA) pulled out of the EJC shortly before the ABA announced that it was forging ahead with the EJC, ttp://www.nlada.org/News/NLADA_News/2010050439586533. While one can understand ABA's concerns about losing money on breached contracts, my e mail that I sent to Mr. Scudder of the ABA and Mr. Saunders of NLADA (which has since pulled out) on April 26, 2010, still expresses my strong conviction that the ABA ought to boycott Arizona. Here is an excerpt:

The most powerful message that the ABA and NLADA can send to Arizona is to boycott the state so that it economically hurts and that they do not use our dollars to fund and implement SB 1070. The boycott will also powerfully reverberate all around the US and the world, and others too will follow your lead and boycott the state. Imagine if fewer or no tourists visit the Grand Canyon. This will truly bring the message home to those who support SB 1070. AILA set a great example by withdrawing its Fall conference from Scottsdale, AZ, and so must the EJC, which is much larger. This is the most powerful way to send a message to law makers and their supporters for enacting such misguided legislation that legalizes racial profiling and forces even US citizens, especially persons of color, to carry their passports out of fear being arrested when they visit the state.

You can negotiate with the Hilton hotel group to host the conference in another state a few weeks or months later. I think ABA also has enough clout to negotiate with airline carriers to grant a credit to those who have already booked their fares. While there will be a price to pay for shifting the conference, the message that it will send will be most powerful and will outweigh the losses from not holding the EJC in Arizona and will, I think, be viewed by historians as a heroic step that turned the tide. Participants can learn how to advocate against SB 1070 and similar measures when the EJC convenes in another state.

The ABA ought to also be more sensitive to conference participants who will soon, once the law takes effect, be vulnerable to arrest under SB 1070. Suppose I came to Arizona, and as a New Yorker is wont to do, crosses the road while the light is still red. I encounter Sheriff Joe Arpaio on the other end of the street who justifiably accuses me of jay walking, but also forms a reasonable suspicion that I am an alien who is unlawfully present in the United States. After all, the most venerable Sheriff Arpaio may have such a basis as I was not born in the United States and may have a foreign appearance, and while I think I speak English very well, may discern an accent that might sound foreign to him. He asks me for a registration document to prove that I am not in unlawful status in his state, which I do not have because I left my US passport at home in New York. He arrests me under SB 1070. And even if SB 1070 may not have taken effect, we all know that the Sheriff already thinks he has inherent authority to arrest me. While I may be able to ultimately sort out this mess, an arrest will traumatize me and my family (including my young children) and disrupt my ability to practice law for some time in New York. I see no need to go to Arizona and risk convulsing my routine existence. It is also ironic that a conference on equal justice is being held in a state that has completely trampled upon the notion of equal justice.

To come to think of it, SB 1070 can lead to absurd results. As David Isaacson points out, a battered spouse who has been granted "deferred action," may technically incur criminal liability for being present in Arizona because 'deferred action" is not really a status (resulting in a registration document), and it is more an exercise of prosecutorial discretion not to pursue her removal for a particular period of time, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201042724527. Similarly, an intracompany transferee of a foreign entity who is a manager of its subsidiary in Arizona may be in jeopardy when an L-1 visa extension has been filed in a timely manner prior to the expiration of the prior L status, and he is yet to receive a receipt notice of such a filing. Moreover, if he wishes to hike into the Grand Canyon, he will need to carry a registration document on him at all times, lest Sheriff Arpaio accosts him on one of the trails. Our manager won't have it just after filing the L visa extension, and the poor fellow may have to carry a copy of the L-1 petition in the hot desert sun, with all 51 exhibits, along with a federal express receipt while on his hike down into the bottom of the Canyon! Even that might confuse the hell out of the Sheriff or one of his subordinates whether a humongous copy of an L visa filing constitutes lawful or unlawful presence in the State of Arizona.

There are many who will disagree. One can legitimately argue that bringing the EJC to Arizona at this juncture makes sense as it would bring advocates together to talk about how to deal with the unjust implementation of the law. Moreover, the virus is spreading and other states may also likely implement copycat laws. Do we move a lawyer's conference each time a state is likely to implement a similar law? 19 groups have already withdrawn or cancelled events in Arizona, http://www.meetings-conventions.com/article_ektid34040.aspx, and a travel trade group has called for an end to all boycotts. In my opinion, pouring money into Arizona's coffers, which may be used to implement SB 1070, does not promote a solution. If one wants to mobilize advocates to deal with the law, the conference need not be in Arizona in this day and age. We hold conferences in certain places because they also provide an opportunity for people to combine it with a vacation, and Arizona undoubtedly fits the bill as one of the world's best vacation spots. Attendees can have fun while learning and supporting the local economy. But Arizona has passed a law that undermines the essential objective of the conference, which is equal justice. Conferences are very different from a march or a protest or a sit in, or lawyers coming in to the state to litigate against SB 1070. This is a conference where people will be spending money and sitting in an air-conditioned posh conference center having discussions, NOT marching through the streets speaking truth to power. Fruitful discussions may be had elsewhere without supporting a state that has passed such an unjust law. The strongest message one can send is to withdraw a conference from the state, and when it affects pocketbooks, those who have passed SB 1070 and those thinking of passing similar laws in other states may give pause and wonder whether it is truly worth it.

(The views in this post are the author's personal views and do not represent the views of any organization that he is associated with)

MAKING COMPREHENSIVE IMMIGRATION REFORM POSSIBLE

By Gary Endelman and Cyrus D. Mehta

In shock at the overtly racist profiling now sanctioned by the State of Arizona, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201042724527, the Democratic Party has turned to comprehensive immigration reform to pay off its political debt to the vast and growing body of Hispanic voters whose allegiance may determine our national electoral map for decades to come. That is why Senators Reid, Durbin, Schumer, Leahy, Feinstein & Menendez this week introduced the aptly named REPAIR proposal otherwise known more completely as the Real Enforcement with Practical Answers for Immigration Reform Act, http://tiny.cc/gnm21. While the prospects for ultimate enactment remain highly uncertain, the commitment by the Democratic Party to moving on CIR is an event of singular importance and one that deserves serious consideration.

This proposal might also be called the “Indian and Chinese PhD Relief Act” because relief for these folks is precisely what it would provide. The per country cap would be lifted for those foreign-born scholars who earned advanced degrees from US universities in science, technology, engineering and mathematics, the now sacrosanct STEM cordon sanitaire. There is the slight matter of having a job offer from a US employer in a related field but that is mere detail. We do not know if these lucky few would be able to apply directly for adjustment of status to lawful permanent resident given the immediate availability of a green card number or whether they would still have to qualify under one of the existing employment categories such as national interest waiver, outstanding researcher, extraordinary ability or on the basis of labor certification. What is clear, however, and perhaps most importantly, is that the tyranny of priority dates under which the prospect of gaining green card status had become a cruel dream has now been overthrown. No longer does the priority date regime have legal relevance. Praise the Lord!

REPAIR also ends the unconscionable injustice of separating lawful permanent residents from their families for years on end by treating such dependents as immediate relatives free of quota restrictions which is precisely what they should and now will be. Bravo Congress! Before we get too excited, we would do well to remember that significant new burdens would cripple the H-1B and L-1 categories. L-1B specialized knowledge workers are limited to one year, though the statute is silent on the possibility of extensions. Numerical caps will be placed on both H and L sponsorship for large employers and all H employers must face both more investigations and more restrictive wage methodology so Wage Levels I and II are likely no longer to be available. The prospect of further government intrusion in the form of more and more frequent H and L investigations also clouds the happy horizon. It is ironic that Congress would select the REPAIR bill as the vehicle to deliver such punishment at the same time as they are making the H1B less relevant. Indeed, if STEM Master’s and PhD graduates from our top schools can apply right away for the green card, and since STEM F-1 visas will now enjoy dual intent, why would anyone in his or her right mind seek H-1B sponsorship at all? Most ominous is the Orwellian sounding “Commission on Employment-Based Immigration” which is invested with the awesome power to declare an immigration emergency and issue Olympian edicts to which a hapless Congress must say “yea” or “neigh”. A concept born in the brain of the AFL-CIO and former Carter Secretary of Labor Ray Marshall, this Commission places all of employment-based immigration on the chopping block, even the priority date relief noted above.

What of those who live in the shadows? For them, REPAIR offers “Lawful Prospective Immigrant” (LPI) status in two phases. First comes the right to live, work and travel for eight years. Then, once all current green card visa backlogs have been cleared out, one can apply for adjustment of status after learning English, mastering civics, paying back taxes with penalties, registering for Selective Service and passing security checks. Glad the rest of us don’t have to do all that! . How will the magic of backlog elimination weave its spell? Well, a massive infusion of new numbers on the family side of the ledger should help some. What about employment-based waiting lines? Ah, here, REPAIR is strangely silent. What are we to assume from this? Will LPI adjustments take precedence over EB-3 cases where the employer has demonstrated the absence of qualified, willing and available US workers? Will they come ahead of EB-2 applicants from China or India whose work has been found to be in the national interest? Congress should step up to the plate and provide the same green card relief on the employment side of the ledger. The fact that REPAIR does not do that once again illustrates the pervasive yet unspoken belief that family migration is worthy of our compassionate concern while employment migration has no claim on our conscience or our sense of national priorities.

If Congress does not do the right thing, what then? That is where executive fiat can help make CIR possible in two key ways. First, as we have discussed at length previously ( Tyranny of Priority Dates, http://scr.bi/i0Lqkz) the USCIS can largely eliminate EB backlogs by eliminating family members from the cap, an approach that can be supported by textual reinterpretation and legislative history. Second, the very notion of visa availability can be redefined to allow for provisional submissions that can be advanced in the absence of current priority dates following I-140 approval. If we allow those who have been here without color of law to apply for green cards as lawful prospective immigrants, which we strongly support, there is no reason in law or logic to prevent those who are in legal status from also prospectively seeking to get LPR status. Allowing adjustment of status applications for EB beneficiaries after I 140 approval but conditioning final approval of same upon a current priority date is the perfect book-end to the LPI program, . It is something that can be done entirely through Executive Fiat and the effect of which would be to wipe away the EB backlog which very presence could indefinitely delay the implementation of the LPI initiative. What’s not to like? Now that Congress has taken the first tentative steps on the road to real immigration reform, why not use all the weapons at our disposal to make it happen?