Robert Groban Comments on Immigration Legislation, Regulations

BNA's Daily Labor Report

Robert Groban, Chair of the Immigration Practice, was featured in an article titled "Enforcement Focus to Steer Immigration Legislation, Regulations in 2011."

Groban predicted that congressional focus on enforcement measures paired with the public's view that there is little need for immigrant workers during a time of high unemployment will influence the adjudication policies adopted by Homeland Security's U.S. Citizenship and Immigration Services. "This enforcement environment affects the USCIS as it considers whether foreign employees satisfy the temporary or permanent visa classifications for which they are sponsored," said Groban.

Groban said that he is "cautiously optimistic" about the appointment of Gallegly to chair the Immigration Subcommittee. "Gallegly is familiar with immigration issues from his work chairing a task force on immigration reform in 1995," and "while reasonable minds may disagree on solutions, the important thing is to have reasonable minds discussing solutions," he said.

Groban said he hopes Gallegly "will be able to tone down the rhetoric and work with Democrats to accomplish needed reforms."

Groban agreed that the prospects for a comprehensive immigration bill in 2011 are dim, and piecemeal solutions are also a long shot.

"We could see some progress on discrete immigration benefit provisions, such as on the DREAM Act and expanding the H-18 classification, as part of the overall compromise on enforcement," Groban agreed.

"I feel the pieces are in place for enforcement legislation that includes selected benefits, but this will depend too much on the political process," Groban said. "Also, with budget, health care, and other national issues dominating the legislative agenda, and with a new party in power in the House, it may be too much to expect meaningful reform in 2011," he said.

Groban agreed that the RFE project and the issuance of more AAO precedential decisions are positive developments, but said USCIS has not gone far enough to address additional underlying adjudication concerns.

While review of RFE templates and the issuance of more AAO precedential decisions "may help" employment-focused immigration attorneys, those actions alone do not "address the systematic problems that make the USCIS service centers and appeal process so problematic as far as employment petitions are concerned," Groban said.

"The overwhelming majority of employment-based temporary or permanent petitions should not trigger the need for complicated RFEs or AAO review," he added.

According to Groban, in adjudicating employment-based petitions USCIS "appears to be reacting more to public concern over immigration than attempting to implement legislative intent in these areas," a problem that is "compounded by the overall lack of understanding about the complicated business, financial or technical issues that may lie at the heart of many of these cases."

"What most employers want is consistency and predictability in the adjudication process and a commitment by USCIS not to unilaterally and unexpectedly change the rules regulating eligibility standards for visa classifications via the adjudication process," Groban said.

In 2011, he expects that this is unlikely to change, because "employers still cannot anticipate the USCIS position in too many cases and thus are reluctant" to apply for employment visas, Groban said.

"This acts as a drag on the economy" because many multinational employers "find it more hospitable to expand operations in other countries where the immigration laws are more conducive" to bringing in skilled foreign workers, he said.

In addition, immigration attorneys have found that there are differing standards for adjudication between USCIS service centers, which ultimately is a "training and development issue" that the agency must address, Groban said.

"By running the [adjudication] process as if every employer was trying to perpetrate a fraud, the USCIS places unnecessary obstacles in the path of international commerce when it should be using all means legally available to support economic expansion," he added.

"I think that most employers are ready to incorporate E-Verify into their operations if that becomes mandatory," Groban said. "It does not seem to have been a major issue in the states that already require its use or with government contractors who must enroll to qualify for federal and some state contracts," he said.

However, Groban acknowledged that there may be implementation problems and 'hard choices" may arise for employers if they find that employees are rejected by the E-Verity system as not work - authorized.

Some electronic Form I-9 vendors have not established programs compatible with E-Verify, which could also pose a problem, Groban said. "The lead time for such a mandate will be extremely important" to give employers a chance to transition to the program, he said.

The Obama administration's "continuing focus on Form I-9 paperwork will force employers to make immigration compliance a meaningful part of their overall risk management programs," Groban said.

Groban expressed skepticism about the impact of the new rule, because "USCIS has had a poor history in this area, and I do not feel that the new Form I-9 rules will materially help."

USCIS "continually changes the documents that are acceptable for Form I-9 verification but updates on the forms and instruction booklets take considerable time," making any new rule "out of date shortly after promulgation," Groban explained.

In addition, "the fewer the number of documents that USCIS accepts for Form I-9 purposes, the closer we come to a national identity card," which is a "politically sensitive," and a "practically difficult" proposition because a fraud resistant card would be difficult to create, he said.