Immigration Law And Procedures Under The Obama Presidency

As the world knows, on January 20, 2009, a new era began in the United States—an era of change, hope and of course many questions. On November 4, when I went to vote, my 13-year-old daughter made it clear that it was so important for her to be part of this historical moment that she stood in line with me at 5:30 AM. If that was not amazing enough—a teenager who was willing to sacrifice sleep to be part of this event—we were not the only ones. I saw young and old alike in line for hours. They were happy to be there and were not bothered by the weather or the length of the lines. We also witnessed a huge increase in the number of people that voted in advance to avoid the lines. I remember hearing from my mother, who resides in northern Florida, that she was amazed by the lines that formed early in the morning and continued till closing. She said it was as if they were giving something away for free--which, when you think about it, was close: people were taking advantage of their freedom of expression...and expressing their desire for change. It was a great testament to the resolve of the American people to usher in this change.

In the evening, I watched the election results with my wife and daughter. When the final results were announced at around 11:00 PM (EST), my mobile began to ring with congratulatory calls. The most amazing call I received was from a French client, who said to me: "We did it, we won?..." This moment touched me since this French client is an nonimmigrant and as such he cannot vote. But he, like so many others around the world, followed this election as if it were their own. Matter of fact, my sister was in Vietnam at that time, and her hotel set up a big-screen TV to see the results live. Who would have thought that in that former war zone they would eagerly welcome the new leader of the free world. I also witnessed a huge number of individuals applying for US Citizenship in early 2008 to ensure that their voice would be heard on election day. And, boy, was it heard--around the world.

Well, the inauguration was a hugely popular and record-setting event. The world was tuned in and we did not disappoint. What a Party! On January 27, 2009, my firm, Epstein Becker & Green, hosted a briefing at the National Press Club, in Washington, DC. During this briefing, our attorneys presented our views on how the Obama presidency will impact our lives in the area of Labor and Employment Law. During the preparation for our panel, I encountered a number of interesting scenarios from the immigration perspective. As are many of you, I am very curious to see how this all shakes out.

During the Bush presidency, the government made enforcement and compliance its mission. We saw a number of ICE raids and the implementation of myriad federal and state laws that followed the protocol of enforcement and compliance.

With the selection of Janet Napolitano to head the Department of Homeland Security, President Obama has reiterated that his administration will continue with the compliance mantra, which I believe will be using a smarter and more humane? approach. President Obama has made clear that employers who are violating the law will be targeted, but at the same time he backs the much-needed Comprehensive Immigration Reform. It will be interesting to see how the son of an immigrant will tackle our broken-down immigration system—a system that he and Secretary Napolitano have stated on numerous occasions is in dire need of major repair. As the Governor of Arizona, Secretary Napolitano enacted the toughest employment sanctions regulations in the nation by mandating the use of the government employment verification system E-Verify. As an aside, President Obama's home state of Illinois has outlawed the use of E-Verify until it is 99% effective. An ironic twist, but evidence that the our immigration system is, indeed, in need of a major overhaul.

However, a few words of caution. This broken-down system is not top priority on the Obama agenda. As we have seen in the last three to four months, we are facing an economic meltdown of epic proportion. The Obama team has been and will continue focusing on this issue and the issues that compound it. I believe that they will take up immigration reform in 2010 or, if we are lucky, by the end of this year. This does not mean that employers should stop paying attention to compliance with the immigration and department of labor regulations. Secretary Napolitano has made it clear that under her watch employers who are in violation of the laws and continue to employ illegal aliens will be targeted and punished to the full extent of the law. And the punishments will not only be of the civil nature (monetary fines) but also criminal. Business owners and their unauthorized employees will continue to face the consequences of their actions.

When my partners and I make presentations to our clients, we always make sure the remind them that compliance with the immigration laws and regulations is an absolute minimum requirement. We live in challenging but exciting times. I believe that we will see positive and well-deserved change in the immigration universe, but we must be patient and remain optimistic.