Louisville attorney Rusty O’Brien, MidSouth chapter chair of the American Immigration Lawyers Association, doesn’t mince words talking about U.S. immigration policy: “Bottom line is, immigration law is broken,” he says.

For O’Brien and other immigration attorneys in Kentucky, the task is to pick up the pieces.

At a time when the number of undocumented immigrants in America has surged to an estimated 10 million, legal residency seekers must navigate an application process that often lasts a decade or more. Employers nationwide and in Kentucky have long complained they cannot legally hire and retain enough foreign workers in either high- or low-skill jobs. And with roughly 500,000 undocumented immigrants crossing into the United States each year, many states are struggling to address the social costs of surging, largely Hispanic immigrant populations.

The laws simply aren’t working as they should, argue many of Kentucky’s immigration lawyers. The result has been a confusing and at times contradictory set of policies that some say has actually spurred further illegal immigration – and have almost certainly created growing demand for attorneys who can navigate the system.

A case in point: When employers approach him with questions about sponsoring a worker’s application for legal residency status, Louisville attorney Jeffrey K. McClain often advises against pursuing the case. Some work-based visa applications carry up to a 12-year wait, he says. “What employer can afford to wait that long for an employee? And yet every employer I talk with – whether it’s a farmer or someone in the service sector or construction industry – says it’s these [undocumented] guys who keep them in business,” says McClain, who practices with Wyatt, Tarrant & Combs, LLP.

And another: Since the mid-1990s, undocumented immigrants who have resided in the United States for more than a year can be legally barred from re-entering the country for up to 10 years if they cross the American border to go back home. But those who are here unlawfully and want to apply for legal residency must return to their home countries in order to do so. That applies even to those who are married to U.S. citizens and have U.S. citizen children, says Cori Hash, an immigration attorney with Lexington’s Maxwell Street Legal Clinic, which offers free or low-cost legal aid to clients on immigration-related issues.

The law “poses an enormous hardship on the U.S. citizen family members who are here in the U.S. waiting for that person [forced out of the country] – who may have been the family caregiver or primary income earner – to return,” she says. Most immigrants are “afraid to leave, because it’s so difficult for them to return,” Hash says.

Fearing imposed deportation during the residency application process, others who are here illegally may opt not to seek legal status at all, preferring instead to “take their chances, not apply and hope that the law changes,” says attorney Robert Rodriguez, who volunteers at Maxwell Street. For these reasons and others, Hash argues that “the laws have created the opposite effect of what they were intended to do. In my opinion, they’ve actually contributed to creating a larger undocumented population in the U.S.”

Laws getting more difficult
The controversy over immigration laws stems from controversy over the cause of illegal immigration itself. Advocates of existing policies say the laws are fine – the problem is they are not being enforced.

For example, the Center for Immigration Studies, a Washington, D.C.-based think tank, reported last year that only three employers were fined for hiring undocumented workers in 2004.

Statistics like that give immigrants little motivation to work with the system, enforcement proponents argue.

But Hash says that misconceptions lead some to “assume that undocumented immigrants are just too lazy” to go through the legal immigration process. “The truth is, it’s just so difficult for people seeking immigrant status. And the laws are becoming harder and harder,” she says.

The Sept. 11 terrorist attacks have compounded the problem. In 2003, immigration control was transferred from the former Immigration and Naturalization Service to a branch of the U.S. Department of Homeland Security. Since 2001, the Bush Administration has tightened the U.S. borders and increased border patrol funding by 60 percent.

Last December, the U.S. House passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, which has been called one of the strictest pieces of immigration legislation in memory. It calls for building a fence along parts of the U.S.-Mexico border, enlisting military enforcement on the border, making unlawful presence in the U.S. a felony (it is currently only a civil offense), and requiring all employers in the country to submit Social Security numbers into a national database to verify the legal status of employees. This month, the Senate is expected to act on its own immigration legislation, and the two bills must later be reconciled before becoming law.

The threat of “terrorism is being used, in my opinion, to tighten up the laws, but I don’t think terrorism is even connected with immigration,” says Martha Deputy, executive director of Bowling Green’s International Center, which since 1979 has offered social and educational services and other assistance to approximately 3,700 refugees and 5,000 immigrants resettling in the Warren County area.

Even before 9/11, Congress had begun enacting a series of laws that toughened immigration policies. Amendments to the Immigration and Naturalization Act since 1996 have made seeking residency status as a spouse of a U.S. citizen much more difficult and have made many nonviolent crimes, such as driving under the influence, deportable offenses.

Attorney Charlie Nett, director of Catholic Charities of Louisville’s Legal Immigration Services office, recalls a case of a client, a legal permanent resident, who was nearly deported when it was discovered that he had registered to vote. He had done so at the insistence of a door-to-door canvasser who mistakenly told him he was eligible to register. When he later submitted his paperwork to apply for citizenship status and presented his voter registration card – an act that could be legally interpreted as impersonating a U.S. citizen, a deportable offense – he was put into deportation proceedings.

Nett eventually convinced the judge that the case was one of misunderstanding, not malicious intent, and his client, who spoke little English, was allowed to stay. But the example illustrates “how complex the laws are, and that even minding your own business on your own front porch, things can befall you” to damage your residency status, Nett says.

Hash sums up the complexities and inconsistencies: “Immigration law itself is not necessarily common sense or logical, or just.”

Attorneys as advocates
The web of regulations and various ways an immigrant can be classified is complex. The criteria differ if the immigrant has relatives who are U.S. citizens, is seeking permanent or temporary status, is a skilled or unskilled laborer, is seeking asylum as a refugee, and so on. Moving through that web can be confounding for an English-speaker, let alone for someone with little or no English background.

That is why working with an immigration attorney is key, says Nett, whose Catholic Charities office provided reduced-fee legal services to more than 2,800 clients last fiscal year. “We’re acting as advocates,” Nett says. “We can work to try to persuade the courts whenever feasible that our clients are deserving and eligible to receive immigration benefits.”

There are 54 attorneys in Kentucky registered as members of the American Immigration Lawyers Association (AILA). Most charge at least a nominal fee, if for nothing else to create a sense of ownership in their clients and keep caseloads at manageable levels.

Because the laws are so complex, “it would not be possible for most of our clients to navigate all these processes by themselves,” says Marilyn Daniel, executive director of the Maxwell Street Legal Clinic, which has helped more than 2,000 clients since 1999.

Daniel practiced corporate counsel for an engineering firm before her retirement, when she began volunteering at the clinic. “I love the people,” she says. “There could never be greater satisfaction than when you can really help someone overcome a problem they’re having in the area of immigration law. We joke that we don’t know any other attorneys who get the tamales and the enchiladas and the candy that we get out of just pure gratitude.”

Immigration and labor
The AILA, which boasts 10,000 members nationwide, recently implemented a grassroots advocacy campaign to push for “comprehensive immigration reform,” says O’Brien, who practices with Louisville’s Law Office of Dennis M. Clare.

Yet immigration reform doesn’t have to be sweeping to be effective, argues Crestwood attorney David Funke, of Kortz & Funke.

“We could successfully reform immigration policy by changing five or six words and a couple of numbers in the current Immigration Act. It could be as easy as that,” Funke says. He suggests one major improvement: Significantly increasing annual levels of employment-based immigration visas offered to enter the United States – particularly for low-skill jobs – would help enable employers to legally hire the workers they need.

A 2005 report by the Pew Hispanic Center, a Washington-based nonpartisan research organization, estimated that nationally more than 20 percent of workers in some lower-skill occupations – such as drywall and ceiling tile installers, roofers, grounds maintenance workers, maids, meatpackers and dishwashers – are unauthorized laborers. The report estimated there were between 20,000 and 35,000 undocumented immigrants in Kentucky, though area Hispanic advocates have said the actual number could be twice that.

Undocumented workers across Kentucky are “filling a niche – a very important one,” says Deputy, particularly as aging and higher-educated Americans seek higher-paying professions.

Kentucky still has a relatively small foreign-born population – with an estimated legal immigrant population of 2.5 percent, compared to a national average of around 10 percent. That population has been growing rapidly, tripling between 1990 and 2002, according to a 2002 report of the state’s Legislative Research Commission.

As Kentucky’s immigrant population rises, University of Louisville law professor Enid Trucios-Haynes has seen her students “become increasingly interested” in immigration law as a potential career path “because of perceived needs for growing legal representation in that area” locally, she says.

As the immigrant population in Kentucky and the U.S. as a whole continues to climb, it will become increasingly important for attorneys across all areas of practice to have a basic knowledge of immigration policies, Daniel says.

“No matter what kind of law you’re going to practice – whether it’s employment law, tax law, corporate law, or criminal defense – you’re going to need to know something about immigration law,” Daniel says, “because it touches all of those aspects of practice.”

 

Robin Roenker is a contributing writer for The Lane Report
editorial@lanereport.com