Why AILA National must be called out for their racism on Senate Bill S.386
By: Ajay Manchanda
Tags: Structural Racism, Immigration Reform, Racism, Discrimination

Background

Senate Bill 386 is focused on the elimination of the country caps in the Employment-based green card category. This is why the bill is called the Fairness for High-Skilled Immigrants Act. It seeks to eliminate one long-running injustice in the Immigration System : The 7% Country Cap which stems from the National Origins Formula of 1924.

The country caps are a grotesque vestige of racial discrimination that immigrants have endured in America for decades. Based on an immutable like national origin, an employment-based applicant from a large nation (e.g. India or China) can wait anywhere between 1 and 4 CENTURIES for a green card. Whereas an applicant born in France or Spain will get it immediately.

And in those centuries of wait, the Indian or Chinese employee languishes in what is the infamous Employment-based Green Card backlog. A never-ending purgatory where his/her life and family is beholden to the employer they work for (to maintain active status) and the USCIS / DoL which changes rules capriciously and arbitrarily. Many die. Scores slip out of status between job changes. Visas get denied. Lives uprooted and upended. Children age out and get deported. A horror show of human suffering because of a delay. And the delay because of an immutable, a factor they can neither choose nor change.

Immutables like race, national origin, gender and sexual orientation cannot and should not be used to privilege or discriminate against anyone. It is morally abhorrent in 2020 to have such structural discrimination.

What SB 386 does is to fix this historic wrong, and make the system a First Come First Serve system. Blind to immutables, this will make the Employment-based immigration process a fair and equitable process. After all, immigration is an individual choice.

Countries do not immigrate, individuals do.

Immigration Attorneys of AILA depend on this discrimination for survival

AILA is the American Immigration Lawyers Association, a body of attorneys and legal professionals involved in immigration law. On AILA.org they describe themselves as follows.

AILA is a nonpartisan, not-for-profit organization that provides continuing legal education, information, professional services, and expertise

Among other things, they represent the interests of immigration attorneys who serve companies that employ global talent in the United States. These workers need employment visas, specifically the H-1B visa.

These visas can be obtained after petitioning the Department of Labor (DoL) and the USCIS. They expire after a maximum of 3 years, and must be renewed thereafter. If there are material changes in the work location or type, amendments must be filed. There is onerous and tedious paperwork, most of it involving filling USCIS forms. This is typically paralegal work that sustains many business law firms comfortably.

Example: Actual fee breakup from just ONE H-1B Transfer petition filing * H-1B Basic filing fee, $555 * AICWA Fee, $750 * Fraud Prevention fee, $500 * Premium Processing fee, $1,410 Total : $ 3,215 Attorney Fee: $5,010 (for a top country-wide law firm I choose not to name) Caveat: Smaller firms charge less. But on average, it comes to $2,000 per filing.

From a firm which has even 50 such employees, you’re looking at a cool $ 250,000 in revenue every 3 years for mostly paralegal work of form-filling. This is high-margin, low-barrier-to-entry, very steady revenue that these firms enjoy. A small business immigration law firm will serve 30 to 50 such firms. Calculate the revenues rolling in steadily.

All possible because of the national-origin discrimination i.e. the country caps that keep Indian-origin employment immigrants bound and indentured to their employers.

Now imagine the country cap gone. Poof!

All these poor victims of the national origin discrimination are now set free. They have green cards and no longer need transfers, amendments or new petitions for H-1B. All 600,000 of the hapless souls set free means the death of this easy revenue stream.

Of course, AILA National members are up in arms. You can’t make a man take a moral stance if his economic sustenance depends on the continued misery of his fellow man.

AILA’s stand on the bill

AILA started off being neutral on the bill overtly.

But in the background, they lobbied House and Senate elected officials, both Democrat and Republican, to oppose this bill. Lobbying reports indicate over $200,000 in spend for 2019.

For almost 11 months from September 2019 to August 2020, they found their savior in Senator Durbin (D-IL) who blocked this bill to desegregate employment-based immigration.

But after Senator Durbin’s shenanigans, and the highway ransom levels of pre-conditions to equality, finally the bill moved forward.

AILA promptly changed their overtly neutral stance to open opposition, citing procedural “concerns”.

All of this is in bad faith.

AILA members have a vested interest in keeping the country caps to preserve their revenues. This the very definition of Conflict of Interest.

The ONLY ethical thing AILA can and should do is NON-INTERFERENCE. Total recusal, total neutrality. As a conflicted entity, they need to stay away from the issue totally. This is an issue between immigrant constituents and their elected representatives. AILA has no role to play.

Voices from the Backlogged community

Of late, AILA’s perfidy has become apparent to everyone in the Backlogged community. Many of us have openly called out AILA on Twitter.

But shamefully, no AILA office bearer has bothered to reply. Somewhat understandable.

After all, what possible defense can anyone mount against desegregation?

Counterpoints

But some of our backlogged have a counterpoint. I’d like to address these as well.

One such voice is @Desi_Insaan , who had this to say:

<snip> However, berating lawyers is not a good idea. AILA has, unfortunately, taken a stance against S386. We don’t know the real reason. But it can be speculated that they estimate the total number of H-1B renewals will go down if such reform is passed. And hence it is bad for overall revenue immigration law firms could generate.

We already know the reason for their stance. They have a basic economic conflict of interest with the passage of the bill. They should recuse and abstain for advocacy against the bill.

But here are multiple reasons why going after AILA is not going to help the cause of #S386. In fact, it is actually hurting in some cases as lawyers, who in principle, support #S386 are constantly hounded on social media. Lawyers or AILA do not make laws. Just because AILA has taken a position and lobbied against certain aspects of #S386, does not mean lawmakers (Senators in this case) will do the same.

This is accurate. Lawyers may not make laws, but big associations carry heft in lobbying moneys as well as influence. This can be countered by grassroots movements like ours, but we have to call out their hypocrisy and their perfidy.

AILA is a trade association. Individual lawyers can take their own stance but they won’t disown their own trade association just because some immigrants want them to revolt. To put it simply, even lawyers or law firms who support #S386 are not going to die on the hill for this reform. Take the support for #S386 from wherever it comes and be thankful for it. Build a coalition.

Rub it in their face so they have no fig leaf to cover themselves. They are batting for an immoral system and must be forced to acknowledge the fact that they are for-profit racists. Being racist for profit is still being racist.

Hopefully some of them have the moral fibre to get the organization to change from within. But at least we should never tolerate their virtue signaling.

Individual lawyers claiming to be moral while being part of a for-profit racist organization do not get an out. Sorry.

Either you are moral. Or you are not. You can’t be both things at the same time.

Lawyers like Ira Kurzban, Matthew Galati, Charles Kuck, Amy Maldonado, Tammy Fisicoff are the worst of the lot. Out and out racists who must be called out, shamed in public and our community must boycott the firms they belong to. They should not make one red cent from the backlogged community.

Any reform is opposed by multiple parties who have benefited from it in the past. AILA is not the only organization opposing reform in #S386. Focus your energy, ideas and time on where the impact is greatest. Not where impact / ROI is negative. Attacking people on social media never earns friends or support. </snip>

We are attacking ideas not people. I have nothing personal against any of these individuals. But their racism must be countered. There must be economic consequences we must visit on them.

<snip> Lawmakers are not going to deny or approve #S386 only on the basis of what AILA thinks. However, they may be convinced if a positive case is made.

AILA has to recuse themselves. They have no business making representations against this bill to lawmakers. They are conflicted and must stay out.

Think of the endgame. Is going to attack AILA, that has not lawyers supporting and opposing #S386 get you anywhere? It will only alienate lawyers who are still working to help. </snip>

There are those who help and those who enable.

Brent Renison, for example, always keeps asking the backlogged to oppose Republicans. Why should we indulge in anyone’s partisan agenda?

Our goal is equality. Every ally for equality is welcome.

Every opponent of equality is our foe. We will come down heavily on them and expose their perfidies for the world to see.