In the realm of immigration law, Congress has acted by not acting.  Our “broken” immigration system — it has been described as “broken” since “W” was President, if not before — has not been fixed by Congress.  This is America, so state and local governments and the White House have enacted laws and implemented policies to “fix” what they think is broken.  

Arizona, Alabama, Georgia and other states have stepped into the breach and some of their laws have stepped too far.  In the case of Chamber of Commerce of the United States of America, et al. v. Whiting, et al., the U.S. Supreme Court upheld part of the Arizona law which imposes the business “death penalty,” loss of business licensure, to employers of undocumented workers and which requires employers to use the E-Verify employment verification system for all new hires.  The Chamber of Commerce case has business implications inside and outside Arizona.  Arizona’s S.B. 1070 and companion laws in other states raise civil liberties issues.  Making the presence of an undocumented alien in the state a state crime, these laws have terrorized Hispanic and other immigrant communities.  The Supreme Court has taken certiorari in the challenge of this law.  At the same time, some legislators in Georgia and Alabama are seeing the “unforeseen” consequences of their draconian laws and are seeking their repeal.

The Federal government is aware that local law enforcement has terrorized immigrant populations and has begun to act against illegal law enforcement.  Again arising out of Arizona, a Justice Department study found that the Maricopa County Sheriff’s Office has so abused its authority and the rights of Hispanic and other immigrant groups, that DHS has discontinued cooperation with that office in regard to immigration enforcement through it’s Secure Communities Program.

The Administration has focused its enforcement actions on criminal aliens even though the number of removals (50% are criminal aliens) and the number of detained aliens for 2011 have set records.  USICE has rolled out and is implementing a process of prosecutorial discretion that should increase the percentage of criminal aliens removed, decrease the number of families split apart and save the government billions in litigation and detention costs. 

The Administration has also begun to focus on jobs, jobs, jobs. 

The EB-5 program provides a route to permanent residence to an alien who invests at least $1MM in an enterprise ($500k if located in a Targeted Employment Area) that produces 10 or more jobs for US workers.  USCIS has made an effort to engage the public in this program to be almost user friendly and, of course, to encourage the inflow of employment creating capital.  Funds have rolled in record amounts for this program, which in FY 2011 produced approximately 4,000 conditional permanent resident visas (the program is two steps, conditional, then two years later full permanent residence).

The EB-2 National Interest Waiver provides a route to permanent residence that, until recently, was fundamentally closed to entrepreneurs.  Recognizing that foreign born entrepreneurs create businesses that employ American workers, USICS has refocused on the national interest served by creating jobs, opening up this category to immigrants who start new businesses and create jobs.

USCIS has backed away from some of its bad policy as it relates to employment with a start-up. While “self-employment” is still not permitted as the basis of an H-1B visa, start-ups that have advanced beyond the idea stage can now move forward with an  H-1B visa petition for a founder.  This is a step forward, but there is still a Congressional imposed annual limit, cap, of available H-1Bs which is two steps backward to entrepreneurship and employment growth.

Congress has not been completely absent on the immigration front in 2011.  In the year’s last few days, Congress extended the Lautenberg Amendment that allow thousands of  people persecuted for being members of religious minorities to be processed and admitted to the U.S. as refugees.

There are numerous legislative initiatives, but there is also a Presidential election in 2012.  The new year isn’t likely to see any dramatic Federal legislative change, but is likely to see more of the same from the White House and state legislatures, with the last word from the U.S. Supreme Court.