Bring Me Your Poor (nah), Your Tired (please), Your Electrical Engineers (maybe)
Nancy Elkind on the dysfunction of U.S. immigration policy
Published in 2016 Colorado Super Lawyers magazine
By Jim Walsh on March 14, 2016
“When I first started, there were only a handful of immigration lawyers [here], and people would go, ‘Really? Immigration in Denver? What do you do?’”
One of the things Nancy Elkind does these days is explain something about immigration law, since the rhetoric, particularly during election cycles, can get a little heated. Take Donald Trump’s promise to deport 11 million undocumented immigrants in his first 18 months as president.
“It’s frustrating, because immigration law is very complicated, and the general public has no idea about how or why it’s complicated. So no, you can’t deport 11 million people. We’ve got better things to do with our money,” says Elkind, sitting in the offices of Elkind Alterman Harston in the Blake Street Terrace building in lower downtown Denver.
Elkind’s practice is in employment-based immigration law. She represents companies, universities and hospitals that are bringing people into the U.S. for hard-to-fill positions.
“When I explain to people how complicated it is for someone with a master’s degree in electrical engineering from a U.S. university to stay here, they’re just amazed,” says Elkind. “So the problem is not just that we have illegal immigration. The problem is that we have a totally dysfunctional legal immigration system. And that’s why so many people talk about comprehensive immigration reform—because you can’t fix illegal immigration without fixing legal immigration.”
A common comment among those bashing illegal immigration is that it’s, well, illegal. They often ask, “Why don’t they just come here legally?”
“The answer,” Elkind says, “is because there is often no law that allows them to come here legally. There’s no law that allows skilled workers like tile fitters and roofers to come here for the season that really works for an employer.”
As Elkind speaks, more than a dozen U.S. governors have called for closing their states’ doors to Syrian refugees in the wake of the terrorist attacks in Paris and Lebanon. She takes a breath that sounds an awful lot like an exasperated sigh, and plows on with a monologue that sounds like she’s given it many times over the years.
“The laws have gotten so strict that even someone who’s married to a U.S. citizen and has U.S. citizen children might have to stay outside the U.S. for 10 years before he or she can become legal. Well, they’re not going to make that choice; they’d rather stay with their family and hope they don’t get caught. So if we made just one or two little changes, where we allowed someone to pay a fine for being here illegally—you know, if they were not a criminal and not a security risk—we would eliminate a huge number of people who are here illegally.
“It’s very frustrating, knowing what I know. It’s frustrating to have to tell new client after new client, ‘I’m sorry but there’s nothing I can do for you.’ And that’s whether it’s a Mexican immigrant or the president of a company who calls me and says, ‘I just found this fabulous person to come work for us. We need him. He’s just finishing his master’s in IT at the University of Colorado, and I say, ‘I’m sorry; there are no visas for that kind of job until October 2016; you have to apply in April 2016, and there’s a lottery, so you have less than a 50 percent chance of getting this person next October.’
“You know, this is a person who went to undergraduate school here, graduate school here, has a skill we need, and would probably be making a lot of money and—trickle-down economics—creating a lot of jobs and advancing U.S. technology, and we’re not letting him stay. He’ll go somewhere else. There are a few little fixes the president has tried to do, but he’s been stopped. It’s a congressional fix. A few years ago the Senate passed what was certainly a wonderful step toward comprehensive immigration reform, and the House would never vote on it. It died.”
Elkind, a New York City native, and the daughter of a biology teacher mother and furrier father, got interested in the law in high school; but when she graduated from college in 1967, she was daunted by the scarcity of female law students and lawyers. So she earned a master’s in political science from the University of Wisconsin and worked as a consultant in Washington, D.C. Eventually she wound up working in the newly developing field of court management/administration, landing a job with the National Center for State Courts; and when the organization moved its headquarters, and most of its staff, to Denver, she went along.
Soon enough, however, Elkind felt that in order to advance in the field of court management, she would need a law degree; so she enrolled at the University of Denver College of Law.
“My goal was to get the law degree and become a state court administrator,” she says with a laugh. “I did not intend to practice law. However, as my law school career came to an end [in 1979], I decided that I should practice law for at least a few years before continuing my career path in court management. I felt that if I ever wanted to practice law in the future, I needed to get a few years under my belt right after law school.”
When she discovered immigration law, she was hooked. That was 33 years ago.
She cites Elizabeth Gervais, a Hungarian immigrant who founded the North Carolina chapter of the American Immigration Lawyers Association, and who died last July at the age of 102, as her primary mentor.
“Immigration law has always been a place where both ethnic minorities and women could feel comfortable,” says Elkind, a mother of two daughters who has been married for 36 years to Skip Hibbard, a retired assistant city attorney in Denver. “The American Immigration Lawyers Association, I think, had a president who was a woman in the 1940s, which was pretty unheard of in the legal profession. Elizabeth had a family and raised her children and always had a successful practice and was a person I looked to who did both legal work and family work. That was important to me.”
Elkind has always been fascinated by other cultures and other countries, so she and her husband take at least one big trip every year. At the same time, the specifics of her day-to-day work life has proven, time and again, that it’s a small world after all.
“Immigration [law] allowed me to work on behalf of each individual client and make a big difference in their lives,” she says. “I’ve always said that whether I’m doing this for an executive of a major corporation or a refugee from Afghanistan, what I do makes a difference in their lives. It’s very gratifying. One of the things I love about immigration is the other immigration lawyers. We might compete for business, but we’re all on the same side. There’s a lot of give-and-take amongst the immigration lawyers.”
Her colleagues agree.
“I met Nancy nearly 20 years ago when I was a fresh associate in her immigration law firm,” says John Combs, of Ogletree Deakins in Denver. “She knew everyone in the local INS office … so right from the start, I had access to the smartest and most influential folks both inside the agency and out. If I mentioned her name, I got immediate respect from whomever I was talking to.
“She was lead counsel in the Matter of Information Industries case, a BALCA [Board of Alien Labor Certification Appeals] case that still sets out the ‘business necessity’ standards that employers must show to justify requirements in labor certifications [to] sponsor foreign workers for green cards. She knows more about consular processing operations abroad and international adoptions than anyone I know.”
Law school colleague Connie Talmage, now the executive director of the Colorado Lawyers Committee, adds, “Nancy has contributed her considerable immigration and common-sense legal expertise to numerous CLC projects, including to our Immigration Task Force, our Children’s Task Force and our Denver Legal Night Clinics. … She’s a dynamite lawyer and a wonderful human being.”
And it may be tough to be both. Since the mid-’90s, Elkind feels, immigration has gotten stricter “in a really mean way: separating families, not forgiving any little transgression, deporting people for years and years. … It’s all gotten much harder, and that’s because of Congress passing stricter and stricter laws. It used to be that if I worked hard enough and waited long enough, I could almost always win. And that’s not true anymore.”
Consequently, it’s also gotten harder to explain to her clients, who often don’t understand English, what is happening with their cases. Asked to name some memorable ones, she laughs and launches in:
“I had one years ago where a Hispanic woman from San Luis Valley fell in love with a man from Iran. He was in the Iranian air force and they moved to Iran—this was before the revolution. Because he was in the military, he couldn’t be married to a foreigner. So they had six children and all of them were registered, all of their birth certificates said [they] were the parents of the children,” she recalls. “And then the revolution in Iran happened in 1979 and they had to move here. When they got here, they had to prove the children were theirs.
“Eventually, we were able to show that … and they were able to stay.
“I’ve done a lot of cases of people who are considered people of extraordinary ability. If you’re a person of extraordinary ability, you get to stay in the U.S. So: artists and some scientists. One was for a massage therapist for a professional sports team, which was an interesting case: trying to prove a massage therapist is a person of extraordinary ability.
“[Some of] the most satisfying cases I’ve done over the years are the asylum cases. I’ve gotten a lot of Somali asylum cases, and Libyan and Afghani and people who are sincerely fleeing persecution. To win one of those is very satisfying.
“Every group that has come has made amazing contributions to the economy, to the culture, to art, education, business. Everybody has something to offer, and at every point there has been opposition to particular groups. Everybody comes and then wants to lock the barn door. We’re going through that again now.”
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