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NPZ Immigration Law Blog

Thursday, August 13, 2015

RECENT DEVELOPMENTS IN U.S. IMMIGRATION LAW: WHAT'S IN A NAME?

 

The way U.S. Immigration and Nationality Law professionals phrase things is HUGELY important. “Words are like eggs dropped from great heights; you can no more call them back than ignore the mess they leave when they fall.” ― Jodi Picoult, Salem Falls

This past week, amidst the anti-immigrant fervor being drummed up by Presidential hopeful Donald Trump, and others, Democratic Governor Jerry Brown announced a bill to remove the term “ALIEN” from the California Labor Code. “Alien” is a term used in the California labor code to describe foreign-born individuals who work in the United States. It is also commonly considered to be a derogatory term, leaving foreign born individuals feeling more like they are from outer space than from their respective native countries. The proposed change to Law SB-432 would call for the removal of the term "alien" within the next year and most individuals consider its removal to be an important first step toward modernizing and humanizing California law.

Here is a historical perspective on the how the term “alien” crept into our legislative language at the STATE Level. The State of California began using the term "alien" in the year 1937. At that time, the labor code stated that “U.S. Citizens” should be given priority over “aliens” when hiring for public-works contracts in California. That section of the law was repealed in the year 1970, but the term “alien” remained as part of the labor code. On a FEDERAL level, the federal government still uses the term "alien" as an official term when referring to undocumented immigrants.

CHANGE IS GOOD:

Governor Brown (CA) is making other changes too. He recently approved two interesting immigration-related measures which should also boost the morale of foreign nationals. One bill allows high school students who are legal permanent residents to serve as poll workers in state elections, not only allowing them to earn money, but also actively engaging them in our electoral process.

The second bill makes it illegal to take a child's immigration status into account in a civil liability case. The latter bill was enacted in response to a sexual misconduct lawsuit filed by more than 80 elementary students from Miramonte Elementary School against the Los Angeles Unified School District. The goal is to protect minors by granting them the same legal foothold as a U.S. Citizen in civil liability cases.

CHANGE CAN BE SLOW AND CIRCUITOUS:

The Federal Government is participating in the language over-haul as well, although, at the present time, it appears to be more concerned with monitoring the language used by EB-5 Regional Centers and Corporate Enterprises (Investor Visa Green Cards) than with tweeking its own use of “politically correct” language. For example, the U.S. Department of Homeland Security ("DHS") is merely reconsidering its own use of the term “alien” (out of concern that it sounds dehumanizing and could potentially prevent individuals from receiving appropriate protections under the law) and is, instead, focusing more on its intention to refer individuals and corporate enterprises to the Justice Department for questionable naming practices. Questionable naming practices have mostly to do with terminology related to use of the words “United States” and “Federal” by EB-5 Regional Centers and Commercial Enterprises.

More specifically, the United States Customs & Immigration Service (USCIS) reminded the public that EB-5 regional centers and related commercial enterprises should not contain the words “United States,” “U.S.,” “US” and “Federal” in their names. If a regional center uses these words in the name of the regional center or enterprise, the regional center may be falsely implying a relationship between the entity using the name, and USCIS, DHS and the U.S. government.

Using such references/names on websites, promotional and other marketing materials could also be considered deceptive acts or practices and false advertisements, which may violate federal laws governing unfair trade and false advertisements.

See 15 U.S.C. §§ 45 and 52. If a regional center or related commercial enterprise has a questionable name, the Immigrant Investor Program Office (IPO) may refer it to the Federal Trade Commission for further action. Additionally, use of the words “Federal” or “United States” in advertising by businesses engaged in the financial services sector may be a violation of 18 U.S.C. § 709, which prohibits false advertising or the misuse of names to indicate a federal agency. In this situation, IPO may refer regional centers and related commercial enterprises with questionable naming practices to the Department of Justice for action.

Apparently, names and words do count for a whole lot after all. The recent omission of the word “alien” from the California Labor Code can change the public perception of foreign nationals, make foreign nationals feel more “human”, and help promote their legal rights. Persons filing applications with government agencies should choose their words wisely, as words can clearly have a dramatic impact, lasting well into the future.


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