This is not a post about the injustices afflicted on same-sex couples by U.S. immigration law and policy. Rather, it raises the pressing need for American business leaders to stand up for themselves by “coming out” about their use of the employment-based immigration laws. 

In my 30 years of immigration practice, I’ve gained a plethora of insights from the C suite about how immigration is an essential strategic tool to help achieve business mission.  I’ve also heard and participated in boardroom tirades on the inefficiency, impracticality and sheer dysfunctionality of U.S. immigration laws, regulations and procedures. 

What I have not heard from reputable businesses are professions of any intent or willingness to flout the immigration laws.  The enterprise clients I represent want to understand and abide by the immigration laws and to use them to pursue lawful means of making profits. 

What I have not observed, however, is any discernible pattern among virtually all companies to speak out by name in support of changes to the immigration statutes that would empower American firms to compete more nimbly and profitably in the global economy.

The duty of client confidentiality prevents me from reporting the facts on the ground with specific details but I know from countless experiences that when businesses hire the best brains and talents without regard to the serendipity of country of birth, creativity, innovation and profits all increase.  I also know that when American immigration laws and procedures create unworkable obstacles, economic development moves abroad. 

Instructors in PR 101 teach a basic rule:  “Never let the opposition define you.”  Geekdom puts it another way:  “Information wants to be free.”  Immigration reporters phrase it thusly:  “Do you have any corporate clients willing to talk with me about their experiences with the immigration laws?  The answer I offer them is always the same:  “My corporate clients will talk if you shield their identity.”  Reporters and editors uniformly refuse, and the story never makes headlines.  Or worse yet, partial truths are published that mislead by omission and the unavailability of the other side of the story.

A case in point is a February 17, 2010 Economic Policy Institute’s Briefing Paper, “Bridge to Immigration or Cheap Temporary Labor? The H-1B & L-1 Visa Programs Are a Source of Both,” by Ron Hira, an associate professor of public policy at Rochester Institute of Technology who has written numerous screeds couched in scholar’s prose opposing employment-based visas.  Prof. Hira’s latest piece on the H-1B and L-1 visa seeks to identify and decry the practices of specific businesses in sponsoring workers in these nonimmigrant categories, and offers his own policy prescriptions:

To fix the H-1B and L-1 guest worker programs, we should institute workable, effective labor market tests and give U.S. workers an enforceable right to jobs for which they are qualified before admitting temporary foreign workers to compete with them. Congress should ensure the nondisplacement of American workers, ensure guest workers are paid at least market wages, and audit employers regularly for compliance. The rules that tether H-1B employees to the employer that sponsored them should be changed to allow them freedom to seek other employment after a short period, certainly no more than one year. The current system is simply broken, allowing the programs to run out of control and work against their stated purposes.

I know of no business leaders who believe Hira’s proposals would help our economy grow or improve the lot of our citizens.  I also know, as do my business immigration clients, that many of Hira’s proposals are already contained in existing immigration laws and regulations.  The Immigration and Nationality Act is replete with labor market tests, audit powers of immigration agencies, and the ability of an H-1B worker to become untethered from one’s current employer through provisions allowing job portability.

Hira is right, however, about one thing: 

If the goal of our skilled-immigration policy is to capture the best and brightest, then we ought to align our policies to meet those goals. In order to make that alignment we need far better information on how the guest worker visa programs and employment-based permanent residence are connected.

Current employment-based immigration rules do not promote the economic needs of the nation and the well being of our citizens. The laws, regulations and procedures, based largely on outdated legislation passed in 1990, with modest accretions every few years, hamper the ability of American businesses to create jobs in this country for citizens and non-citizens alike. 

If we are to achieve enlightened business immigration reforms, American employers must “out” themselves.  They must not be afraid to acknowledge and explain in very public ways that they use legitimate means under exisiting immigration rules to increase profitability and prosperity for Amercan stakeholders.  They must overcome their understandable fear of a certain maxim (”the nail that sticks up gets hammered”). Instead, they must visibly support changes that would take the “dys” out of “dysfunction” when describing the nation’s immigration laws.

When the snowpocalypse ends in Washington, and political hot air thaws the frozen streets, expect to see mules and elephants parade in bipartisan togetherness — at least in one area.  The party of Lincoln and the party of tea could well agree with the following words of President Obama on the urgency of fiscal responsibility (even as they disagree on whether the trimming of deficits has begun in earnest):

[A]t a time when we face not only a fiscal crisis, but also a host of difficult challenges as a nation, business as usual in Washington just won’t do. . . . After years of irresponsibility, we are once again taking responsibility for every dollar we spend, the same way families do.

Why then are partisans on both sides of the aisle not roundly applauding the recent dollar-pinching actions of a U.S. District Court judge in Texas?  Last week in U.S. v. Ordones-Soto, et al., the judge ordered the United States Attorney and the Assistant United States Attorney when prosecuting cases pursuant to 8 U.S.C. § 1326 to be prepared “in all future sentencings to state the substantive reason(s) for the prosecution of each individual case.” 8 U.S.C. § 1326 punishes the illegal entry to the U.S. of a person previously deported.

Citing three illegal-reentry cases before the court, the judge noted that county jail payments for six months of incarcerating the convicted defendants (”with no significant criminal history”) cost taxpayers over $13,500. This sum pales in comparison to the costs in time and money of court personnel salaries and operating expenses, and those of the U.S. Attorneys Office, the U.S. Marshal’s Service, the U.S. Probation Office, payments to appointed defense counsel and Federal Public Defenders, interpreters, medical and dental care providers, and drivers transporting defendants to and from the jail.

With “every judge in the Western District of Texas . . . sentencing a substantial number of illegal [entrants and reentrants] every month,” the judge berated the government for its spendthrift ways:

The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling.  The U.S. Attorney’s policy of prosecuting all aliens presents a cost to the American taxpayer at this time that is neither meritorious nor reasonable.

The cost to taxpayers of the removal machinery (and I’m not talking snow here but people) will only grow if, as described in a report this month by the American Bar Association (ABA) Commission on Immigration and Arnold & Porter, the Executive Office for Immigration Review is to be given the authority, resources and judges sufficient to match the number of cases in immigration court with the expensive demands of due process as the ABA House of Delegates proposes.

My point is not that we emulate Scrooge McDuck to hoard the few remaining dollars in the public coffers, thereby giving up on enforcement of the immigration laws.  Rather, we need due process in removal proceedings and in federal court, but also a wise and fiscally sound exercise of prosecutorial and presidential discretion.  It’s time to stanch the unending flow of “aliens without any significant criminal record” into over-crowded county jails, immigration detention facilities and immigration courts.  Federal Courts should be the place where U.S. Attorneys bring to justice very bad people: Ponzi-scheme perpetrators; Medicare and mortgage fraudsters; drug traffickers; cybercriminals, RICO conspirators, insider traders and givers and takers of bribes. 

In other words, it’s way past time for the Obama Administration and Congress to push really hard on bipartisan and comprehensive immigration reform or or for the President to exercise his discretionary power proactively to address this immigration fiscal fiasco, while striking a blow against terrorism, with user-fee-financed grants of deferred action and employment authorization.

Immigration policies at today’s USCIS may change in a flash. They can be announced and then, without forewarning or explanation, withdrawn in the milliseconds it takes for the agency’s webmaster at www.uscis.gov to push the upload and delete buttons.  At times they are as reliable and ephemeral as the inducements of a carnival barker.  Take for example a January 19, 2010 policy memo, “Signatures on Applications and Petitions Filed with USCIS” (penned by USCIS Acting Deputy Director, Lauren Kielsmeier). The memo appeared evanescently and then, as Ron Ziegler, Richard Nixon’s former press secretary in the Watergate era, might have said, it became “inoperative.” 

While it lasted, the disappearing memo decreed:

An application or petition signed by counsel (other than in-house counsel who meets the qualified agent requirements stated above) or by any other outside agent does not meet the [authorized signature] requirements of 8 CFR 103.2(a)(2).

USCIS will reject any filing that does not contain a proper signature by the applicant . . . or petitioner or qualified agent for any applications and petitions received after the date of this Memo. USCIS is reaffirming this policy to preserve benefit integrity and to ensure that only those representatives authorized pursuant to the regulations file applications or petitions with USCIS.

USCIS acknowledged in the vanishing memo that, in the near-term past, agency practices on signature requirements had been inconsistent:

Recently, USCIS has seen varied practices related to signatures on forms. These practices have included: (1) applications or petitions without the required signature of the actual applicant or petitioner, and (2) applications and petitions signed by a Form G-28, Notice of Entry of Appearance as Attorney or Representative, authorized representative or individuals claiming authority to act on behalf of an alien through a power of attorney. These varied practices, in certain instances, are attributable to practitioner reliance on agency correspondence in individual cases, rather than formal policy guidance.

The assertion in the last quoted sentence, pointing to “agency correspondence in individual cases” as the grant of permission for attorneys to sign petitions and applications on behalf of clients, is not, however, the full story.

As recently as April 4, 2008, USCIS’s website, on a page entitled, “Signature Requirements for USCIS Forms,” stated:

Legal Requirements for the Signature on Petitions and Immigration Benefits Applications . . .

Attorneys and Accredited Representatives: The signature of any attorney or accredited representative who has been granted legal authorization to sign on behalf of the petitioner or the applicant must be in the original. (Italics added.)

The April 4, 2008 USCIS website posting is consistent with immigration case law. See, Santiglia v. Sun Microsystems, Inc., a case, ironically, in which Sun was then represented by a private practioner who is now the current USCIS Chief Counsel. In Santiglia, the Administrative Law Judge rejected a challenge to signatures on H-1B Labor Condition Applications even though the forms were not signed personally by the employer’s HR manager, where the manager had authorized outside counsel to sign on the company’s behalf.

Without explanation, however, on April 16, 2008, USCIS’s webmaster posted an update to “Signature Requirements for USCIS Forms” that removed the permission given until April 4, 2008 for attorneys to sign immigration petitions and applications if “granted legal authorization to sign” on the client’s behalf. 

Regrettably, as I’ve noted in a prior post, this type of bait and switch has happened before with USCIS’s website, e.g., when the agency posted and then withdrew without explanation a revised I-9:  “Untruth in Advertising: The Mysterious ‘Rebranding’ of Immigration Form I-9.”

To its credit this time, however, USCIS has offered a semi-public explanation (albeit not on www.uscis.gov) to the American Immigration Lawyers Association (AILA):

AILA liaison has been informed that a USCIS memorandum dated January 19, 2010, addressing signature requirements on applications and petitions, was posted to the USCIS website prematurely and is being withdrawn. USCIS intends to conduct a stakeholder engagement event early next week to discuss development and implementation of policies on signature requirements for applications and petitions. Watch InfoNet for further information.” AILA InfoNet Doc. No. 10020463 (posted Feb. 4, 2010).

Even more refreshing than the agency’s explanation, USCIS, quite commendably, is reaching out for the views of the stakeholder community.   Foreseeably, stakeholders will likely note that the shuttling of forms prepared by attorneys to clients for signature and the return of the documents to the lawyer for submission to USCIS create unaffordable delays (especially given the Labor Department’s tardiness in issuing Labor Condition Applications, often just before, and sometimes after, an impending H-1B status expiration and filing deadline).  The public will likely explain that the “client’s original signature” requirement benefits no one other than the overnight courier industry.  Perhaps, in addition, the technorati will urge USCIS to forgo ink and go digital by embracing the Government Paperwork Elimination Act, a statute that authorizes the submission of government forms with electronic signatures.  

The Urban Dictionary defines a “signature” accurately (at least in describing my penmanship) as “[w]hen someone writes his/her own name in cursive, usually illegible.”  The Bard in Sonnet 83 proclaims: “How far a modern quill doth come too short.”  After stakeholder consultation, may USCIS (cross your fingers) not come up too short, and instead choose bytes over pen and ink, and until then, continue to permit the legitimate use of a client’s power of attorney for lawyers to sign immigration petitions and applications.

I’ve not always seen eye to eye with AILA – the American Immigration Lawyers Association — although I’ve been a supportive member and active participant in its programs and initiatives for decades, and served on its Board of Governors from 1987 to 1994.  At times I grow increasingly dispirited as the interests of its many members too often seemed at cross purposes, and its understandable dependence on revenue from publications and educational programs made me fear that it had lost some of the fire in its belly and some of its soul. 

I often wax nostalgic about the early days of AILA.  I miss the days when one could leave an AILA conference inspired by its grizzled fighters for immigration justice, with none more inspiring than the late Sam Williamson of Texas. I search the AILA website and, sadly, find little residue of Sam’s influence, other than a “Mentor Award” in his name, given since 1992 for “outstanding efforts and excellent counsel to immigration attorneys by providing mentoring assistance.” I’m happy that AILA honors Sam’s memory but don’t remember him so much as a mentor than an inspiring firebrand who would stand up, point a curled, arthritic finger in the air and shout in reference to the immigration authorities: “Sue the [illegitimate offspring]!” 

Sam inspired me because his views, reflected in a 1989 article, were much the same as my own:

. . .if you have a sense of injustice, you will feel anger and outrage, and you, too, will come to look upon the law as a weapon, which it is, and with which you can venture to assuage such injustice and lift these people [immigrants to America] from their degradation. I find such efforts to be worthy. What appears anomalous to me is to find that others do not feel as I do.

I always left every AILA conference where Sam cried out in righteous indignation freshly energized to pursue my clients’ interest as zealously as possible within the all too draconian constraints of America’s immigration laws.  Recent AILA conferences have never been the same without Sam (although many new and old members, to be sure, have achieved marvelous outcomes in their immigration cases, while generously mentoring lawyers and modeling best practices in the quest for immigration justice).

Something happened this week, however, to remind me that the spirit of Sam still exists and shines brightly in AILA.  In an eloquent, persuasive and lawyerly 24 pages, AILA’s USCIS Headquarters Liaison Committee unmasked as exercises in vacuous reasoning a January 8, 2010 USCIS policy memorandum (and kindred non-precedent decisions of the USCIS Administrative Appeals Office) that deny employment-based immigration benefits to working owners of companies. Although the Obama Administration has proclaimed that the United States government does not engage in torture, the AILA Liaison Committee’s letter to the USCIS Chief Counsel, in a calm and dispassionate way (certainly not in Sam’s style), demonstrates that USCIS tortures logic and smites reason: 

[Our correspondence] relates to recent USCIS Administrative Appeals Office decisions and USCIS Service Center adjudications, as well as the [January 8] Neufeld Memorandum, that misapply the reasoning of Supreme Court cases . . . to reach the conclusion that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant (e.g., L-1, H-1B and O-1) or immigrant employment-based petition. We strongly believe that this USCIS position departs from longstanding binding precedent, ignores the plain language of the Immigration and Nationality Act (INA) and its implementing regulations, thwarts Congressional intent respecting the purpose of the INA, and leads to absurd results.

My point here is not to repeat AILA’s arguments for the absurdity and illegality of USCIS’s reconstruction of immigration jurisprudence and history to ban a class of otherwise deserving entrepreneurs (I’ve already offered my views on the subject).  Rather, I applaud the AILA Liaison Committee’s letter because it reminds me that, despite my occasional misgivings about organizational drift and the challenges of speaking in a unified voice, AILA retains the depth of soul and conflagration of belly that makes me (and I hope Sam as well) very proud to stand within its ranks.

The week’s news dealt a body-blow to the prospects for comprehensive immigration reform, as if the movement to fix our broken immigration laws were blind-sided in a collision with a former pinup driving a pickup — which it was. With the election of new Massachusetts Senator, Scott Brown, to take the seat of the late Ted Kennedy, the godfather of more humane and just immigration laws, supporters of CIR (Comprehensive Immigration Reform) are swallowing their sadness and putting on their game faces, saying there’s still no stopping the CIR train from arriving at its destination.

It’s hard to maintain optimism, however, as President Obama’s pledge to move on CIR within his first year in office reached its anniversary and expired. Worse yet, soundings from the White House suggest that the Administration will wait for Congress to take the lead on CIR.

There’s no telling what Congress will do as Democrats remain engaged in trying to put the wheels back on health-care legislation. Already a group of Republicans and Democrats are building a BRIDGE that would offer no footpath, however tortuous, to citizenship for the undocumented (BRIDGE being the syntax-shattering formal name of H. Res. 1026, the Bipartisan Reform of Immigration through Defining Good Enforcement resolution). Adding to the pessimism, Sen. Kennedy’s erstwhile CIR partner, Sen. John McCain, although still assertedly a CIR supporter, offers doubts that it will come to pass in this election year.

Throwing a clanking crowbar into the wheels, the Supreme Court’s Citizens United decision will allow anti- and pro-CIR organizations to spend unlimited funds, unleashed from the prior restraints of the Federal Election Commission’s spending caps. While some in the pro-CIR camp view the ruling as a positive development, the greater likelihood is that the opponents of CIR will offer untruths on the economic harms of CIR to frighten a financially-beleaguered citizenry who still favor CIR.

While we wait to see if the CIRistas can outjump Evel Knievel, there is still the possibility, however, for the undocumented to try and remain longer in the hopes that CIR someday will arrive, especially if they can “lawyer up.” SCOTUS ruled this week that even though Congress has the power to strip the courts of jurisdiction to review discretionary immigration-agency decisions, the Executive Branch may not, by regulation, label its actions “discretionary” and thereby prevent immigrants from seeking justice in federal court.

So, the wheels on the CIR bus go round and round . . . all year long.