Nation Of Immigrators

Nation Of Immigrators

A public policy blog on America's dysfunctional immigration system

Tinker Bell’s Immigration Solution

Posted in Obama Administration on Immigration

cartoon fairy2[Blogger's Note:  In light of President Obama's announcement of executive actions on immigration last Thursday, this post, first published on May 7, 2010, is worth a second read.  I enjoyed the President's address to the nation, especially his mention of Astrid Silva, the student carrying a three-degree university course-load. Still, he should have given Tinker Bell her due.]

Tinker Bell’s Immigration Solution

 Ever the optimist and trying her best to think happy thoughts, Tinker Bell, the world’s most famous faerie, has been flying over Washington this week. She soared into town, lifted up by throngs of May Day marchers who believed popular revulsion to Arizona’s “Papers, please” law would finally jolt politicians into enacting comprehensive immigration reform.

Hailing from the country of Neverland, Tinker flew in solidarity with the marchers, alarmed that she had entered the country without inspection and without papers, and that all she had in her pocket was faerie dust. Then she plummeted, almost to the ground, as she saw Capitol Police arrest Rep. Luis Gutierrez and several others, each wearing T-shirts bearing the plea: “Arrest me, not my family.” She rose to a bit higher altitude on Sunday, watching the brave Luis G. on Face the Nation debate that Hookish Hayworth fellow:

My arrest was part of a response to what I consider the immorality of our broken immigration system. We were protesting the fact that hundreds of thousands of immigrant families have been destroyed, husbands losing their wives. There are 4 million American citizen children whose parents have either been deported or under threat of deportation. It’s time to make family sacrosanct once again and to fix our immigration system. So I was arrested yesterday because it was time, I thought, to escalate and to elevate the level of awareness and consciousness for all those who try to reach our shores and can’t because our system is broken.

The work week began, and again Tinker hovered low to the ground, as one politician after another threw cold water on what seemed the hottest recent prospects for reform, creating only steam. In need of a break, she repaired to the White house grounds and slept deeply — just above Michele Obama’s luscious vegetables — only to be awakened by festive music. A crowd of Cinco de Mayo celebrants had come to hear President Obama, with Michele at his side, speak again about the need for comprehensive immigration reform:

I want to say it again, just in case anybody is confused. The way to fix our broken immigration system is through common-sense, comprehensive immigration reform. That means responsibility from government to secure our borders, something we have done and will continue to do. It means responsibility from businesses that break the law by undermining American workers and exploiting undocumented workers -— they’ve got to be held accountable. It means responsibility from people who are living here illegally. They’ve got to admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law — and then get in line and earn their citizenship.

Comprehensive reform —- that’s how we’re going to solve this problem. And I know there’s been some commentary over the last week since I talked about this difficult issue: Well, is this politically smart to do? Can you get Republican votes? Look, of course, it’s going to be tough. That’s the truth. Anybody who tells you it’s going to be easy or I can wave a magic wand and make it happen hasn’t been paying attention how this town works. We need bipartisan support. But it can be done. And it needs to be done. So I was pleased to see a strong proposal for comprehensive reform presented in the Senate last week —- and I was pleased that it was based on a bipartisan framework. I want to begin work this year, and I want Democrats and Republicans to work with me — because we’ve got to stay true to who we are, a nation of laws and a nation of immigrants.

Tinker Belle’s wings stopped fluttering. She fell to the ground, angrily muttering to herself:

What’s this about “begin work this year” coming from the candidate who promised to tackle the immigration challenge in his first year as President? This from the same man who just last week told University of Michigan graduates that “The point is, politics has never been for the thin-skinned or the faint-of-heart, and if you enter the arena, you should expect to get roughed up.” I can’t take it anymore!

Mustering all her strength, Tinker flew past the Secret Service with even more stealth than party crashers at a White House dinner. She didn’t stop flying until arriving like a hummingbird just at the President’s left ear. As he walked into the West Wing, she shouted to get his attention, but he could hardly hear her because his left side had become benumbed. She shouted even louder “YES WE CAN!” At last the young boy from Hawaii who grew up to wear ties in July heard and recognized her. The President told his retinue that he needed to be alone. Tinker faced Barack and said:

What’s this about not having a “magic wand” to wave around? You’re the President of the United States! You have more than just a bully pulpit. Have you forgotten the Constitutional Law you taught students at the University of Chicago? You don’t need Ben Nelson. You don’t need Lindsey Graham. You can sign an Executive Order and fix a large part of the country’s immigration problems, and neither Republicans, Democrats, Tea Partiers nor pundits can do anything about it.

Tinker threw pixie dust in the air and a scroll appeared. She unfurled it and began to read aloud:

Executive Order

– Providing for a System of Registration of Undocumented Immigrants to Protect National Security and for the Early Acceptance of Applications for Adjustment of Status to Permanent Resident Status by Individuals with Long-Backlogged Priority Dates.

Section 1. By the authority vested in me as President by the Constitution and the laws of the United States of America, I declare an Immigration Emergency.

The said Immigration Emergency has arisen because:

  1. Over 10 million individuals of foreign origin are living illegally in the United States, many with American citizen children, but nevertheless generally contributing to the economic prosperity of the country and otherwise abiding our laws;
  2. The Federal Government lacks the economic resources and practical ability to remove these individuals from this country consistent with due process of law and has not ascertained the identities of most of these individuals, thereby undermining the safety and security of the nation from external and internal threats;
  3. The Congress and prior administrations have tried repeatedly but failed to enact comprehensive immigration reforms that would protect national security or honor our traditions as a nation of immigrants;
  4. Frustrated at the inaction of Congress and unwilling to pay for the unfunded burdens of a dysfunctional federal immigration policy, several states have enacted laws that interfere with, contradict and attempt to supplant the Federal Government’s preeminent authority over immigration law and policy;
  5. The most recent state legislation, enacted by the Arizona legislature and signed by its Governor, has raised serious civil rights and Constitutional concerns and poses risks to public safety since otherwise law-abiding persons illegally present in the country are unwilling to cooperate with the police in helping to stop crime and identify terrorist threats to public safety;
  6. Children and young adults who lack legal immigration status have been educated by our schools and colleges but are unable to begin careers or enroll in our military because of the lack of legal status and a work permit;
  7. Foreign students who have graduated from U.S. educational institutions and other lawfully present nonimmigrants who have obtained a labor certification or are otherwise eligible for sponsorship and approval of an employment-based or family-based immigrant visa are pressured to leave the U.S. and offer their energy and talents to our country’s competitor nations because of outdated agency interpretations, needlessly inflexible regulations and backlogged immigrant visa quotas that have been exacerbated by the failure of administrative agencies over several years to administer the immigrant visa quota system properly and avoid the loss and waste of such visas in each year’s allotments;
  8. Federal agencies charged with enforcement of the immigration laws have poorly prioritized their responsibilities by focusing to a greater extent than prudent on the arrest and deportation of persons whose only legal violations are entry without inspection or overstaying of one’s visas, thereby depleting enforcement resources that are better dedicated to anti-terrorism and serious criminal law violations;
  9. Federal enforcement agencies have largely failed to exercise the prosecutorial discretion to grant deferred action to foreign citizens who have strong ties in the U.S. and no serious criminal law history.

Section 2. The Secretary of Homeland Security and the Attorney General shall — on an expedited basis — promulgate regulations and use their discretionary authority under law in order to:

  1. Establish a system of registration and national-security screening of illegally present foreign citizens who are to be encouraged to enroll in the registration system by the grant of deferred action and employment authorization to all registrants who pass security screening, prove that they have paid or otherwise arranged for payment of all federal income taxes owed, acknowledge their violations of immigration laws under oath, pay a civil fine of not more than $2,500, and pay user fees to cover the full cost of the registration system; and
  2. Allow the immediate submission of applications for adjustment of status under Section 245 of the Immigration and Nationality Act by persons who have obtained an immigrant visa priority date based on a non-frivolous filing with the Department of Labor of an application for Alien Labor Certification, or on an immigrant visa petition with the U.S. Citizenship and Immigration Services, that has a reasonable basis in law and fact.

BARACK OBAMA

THE WHITE HOUSE, May __, 2010

Tinker Bell picked up a pen from the Oval Office desk and handed it to the President, waiting hopefully that he would display courage and exercise leadership by signing the Executive Order.

Pants on Fire over Immigration

Posted in Congress on Immigration, Constitutional Law, Democrats on Immigration, General Immigration, GOP on Immigration, Homeland Security, Immigration Reform, Obama Administration on Immigration

Fingers crossed

In the 1997 film, Liar Liar, Jim Carrey starred as Fletcher Reede, a scruples-free lawyer whose young son, Max, wishes that, for just one day, his dad would tell the truth.  Max’s wish is granted. Fletcher flips from mendacity to veracity.  He tries persistently to lie; his Silly-Putty® face contorts wildly, but he can only blurt out truths.  Hilarity ensues, life lessons are learned, and the Reede family lives blissfully ever after.

Fast forward to Washington DC, November 2014.  Young Max, now a manly Millennial, remorseful for having sat out the mid-term elections, and disgusted with the politicians’ threats and counter-threats on immigration, makes a new wish:  For just one day, one Republican (John Boehner) and one Democrat (Barack Obama) must only speak the truth.  The wish is granted.  The usual round of press conferences and TV appearances are held, and questions are asked of President Obama and House Speaker John Boehner.

Mr. President, you’ve said that, given the failure of Congress to enact immigration reforms, you will use the full extent of your legal authority and take executive actions before the end of the year to fix our nation’s immigration system.  What specific actions will you take?

President Obama:

Before I answer that, let me admit a few things.  I promised to push for immigration reform during my first year in office, but didn’t.  I blamed Congress for failing to enact immigration reforms, while claiming that I lacked authority to disregard the laws on the books.  Hoping to show Republicans that I could be tough on immigration, I became the “Deporter in Chief.”  But then, a few months before the last Presidential election, I did what I said I could not do and authorized the Homeland Security Department to roll out a program for Dreamers known as DACA (Deferred Action for Childhood Arrivals).  That move brought out Latino voters in droves and may well have been the proximate cause of my reelection.  Pressed by immigration activists to stop breaking up families by deporting parents, I asked the Secretary of Homeland Security to study alternatives.   Then I deferred action on his report, and then I deferred executive action in the summer, and deferred again in the fall at the behest of endangered Democrats who worried that they’d be trounced in the mid-terms.  It didn’t matter.  They were trounced anyway, and I’m now facing a Congress controlled by the GOP.  So having learned that I must talk truth on immigration, here’s what I’m going to do very soon.

 I’ll order reforms that allow a 2.5 million to 5 million undocumented to receive work and travel permits (except for recent arrivals, hardened criminals and terrorists). I’ll authorize measures that will speed up — ever so slowly — the immigrant visa backlog.  I may allow early filing of employment-based green card applications.  This would grant professional and skilled foreign workers and their families work and travel permission sooner than now. But they’ll still be stuck in the waiting line just as long and won’t get green cards until their visa numbers are current. I could recapture 600,000 or more immigrant visa numbers that my own and previous administrations squandered by not using them before the end of each fiscal year.  I could say that spouses and kids would not be counted in the employment-based green card quota.  I could make USCIS stop denying benefits to people on technicalities or imagined grounds of ineligibility.   I haven’t decided on these yet.

Of course, I’ll describe these executive actions as generous within the bounds of the law. I know that I’ll be accused of having bypassed the Republican Congress on immigration reform. Some in the media will say  it’s  ”Caesarism” or “caudillismo.”  But others will come to my defense.  Still, the constitutional law professor in me worries that I may be going too far, and that some future Republican president will use my action as precedent to ignore the Constitution and take the country off a cliff.

Mr. Speaker, last summer when unaccompanied minors were streaming across our borders you spoke of the “numerous steps the President can and should be taking right now, without the need for Congressional action, to secure our borders and ensure these children are returned swiftly and safely to their countries.” More recently you said that if the President pursues unilateral executive action on immigration, he’ll be “playing with fire, and when you play with fire, you get burned.” So executive action is right when you agree with it and wrong when you don’t.  Which is it?

Speaker Boehner:

Well obviously executive action is right when a Republican holds the presidency and wrong when it’s held by a Democrat, especially Barack Obama.

Yes, I’ve used incendiary language about “executive amnesty” but I’ve been no less flamboyant and no less insincere than others in my party.  Republican National Committee Chair Reince Priebus called  executive action by the President on immigration ”a nuclear threat”  and said it would be like “throwing a barrel of kerosene on a fire.”   But don’t believe him.  He’s the same old Reince who suggested after our 2012 loss that comprehensive immigration reform must be embraced, that is, until the Tea Party caucus set him straight. I also liked the whopper Mitch McConnell lobbed when he said he’d “naïvely hoped the President would look at the results of the election and decide to come to the political center and do some business with us.”  Mitch is never naïve.  He knows that the election proved nothing because we offered no agenda to govern.  Mitch and I both know how much we need to show the public that Republicans — when we control Congress — can pass meaningful legislation.  We know we  can’t be seen as the party of “just say no.”  If we got immigration behind us, we could “do business” with the President on taxes, trade, energy and other issues that our rich donors demand.

So, when President Obama takes executive action on immigration, as I’m sure he will, the Tea Party wing of the GOP will have conniption fits.  Many of them will accuse him of impeachable acts.  He needn’t worry.  His executive actions are no more aggressive than other Presidents, including Republicans.  These are by no means “high crimes and misdemeanors.”

We will also threaten to sue him, but we know that won’t work.  The courts won’t recognize the standing of members of Congress to challenge his enforcement discretion. We will threaten to hold up approval of Loretta Lynch, his pick for Attorney General, but she’ll get through because the Democrats can exercise the nuclear option and prevent a filibuster.

We’ll also threaten to use the budget process to starve his immigration agency, U.S. Citizenship and Immigration Services, of the funds needed to issue work and travel permits to the undocumented.  He need not  be worried.  Although it could lead to a government shutdown, it won’t.  Mitch McConnell and I are too savvy for that.   We know that the public blamed the GOP for the last shutdown, and will likely do it again.  In any case, USCIS is mostly funded by user fees which applicants for benefits must pay.  So a budget standoff will not work.

 But the biggest lie of all is when I said recently that “[it's] time for the Congress of the United States to deal with [immigration]“.  I could resolve this problem easily if I weren’t so fearful of the flack I’d get from the Tea Party and Fox News.  I could disregard the Hastert rule and just call up the Senate comprehensive immigration reform bill, S. 744, for a vote.  Despite the election, there are still enough House votes to pass it. It actually is the smart thing to do.  It might be the first step toward showing the growing demographic of Hispanic, youth and single female voters that we’re not just a party of older white, mostly male voters.  It might allow our 2016 presidential candidates to jump the “blue wall.”  Truth be told, however, I won’t bring S. 744 up for a vote. Pretense and posturing are so much easier than leadership and governing.  I’ve got to go now, because I’m getting all weepy — for myself and my missing spine.

* * *

Well Max got his wish  and two seasoned pols told the truth for a day.  Does it change anything?  Not really; we know these truths to be self-evident.  The ultimate truth is that howsoever President Obama’s executive actions and the Republicans’ reactions on immigration play out, the American people must stand up and hold our “leaders” accountable to fix our dysfunctional immigration system through well-conceived legislation.

Immigration “Fire on the Ground” — What’s Next for the L-1B Visa?

Posted in Administrative Appeals Office - USCIS, Courts on Immigration Law, Employment-Based Immigration, L-1 Visa, Requests for Evidence (RFEs), USCIS

Since 2008 American employers have been burning mad about how U.S. Citizenship and Immigration Services (USCIS) has gone from fairly reasonable to highly restrictive in its interpretation of the L-1B “specialized knowledge” visa category. This statutory visa category allows certain “intracompany transferees” to enter and work in the U.S. for a qualifying employer if  he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.”  See Immigration and Nationality Act § 214(c)(2)(B).

Concerns over the USCIS’s change of direction on the L-1B have been voiced in many quarters, including the USCIS Ombudsman, a wide array of U.S.-based companies, the U.S. Chamber of Commerce, the National Foundation for American Policy, the American Immigration Lawyers Association, and this blog. Ever since the agency’s appellate body, the Administrative Appeals Office (“AAO”), issued a 2008 non-precedent decision, known as the GST” case, immigration adjudicators found their conceptual road map to drive ever higher rates of Requests for Evidence and denials of L-1B petitions.  GST repudiated settled policy guidance from the legacy agency, the Immigration and Naturalization Service (INS), defining specialized knowledge found in the 1994 “Puleo Memorandum.” That memo, later reaffirmed by INS and USCIS, applied dictionary definitions of the terms “specbrazilian_meat_193236ial” and “advanced” and outlined several fairly reasonable factors that would allow an individual to qualify under the L-1B category.

Criticism of the restrictive interpretation of specialized knowledge ultimately reached the ear of the then Director of USCIS, Alejandro Mayorkas (now the Deputy Director of the Homeland Security Department), who stated in 2012 that updated guidance reflecting USCIS’s interpretation of specialized knowledge would be forthcoming.  The agency, however, has never released the guidance. Numerous Beltway insiders suggest that the White House suspended its release and that the updated guidance is now being revised, presumably to satisfy whatever concerns of policy or politics may have prompted the suspension.

More recently, the interpretation of L-1B specialized knowledge and the Puleo Memorandum received extensive consideration in an October 21, 2014 opinion of the U.S. Court of Appeals for the District of Columbia Circuit, Fogo de Chao (Holdings) Inc., v. United States Department Of Homeland Security. In that case, a persistent prospective employer, operating numerous Brazilian steakhouse restaurants (churrascarias) under the brand, Fogo de Chao — Portuguese for “fire on the ground”was denied L-1B classification for a chef, Rones Gasparetto, who had been “raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil” and who also received extensive in-house training from an affiliated employer abroad.  The denials occurred at the USCIS Vermont Service Center, the AAO and the District Court.

At first blush, the decision could be seen as limited to its unusual facts. A two-judge majority remanded the case to USCIS because the AAO categorically refused to consider whether culturally acquired knowledge could be treated as “specialized” under the L-1B category and disregarded evidence that Mr. Gasparetto participated in the foreign employer’s training program.  But a closer reading reveals a number of legal gems that may prove helpful in other L-1B cases:

  • The courts will not defer to the presumed expertise of the agency under the Chevron doctrine in the interpretation of L-1B “specialized knowledge” because the agency’s definition in its regulations virtually parrots the statutory definition:  

[Because] the regulation “gives little or no instruction . . . on the question at issue—what constitutes “special” or “advanced” knowledge for the purposes of L-1B visa eligibility—we cannot say that the agency has interpreted its regulation, rather than the underlying statute (citation omitted).

  • An AAO decision lacking designation as a precedent is not entitled to Chevron deference. Rather, it will be given Skidmore consideration only to the extent of its persuasiveness.
  • Consistent with the Puleo Memorandum, knowledge and experience gained outside of the petitioning organization may be considered in determining whether L-1B eligibility has been established.
  • Although the AAO passingly noted the need to train another in the same field of endeavor, its failure to carefully consider evidence of economic disruption and the time required to train another to perform the L-1B candidate’s duties — also factors in the Puleo memorandum — constitutes reversible error:

[Consideration] of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts. After all, to understand what is “specialized” knowledge, the agency needs to define with consistency a comparative baseline.  . . . That specialized knowledge may ultimately be a “relative and empty idea which cannot have a plain meaning,” Department Br. 22–23 (quoting 1756, Inc., 745 F. Supp. at 15), is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.

  • Although the majority opinion found insufficient evidence of Fogo de Chao’s claim that the agency had approved 200 prior petitions for the same position, and therefore rejected a claim of inconsistency,  it noted that a proven “pattern of visa grants of sufficient magnitude could obligate the agency to provide a “reasoned explanation for . . . treating similar situations differently,” — or at least something more reasoned than [USCIS] confessing a decade-long pattern of “material and gross error (citation omitted).”   Nonetheless, a definitive legal rule cannot be wrung out of a pattern of decisions unless the decisionmaker has “the authority to bind the agency,”  and in this case, neither the Vermont Service Center nor the AAO had or exercised such authority.

Given that Court of Appeals remanded the case back to USCIS, it remains to be seen whether Chef Gasparetto will be serving American customers Brazilian-style steaks anytime soon.  Also unknown is whether the long-awaited USCIS policy guidance, if ever issued, will provide accessible clarity on the requirements to establish L-1B specialized knowledge in a way that takes into account the reasonable needs of multinational companies in the 21st Century.

 

The “When” of Immigration

Posted in Congress on Immigration, Enforcement/USICE, GOP on Immigration, Immigration Reform, Obama Administration on Immigration

whenIn everyday English, “when” clearly “connote[s] immediacy.” . . . ’”when’ … can be read, on the one hand, to refer to ‘action or activity occurring ‘at the time that’ or ‘as soon as’ other action has ceased or begun … [But on] the other hand, ‘when’ can also be read to [mean] ‘at or during the time that,’ ‘while,’ or ‘at any or every time that. “‘ (Footnotes omitted.)

This quote from an October 8, 2014 tour de force opinion of U.S. District Judge Shira A. Scheindlin of the Southern District of New York in Martinez-Done v. McConnell shows the many permutations and litigation-spawning power of a four-letter word.  In Martinez-Done, Judge Scheindlin canvassed the nationwide landscape of conflicting opinions interpreting the word “when” in Immigration and Nationality Act § 236(c)(“Detention of Criminal Aliens”).  That section requires U.S. Immigration and Customs Enforcement (ICE) officers, upon the happening of a condition, to arrest and incarcerate individuals convicted of a qualifying offense without the chance for impartial review of their detention.  The condition that permits mandatory detention is triggered “when,” after conviction, the individual “is released”.

In this case, ICE detained Mr. Martinez-Done “nearly ten years [after] he was released from post-conviction custody.”  No matter the varying meanings of “when,” the word, Judge Scheindlin ruled, could not be stretched so far into the future.  She also noted that with the passage of time the underlying concerns prompting Congress to require mandatory detention wane in significance:

As the Supreme Court has explained, the imposition of different forms of detention on different classes of removable aliens stems from concern that some aliens “present an excessive flight risk or threat to society.” Section 236(c) was Congress’s solution to this concern. As far as dangerousness is concerned, there is often very little evidence that a removable alien ever was dangerous, much less that he continues, years after release and reincorporation into the community, to “threat[ en] society.” Furthermore, “[b ]y any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.” (Footnotes omitted.)

Thus, on due process and statutory grounds, she held that Mr. Martinez-Done had the “right . . . to have an impartial adjudicator decide if he may be released during the pendency of his removal proceedings,” and ordered that he be granted a bond hearing.

Cities and states across the nation are coming to a similar conclusion as they increasingly decline to follow ICE’s notion of what makes a community secure and refuse to cooperate in releasing to ICE persons arrested or convicted of crimes.  As Emily Badger of WonkBlog reports:

In many ways, cities with large and deeply rooted immigrant populations have interests here directly at odds with ICE. They have scarce resources to devote to public safety, which they believe are better spent addressing actual crime than federal immigration. (Recent ICE data suggest that only about one in 10 detention requests applies to people who’ve been convicted of a serious offense). Officials worry that the detention requests also undercut community policing, making neighborhoods less safe by discouraging victims in immigrant neighborhoods from reporting crime or working with police. Local communities, unlike ICE, are also left with the collateral damage of families fractured by deportation.

Other “when[s]” of immigration are when families are “fractured by deportation” and businesses must resort to work visa lotteries to see if their hiring needs will be met.   These “when[s]” happens every day, when the House adamantly blocks efforts by the Senate to enact comprehensive immigration reform, and when President Obama stalls on his promises to use executive authority to make as many ameliorative changes as the power of his office will allow.  So when will our immigration system be fixed?  Whenever.

 

 

Immigration Voices: Baring My Teeth at I-9 Enforcement Inequalities

Posted in Enforcement/USICE, Guest Columns, I-9s, State Immigration Laws

[Blogger's note:  Here we go with another guest column from Nicole (Nici) Kersey who offers a witty, wise and worthy post on the inequities and inanities of the worksite enforcement scheme concocted by Congress in 1990, a flawed system of employer deputization of governmental functions largely maladministered by various agencies of the Executive Branch.  Worse yet for employers, the states too are getting into the act.  Witness last week's California Supreme Court decision, Salas v. Sierra Chemical Co., which held that claims of undocumented workers who present false documentation during the I-9 process are enforceable against employers under state antidiscrimination and worker protection laws , despite the defense of federal immigration-law preemption  -- at least until the employer receives notice that the worker is unauthorized for employment.  So the broken enforcement scheme creates ever more headaches and hurdles for employers.]

Baring My Teeth at I-9 Enforcement Inequalities

By Nicole (Nici) Kersey

I admit it.  I know more about quidditch than about soccer.  The World Cup holds little interest for me, aside from the occasional glimpse of impressive Chilean, French, or Honduran abs[1].  (And, lucky for me, I can skip the games and jump to VH1’s “Best Soccer Abs” contest to see the most rippling of 6-packs.)

dick-cheney-growling

So as the rest of the world holds its breath while these guys run up and down the field, apparently biting one another and causing Adidas to pull “teeth-baring” ads, I’ve been holed up in my office working and, for fun, binge watching Orange is the New Black.  I read the book before it became a series, but when my nearly 4-year-old daughter asked me (completely out of the blue[2]) – “Mommy, why are you probably going to die in jail?” – I thought I should study up.

The World Cup and the New Black both got me thinking about the assumptions people make based on appearances or accents.  In many ways, soccer and prison are great equalizers.  You can play soccer no matter what your size, gender, citizenship status or national origin.  And in jail, while race, gender, and age may divide inmates more dramatically, those who may never have come into contact on the outside become roommates (at least they do on tv), wear the same clothes regardless of wealth, and eat the same food.

In the immigration world, employers face a number of dilemmas every day, driven largely by the appearance or voice of employees or applicants:

  • When to ask if someone is authorized to work in the U.S.
  • Whether to ask what a job applicant’s immigration status is
  • Whether to refuse to sponsor a visa
  • When to refuse a document presented as proof of work authorization
  • When and how deeply to investigate a tip indicating that a worker or group of workers lacks work authorization
  • Whether to terminate a worker’s employment if the individual comes forward with a new SSN/identity and admits that he was previously not authorized to work
  • What type of document an employee must present to prove work authorization (and whether the employer can specifically ask for that document)

These are just a few examples that lead to seemingly awkward situations in which a recruiter cannot ask the applicant with the great French accent whether he’s from France or Canada; and an HR manager is warned not to tell the new intern that she needs to see his I-20, even when that’s the only document he could possibly present to prove work authorization.   Because of confusion about the proper questions to ask on a job application, employers find themselves rescinding job offers to new hires who turn out to be H-1B employees.

And employers who work hard to ensure equality, making no assumptions based on appearance, native language, a foreign-sounding accent, or citizenship status, face a serious and unjust risk:  if it turns out that those employees lack work authorization, the employer faces a greater likelihood of penalties for Form I-9 paperwork violations and increased fine amounts, even if the employer had no reason to know that the employees were unauthorized.

Under ICE policy, employers who would otherwise receive a Warning Notice for paperwork violations (avoiding fines), must instead receive a Notice of Intent to Fine (NIF) in “instances where unauthorized aliens were hired as a result of substantive paperwork violations.”  While this policy implies that the paperwork violation must have actually caused the employer to hire someone who was not authorized to work, in practice ICE need not prove causation: correlation is sufficient.  (If causation could be shown, one might expect ICE to charge the employer with a knowing hire violation instead of – or in addition to – a paperwork violation.)

Once the employer is on the hook for fines, ICE increases the base fine amount by 5% for each I-9 relating to an unauthorized worker.  (An increase is suggested by the regulations, though no specific percentage is set out.)

This leaves employers, particularly in the construction, hotel, manufacturing, and restaurant industries particularly vulnerable.  They’ve been effectively deputized and asked to enforce the immigration laws.  They are prohibited from discriminating based on citizenship or national origin.  They must accept documentation as proof of identity that reasonably appears to be genuine and to relate to the employee presenting it.  Yet if they make a substantive error on the Form I-9 (such as attaching copies of the employee documentation to the form instead of writing the data in Section 2; or failing to make the employee input his A# in Section 1 of the form), and the employee turns out to lack work authorization, the employer is at a high risk for high-level fines (again, even if the employer did not have any reason to suspect that the employee was not work-authorized).

An employer in another industry (such as the banking or consulting industry) is at a much lower risk, even with a high rate of paperwork errors, simply by virtue of the makeup of its applicant pool and the birthplace of its employees.  The employer is less likely to be inspected by ICE in the first place.  If inspected, it is more likely to receive a Warning Notice for its paperwork violations, and if fined, the fines will be lower due to the lack of unauthorized workers.

In the end, it seems that while employers are prohibited from discriminating, government policy encourages them to do so.

And now … back to the best abs contest, where Chile and Portugal are on even footing with the French.  Though when determining a winner here, I think it’s okay to take a foreign-sounding accent into account.


[1] The Spanish and Portuguese are in the running as well.

[2] Okay, so we took her to see Muppets Most Wanted, which has resulted in a much more detailed discussion of gulags, jails, thieves and burglars than I ever expected to have with my child.

The Immigration Pony in Eric Cantor’s Defeat

Posted in Congress on Immigration, Employment-Based Immigration, Family Immigration, Foreign policy, GOP on Immigration, Immigration Reform

Steve Case quoting Nelson MandelaThe usual voices said trite things when a sliver of Richmond, Virginia Republican primary voters last Tuesday rejected Eric Cantor’s bid to continue as Majority Leader in the House of Representatives.  With a margin of just over 7,200 votes out of roughly 62,000 cast, David Brat, a college economics professor and Johnny-one-note who beat the anti-amnesty drum with gusto, eked out a victory over a powerful politico and unleashed a flood of prognosticators who argue that immigration reform in this Congress is dead.

Those of us who still believe reform will happen, if not soon but inevitably, are likely to be derided as incurable optimists, much like the young boy in Ronald Reagan’s “pony in the manure” joke.  As I explained, however, to Roy Maurer, Online News Manager/Editor for the Society of Human Resources Management (“Does Cantor Loss Signal the Demise of Immigration Reform?”):

Eric Cantor’s loss is not a death blow to immigration reform.  The economic and moral imperative to resolve an issue of this magnitude is far larger than one individual’s loss in the primary to talk-media stoked anti-amnesty rantings.  Changes will occur as leaders come to the fore — whether, for example, by Majority Leader Boehner with incremental action in the House or by President Obama through executive orders, or by others.  The struggle for reform is not over;  it may be slowed a bit, but the country’s prosperity and its social fabric depend on fixing this broken system.

Immigration reform is not dead because Americans, by an overwhelming margin of 62% in recent polling, favor enacting a pathway to citizenship for undocumented people in our country.  It is not dead because the following problems will not go away merely because 7,200 or so Republicans in Virginia tossed out Eric Cantor (who — unlike steadfast reformer Lindsey Graham, a victor in his GOP primary — blew hot and cold on amnesty versus reform):

These problems will only fester until our politicians realize that the American people have had enough.  Meantime, advocates for reform will continue pushing, while opponents use the techniques of distortion and diversion to forestall the inevitable.  Leaders will emerge.  As Steve Case reminded us with the words of Nelson Mandela, “it always seems impossible, until it’s done.”

Immigration Voices: Dr. No vs. the League of Extraordinary Aliens

Posted in Extraordinary Ability, Guest Columns, O-1 Visas, Requests for Evidence (RFEs), USCIS, USCIS Ombudsman

survey questionnaire

[Blogger's note:  An anonymous immigration lawyer offers this lament on the woeful quality of adjudications at U.S. Citizenship and Immigration Services (USCIS).  For related wailing, see:  “ 'I Hate [Bleep]ing Immigration Law’ — Whenever I Get an Unjust Request for Evidence,” “End the Tyranny of Immigration Insubordination,” and “Immigration Indifference – The Adjudicator’s Curse.”]

Dear Immigration Colleagues:

On my doctor’s advice, I am considering changing careers. Like perhaps many of you, helping clients overcome unreasoned decisions and ludicrous requests for evidence year in and year out has taken its toll on my blood pressure. The quality of adjudications by USCIS seems to be declining even further, unfortunately, and I figure now is the time to get out while I am still living.

A string of recent O-1 RFEs [Requests for Evidence], and NOIDs [Notices of Intent to Deny] from the USCIS California Service Center reveal a new disturbing trend.  The best and brightest, including the very STEM PhDs to whom the Senate and much of the House would essentially just give green cards, now find themselves in the crosshairs of the USCIS such that they are being prevented from even coming to work, or continuing to work, temporarily. We just recently received a Notice of Intent Deny, for example, for the fifth O-1 extension for the CEO and founder of a very successful U.S. technology company.

Unfortunately, the example above is not a one-off training issue, despite what the USCIS brass might say when they read this piece ( I will be sending it to them). We have confirmed with other colleagues that O-1 petitions filed for top notch STEM PhDs, supported by voluminous awards, recommendations, patents, and publications are being stopped in their tracks, and told that such evidence does not show that they meet any of the O-1 criteria.  Do these government officials know that these are the guys whom just about everybody in Congress agrees we should actually be encouraging to come here? Shouldn’t this general understanding of our policy inform officers’ discretion in these matters?   Where is the disconnect between us, our duly elected officials, and the officers adjudicating these cases?

Bureaucrats like the one who is intent on denying our client’s case can have a profoundly negative impact on peoples’ businesses and lives, not to mention the U.S. economy as a whole. Sometimes, this can be fixed. The impact on an attorney’s health year after year, however, may not be reversible. That is why I figure it is time leave.  Of the many careers I have considered, I have thought about becoming a screenwriter of spy thrillers. Dealing in fiction, where no one actually gets hurt by rogue government officials, would seem to be a better way to live a longer, healthier life.  Before I make the leap, I wanted to share with you my pitch for one screenplay idea. It is a sequel to one of the early James Bond thrillers, with a science fiction twist (Please be gentle in your criticism. My nerves are a bit weak these days).

Here it is:

 Title:  Dr. No vs. the League  of Extraordinary Aliens

 Dr. No is back, and this time he is ready to do some real damage. He, and his evil “Culture of No” agents, have  infiltrated the  elite government sub-department responsible for bringing the  “League of Extraordinary Aliens” to earth.  Members of the League comes to us from far off planets like, Europater, and Asiater, and use their super powers to help solve Earth’s biggest problems, like  economic stagnation, global warming, and low quality Hollywood entertainment.

 In reality, Dr. No has never left. He and his agents have operated their secret organization, SPECTRE [Society to Prevent Economic, Cultural and Technological Revitalization and Enhancement] from deep beneath a dark and ominous missile factory somewhere in Orange County.  They have lurked in the shadows,  sporadically attacking international business, and technological innovation to serve what could only be their ultimate goal:  returning society to the Middle Ages.  Now they are going all out. SPECTRE has managed to turn its weapons, the RFE explosive device and NOID blaster, on our last hope for progress, the League of Extraordinary Aliens. Even that most righteous protector of the League, Ombuds Man, is rendered powerless in the face of SPECTRE’s firepower. …

 That is as far as I have gotten with the screenplay. I still need help coming up with an ending, and am having a hard time imaging a happy one.  I look forward to your ideas.

L-1 Petitioners Beware: USCIS Confirms Plans to Expand FDNS Site Visit Program

Posted in Fraud Detection & National Security (FDNS), Guest Columns, L-1 Visa, Uncategorized

L-1 Petitioners Beware:

USCIS Confirms Plans to Expand FDNS Site Visit Program

By Maura K. Travers and Angelo A. Paparelli

History is about to repeat itself. Fraud Detection and National Security (FDNS), a directorate of  United States Citizenship and Immigration Services (USCIS), is set to embark on another foray of surprise visits to Corporate America, seeking to determine whether employers petitioning for work-based immigration benefits have kept their word.

Crime Scene Investigator

First employers of R-1 religious workers were the target of scrutiny, and then sponsors of H-1B workers in specialty occupations heard the knock on the door (see  ”Immigration Promises Made, Debts Unpaid,” “Immigration Mission Creep and the Flawed H-1B Report on Fraud and Abuse,” and “A Cancer within the Immigration Agency“).

Soon petitioners seeking L-1 intracompany transferees should expect an FDNS site visit.  Just as with the R-1s and H-1Bs, perceived abuses have led to these visitations (see U.S. Department of Homeland Security, Office of Inspector General Reports, “Implementation of L-1 Visa Regulations,” and “Review of Vulnerabilities and Potential Abuses of the L-1 program,”  and “What the ‘L’ is Going on with USCIS?”).

Here’s the scoop.  In an April 24, 2014 stakeholder teleconference, FDNS’s Associate Director, Sarah Kendall, confirmed plans to expand the Administrative Site Visit and Verification Program (ASVVP) to include all L-1 employers.

Background

Under ASVVP, FDNS Officers conduct random, unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions (typically, H-1B petitions).  In fiscal year (FY) 2011, FDNS performed more than 17,000 ASVVP site visits, an increase of over 2,000 visits from the previous fiscal year.

Context

The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program.  Initial evidence suggested that USCIS would focus this expanded site visit effort on extensions of individual L-1 new office petitions originally filed with USCIS Service Centers.

Update

During the April 24th teleconference,  USCIS confirmed plans to administer a phased roll-out of ASVVP to include site visits to all L-1 employers.  Although listeners were left wanting for specific details regarding an anticipated timeline for this phased expansion, USCIS confirmed that the first phase will focus on all L-1A extension petitions filed with USCIS.  Furthermore, USCIS confirmed that a pilot program and inspector training are scheduled to be completed by the end of FY 2014.

In line with the existing ASVVP, L-1 site visits will be conducted randomly based on data gathered from Form I-129.  Although USCIS indicated that it ultimately plans to include L-1 Blanket applicants in the site visit program, the agency did not specify what data will be utilized for the random selection process, because L-1 Blanket applicants do not file Form I-129 with USCIS.

USCIS indicated several areas that inspectors will focus on during L-1 site visits:

  • Does the business exist?
  • Does the business appear to be ‘in business?
  • Was contact made with the signatory of the petition or the Human Resources representative?
  • Did the signatory or Human Resources representative have knowledge of the petition and of the beneficiary?
  • Was the beneficiary available to be interviewed?
  • Was the beneficiary working for the business?
  • Was the beneficiary knowledgeable, forthcoming, and performing same duties as represented in the petition?
  • Is the beneficiary being paid the salary as indicated in the Petition?

Anticipated Issues

While USCIS attempted to assure stakeholders that the random site visit program should raise no concerns for honest L-1 employers, listeners may have been left with a different impression.  It is evident that USCIS has not reconciled some key differences between the H-1B and L-1 visa categories with respect to specific site visit protocols.  For example, in order to file an H-1B petition, an employer must first obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL).[1]  The LCA includes an attestation to the DOL that the employer will offer the H-1B nonimmigrant the prevailing wage in the intended geographic area of employment.[2]  As such, an employer must accurately indicate the H-1B beneficiary’s salary and worksite location in the petition to ensure compliance with the law.

However, there is no LCA requirement in the L-1 context.  Therefore, the DOL does not regulate L-1 salaries within specified geographic areas.  In fact, an employer is not required to file an amended L-1 petition unless: (1) there is a change in the L-1 beneficiary’s capacity of employment (i.e., from a specialized knowledge position to a managerial position); (2) there is a material change to the L-1 beneficiary’s job duties affecting L-1 eligibility; or, (3) there is a change in the qualifying relationship between the U.S. petitioner and its foreign entities.[3]

As such, under the current law, an L-1 beneficiary’s worksite, salary, and job duties are subject to change without notice to USCIS. Therefore, FDNS inspectors relying on data contained in the Form I-129 may not possess the most up-to-date information at the time of inspection.  An L-1 employee selected for inspection may no longer be present at the worksite indicated in the petition.  Furthermore, it is not entirely clear what USCIS hopes to gain by auditing information about the salaries and job duties of L-1 beneficiaries, considering there is no regulatory requirement for continued compliance with the original petition.

According to the agency, the initial site visit will not be determinative. If the beneficiary has moved to a different work site, the site inspector will follow up with the company to confirm the L-1 beneficiary’s new work site, salary, and job duties.  The site inspector will take into account the particularities of the L-1 category into consideration before completing a compliance review report and submitting it for supervisor review.  However, it remains unclear how follow-up with the employer will occur and how the supervisor review process will work in practice.

While compliance in the H-1B context is straight forward due to the LCA requirement, the standard for compliance in the L-1 context is less clear.  To date, USCIS has provided little guidance regarding L-1 compliance.  Therefore, sending FDNS officers on site visits to investigate employers’ compliance with the L-1 program seems frivolous at best.

Preparing for the Foreseeable

With or without further guidance from USCIS, L-1 employers should be prepared for FDNS site visits.  Employers should take these visits seriously and contact an immigration attorney as soon as an FDNS site visitor appears.  Identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures.  Always provide complete and accurate information whether requested to do so onsite or subsequently via email.  According to USCIS, the ASVVP is a voluntary program.  The employer has a right to terminate a site visit at any time.  If the officer has not gathered the required information, the officer will follow up with the employer via telephone or email to obtain additional information to complete the compliance review.  An attorney can help prepare a timely and thorough response.

Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available.  Retain complete copies of all I-129 petitions and paperwork.  Ensure that foreign national employees and their managers are aware of the content of the I-129 petition and supporting documentation.  While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 beneficiaries to site inspectors either on site or in response to follow-up inquiries by an inspector.  For general background on investigation preparedness, see “No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters.”


[1] 8 CFR §§214.2(h)(4)(i)(B)(l) and 214.2(h)(4)(iii)(B)(l); 20 CFR §655.700(a)(3) and (b); INA §212(n)(1).

[2] INA §§212(n)(1)(A)-(D); AFM ch. 31.3(b): H-1B Classification and Documentary Requirements.

[3] 8 CFR §214.2 (l)(7)(C)

USCIS Gets an EB-5 Earful at Immigration Listening Session

Posted in EB-5, Investor Immigration, USCIS

earful.jpg[Blogger's note:  For EB-5 stakeholders interested in learning more about the USCIS Listening Session, you can register for "EB-5 Immigrant Investor Update,"  a webinar presented by members of Seyfarth Shaw LLP's EB-5 Immigrant Investment Team on May 13, 2014.  Topics include: 

• The April 23, 2014 USCIS’s stakeholders listening session

• FINRA’s recent notices and how to spot key trends in EB-5 regulation

• Recent subpoenas issued by the SEC and what these enforcement efforts may mean for you

• Brokerage issues and Investment Advisor registration requirements

• Senator Coburn’s requests to regional centers for EB-5 program data.]

USCIS Gets an EB-5 Earful at Immigration Listening Session

On April 23, 2014, U.S. Citizenship and Immigration Services (USCIS) — the component of the Department of Homeland Security (DHS) that administers the EB-5 Immigrant Investor Program — held an important “Listening Session” with the stakeholder community.  

EB-5 Program Chief, Nicholas Colucci, flanked by representatives of the Offices of Policy, Chief Counsel and Public Engagement, and by Dr. Winslow Sargent, Chief Counsel to the SBA’s Office of Advocacy, explained that the session is a prelude to the promulgation of new EB-5 regulations. These new rules, he noted, would enhance program predictability and consistency by better defining substantive eligibility requirements and establishing consistent filing requirements.  He added that the new regulations are but one step in transforming the EB-5 program, noting that the agency concurred in the December 2013 recommendations of the DHS Office of Inspector General that USCIS take additional measures, which he did not describe, to address EB-5 fraud and national security concerns.

The Listening Session — which Mr. Colucci noted was held in deference to Executive Order 13563 (“Improving Regulation and Regulatory Review”)  – covered a wide array of suggestions including proposals for new legal rights and interpretations, greater access to accurate program data and improvements in investor protection, the impact of immigrant visa quota backlogs and the need for greater speed and predictability of adjudications.  

Legal Rights and Interpretations

Private attorneys and others on the call made a number of suggestions:

  • Allow each party with a material stake in the outcome of an EB-5 adjudication — an I-924 request for designation as a regional center or amendment; an I-526 immigrant investor petition to be found classifiable as a qualifying EB-5 investor; and an I-petition to remove conditions on permanent residence — to have a right to be heard before the agency and to be represented by separate counsel (at present only a regional center is represented in an I-924 proceeding, and only the immigrant investor is represented in I-526 and I-829 petition).
  • Allow investors who are members of limited liability companies (LLCs) to be treated on par with limited partners in establishing that “the petitioner is or will be engaged in the management of the new commercial enterprise” under 8 CFR § 204.6(j)(5)(iii).
  • Interpret the corporate restructuring or reorganization provision of 8 CFR § 204.6(h),
  • which holds that a new commercial enterprise may consist of the “purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results,” consistently with traditional notions of corporate law allowing the formation and recognition of a new legal entity that acquires a predecessor’s assets, and thus overrule contrary interpretations found in Matter of Soffici, 22 I&N 158 (Assoc. Comm’r, Examinations 1998) [the caller mistakenly referred to Matter of Izummi, a different precedent decision] and the May 30, 2013 USCIS EB-5 policy memorandum. In other words, as another attorney later noted, asset acquisitions should be treated as new commercial enterprises. 

  • Given the delays of adjudication and the need for careful due diligence on potential investments, allow prospective EB-5 investors to enter as B-1 business visitors and provide them with work and travel-abroad permission while they evaluate and make a suitable employment-creation investment. 
  • Allow an investor to cure a perceived problem with the investment subscription documents, say, a prohibited redemption right that would deny the “at risk” nature of the investment, by permitting amendments to these documents rather than denying the case entirely, or, requiring a refiling and payment of a duplicate filing fee. 
  • Take into account and adjust for the foreseeable impact of immigrant visa quota backlogs that artificially change the measuring period in which the jobs per EB-5 investor must be created and prolong project liquidation and ultimate distributions to EB-5 investors beyond the prevalent five year holding period. The caller also suggested that the measuring periods for the I-526 approval (2-1/2 years) and the I-829 approval (up to 3 years) need to be reconciled. 
  • Revise the current Targeted Employment Area (TEA) concept involving discrete areas within counties as determined by state officials into a regional TEA principle based on the recognition that “where jobs are created [is] not necessarily where people live.” Also, extend TEA designation authority to all U.S. territories and to federally recognized Indian nations. 
  • The validity of a TEA determination should also be extended beyond the one-year period currently permitted. 
  • Reconsider the Tenant Occupancy concept so that retained jobs are considered acceptable. 
  • Make clear that the EB-5 program as provided by statute is only concerned with the fact that jobs are created and not with the duration of jobs once they have been created. 
  • Allow investors to port an approved project to a different regional center in case an existing regional center loses its designation.
  • Create an administrative presumption that the infusion of investment funds would create a presumed number of jobs or use more flexibility in accepting job-creation methodology.
  • Change the definition of how net losses are determined for a troubled business by moving away from Generally Accepted Accounting Principles (GAAP) which are prohibitively expensive to document for small businesses because GAAP will be phased out in favor of international financial reporting standards.
  • Clarify that investors in a direct EB-5 project who receive a salary are not necessarily receiving a redemption or return of their investment.
  • Allow investors whose I-824 petition for removal of conditions USCIS has denied to file motions to reconsider and/or reopen (MTRs) with the regional service center and appeal to the USCIS Administrative Appeals Office (AAO) rather than require immediate referral to an immigration judge at a removal hearing.  The caller noted that the immigration courts are backlogged for months or years, thus leaving the conditional permanent resident in a legal limbo for an inordinate period.  The caller could have also noted that the regional service centers and the AAO presumably would have more time and greater expertise in EB-5 issues than the Immigration and Customs Enforcement Trial Attorneys and the Immigration Judges who deal with a plethora of other immigration factual and legal issues in removal proceedings.  The caller could also have observed that, since the issues at the I-824 stage often involve a regional center, the center should likewise have the right to file an MTR or an AAO appeal.

Investor Protections and Anti-Fraud Measures

Various callers expressed concern about the need to stem fraud and enhance the protection of EB-5 investors, urging the adoption of specific regulations:

  • Hold regional centers liable for misrepresentations by overseas brokers and require the centers to maintain and monitor marketing materials.
  • Monitor changes and amendments to governing subscription and operating documents and allow investors to object in writing to USCIS.
  • Extend the same benefit of counting indirectly created jobs accorded regional centers to direct EB-5 investors.
  • Require USCIS to mount an investor education initiative through U.S. embassies and consular posts and to release more regional center performance data and approval/denial outcomes. One caller, however, expressed concern that release of such data would likely be misleading because of the widespread “rent-a-regional-center” practice, and because some approvals have led to projects that failed. Investors should be encouraged to investigate the project rather than the regional center.  Regional center metrics would not address that issue. The caller also worried that new and more innovative regional centers would likely lose out in investor attention to long-established centers.  
  • Verify source of funds documentation by the issuing bank or other authority rather than accepting such documentation at face value. 
  • Provide a remedy for investors who are victims of fraud in cases where the I-526 is approved and the investor has become a conditional permanent resident (assuming that the invested funds have been lost or depleted and investors lack the financial ability to invest in another regional center).
  • Instructions to EB-5 forms should outline the most common types of requests for additional evidence to help investors and the regional centers submit information likely to lead to approval and project success.  The forms, another caller noted, should not request burdensome and irrelevant information.

Processing times, Rulemaking Process and Adjudication Procedures

Many callers expressed process concerns:

  • Allow the use of the Premium Processing Service to speed all adjudications and create sufficient funds to ensure and enhance program integrity.  Faster adjudications winnow out weak projects and facilitate the success of projects with solid prospects by leading to the speedier release of escrowed funds.
  • Charge a substantial annual regional center recertification fee to weed out inactive centers and help investors more readily identify successful centers and projects.
  • Institutionalize the informal process of email clarification of specific issues of concern in lieu of issuing long and burdensome requests for additional evidence.
  • Give priority adjudication processing to investors in the U.S. on work visas.
  • Once a set number of approvals of I-526s have been issued, e.g., three approvals, expedite the adjudication of all similar cases for investors in the same project.
  • Maintain the integrity of USCIS published processing times by publishing actual rather than targeted processing times.
  • Expedite I-924 adjudications for regional centers seeking to expand into contiguous areas to enhance investor confidence that a new project in an adjoining area will be approved.

* * *

As can be seen, USCIS has much to digest from the Listening Session’s cornucopia of proposed changes.  As two callers urged, however, USCIS should not rush to publish proposed rules without first engaging in the kind of “iterative process” or sounding out of concepts and lines of thinking with the stakeholder community — just as occurred with the May 30, 2013 policy memorandum — a document largely praised as providing practical and clear adjudication guidance.

Waiting in the Wings: A New Leader at the Immigration Helm

Posted in Congress on Immigration, Democrats on Immigration, EB-5, GOP on Immigration, Immigration Law Complexity, Immigration Reform, Immigration Regulations, L-1 Visa, Obama Administration on Immigration, USCIS

The dysfunctional immigration world continues to spin dangerously out of control. 

Do-nothing House Republicans (and five pusillanimous Democrats) commit political seppuku with the passage of the ENFORCE Act  – a going-nowhere bill which would authorize civil suits against the President to dissuade him from doing something to husband scarce prosecutorial resources and ameliorate the harsh consequences of deportation for noncriminal violators of immigration regulations.  As Rep. Luis Gutiérrez reminds us, prominent Republican House leaders advocated for the exercise of presidential authority and prosecutorial discretion before they turned against it — the only difference being that this time they cannot suffer the insufferable, namely, that it be used by President Obama.

For their part, House Dems file a discharge petition seeking a vote on the Senate-passed comprehensive immigration reform bill, S. 744, while Minority Leader Nancy Pelosi admits that the votes are not there to prevail, thus making the effort look like a stunt pursued for political advantage. 

Provocateur Ann Coulter spews anti-immigration vitriol at the gathering known as CPAC, the Conservative Political Action Conference, as she attacked “MSNBC, where they are celebrating the browning of America,” compared immigration reform to “rape,” claimed that immigrants would upend the Social Security and Medicare programs, and espoused vigilantism (“If you pass amnesty, that’s it. It’s over, and then we organize the death squads for the people who wrecked America”).

Elsewhere in the land, activists for comprehensive immigration reform fast, while undocumented immigrants are denied bar licenses in Florida, but allowed to practice law in California.

Meanwhile, a U.S. citizen child must travel to Rome for a visit with Pope Francis — a true friend of legal immigration — and gains the release of her dad from immigration detention. This happens just before the President and the Pope meet to discuss immigration, an act that would perhaps be more meaningful had the Obama Administration, in releasing its proposed FY 2015 budget, not reflected conflicting priorities and the malapportionment of heavier spending on immigration enforcement than on benefits and immigrant integration.

All this time, U.S. Citizenship and Immigration Services (USCIS) has continued since December to make do without a permanent leader.  Following the departure of Alejandro Mayorkas, the erstwhile and accomplished USCIS Director, appointed to serve as Deputy Secretary of Homeland Security, an acting director, career officer Lori Scialabba, has served as its interim leader and caretaker. While this beleaguered agency with a huge and hugely important mission and long-endemic problems has shown spunk and commendable results in some areas, such as public engagement, a new online “e-Request” form for simple-problem resolution, and the EB-5 immigrant-investor domain, growing problems only proliferate.

leonrodriguez.jpgThe President’s nominee as new USCIS Director, Leon Rodriguez, a seasoned federal prosecutor and Director of the Office for Civil Rights of the Department of Health and Human Services, may be recommended on April 3 in an Executive Business Meeting of the Senate Judiciary Committee.

Mr. Rodriguez, whose “grandparents fled anti-Semitism and poverty in Turkey and Poland in the late teens and early 20’s to come to Cuba where [his] parents were born,” only later to seek refuge from the Castro regime in the U.S., has offered tantalizing insights into how, if approved by the Senate, he might tackle the daunting job of USCIS Director, especially in reply to Sen. Grassley’s queries. 

In written answers to various Senators’ questions, he reaffirms his belief in the proper use of prosecutorial discretion and the need to protect internal agency whistleblowers from retaliation, agrees to meet with union representatives of USCIS employees, expresses support for recent USCIS reforms of the EB-5 program and states that in limited circumstances it is incumbent upon the USCIS Director to intervene in a pending case when the “outcome of adjudication is wrong, or when adjudication may present a legal, factual, or policy issue of broad application.”

Unfortunately, the Senators’ written questions to Mr. Rodriguez ignored many problems and challenges facing USCIS.

One of the most pressing is the L-1 intracompany-transferee visa category and the ever mounting rates of denials by USCIS of  employer petitions seeking L-1B “specialized-knowledge” workers.  As reported in the latest USCIS dataset (released through a Freedom of Immigration Act request by the American Immigration Lawyers Association), although as recently as FY 2006 the agency denied only 6% of L-1B petitions, rejections for lack of specialized knowledge jumped to 34% in FY 2013, after accelerating to 30% in FY 2012 – a five-fold increase in the denial rate even though the agency has not published any new regulation changing the adjudication standard. In a press release accompanying its recent report (““L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”), the National Foundation for American Policy (NFAP) observed:

Denial rates for L-1B petitions increased in FY 2012 and FY 2013 – after U.S. Citizenship and Immigration Services officials pledged in early 2012 to develop new proposed guidance, for public review and comment, in order to update and modernize the understanding of the specialized knowledge definition. The new proposed guidance never materialized and, in the eyes of employers and their attorneys, the situation has continued to provide inconsistent decision-making and the high levels of denials and Requests for Evidence have continued in the past two years.

The NFAP also noted an alarming nationality-based trend in L-1B denials adversely affecting Indian citizens (a pattern also observed and critiqued in this blog):

Based on an NFAP examination of data for FY 2011 and earlier, it appears much of the increase in the denial rate has been focused on Indian nationals. U.S. Citizenship and Immigration Services denied more new L-1B petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008). In FY 2009, the denial rate of new L-1B petitions for Indians increased to 22.5 percent even though there had been no change in the regulations. In contrast, for Canada, the UK, China and other countries the denial rate in FY 2009 ranged from 2.9 to 5.9 percent for new L-1B petitions. USCIS did not release country-specific data for FY 2012 and FY 2013 but interviews with employers and attorneys indicate the problems with receiving approvals for L-1B petitions involving Indian nationals have continued.

The agency has not offered an explanation of the deterioration in L-1B approval rates or the harsher and disfavored screening of petitions for Indian workers.  Could this be a form of “taking-the-law-into-your-own-hands” in the face of perceived loss of IT jobs by U.S. workers?  Is it an off-the-shelf government a la Oliver North?  Or, is there “a bias [because] there is a sentiment that Indians are taking away American jobs“? 

Only a permanent and reform-minded USCIS Director, ushered forcefully through the Senate, even if Democrats are forced to deploy the “Nuclear Option,” would have the clout to address this disturbing trend in lawless adjudication.  Only an outsider with legal background sufficient to master the complexities of the Immigration and Nationality Act and a history of facing and overcoming entrenched bureaucratic lethargy and resistance, could fix the many daunting challenges still unaddressed at USCIS.  Let’s hope that Mr. Rodriguez is just such an individual and that his nomination is swiftly approved.