Our lawmakers are again behaving badly in public over illegal immigration. This time the tussle threatens passage of health care reform legislation. The latest contentious debate, as the New York Times reports, revolves around a slew of issues.

Among these is whether unauthorized migrants — who will be subject to the mandate that all purchase health insurance — will be allowed to use their own money to buy coverage from the public exchanges. Another is whether uninsured legal immigrants — who must also buy their own insurance — will be barred from insurance-premium subsidies until long waiting periods have elapsed. Still another is whether “mixed-status” families (consisting of citizens and legal and illegal immigrants) will be ineligible for subsidies because the formula for calculating their household expenses will disregard the living costs of the undocumented in their midst.

If these proposals become law, they will be hideous examples of taking the immigration scalpel to the public’s nose just to spite its face. The Senate and Congress would be wise instead to heed a lesson in morality and pragmatism from pronouncements last month in the Vatican and the White House honoring a famous immigrant. On October 11, Pope Benedict XVI canonized a priest, Damien de Veuster, who immigrated from Belgium to what is now the 50th U.S. state. Two days earlier President Obama, a native of Hawaii, applauded the forthcoming sainthood of St. Damien of Molokai with these words:

Fr. Damien has . . . earned a special place in the hearts of Hawaiians. I recall many stories from my youth about his tireless work there to care for those suffering from leprosy who had been cast out. Following in the steps of Jesus’ ministry to the lepers, Fr. Damien challenged the stigmatizing effects of disease, giving voice to the voiceless and ultimately sacrificing his own life to bring dignity to so many.

In our own time as millions around the world suffer from disease, especially the pandemic of HIV/AIDS, we should draw on the example of Fr. Damien’s resolve in answering the urgent call to heal and care for the sick.

Not since the unrepentant Lou Dobbs tried to tie illegal immigration to the false claim by his show’s reporter, Christine Romans, of a huge increase in recorded cases of leprosy (7,000 in a recent three-year period, she claimed, although the actual figure was 434) has the disfiguring malady known as Hansen’s disease received such public attention. (Truth be told, this ancient disease persists in its power to instill irrational fear, although its incidence is extremely low and modern medicine found a cure in the 1930s.)

Still, conflating and inflating irrational fears of immigrants and of disease may do what threats of death panels and pulling the plug on grandma could not do. The cynical opponents of health care for all and of comprehensive immigration reform must be silently smirking as they paraphrase H. L. Mencken’s defamatory coinage, “No one ever failed to kill health care by underestimating the intelligence of the American people.” The pragmatic and compassionate among us, however, must remind the public and our lawmakers that pandemics scoff at national boundaries and that the “urgent call to heal and care for the sick” will be heard sooner (while preventative care can keep costs low) or later (when those in extremis without coverage drive up costs for all, as they now do, in emergency rooms across America).

Last Tuesday, Chuck Kuck, immediate Past-Prez of AILA, and I covered the landscape of current developments in U.S. immigration law and policy on “The Immigration Hour,” Chuck’s weekly program on America’s Web Radio.  If you’ve grown weary of the health-care debate and are hankering for the next large public controversy, give a listen. 

We covered the origin and current exploits of the USCIS Fraud Detection and National Security (FDNS) unit, the latest meanderings of their outsourced compatriots who are paying visits to American employers from sea to shining sea, and the prodding of Sen. Grassley to find more and more perceived and real immigration fraud. 

Next, we offered predictions on the prospects for passage of comprehensive immigration reform (CIR) before the Congressional mid-term elections. We asked aloud whether the pro-immigration coalition will splinter if legalization’s proponents push so hard for the unauthorized 12 million that the employer community is left empty-handed in its quest for increased H-1B and green-card quota numbers.  This would be a painful role reversal for the “split the bill” voices of the business community that abandoned the pro-immigrant community in 1996’s enactment of the draconian Illegal Immigration Reform and Immigrant Responsibility Act.

We also asked whether the birthers and tea-baggers will morph into xenophobes and whether the anti-immigrant lawmakers in Congress will at last wake up and smell the strong Hispanic coffee, as the debate moves from health care to immigration.  Were our ruminations mere phrenological head-scratchings?  Or, did we make a valid point or two?  You decide, and then kindly comment on this blog.  All views are welcome.

[Blogger’s Note: Today’s guest posting on immigration dysfunctionality offers a view on pop culture.  The parenthetical “(REALLY!?!)” in the title — inserted as an editorial comment by the blog’s usual author — suggests the smarmy skepticism of an Amy Poehler and Seth Meyers riff on Saturday Night Live. The Haloween-themed guest post is by Nici Kersey, my colleague at Seyfarth Shaw LLP and a rising star in the immigration-lawyer firmament.]

For Halloween, I have decided to dress as Max from Where the Wild Things Are. I was not able to locate a Max costume at any of the traditional Halloween costume stores, so I channeled my former costume designer self, pulled out the sewing machine, and made one. I chose Max because the costume was much easier to make than the costume for any of the other “wild things” and because I have of late been feeling a lot like Max. Bottled up anger and frustration, often directed toward the immigration authorities, make me want to tear through the woods screaming. “Roar! Roar! ROAR!”

A recent example:

A colleague asked if I could help his friend with an immigration issue. For immigration attorneys, this is a frequent occurrence. Typically, the question is about a boyfriend, fiancée, friend, nanny, or neighbor who is in the U.S. “illegally.” Those discussions are often heartbreaking, as there is frequently not much that we can do to help.

This time, the discussion was upsetting for a different reason. A gentleman who had been in the U.S. for several years, working in H-1B status, complained that his wife was unable to obtain a driver’s license. The man’s employer had violated numerous immigration laws and regulations by requiring, for example, that he pay the costs and attorney fees associated with his H-1B visa petitions and with his labor certification application, but he was not interested in trying to recoup those costs (totaling more than $10,000). His main concern was that his wife was not able to drive.

In Atlanta, not being able to drive is a fairly serious disability, as public transportation is unreliable and inconvenient. This man’s wife was suffering from a frustrating lack of independence and a serious case of cabin fever. (Still, I was surprised by the lack of concern over the ten grand.)

Due to government error in issuing the H-4 approval notice to this man’s wife, the notice did not include a start date or an expiration date. When she went to the license branch, she was turned away, as her immigration document did not contain the information necessary for issuance of the license, and the SAVE (Systematic Alien Verification for Entitlements) system could not verify that she was legally allowed to be in the United States.

She tried contacting USCIS to correct the error and was told she would have a response within 45 days. (The wild things roared their terrible roars …) No response ever arrived. (… and gnashed their terrible teeth …) We contacted USCIS and SAVE to attempt to correct the error, and we were told that we would have a response within 45 days. (… and rolled their terrible eyes …) Again, no response ever arrived. (… and showed their terrible claws …) Because of the length of time the woman’s husband had spent in the U.S. in H-1B status, her H-4 status was only valid for 1 year, and by this time, nearly half of that year was already gone.

In the end, rather than continue to seek a revised approval notice or a driver’s license, the couple decided to move to Canada, where the gentleman has been offered a job. The good news is that the new employer treats its foreign national employees well and will pay all of the immigration-related costs for the couple’s move to Canada and for their maintenance of immigration-status in Canada. More good news? The man’s wife should be able to obtain a Canadian driver’s license. The bad news is that the U.S. lost a talented individual who had hoped to make the U.S. his permanent home. He had to uproot his family, which had lived in Atlanta for nearly a decade and had come to consider this his home. All of this, over something as simple as a driver’s license. Roar.

As has been noted in this blog in the past, USCIS does not offer an acceptable form of customer service. I accept that the government makes mistakes; we all do. But it should never take 45 days to correct a clear government error – an error that could be corrected by re-printing a single sheet of paper and sticking it in the mail. Here, it took more than 90 days to not correct the error or do anything at all to cure the problem. (If I regularly treated my clients this way, I would likely be not only fired but also disbarred.) It is due to problems like this that the U.S. is becoming a less desirable destination for so many talented individuals. It is due, in part, to our immigration system that the U.S. lost the recent bid to host the Olympics.

A Canadian friend recently called and said that his J-2 work authorization was set to expire and that he needed to extend it. “Is that something you can help me with?” he asked. I said that I would be glad to help. “So, can I just bring this down to your office and you can stamp it or something?” I explained that that was not exactly an accurate description of the extension process. “But I thought that attorneys were ‘officers of the court’ and that you could take care of these types of things.” Let the wild rumpus start!

Much like the drunk who looks near the street lamp for a lost key because that’s the only place where there’s light, House and Senate conferees have granted a three-year extension of life support to the still-tottering E-Verify system – the only legit e-game in town for confirming employment eligibility. Congressional gamblers also double-downed on their E-Verify bet by approving an additional $137 million in the Homeland Security funding bill for the beleaguered program. 

Immediately the decision provoked controversy.  Republican Senator Jeff Sessions has said that three years is not enough.  The bill, according to Sessions, should have made E-Verify a permanent weapon in the government’s employer-sanctions arsenal and should have placed into law the Obama-approved, Bush-era regulation – effective since September 8 — that requires inclusion of mandatory E-Verify workforce testing in new federal procurement contracts. 

Others upset by the Congressional action include E-Verify opponents who would scotch the system because it has not yet proven itself ready for prime time.  E-Verify does not detect borrowed or stolen identities.  It still flags about 4% of all queries as tentative non-confirmations (TNCs) of employment eligibility, adversely affecting a worker population of some nine million.  As the General Accountability Office (GAO) has reported, E-verify has caused the Social Security Administration electronic database to fail twice last summer for “extended” periods, causing GAO to worry about proposals that would make E-Verify mandatory for all employers:

[F]ederal legislation has been proposed to, among other things, require the use of the E-Verify program by employers across the nation. If such legislation is enacted, agency officials estimate that the number of queries to E-Verify could quickly surpass 60 million per year—nearly 10 times the number of requests in fiscal year 2008. 

Even more troubling, as reported in the Harvard Law & Policy Review, is the risk of an increase in unlawful employment discrimination and worker firings.  Already wrongful termination lawsuits are blaming E-Verify as the trigger for job losses. Courts may therefore soon determine whether the DHS-endowed employer immunity from civil liability in its Memorandum of Understanding for good-faith reliance on the E-Verify database will close scrutiny. 

One federal court has issued a temporary restraining order (at p. 16) in a comparable employer-sanctions enforcement setting (involving the now repudiated Social-Security No-Match regulation) where the Homeland Security Department purported to grant immunity against civil liability for an employer’s good-faith reliance on a government-prescribed immigration-enforcement regimen.

President Obama is expected to sign the Homeland Security authorization, including the revivification of E-Verify. Time will tell whether the expected increase in litigation and adverse impacts on employers and lawfully authorized workers will have been worth Congress’ expensive bet on the problem-plagued E-Verify program.

As a recent post by an immigration colleague notes, quite a brouhaha has erupted within the immigration bar and among purveyors of immigration case management software over a new outbreak of immigration singularity. The fuss this time involves an electronic form (the new G-28). Beginning October 30, a paper printout of a completed and signed “e-G-28″ must be presented to U.S. Citizenship and Immigration Services (USCIS) every time a lawyer or an accredited nonprofit enters a “notice of entry of appearance” in order to represent a person or entity before the agency. The paper form G-28 has been in use for decades, and while the old G-28 has had its limitations, its passable functionality did not generate much heat.

Just like the angst produced by the State Department’s online nonimmigrant visa application, the furor over the G-28 illustrates once again the failings of the Office of Management and Budget (OMB) in accepting at face value the assertions of federal agencies about the content and operations of the immigration laws. It also underscores the importance of submitting comments whenever a federal agency announces its intention to create or renew an immigration form and seeks OMB permission to do so under the Paperwork Reduction Act (PRA). Failure to comment on form changes, as the sorry G-28 episode reveals, risks much mischief and grief as the agency’s deviant brand of rugged individualism has its way with public policy and makes mincemeat of the right to counsel and the rule of law.

As the G-28 PRA approval process began in June 2008, USCIS confessed to OMB that it had an “Oops. My bad!” moment:

Recently, USCIS took the lead in revising Form G 28 and developing a new Form G 28I for use in cases filed in agency offices outside the United States. During the review process, USCIS discovered that Form G 28 had never been approved by the [OMB] under the PRA.

As a result, USCIS sought and received emergency OMB approval of the G-28 form which had been in use since before 1983. (By the way, one ironic reason USCIS offered to justify emergency OMB action on the G-28 is particularly galling in light of the thousands of unannounced site visits that its FDNS unit has conducted in the last several weeks: “If correspondence is not sent to an applicant’s representative, DHS attorneys may be in jeopardy of violating state bar ethics rules by treating applicants as if they were not represented by an attorney”).

USCIS tried to say that the lapse in PRA compliance arose with the legacy agency, Immigration and Naturalization Service (INS), which had relied on a PRA exception known as the “Administrative Action” exemption. But the new USCIS, in claiming to fess up, said that this exemption, found at 5 CFR 1320.4, “no longer applies and both Form G 28 and Form G 28I require OMB approval.” The public record, however, nowhere shows the OMB taking USCIS to task by asking when, if ever, the Administrative Action exemption applied. The Administrative Action exemption, at least as early as 1997 and continuing to today, applies to adversarial proceedings initiated by an agency and clearly not to requests for administrative agency benefits of the type submitted to USCIS. The relevant provision applicable to USCIS allows reliance on the Administrative Action exemption only if agency action arises “during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities [emphasis added].”

This blatant violation of the “public protection” provisions of the PRA (see p. 13 of this Congressional Research Service report on the PRA) should have raised suspicions within OMB about the reliability of USCIS’s explanation of the G-28 backstory. In essence the OMB allowed USCIS to blow off the comments criticizing the new G-28 by the American Immigration Lawyers Association (AILA) and two lawyers. In my view, the most trenchant of the comments came from AILA: “The proposed form does not adequately permit the entry of appearance for multiple parties.”

While AILA correctly noted the absence of a box on the G-28 to confirm the attorney’s representation of the “beneficiary” of an immigration petition and the legal interest of a new “receiving” employer in a green-card portability situation, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

• the regional center in an EB-5 immigrant investor petition;
• the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant;
• the corporate employer in its foreign workers’ adjustment of status cases or the workers’ family members’ applications for extension or change of the family’s nonimmigrant status;
• the estranged or divorced citizen or permanent resident spouse in a marriage-based petition to remove conditions on permanent residence; and
• the former “losing” employer in H-1B and green-card portability cases.

The G-28 — indeed, the USCIS’s regulations — should be modified to recognize and allow representation of parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration issues. Homeland Security Secretary (and USCIS’s departmental boss), Janet Napolitano, in one of her first interviews after her installation, told National Public Radio: “First of all, the rule of law applies on the border, and we want to make sure that that happens, No. 1.”

With all respect Secretary Napolitano, your mission is more than just border integrity. The rule of law must also be applied vigorously and faithfully to the subordinate agencies which you oversee, particularly to USCIS.