Nation Of Immigrators

Nation Of Immigrators

A public policy blog on America's dysfunctional immigration system

Immigration Howling, Hope, Hype and Hodgepodge: USCIS’s New L-1B Memo

Posted in L-1 Visa, Obama Administration on Immigration, State Department, USCIS

Concept of cognitionSocial media flamed with expressions of outrage, relief and tepid optimism ever since President Obama announced on March 23, 2015 the release of long-awaited  policy guidance on a key temporary worker visa category:

Today, I’m pleased to announce a new action I’m also taking to make it easier for global companies who are present here today to launch and invest in the U.S.  My administration is going to reform the L-1B visa category, which allows corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way.  And this could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment.  (Applause.) [Bolding added.]

For visual learners, here he is on a video for streaming to one’s smartphone or browser (the passage above begins at 9:40):

Released the next day by U.S. Citizenship and Immigration Services (USCIS), the L-1B policy guidance, published in draft form with a request for feedback accepted until May 8, will take effect on August 31.

Outrage burned from the usual quarters, namely, folks on the right who oppose every immigration initiative the President has floated, including NumbersUSA (“American Tech Workers Would Compete With Hundreds of Thousands of New Guest Workers Under Obama’s L-1B Visa Proposal“); Freedom Outpost (“Obama Continues Loosening the Reins on Illegal Aliens in the US“); Byron York, Chief Political Correspondent for the Washington Examiner, a Fox News contributor, and author of The Vast Left Wing Conspiracy (“Did you know Obama just took new executive action on immigration?”); and the Daily Caller (“Obama Announces Unilateral Action To Bring In More Guest Workers“).

Others heaved sighs of relief or cautious optimism — the American Immigration Lawyers Association (“Welcome Changes to Business Visas but Implementation Means Everything” and “the memo’s guidance may ‘be solid ground work for consistency in adjudications,'” quoting Robert Deasy, AILA’s Deputy Director of Programs, as reported in an otherwise oppositionist article by Patrick Thibodeau of Computerworld); the Council for Global Immigration, through Justin Storch, its Manager of Agency Liaison (“We are hopeful that the memo will provide some clarification for both employers and adjudicators so the denial rates will decrease“), and the U.S. Chamber of Commerce, through Randel K. Johnson, its Senior Vice President of Labor, Immigration, and Employee Benefits (“We are particularly pleased to see the guidance proposal reiterate that the burden of proof is the preponderance of the evidence standard and that the agency must give deference to its prior decisions“).

Frankly, after waiting years for new guidance on L-1B eligibility, I’m deeply disappointed.  Here’s my take on this poorly reasoned, and inartfully articulated rehash of long-accepted principles now burdened with a perverse array of contradictory, extra-legal and impractical notions:

  • Cherry-Picked Definitions of “Special Knowledge” and “Advanced Knowledge or Expertise.”

The phrase, “specialized knowledge” is defined virtually identically in the Immigration and Nationality Act and USCIS regulations as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or, an advanced level of knowledge or expertise in the organization’s processes and procedures (bolding added).” The L-1B guidance memo purports to adopt dictionary definitions of the words, “special” and “advanced,” but then contorts the adopted definitions to make them more onerous than common parlance would require.

According to the guidance , dictionaries define “special” as  “surpassing the usual,” “distinct among others of a kind,” “distinguished by some unusual quality,” “uncommon,” or “noteworthy.”  The memo then adopts its own definition of “special knowledge” as “knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer (bolding and italics in original, underlining added).”  USCIS does not explain the insertion of the word, “demonstrably.”  The word is gratuitous, given that elsewhere the memo confirms that the standard of proof on the petitioning employer is by the “preponderance of the evidence” or a “more probable than not” standard.  The only reason for sticking “demonstrably” before “distinct or uncommon” is to give adjudicators with a mind to issue a Request for Evidence (RFE) or deny the L-1B petition a chance to continue with that proclivity (I can foresee it now, “Petitioner’s evidence was distinct and uncommon, but not demonstrably so”).

Moreover, the agency does not explain the justification for using the more difficult definition of “advanced” knowledge or expertise — which, as USCIS notes in the memo, dictionaries variously define. One of the linked definitions of “advanced” is “being beyond the elementary or introductory.”  Given that the President expects the new guidance memo to “benefit hundreds of thousands of nonimmigrant workers,” adoption of  the easier standard, “being beyond the elementary or introductory,” would best satisfy this presidential expectation.

Also troublesome, the memo provides an inconsistent, alternative definition of “advanced”: “greatly developed or further along in progress, complexity and understanding.”  “Further along” (which likewise would better comport with the President’s expectations) seems a less difficult standard to prove than “greatly developed.” Moreover, USCIS should treat knowledge that is further along in any one of the three alternative requirements “progress,” “complexity” or “understanding.”  Here too the agency may give unsympathetic or “just say no” adjudicators a way of denying the L-1B petition by emphasizing that the advanced knowledge is not “greatly developed” or “further along in progress, complexity and understanding.” (Bolding added.)

  • A Mandate to Make Irrelevant, Impossible or Unnecessarily Strict Comparisons.

The policy memo ignores the statutory definition of “special” knowledge by instructing adjudicators to compare the beneficiary not only with other workers in the same L-1 qualifying organization (which is proper because the category, after all, is expressly dubbed the “intracompany transferee”) but also a comparison of other workers in the same industry.  The memo  states:

Demonstrating whether knowledge is “special” or “advanced” inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because “special knowledge” concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is demonstrably distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry or within the petitioning organization. Alternatively, because “advanced knowledge” concerns knowledge of a company’s processes and procedures, the petitioner may meet its burden through evidence that the beneficiary has knowledge or expertise that is greatly developed or more complex in comparison to other workers in the petitioning employer’s operations. (Bolding added.)

The only reference in the statutory definition of “special knowledge” to actions outside the company  is the allusion to knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets.” (Bolding added.)  Nothing in this definition makes it “inherent” that USCIS must compare workers in the particular industry.  Rather, requiring a comparison of workers in the same industry will merely saddle petitioners with the nearly impossible challenge of providing inaccessible or nonexistent evidence.  How can one company in an industry (the petitioner)  gain access to data about the level of knowledge held by its competitors’ employees of the petitioner’s  “product, service, research, equipment, techniques, management, or other interests.”  Any company with valuable trade secrets or intellectual property will take affirmative steps to make sure that no outsider has access to such highly coveted and valuable documents or data.  Companies routinely require all employees to sign non-disclosure/non-use agreements at the outset of employment, and keep their prized IP under wraps.  There is no way in virtually all cases that others in the same industry could possibly access it.   This is a fool’s errand, and USCIS has no business forcing L-1B petitioners to chase the nonexistent or unattainable.

  • One Hand Giveth, While the Other Taketh Away.

The USCIS memo offers the welcome reaffirmation of prior policy that specialized knowledge need not be proprietary, subject to patent or copyright protection, or “narrowly held” within the petitioner’s organization.  It also seems to debunk the myth (bereft of support in statute, regulation or legislation) perpetrated by the State Department that “[If] everyone is specialized, then no one is.”  Readers of the memo are warmed by the following excerpt:

Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge. The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.

That warmth quickly turns into a chill, however, when in the very next paragraph the memo authorizes adjudicators to consider irrelevant factors which flatly contradict and neuter the “not-necessarily-narrowly-held” acknowledgement.  These   factors (bolded below) are extra-legal and clearly beyond the reach of permissible interpretation of statute, regulations, and legislative history:

[O]fficers generally should carefully consider the organization’s need to transfer the beneficiary to the United States. The officer may consider, for example, the need for another individual with similar specialized knowledge in the organization’s U.S. operations and the difficulty in transferring or teaching the relevant knowledge to an individual other than the beneficiary. The officer should also consider . . .whether the salary to be paid to the beneficiary is comparable to similarly situated peers in such U.S. operations. Where many employees within the organization’s U.S. operations share the beneficiary’s knowledge, yet the beneficiary will be paid substantially less than those similarly situated employees, this may indicate that the beneficiary lacks the requisite specialized knowledge. As described infra, however, there may be valid business reasons for the wage discrepancy, but justification for the [wage] variance generally should be evaluated in light of the skills, experience, and other factors pertinent to the entire spectrum of employees in the U.S. operations who possess the requisite specialized knowledge. (Bolding supplied.)

The “need” of the petitioner to transfer a specialized-knowledge worker is a factor that can only be interpreted subjectively.  Which business needs are to be considered worthy and which must be rejected as unnecessary?  In a hotly competitive industry where customer loyalty is hard to achieve and maintain, is a customer’s emphatic preference for speedier fulfillment of a contract a sufficient “need” to transfer another L-1B worker? Is greater profit? Is avoidance of staff burnout? Is the obligation to cut payroll to avoid bankruptcy a sufficient need? The memo doesn’t say.  Instead it leaves the decision to the unguided discretion of adjudicators who would be authorized to tell businesses that their needs are not meritorious.

Likewise, unworkable and unlawful is the requirement in the memo that adjudicators compare the wages of “similarly situated peers” with the proposed wage of the L-1B beneficiary.  How much of a wage variance is required to be “substantial” and how “similar” must other peers be to the L-1B transferee in knowledge, expertise, duties, seniority, performance rating or other factors of subjectively perceived similarity?  Again the guidance doesn’t say — but leaves a door wide open for adjudicators to apply inconsistent, subjective standards to reject L-1B petitions at their individual whim (for we all know that there is virtually no supervisory review of draft denials).

Moreover, unlike the H-1B work visa category and its mandate that employers pay the “required wage” (the local prevailing or actual wage at the job site, whichever is higher), there is no legal basis under the L-1 category for USCIS to require submission of evidence of wages paid (indeed, the memo acknowledges that high salaries are not required) or to evaluate their sufficiency.  These  subjectively determined dictates considered in relation to other workers — the business’s need for the L-1B worker, and the adequacy of wages paid —  will force petitioners down rabbit holes of burden, delay, cost and distraction.  USCIS should delete these factors.

  • Confounded Conflation.

The USCIS memo provides a laundry list of evidence that may be submitted to establish specialized knowledge.  The list is illustrative but not exhaustive.  Unfortunately, it does not distinguish which items on the list would constitute proof of the alternative forms of specialized knowledge, i.e., “special knowledge” or an “advanced level of knowledge or expertise”).  By conflating the two alternative definitions, the agency blurs the adjudicator’s field of vision.  For example, conflation occurs in the following excerpt, the memo’s ill-advised definition of “special knowledge,” which (as noted above) requires a comparison of the knowledge held by other workers in the same company AND in the particular industry, whereas “advanced knowledge or expertise” quite properly requires no such comparison to others in the same industry:

Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations. (Bolding added.)

 This incautious wording raises the specter that adjudicators when considering the “advanced,” alternative definition of specialized knowledge will require a comparison of workers in the same industry, even though such a demand cannot be not supported by the definition of that term in the memo.

  • May Morphs into Must.

One of the most disturbing aspects of memo is the USCIS’s list of factors to prove specialized knowledge and the evidence the memo suggests might be probative. For example, as my colleague, Austin Fragomen, observed in a recent webinar hosted by the Council for Global Immigration, “how do you show that the beneficiary’s work is particularly relevant to the company’s competitiveness in the marketplace? . . . [Why do we need] a microeconomic analysis of the impact of that one employee”?  He’s right:  The only part of the statutory and regulatory definition of specialized knowledge that refers to external factors is the sub-definition for “special” knowledge, but that only asks essentially whether the beneficiary has special knowledge of the petitioner’s “product, service offering or ‘secret sauce’ [my phrasing]” and “its application in international markets.”   Even more troubling is the daunting list of types of allegedly probative evidence that a petitioner may be asked to submit.  Imagine the forest of trees converted to paper that will be consumed in assembling initially to accompany the L-1B petition or responding to an adjudicator’s RFE that may (but likely now must) include:

  • Documentation of training, work experience, or education establishing the number of years the individual has been utilizing or developing the claimed specialized knowledge as an employee of the organization or in the industry;
  • Evidence of the impact, if any, the transfer of the individual would have on the organization’s U.S. operations;
  • Evidence that the alien is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations;
  • Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the organization’s competitiveness in the marketplace;
  • Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the organization’s productivity, competitiveness, image, or financial position;
  • Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with that employer;
  • Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
  • Evidence of patents, trademarks, licenses, or contracts awarded to the organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
  • Payroll documents, federal or state wage statements, resumes, organizational charts, or similar evidence documenting the positions held and the wages paid to the beneficiary and parallel employees in the organization.

How will this list — which seems likely to require concurrent violations of the spirit if not the letter of the Environmental Protection Act and the Paperwork Reduction Act — fulfill the President’s March 23rd description of the L-1B category as allowing “corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way (bolding supplied)”?  Simply put, the memo’s laundry list makes an L-1B petition neither fast nor simple. Instead, it gives adjudicators a license to prolong the dreadful status quo.

  • Show Us, Don’t Just Tell Us. 

The existing policy guidance on specialized knowledge, the 1994 Puleo Memo, which the new L-1B memo expressly revokes, offered helpful examples of  quotidian fact patterns:

A specific example of a situation involving specialized knowledge would be if a foreign firm in the business of purchasing used automobiles for the purpose of repairing and reselling them, some for export to the United States, petitions for an alien to come to the United States as a staff officer. The beneficiary has knowledge of the firm’s operational procedures, e.g., knowledge of the expenses the firm would entail in order to repair the car as well in selling the car. The beneficiary has knowledge of the firm’s cost structure for various activities which serves as a basis for determining the proper price to be paid for the vehicle. The beneficiary also has knowledge of various United States customs laws and EPA regulations in order to determine what modifications must be made to import the vehicles into the United States. In this case it can be concluded that the alien has advanced knowledge of the firm’s procedures because a substantial amount of time would be required for the foreign or United States employer to teach another employee the firm’s procedures. Although it can be argued that a good portion of what the beneficiary knows is general knowledge, i.e., customs and EPA regulations, the combination of the procedures which the beneficiary has knowledge of renders him essential to the firm. Specifically, the firm would have a difficult time training another employee to assume these duties because of the interrelationship of the beneficiary’s general knowledge with the firm’s method of doing business. The beneficiary therefore possess[es] specialized knowledge. . . .

A specific example of [specialized knowledge] is if a firm involved in processing certain shellfish desires to petition for a beneficiary to work in the United States in order to catch and process the shellfish. The beneficiary learned the process from his employment from an unrelated firm but has been utilizing that knowledge for the foreign firm for the past year. However, the knowledge required to process the shellfish is unknown in the United States. In this instance, the beneficiary possesses specialized knowledge since his knowledge of processing the shellfish must be considered advanced.

The common theme which runs through these examples is that the knowledge which the beneficiary possesses, whether it is knowledge of a process or a product, would be difficult to impart to another individual without significant economic inconvenience to the United States or foreign firm. The knowledge-is not generally known and is of some complexity.

Regrettably, the L-1B draft memo is prolix in its verbiage but devoid of any helpful  examples by which to guide adjudicators and stakeholders in understanding what constitutes specialized knowledge in the real world.

  • Where Are Your Compatriots?  

The new L-1B memo creates a measure of predictability and reliability when petitioners seek to extend the status of a foreign worker whom USCIS previously found to satisfy the requirements for specialized knowledge.  In the following prescribed situation the memo declares that USCIS officers should not readjudicate the previously established underlying facts unless gross error in the prior determination or material changes  are identified:

In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioning organization and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification [except in cases involving work at third-party locations].

The memo offers no indication that USCIS has consulted and achieved buy-in on the memo’s pronouncements from  the two other federal agencies which must decide whether specialized knowledge has been proven in a particular case, whether in a previously approved petition or a new request, namely, the U.S. Department of State (when deciding blanket L-1B visa applications) and U.S. Customs & Border Protection (when considering applications for admission to the U.S. in L-1B status).  Presumably, the three deciders of L-1B eligibility ought to have engaged in interagency discussions of the subject before the memo’s release.  In any case, when the memo is released in final form, USCIS should expressly note that all three units are in agreement with the ultimate product.

  • No Disparate Treatment or Impact Tolerated. 

Another glaring omission is a much-needed admonition by USCIS that all L-1B petitions must be decided impartially, i.e., without regard to the national origin or citizenship status of the beneficiary or the country of corporate headquarters or incorporation.  Sadly, a recent study published by the National Foundation For American Policy reveals that the denial rate for Indian citizens topped out at 56% in 2014 although the denial rate for beneficiaries hailing from all other countries was a mere 13%. Indeed, given the gravity and proliferation of the problem of anti-Indian bias, an admonition is not enough.  USCIS should make clear that adjudicators’ L-1B decisions (grants, denials, RFEs and revocations) will be individually tabulated, not only by the country of the beneficiary’s nationality but also by the degree to which their adverse decisions reflect non-compliance with whatever USCIS headquarters’ interpretation of L-1B eligibility criteria, standard of proof or degree of boilerplate, kitchen-sink demands for additional evidence. Reprobate behavior must then be the subject of discipline, including termination of employment for the most recalcitrant and unrepenting.

On that score, notwithstanding the President’s lofty expectations concerning the “hundreds of thousands” of L-1B visa holders who will achieve temporary work visa status “in a faster, simpler way,” the leadership of DHS and USCIS must make sure these laudable expectations are not sabotaged by “get to no” adjudicators who “grouse” (my word) or “whine” (Sen. Harry Reid’s phrasing) to Sen. Chuck Grassley, as they did in their unjust effort to smear the good name and reputation of former Director of USCIS, Alejandro Mayorkas (now, Deputy Secretary of Homeland Security), as depicted in the recent hatchet job of a DHS Office of Inspector General report on a small number of EB-5 case adjudications.  Without constant oversight, these USCIS first-line adjudicators will remain as obstreperous as ever, much like the insubordinate U.S. Immigration and Customs agents who sued the Obama Administration over its deferred-action and prosecutorial-discretion policies but who’ve justly received their comeuppance from the Fifth Circuit Federal Court of Appeals.

* * *

So that’s my take on the USCIS’s draft L-1B policy memo.  Be sure to share your view, not just in the comments section below. Submit your timely your feedback to USCIS at Public.Engagement@uscis.dhs.gov.

policy memo image

Immigration on a Clean Slate: Game-Changing Proposals on Visa Modernization

Posted in Adjustment of Status, Border Issues & CBP, Border Security, Consular Officers, Courts on Immigration Law, DHS Technology Reforms, EB-5, Employment-Based Immigration, Enforcement/USICE, Fraud Detection & National Security (FDNS), Homeland Security, Immigration Courts, Immigration Reform, Immigration Regulations, Legal Representation, Obama Administration on Immigration, USCIS, VAWA - Violence against Women Act

Vintage inscription made by old typewriterTerabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration.  The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs.  Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.”

Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration.  If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative.  Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.

As my colleagues, Gary Endelman and Cyrus Mehta put it recently:

At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.

The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system.  The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with  several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy).  The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29.  The comment period has closed, and the proposals are now posted online for all to see.

Some of the most thoughtful suggestions, accompanied in many cases by convincing citation to legal authority, came from members of the Alliance of Business Immigration Lawyers (ABIL); members of the American Immigration Lawyers Association (AILA); a collection of 16 business-immigration stakeholder organizations (the 16); two individuals, attorney Nicole Kersey of Kersey Immigration Compliance (KIC), and Don Crocetti, managing member of Immigration Integrity Group, LLC (IIG) who formerly served as Chief of the Fraud Detection and Nationality Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS); the American Immigration Council (the Council); the Society for Human Resource Management through its strategic affiliate, the Council for Global Immigration (CFGI);  the U.S. Chamber of Commerce (the Chamber); the International Medical Graduate Taskforce (IMGT); the Center for American Progress (CAP) and the Global Workers Justice Alliance (GWJA).

Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:

Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either  in person or by electronic means, but still at no cost to the government).  The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators.  ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).

Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABIL proposed the creation of a single administrative tribunal to hear  appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the  complexity and inconsistency of precedent and non-precedent immigration law decisions.  ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.

Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits.  The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error.  Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees.  To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.

Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission.  Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.

Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”

Adopt improvements to promote investment, entrepreneurship, job creation and business innovation.  Many of the commenters suggested changes to spur investments, business activity, innovation and job creation.  CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.”  ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.”  AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.

Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status.  IMGT offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of  FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”

Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers).  The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program.  The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.”   These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.

Improve Federal Immigration IT Infrastructure.  AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail).  In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.”  ABIL proposed a variety of additional IT suggestions:

  1. DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;
  2. All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.
  3. All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;
  4. The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; and
  5. Online visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.

* * *

Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system.  It is broken; so let’s make the Administration fix it.

The Immigration Year in Review: The 2014 IMMI Awards

Posted in IMMI Awards

new year 2014 digits on ocean beach sandWith slightly less giddy anticipation than the annual fan frenzy evoked by the Academy Awards and the Emmys, the nation awaits another hotly competitive yearly awards ceremony.  Yes, Nation of Immigrators, it’s time to announce the 2014 winners and losers in dysfunctional immigration law and policy who’ve earned the coveted (or disdained) IMMI Award. Some recipients are repeats from hitherto IMMI awards of 2010, 2011, 2012 and 2013; others will take home an IMMI for the first time.  The rules are the same. The IMMIs are merely this outside-the-Beltway observer’s take on the year’s highs and lows in U.S. immigration, with help from some Cool Immigration Lawyers.

Evolver in Chief.   Fighting off a strong challenge by Sean Hannity who demonstrated astonishing elasticity in opposing, then supporting, then again opposing lawful status for the undocumented and a path to citizenship, President Obama earned this IMMI for his yoga-like pliancy. As itemized in the screed of a complaint filed by multiple states, the President opined at least ten times before his grant  to DREAMers in 2012 of deferred action, and work and travel permits, and nine times thereafter, that he lacked unilateral authority to address America’s dysfunctional immigration policies, that is, until he announced a series of Executive Actions (not Executive Orders) in the year’s penultimate month.

Mojo Master. Barack Obama takes home this IMMI as well for bringing roughly 5 million people out of the shadows and setting an immigration trap — apparent to all — into which fractious and blustering Republicans consciously stepped.  By taking executive actions on immigration (as have numerous past Commanders in Chief ), the President caused Republicans to flail about searching for a way to stop the his executive actions, including impeachment, censure, withholding an invitation to give the State of the Union speech in the House chamber, prohibiting the expenditure of funds, threatening a government shutdown, and ultimately short-funding until February the budget for the Department of Homeland Security. None of these ploys have worked.  The upshot is that the President’s popularity has seen a resurgence among Latinos.

Most Flawed Legal Advice.  This IMMI is awarded to that former constitutional law professor now sitting in the Oval Office who must have read and taught the seminal case of Immigration and Naturalization Service v. Chadha (declaring unconstitutional as an impermissible legislative veto an immigration statute that allowed Congress to overturn a grant of an immigration benefit by the Executive Branch).  At a December 9 public forum in Nashville, President Obama said (at 21:18 on the video):  

Make sure that they understand they don’t have to hire a lawyer . . . in order to pay for this [requests for deferred action].  Because what we saw during DACA [Deferred Action for Childhood Arrivals] when the young people were given this opportunity, a lot of people signed up but sometimes you’d see advertisements you know, “Come and give us $1,000 or $2,000 and we’ll help you.”  You don’t have to do that.

 The President also may not have read but surely officials in the Departments of Homeland Security and Justice are aware of Padilla v. Kentucky, where Justice John Paul Stevens, writing the majority opinion, stated: “Immigration law can be complex, and it is a legal specialty of its own.”  While not all applicants seeking temporary reprieve under DACA or DAPA [Deferred Action for Parental Accountability] need a lawyer if their case is straightforward and they are assisted by an Accredited Representative approved by the Board of Immigration Appeals (certainly never a notario), numerous cases will require the advice of a competent immigration lawyer.  I have a ready answer when prospective clients ask me, “Why do I need a lawyer to fill out immigration forms?  I tell them that “I guess I could perform surgery on myself, but it is not advisable.”  Another lawyer I know, when faced with the same question, says he’s done the following:

I used to pick up a copy of the [Immigration and Nationality Act] and pick out section 203(a) and hold out the pages “these are the ways to get green cards.” I then indicate section 212(a) and hold out the pages — “These are the ways you will not be allowed to obtain a green card.” And then, do the same with what is now [section] 237(a). “And these are the ways that once you have a green card, it can be taken away. . . .” “Any questions?”

To be sure, DACA and DAPA are not as complex as the myriad ways to assemble the right evidence to qualify for, obtain, maintain or lose permanent resident status.  Still, the process is sufficiently complex and the consequence of failing to qualify significant (the individual is now on the government’s radar and is subject to removal).  Thus, even for those seeking deferred action, the need for a lawyer (or merely the desire to hire a lawyer to facilitate the assembly of potential evidence of physical presence in the U.S.), is obvious.  Hence, the President’s advice is simply incomplete and therefore wrong.  Thus, for failing to make appropriate distinctions and caution that some cases may require legal counsel, President Obama deserves the opprobrium of this IMMI.

Profile in Poltroonery.  In 2014, the winner of this IMMI offered an enlightened solution to illegal immigration:

Our national and economic security depend on requiring people who are living and working here illegally to come forward and get right with the law. There will be no special path to citizenship for individuals who broke our nation’s immigration laws – that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).

The “get right with the law” reference may have fooled you.  This IMMI goes not to President Obama but to House Speaker John Boehner who included the foregoing in a set of “Republican Standards for Immigration Reform.”  Prioritizing retention of his post over the welfare of the country, the Speaker emphatically refused to bring the Senate’s comprehensive immigration reform bill, S. 744, to a vote in the House, knowing full well that it would pass with bipartisan support, while failing to fulfill his promise that the House would pass a series of immigration bills.

Profile in Machiavellian Buffoonery.  Rep. Steve King takes the IMMI for doubling down this year on his absurd, fact-free statement in 2013 about DREAMers that “[for] everyone who’s a valedictorian, there’s another 100 out there that weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” While Rep. Jared Polis teased King about a recent trip to the U.S.-Mexico border where no unusual calves were on display, King’s over-the-top rhetoric is carefully calculated and a clear and present danger to the cause of immigration reform.  Sadly, he is only one of many propagating myths about immigrants and immigration.

Lemmings over the Cliff.  This IMMI goes to the sitting and defeated Senators who for naught urged the President to delay executive action on immigration until after the November election.  To the surprise of few in the advocacy community, this “too clever by half” strategy nonetheless led to a GOP rout.

All about Love.  Jeb Bush, the first 2016 candidate for the presidency, earned an IMMI for his recognition of the prime reason why the undocumented take the risk of dying in the desert. With Fox News in attendance, Mr. Bush commemorated the 25th anniversary of his dad’s presidency, offering these honest words:

The way I look at this is someone who comes to our country because they couldn’t come legally, they come to our country because their families — the dad who loved their children — was worried that their children didn’t have food on the table. And they wanted to make sure their family was intact, and they crossed the border because they had no other means to work to be able to provide for their family. Yes, they broke the law, but it’s not a felony. It’s an act of love. It’s an act of commitment to your family. I honestly think that that is a different kind of crime that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families.

Bordering on the Absurd and Heartless. U.S. Customs and Border Protection takes this double-faceted IMMI for its two-faced demeanor in 2014.  One face promotes Jolly St. Nick who learns that only Global Entry will allow this North Pole alien to speed through immigration inspection.  The other face reveals how CBP shakes down and abuses immigrants by relieving them of their meager possessions before removing them, while also subjecting them to coldly harsh conditions before their ouster.

Talk is Cheap. 2014 saw USCIS make ever greater strides in public engagement and in the EB-5 immigrant investor arena, while its earnest new Director has sounded all the right themes.  Still, the agency wins this IMMI for its long and prolonged list of unfinished business on business immigration.  The reasons for this IMMI are numerous: Ungovernable adjudicators still issue too many requests for additional evidence, highfalutin promises of expanded use of the National Interest Waiver for entrepreneurs never materialize, oft-stated assurances to publish a final rule on employment authorization for H-4 spouses and updated L-1B guidance remain unfulfilled, the agency’s de facto reliance in determining degree equivalency solely on the EDGE database despite a contrary claim to a Member of Congress, and the buggy and insufficiently tested ELIS program which can’t handle simple applications to change status and surely is unready for complex EB-5 filings.

No Bonding of Kids and Moms.  It’s no surprise that U.S. Immigration and Customs Enforcement (ICE) is rated by the Partnership for Public Service in its 2014 Best Places to Work in the Federal Government® rankings as the second-worst place to work out of 315 sub-agencies.  Ever the enforcers, ICE officers through their union have  chafed over the Administration’s prosecutorial discretion and deferred action policies. Perhaps part of their angst originates with their duty to arrest and detain immigrant children and mothers apprehended at the border.  The IMMI goes to ICE for its “no-bond” policy requiring the incarceration of refugee families fleeing unrest in their countries of origin, with special mention going to ICE officials Philip Miller and Traci Lembke for their affidavits that have been included as ICE’s centerpiece exhibits in opposing bond and release for ALL moms and children in family detention.

We Read Nothing.  This IMMI goes to the State Department’s Bureau of Consular Affairs — an agency that places unreasonable mandates on consular officers to adjudicate far too many visa applications in too short a time frame.  The upshot is that consulates, such as the busiest blanket L-1 post in Chennai, will no longer read substantive correspondence from companies seeking to hire tech workers and instead requires all the facts to come solely from the mouth of the visa applicant during the brief consular interview.

Best Manual on Surviving Secondary Inspection.  The IMMI goes to the Central Intelligence Agency for its interesting and thorough “Surviving Secondary Screening at Airports While Maintaining Cover.”    In words that might apply to ordinary people applying for admission at a U.S. port of entry, the CIA notes: “Secondary screening—a potentially lengthy and detailed look by airport officials at passengers not passing initial scrutiny—can significantly stress the identities of operational travelers.” The cover wins an IMMI for best government cover page as well. Check it out at p. 2.

(Mostly) Courtly Behavior.  This IMMI goes to the Supreme Court (for its refusal to hear Arizona Governor Jan Brewer’s claims, and thus allowing the issuance of driver’s licenses to the state’s undocumented population), to Judge Juan Osuna, Director of EOIR, the Executive Office for Immigration Review (for urging immigration judges to deal compassionately with the flood of undocumented refugee families), and to Federal District Court Judge Beryl A. Howell for refusing to issue a preliminary injunction and finding that Sheriff Joe Arpaio lacks standing to complain of President Obama’s exercise of executive authority in the field of immigration.  Sadly, however, the IMMI is tarnished by another federal judge, Arthur J. Schwab, who went out of his way in a criminal case to rule as unconstitutional the civil immigration remedies announced by the President, while inexplicably suggesting that a criminal defendant who pled guilty to illegal reentry after removal may withdraw his plea and pursue the Administration’s executive actions. The IMMI is also tainted by the non-transparency of EOIR in refusing a Freedom of Information Act request by the American Immigration Lawyers Association (AILA) seeking to identify immigration judges against whom 767 complaints have been lodged and declining to reveal the resolution of these complaints.

A Credit to the Profession. Multiple IMMIs go to the 330+ lawyers and three bar groups for their selfless pro bono efforts in 2014.  Many helped the flood of unaccompanied children (including some citizens) fleeing oppression and crossing into the U.S. from Mexico.  These awardees include Stephen Manning, Laura Lichter, volunteer attorneys who represented kids at the Artesia, New Mexico detention centerAILA and the American Bar Association for resolutely supporting the cause; the Bronx Defenders and their New York Immigrant Family Unity Project, the first institutionally-provided, free public defender program in the country for immigrants facing deportation; attorneys such as immigration author and editor Dan Kowalski (who alerted the American people to ICE’s no-bond policy), my Seyfarth Shaw colleague, Loren Locke who won the GAIN (Georgia Asylum and Immigration Network) pro bono volunteer attorney of the year award, and Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington (who worked on cutting-edge issues and cases, warned the community and country of notario fraud and helped promote a change in state law that expanded the class of Special Immigrant Juveniles); as well as so many other worthy lawyers too numerous to mention.

In-Their-Face Activists. Again, a slew of IMMIs go out to individuals and groups who pushed the boundaries of traditional movement politics and refused to allow the President and members of Congress to ignore the need for compassionate immigration relief, including Jose Antonio VargasErika Andiola, Prerna Lal, the National Day Laborer Organizer Network (and their #NotOneMoreDeportation campaign), to name but a few.

Chroniclers, Filmmakers, Quantifiers, Litigators and Proponents. Still more IMMIs go to those who made a difference in asserting the case for comprehensive immigration reform.  They include: J.M. Rieger for his powerful video,  “Stalemate: How an Immigration Rewrite Died in the 113th Congress“;  the Weather Channel for its searing documentary, “The Real Death Valley“; Jose Antonio Vargas for his autobiographical documentary, “Documented“; the Pew Charitable Trusts, NAFSA: Association of International Educators and TRAC Immigration for their compelling sets of immigration metrics, including, e.g.,  respectively, “Immigrants slow population decline in many counties,” “The International Student Economic Value Tool,” and “Prosecutor Discretion: Immigration Court Cases Closed Based on Prosecutorial Discretion“; the American Immigration Council’s Immigration Policy Center and its powerful blog, “Immigration Impact” and AIC’s Legal Action Center for its frequent resort to the courts, most recently in defense of the President’s executive actions; Cato Institute’s Alex Nowrasteh for his prolific and persuasive writings espousing increased legal immigration; venture capitalist Paul Graham for his exuberant call for dramatically greater importation of tech workers; and the American people who consistently support comprehensive immigration reform and a path to citizenship for the undocumented.

Best Immigration Quiz.  Two lawyers are awarded IMMIs for great brainteasers, Donna Becker for her U.S. Nonimmigrant Quiz, and Liam Schwartz for his Consular Corner Quiz.  I venture that few of the Nation of Immigrators will score 100% on each.

 Jokesters and Satirists.  Lastly, a trio of cable denizens win IMMI’s because they brought us laughter’s tears over the sorry state of immigration in 2014:  Stephen Colbert (“Bats**t Serious – Child Immigrant Intrigue,” “Waiting Forever for Immigration Reform,” “Obama’s Immigration Plan – Esteban Colberto,” and “Questionable Compassion for Child Immigrants“), Jon Stewart (“No Country for Little Kids” and “Guardian of the Amnesty“) and John Oliver (“John Oliver Takes on Our Broken Immigration System“).

* * *

Well, that’s it for this year’s IMMIs.  The Nation of Immigrators must wait till December 2015 for the next annual IMMI Awards.  Meantime, Tweet me your nominees as you witness them.

Immigration Voices: “Gambling on Immigration at a Dangerous Intersection (Merry Christmas, Ninja Squirrel!)”

Posted in Enforcement/USICE, Guest Columns, I-9s, Obama Administration on Immigration

[Blogger’s Note:  Today we have a dandy guest post from the ever insightful, prolific and droll, Nici Kersey.  Don’t be put off by her introductory paragraphs.  There’s an immigration gem awaiting — one that employers, and the lawyers who counsel them, will not want to miss.]1006205_10200681805741298_2095751202_n

Gambling on Immigration at a Dangerous Intersection(Merry Christmas, Ninja Squirrel!)

By Nicole (Nici) Kersey

I run several days a week on the Air Force base where I’ve lived for the past 18 months.  I prefer to run on River Road, which has a river on one side and a golf course on the other and which leads from my house to a prison.  (Apparently, prisons and military bases are frequently co-located, perhaps in part because of the need for cheap labor to take care of golf courses, which are also frequently located on Air Force bases.)  Here are some things I have learned on these runs:

  1. People will try to hit you with golf balls.  They will find this funny.  They are probably drunk and are unlikely to hit you, but it will be unnerving, and you will learn to avoid the golf course area during the drunkest hours.
  2. Signs warning you about alligators will, at first, cause you to run your fastest miles in years.  Over time, you will begin to slow, hoping to actually see some evidence that alligators once inhabited the earth.  You will see a snake one day, and that is as exciting as your wildlife encounters will be.
  3. Until the day you see a meerkat, which you will chase and photograph.  But then you will figure out that it was just an Eastern Fox squirrel, which is basically a larger-than-normal squirrel wearing a ninja mask.
  4. The inmates will, at first, have an effect similar to the alligator signs, causing you to run faster and carry mace.  Over time, you will realize that they have little interest in you, and they are prohibited from even speaking to you.  You will eventually just wave hello to the prisoners and start to concoct wild plans for how you can help them escape from jail.
  5. Two things that you will never get used to:  running behind an active firing range.  (This will always make you run very, very fast.)  Ditto:  running under a C-130 that is landing.  You will manage to be within 20 yards of the end of the runway at least twice, and both times, you will nearly soil yourself.
  6. Every now and then, your normal running trail will be closed due to “explosive dog training.”  Causing you to wonder how, exactly, one trains a dog to explode and, if you succeed, why you even bothered with the training.

FullSizeRenderOkay, okay.  I’m supposed to write about immigration, right?  Here goes: when I run 4 or
more miles, I come to an intersection that used to cause anxiety:  turn left, you enter the federal prison; turn right, and signs warn you of alligators; turn around, and you have to run back through the golf course where the drunk people tried to hit you with balls.

Employers who are trying to decide whether to conduct a voluntary I-9 audit today face a similar intersection.  Turn left, they risk entering the federal prison in a way more “official” way; turn right, and they may lose valuable employees who are eligible for work authorization which simply hasn’t been granted yet.  (In this metaphor, the employees are getting gobbled up by the alligators.  Get it?)

Previously, employers deciding whether to undergo an audit needed to consider several factors.  Among them:  the cost of the audit, the risk that would be eliminated by the audit, whether the employer could take the time to correct violations discovered, and whether the business could survive the loss of any employees determined to lack employment authorization.  The new executive order adds a twist.  A number of employees who do not hold work authorization today may obtain employment authorization within the next 12-24 months.  This raises the question of whether now is the right time to conduct an audit.

If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment.  If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.

So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.

If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees.  But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.

And it has become abundantly clear that ICE is not “chilling out” until the new batch of DACA and DAPA employment authorization cards are issued.  (ICE isn’t even chilling for the holidays, having issued Notices of Inspection this week.)  Who is most likely to be inspected?  Employers in “critical infrastructure” are high on ICE’s priority list.[1]  It also seems that employers who were previously inspected and issued a Warning Notice are high on the list, as are employers referred to ICE after an investigation by another agency (DOL, OSC, USCIS).  And those employers who are suspected of hiring unauthorized workers – knowingly or unknowingly – are at high risk of an inspection.  Employers at higher risk of inspections may not be wise to gamble by waiting to conduct an audit.

Employers may also consider geography in assessing their vulnerability.  Those in California are less likely to be fined for I-9 violations than those in Illinois (see page 7).[2]

So I understand the inclination to wait so that you can avoid the “alligators” that will gobble up your valuable employees.  But to avoid the alligators, you have to run through the golf course and risk being hit.  If you’re lucky, you’ll see a ninja squirrel or a tiny green snake.  If you’re not lucky, you may have to run through the prison yard, and not in a fun way.

Addendum:

Wait a second … this was supposed to be a holiday-themed blog post?  Yikes.  Okay.  So, one day I was running on River Road and listening to Vampire Weekend (for the purposes of this post, we are going to say that the song was “Holiday”) when an unidentifiable liquid dropped from a tree directly into my eye.  I became convinced that a squirrel peed in my eye.  The best thing to do when you think a squirrel has peed in your eye is ask your Facebook friends for advice.  They will call you Chicken Little, and your eye will be fine.  And if you still don’t feel like this post was holiday-y enough, here’s a gift:  an annotated Form I-9 to help keep you out of trouble.  Merry Christmas!


[1] “Critical infrastructure” is defined by ICE to include Agriculture/Food, Banking/Finance, Chemical, Commercial Facilities, Communications, Critical Manufacturing, Dams, Defense Industrial Base, Emergency Services, Energy, Government Facilities, Healthcare/Public Health, Information Technology, National Monuments/Icons, Nuclear Reactors, Materials/Waste, Postal/Shipping, Transportation Systems, and Water.

[2] But some employers in California are considering conducting self audits on an expedited basis so that they can terminate employees who lied at the time of hire about their employment authorization.  (Such terminations based on dishonesty may not be allowed if the employees have gained employment authorization under a law that took effect early this year.)

 

Immigration Voices: Coming out of the Shadows with the U Visa

Posted in Administrative Appeals Office - USCIS, Family Immigration, Guest Columns, Immigration Lawyers, Legal Representation, U visa, USCIS

Portrait Of Stressed Young Girl [Blogger’s note;  Probably the most gratifying element of practicing immigration law is watching clients flourish.  Obtaining immigration benefits, especially lawful permanent residency, often unleashes a wave of innovation and creativity.  Less often, it produces a humanitarian “pay it forward” moment.  This is the story of today’s guest blogger, Protima Pandey.  Many years ago, I represented a technology company that asked me to help Protima’s husband obtain an H-1B visa and a green card, and obtain H-4 dependent visa status and lawful permanent residence for her as well.  Unbeknownst to me, she had chosen law as a career, and with the work permit that pending green card status afforded, she began a stint as a lawyer in private practice.  Soon after obtaining residency, she followed her dream and became a public interest immigration lawyer. Today, she is  a Staff Attorney with Bay Area Legal Aid, helping the impoverished, abused and desperate obtain redress and immigration benefits.  Protima is helping “pay it forward” by telling us the  story of “Tanya” and “Rose,” whose names are changed to honor their privacy.  Protima’s is only one of example of how the forthcoming final rule on H-4 spousal employment authorization will benefit America.  I am pleased to report, moreover, that Protima is very happy in her work; you could be happy too.]

Out of the Shadows — U Nonimmigrant Visa Status:

Creating Safer Communities and Bringing Justice for All

By Protima Pandey

When Tanya found out that her daughter Rose was being sexually assaulted by her father, Mauricio, Tanya’s world collapsed. All these years Tanya looked at Rose’s mood swings, flashes of anger and refusal to go to school as behavior typical of pre-teen and adolescent girls. But after Rose revealed what her father was doing to her for 7 years in a row, Tanya went numb. Even more distressing was the fact that her father told Rose categorically and continuously that she would be punished if she ever told anyone about what was happening.

On the day that Tanya learned of this, she called Mauricio at work and told him to come home immediately. She then gathered her other two children, and gently prodded them about their life with their father. Relieved not to hear them repeat the stories that Rose told her, Tanya waited for Mauricio to return. He never came. Instead, she received a call from a relative overseas that Mauricio had returned home saying Tanya was unfaithful and that he left her.

Why is this story relevant on a blog that talks about immigrants and the law? Because this is a story of a family that lived “under the shadow,” to quote President Obama, for years, trying to make a life in America. Because this is the story of a family that had a deep, dark and dirty secret, one which included believing that the laws in this country do not apply to those who are undocumented. Because this is a story of a family that the United States of America decided should not be allowed to suffer in silence while they were being victimized by a crime punishable under the laws of this country.

U nonimmigrant status (popularly known as the U visa) was created by the Victims of Trafficking and Violence Prevention Act, enacted in October 2000.[1] The law addresses the plight of aliens who have been exploited, victimized, and abused, but do not have legal status in the U.S.,  and therefore may be reluctant for fear of removal to help in the investigation or prosecution of criminal activity. The existence of U status provides law enforcement officials a means to help support the legalization of immigration status of undocumented crime victims who assist during investigations or prosecutions of criminal activity. U status provides temporary immigration benefits to certain victims of crimes who assist law enforcement officials in investigating and prosecuting those crimes.

In passing this legislation, Congress intended to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of persons, and other criminal activity of which undocumented people are victims, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. The maximum number of U status applications that can be approved in any one year is 10,000 for principal petitioners.[2]

Tanya’s story is one of several thousands of victims and families who live in silence and suffer indignities that are crimes in the U.S. all because they feel their lives are not counted the same way as are documented people’s lives. By December 2013, USCIS has granted close to 50,000 U visas to victims of qualifying crimes such as Tanya. The most important aspect of this relief is that the goal of the visa is to permit those who qualify to live temporarily in the U.S. with U status.[3]

However, the reality in the lives of the Tanyas in our country is that they often do not know that such relief exists or that they could qualify for this relief.[4] Victims rarely reach out to law enforcement because they fear that their status somehow makes them ineligible for help — a common misunderstanding among undocumented. A report released in 2013 cited by the website Think Progress[5] stated that among the Latinos surveyed (4,000 according to this report), Seventy per cent of the undocumented surveyed said they would not call the police to report being a victim of crime or a witness to a crime.[6] Anecdotal evidence from colleagues and my own clients confirms this practice. If the crime victim speaks a language other than English, there is added fear that s/he will not get help if they dial 911. It is therefore important for law enforcement and community-based agencies alike to create mechanisms for outreach, assistance and referrals for crime victims who could qualify for these protections.

Tanya called the police to report the crimes that Rose had suffered. Especially since Tanya knew Mauricio had run away, she knew that at this time she had to take a step forward to protect not just Rose, but all her children. The police referred her to Bay Area Legal Aid for legal assistance, where I am a staff attorney.[7] Tanya was low income (below 125% Federal Poverty Guidelines) and qualified for free legal assistance as a victim of crime.

Among other requirements, an applicant for U status, apart from being a victim of an eligible crime and cooperating in the investigation of that crime, s/he must ask a law enforcement agency or official to complete a certification form confirming that the applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity.”[8] The issuance of this certification[9] is a critical step that has to be completed before the applicant can file for relief under this special category of non-immigrant status. USCIS offers a guide to practitioners and certifying agencies which contains valuable guidance on the process of obtaining certification. According to the guide the certifying agency can be:

  • Federal, State and local law
    • enforcement agencies;
    • prosecutor’s offices;
    • judges;
    • family protective services;
    • Equal Employment Opportunity commission;
    • Federal and State Department of Labor; and
    • Other investigative agencies.

Community-based agencies can liaise with local agencies that investigate, prosecute qualifying crimes to determine if there is a certification process available. Some agencies, such as the California Dept. of Fair Employment and Housing post their certification process, while others require attorneys or petitioners to inquire with of staff regarding certification procedures.

Another aspect of this form of relief is that a petitioner who qualifies for a U visa can also petition for derivative family members. For petitioners who are 21 and older, this means minor children and/or non-abusive spouses. For petitioners who are 21 or younger this means minor children, a non-abusive spouse, siblings under the age of 18, and parents.[10]

We obtained certification for Tanya as a victim of a qualifying crime because it was her care, love and encouragement that allowed Rose to report the heinous crimes she had been suffering and because as a parent of a victim, Tanya is considered an indirect victim of the crime. Tanya helped law enforcement track Mauricio down in his home country and extradite him. Because Tanya was able to obtain certification as a victim of a qualifying crime, our office filed for U status relief for her, and her children were included on the application as derivative family members.[11]

Since our office represents victims with several different legal issues, Tanya asked us to assist her in obtaining a divorce and sole custody of all her children. Working with local law enforcement, we were able to serve the summons and complaint for divorce on Mauricio and obtain a divorce decree with sole legal and sole physical custody of the children awarded to Tanya. We also informed Tanya that her family could qualify for healthcare so  that her family could get assistance with therapy and rehabilitation for their trauma.

Once Tanya and her children were granted status, they were all issued Employment Authorization Documents (EADs), a benefit conferred by the regulations that govern this type of relief.[12] Because Mauricio no longer lived with the family and could not support them because he had been deported shortly after sentencing, Tanya carried all the burden of financially supporting her children. With the EAD card, she found stable employment, was able to enroll her oldest child in community college for apprenticeship (she feared he would not be able to do much after high school since she worried that colleges might require “papers” that document the immigration status of applicants before admissions) and has encouraged her two younger children to work hard in school so they can have a future for themselves.

Tanya’s story won’t end here. The visa she and her family have is good for four years. After three years of living in the U.S. and maintaining their U status, Tanya and her children can qualify to adjust their status to that of a lawful permanent residents (LPR).[13] A holder of U status like Tanya will have to file for adjustment showing that s/he has remained in the U.S. and has not unreasonably refused to cooperate with law enforcement in the investigation of the qualifying crime that made her/him eligible for this relief in the first place. The application to adjust status must contain documentation proving continuous presence.

In the case of Tanya, it could be in the form of tax returns for the three qualifying years, school records to show the children maintained residency and any other documents with her name and address like pay stubs, utility bills and other mail. Tanya and her children must show USCIS that approval is warranted[14] by requesting exercise of favorable discretion on humanitarian grounds, including the need to keep the family together. Any additional information, like the therapy that Tanya, Rose and the other children in the family are receiving to recover from the trauma they suffered because of this crime, any long standing community relationships that the family has built which serves as their support system and any activities that demonstrates participation in their local community as part of daily life like church or voluntary service are all relevant pieces of evidence that will help USCIS grant LPR status to Tanya and her children.[15]

With the law in place for undocumented crime victims to receive relief, the key issue remains outreach and assistance to the families and beneficiaries of this relief. Community-based agencies and legal aid agencies work in tandem with law enforcement and domestic violence services agencies to connect those who qualify for this help with those of us who can help them. In Tanya’s case the pieces fell together for her to free her child from the years of victimization. However, there remain many barriers that prevent other families and individuals from being helped.

One major barrier is the lack of adequate legal assistance to reach all those who qualify for help. The Legal Services Corporation in its 2012 Pro Bono Task force report found that almost 50% of the population that needs legal assistance is unable to get help because the current legal services agencies lack resources to assist all who qualify.

Studies show that the service provided to victims of crime contributes to public safety enhancement helps children and families and allows for victims of crime to receive protections under the law.   The availability of legal services for victims has likewise been shown to significantly reduce the likelihood that an individual woman is battered. Moreover, statistics from the Board of Immigration Appeals show that about 41% of litigants lack legal representation.

If you are an individual who can give to low income, unserved communities, if you speak a language other than English, if you are a lawyer who has spare time to help (Bay Area Legal Aid always welcomes pro bono volunteers), if you are looking for a resolution to make as you enter the New Year, this is your chance to consider a worthy cause, a deserving population and a satisfying deed. As a career legal aid lawyer, I am an advocate at heart, so I am reaching out to ask for help for families who are silently suffering, who can get help and who can turn around their life. The happiest moments of my job are when clients show appreciation for our work, show us results like a job or a school admission because they were able to break free from the cycle of oppression or violence or when they say their last resort, us, turned out to be the one they should have come to in the first place.

[1] It was later amended by the Violence Against Women Act, 2005, the Trafficking Victims Protection Reauthorization Act, 2008 and the Violence Against Women Act, 2013.

[2] See generally: http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status . Also see, Bay Area Legal Aid: Immigration Relief for Victims of Domestic Violence, Sexual Assault and Other Serious Crimes: U Visa, VAWA & I-751 Waivers MANUAL (January 2011). Page 10-11.

[3] See Generally Sally Konoshita, et all, The U visa: Obtaining Status for Immigrant victims of crime, Immigration Legal Resource Center, 4th Ed., 2014, 1-1.

[4] There are many qualifying crimes covered by this relief, this post uses sexual assault as an example to illustrate the benefit. See for example http://www.sfweekly.com/sanfrancisco/u-visa-illegal-immigrants-become-legal-residents-via-crime-victimization/Content?oid=2180863

[5] http://thinkprogress.org/immigration/2013/05/08/1980161/study-fearing-deportation-latinos-dont-report-crimes/ See also http://newamericamedia.org/2014/05/nashville-immigrants-too-scared-to-call-the-police.php

[6] http://newamericamedia.org/2014/05/nashville-immigrants-too-scared-to-call-the-police.php

[7] Find out more about Bay Area Legal Aid as well as how to volunteer as a pro bono attorney or donate to our work at www.baylegal.org.  Assistance and information are also available from the Office of the USCIS Ombudsman.  The Ombudsman, Maria Odom, serves as Chair of the Department of Homeland Security’s Blue Campaign, a unified effort to combat human trafficking.  In collaboration with law enforcement, government, and non-governmental partners, the Blue Campaign works to educate the public about how traffickers operate, where help is available to victims, and the importance of a victim-centered approach to combating human trafficking.

[8] See Generally INA § 101(a)(15)(U); INA § 214(p) and regulations found at 8 CFR §§ 212.17, 214.14 . See also In re Petitioner (name redacted), No. EAC 09 080 50515, 2010 WL 4088659 (Administrative Appeals Unit, March 3, 2010) for specifics on evidence of the direct and immediate harm that the petitioner has suffered as a result of the qualifying crime.

[9] The certification must be obtained on the I-918B form that the practitioner or petitioner must complete and send to the certifying agency. It is always best practice to approach the agency and determine their preferences for issuing a certification, including what additional documentation they might require to be able to certify favorably. Keep in mind however that you should only disclose information that your client has issued a release for, in order to ensure you are not violating any attorney-client privilege.

[10] INA § 101 (a)(15)(U)(ii).

[11] Tanya and her children entered the U.S. without inspection and therefore had to submit an additional request to the USCIS to seek relief and pardon for having entered without papers using the form I-192. Being low income, USCIS approved the family for a fee waiver of any filing fee associated with this waiver; there is no fee for the U visa application or fingerprinting.

[12] 8 C.F.R. § 274a.12 (a)(19-20). The principle applicant does not have to submit a separate request for the employment authorization but the derivatives can submit I-765 for this concurrently with their U derivative petitions.

[13] 8 CFR § 245.24

[14] 8 CFR § 245.24 (10)

[15] See also 8 CFR § 245.24 (11) which contains information on how to address adverse factors, if any, that may prevent favorable discretion, including pleading extreme hardship and exceptional circumstances.

Worksite Harmony and the President’s Executive Actions: It’s All about Immigration Timing

Posted in Constitutional Law, Homeland Security, I-9s, Obama Administration on Immigration, USCIS

stopwatches set isolated on white with 15, 30, 45 seconds period“Politics at bottom is not all that complicated. It’s all about timing.”

Mark McKinnon

Facing a recalcitrant House of Representatives controlled by Republicans, President Obama made an historic announcement on November 20th outlining an array of executive actions he would take to fix as much as he could of our broken immigration system.

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees. But this won’t happen for up to six months.

Meantime, a dispute has arisen among Republicans about whether Congress has the power to prohibit USCIS from processing deferred action cases by starving the agency of funds. The House Appropriations Committee maintained in a statement that the Congress is powerless to prevent USCIS from financing the cost of implementing the deferred action program and according benefits through user fees:

The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.

Senator Jeff Sessions (R-AL) disagrees and is reportedly brandishing a Congressional Research Service (CRS) opinion letter described, but not released, by the far right blog, Breitbart, which suggests that Congress can bar appropriated funds, including user fees, from being deployed in a way that contravenes a statute. The actual CRS report, available here, provides:

A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds. (Footnote omitted; emphasis added.)

The CRS report did not mention, however, that the Immigration and Nationality Act (INA) already contains “a permanent appropriation in an authorizing act,” INA § 286(m), 8 U.S. Code § 1356(m), which states in relevant part:

Immigration examinations fee account.–Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, . . . That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected. (Emphasis added.)

According to a former senior Executive Branch official who helped me confirm the government’s interpretation of INA § 286(m), this provision has historically been construed as a “permanent, indefinite appropriation” of funds for USCIS to operate its adjudication functions through user fees. This is confirmed by the White House and USCIS in guidance offered during the 2013 government shutdown. The requirement in INA § 286(m) that “adjudication fees” be designated “in regulations” by the Attorney General (now USCIS, since the passage of the Homeland Security Act) is satisfied by regulations found at 8 CFR § 103.7 (b)(1)(i)(C)(Biometric Fee of $85), 8 CFR § 103.7 (b)(1)(M)(3)(Application for Advance Parole [international travel permission] fee of $360), 8 CFR § 103.7 (b)(1)(HH)(Application for an Employment Authorization Document fee of $380), and 8 CFR §274a.12(c)(14) (allowing issuance of an Employment Authorization Document to persons granted deferred action).

So as USCIS readies itself to accept a flood of new applications for deferred action, and work and travel permits, the agency has already announced that the affected class would not be allowed to file their applications until later in 2015, and must wait even longer before final action is taken:

Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it. (Emphasis added.)

Another executive action approved by the White House — one that can be implemented relatively quickly — is the formation of an “Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.” Headed by the Labor Department, the group will include the National Labor Relations Board, the Equal Employment Opportunity Commission and the Departments of Justice and Homeland Security. Presumably, the Justice Department’s role will be filled by the Office of Special Counsel for Unfair Immigration Related Employment Practices, and Homeland Security’s participation will likely be led by U.S. Immigration and Customs Enforcement and its unit, Homeland Security Investigations.

Unlike the newly-announced but slow-to-arrive immigration benefits for the undocumented, the working group can conceivably be up and running and start enforcing immigration and employment law sanctions at America’s worksites as quickly as the ink is dry on any updates to cross-memoranda of understanding (MOUs) between and among the group’s members, such as the December 7, 2011 Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites and the MOU between DOJ and the NLRB.

There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102).  It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.

Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.

This type of worksite disharmony can be avoided if USCIS and the Homeland Security Department take appropriate action right away.  As my colleague, Tony Weigel, has suggested to me, the Secretary of Homeland Security, Jeh Johnson,  has authority to resolve this dilemma and allow interim employment authorization while USCIS adjudicates applications for deferred action and three-year work permits.  The Secretary could merely hold that the issuance by USCIS of a receipt for a non-frivolous (meaning “patently without substance”) request for deferred action and work permission would constitute an interim document of employment authorization (say, with only six months’ validity) and a List C document for I-9 purposes under the following regulation:

8 C.F.R. §  274a.12(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs . . . (a)(10)-(a)(15) . . . of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. . . . .

8 C.F.R. § 274a.12(a)(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.

There is abundant precedent for such a flexible approach in situations where the government is not in a position to grant work authorization quickly.  For example, because USCIS cannot speedily confer new grants of employment authorization to certain beneficiaries, e.g., holders of Temporary Protected Status (whose work permits are extended merely by publication of a notice in the Federal Register [see Form M-274, “Handbook for Employers,” pp. 13-14]), and conditional permanent residents who are allowed to work based on issuance of a receipt while awaiting an adjudication of a petition requesting the removal of conditions on residence under the marriage-based green card provisions or the EB-5 immigrant investor category.

If this flexible solution is adopted, the only remaining problem is the gap period from now until the date when USCIS is ready to allow filing of new immigration-benefits requests by the undocumented who believe they qualify under President Obama’s executive actions.  The solution can be found in an embrace of the President’s sentiments espoused on November 20th:

Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger — we were strangers once, too. My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too.

Thus, under the same abundant legal authority for prosecutorial discretion that the White House Office of Legal Counsel and a bevy of legal scholars confirmed, the Secretary of Homeland Security should announce a temporary, six-month deferral of enforcement of employer sanctions arising under IRCA § 101 (INA § 274A; 8 U.S. Code § 1324a)  — the provision punishing I-9 paperwork violations and the employment of persons whom the employer knows lack work permission — with exceptions for human traffickers and felonious harborers under INA § 274 (8 U.S. Code § 1324a) .

Having spoken so eloquently about “the determination of immigrant fathers [and presumably, mothers] who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,” the President should take the next step and offer real-world, flexible solutions to IRCA-induced workplace disharmony, measures that would avoid financially endangering families by government-mandated terminations of employment as they prepare to “come out of the shadows and get right with the law.”

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 flak 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.