Nation Of Immigrators

Nation Of Immigrators

A public policy blog on America's dysfunctional immigration system

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.

 

 

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

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

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

Baring My Teeth at I-9 Enforcement Inequalities

By Nicole (Nici) Kersey

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

dick-cheney-growling

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

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

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

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

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

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

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

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

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

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

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

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


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

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

The Immigration Pony in Eric Cantor’s Defeat

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

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

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

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

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

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

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

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

survey questionnaire

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

Dear Immigration Colleagues:

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

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

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

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

Here it is:

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

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

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

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

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

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

L-1 Petitioners Beware:

USCIS Confirms Plans to Expand FDNS Site Visit Program

By Maura K. Travers and Angelo A. Paparelli

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

Crime Scene Investigator

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

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

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

Background

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

Context

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

Update

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

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

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

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

Anticipated Issues

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

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

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

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

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

Preparing for the Foreseeable

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

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


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

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

[3] 8 CFR §214.2 (l)(7)(C)