Posted by Angelo A. Paparelli on March 06, 2005

The Effrontery of USCIS: “Don’t File for H-1B Visas until We Say We’re Ready, No Matter What Congress Says.”

I thought I learned about how a bill becomes law in high school Civics. It all seemed simple and straightforward then. A bill is passed by both houses of Congress, the President signs it, and that’s the end of the story: The law is the law. U.S. Citizenship and Immigration Services – the unit within the Department of Homeland Security charged with implementing the new H-1B visa law – has added a new page, however, to the standard high school Civics text. A law apparently is not a law if the administrative agency assigned by Congress to implement it refuses to do so.

What’s this all about? It’s about the H-1B Visa Reform Act, Pub. L. No. 108-447, passed late last year to help American employers in the global race to secure the top talent for 21st Century jobs. Congress said in essence that it makes no sense investing in the graduate education of foreign nationals if they have no opportunity to work for U.S. employers after they receive their degrees.

Under the new H-1B law, which takes effect this week (there is some dispute as to whether the law’s effective date is March 8 or 9), foreign students who graduate with a Master’s or higher degree conferred by a United States college or university are entitled to apply through a petitioning employer for an additional 20,000 H-1B visas that are now made available for the current fiscal year. This additional visa allotment is especially important since the regular quota of 65,000 visas ran out in one day (October 1, 2004), and employers have been waiting since then for a fresh supply.

In anticipation of the new quota opening up early this week, U.S. employers have taken a number of preliminary steps at significant expense by:

• recruiting foreign graduates with U.S.-conferred Master’s and Ph.D. degrees, • hiring an immigration lawyer or firm to advise them on the complex procedures, • researching prevailing wages for the jobs these graduates would fill, • posting notices to their employees that one or more H-1B workers are to be hired, • obtaining a certified Labor Condition Applications from the U.S. Department of Labor, • preparing a Public Access File that allows anyone to confirm that all the labor-protection rules of the H-1B program have been satisfied, • completing a petition for nonimmigrant worker, • obtaining proof of the worker’s graduation with a Master’s or higher degree from a U.S. university or college, and • cutting checks for the filing fees which can cost up to $2,685 if you have more than 25 employees and need to hire the worker in a hurry.

Like a prudish host who takes the punch bowl away just as the party is becoming convivial, USCIS issued a press release on March 4 warning employers that the agency is not ready for prime time. http://uscis.gov/graphics/publicaffairs/newsrels/H1BVisaReformAct03_04_05.pdf. The press release, misleadingly entitled “USCIS to Implement H-1B Visa Reform Act of 2004,” is brimming with chutzpah. In it, the agency tells employers to FUGGEDABOUDIT and boldly announces:

“USCIS will reject any new H-1B petition that is filed in advance of the effective filing date as established in the forthcoming Federal Register notice.”

If we strip this sentence of its bureaucratese, here is what the agency is really saying: “Although we’ve known since December 9, 2004 that the new law would take effect in March, we waited 85 days, that is, until a half-week before Congress said the additional visas would be available, to tell American employers that we are refusing to do our job until we’re darn well ready, and when we are, we’ll let you know with a publication in the Federal Register.”

So the next time you review your child’s Civics homework, make sure that you correct any misunderstandings (based on an apparently simplistic reading of the Constitution) and say that a law is not a law until the bureaucrats in Washington say they are ready to follow it.

One last Civics question: “Where are the Congressional oversight committees when we need them?”

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Posted by Angelo A. Paparelli on March 05, 2005

Lou Dobbs to the World: "I love Immigrants!"

To this astonished blogger, Lou Dobbs’ profession of love for immigrants came as a welcome surprise. Lou Dobbs Tonight on CNN (March 3, 2005). http://transcripts.cnn.com/TRANSCRIPTS/0503/03/ldt.01.html

In a debate on New York driver’s licenses for the undocumented with Cesar Perales of the Puerto Rican Legal Defense and Education Fund, Lou repeatedly declared his heartfelt affection for migrants and seemed offended and surprised that anyone could ever suspect that he might harbor anti-immigrant sentiments. While besmitten with amore for immigrants, Lou allowed, however, that he brooked no sympathy for illegal immigration and insisted that he, as all of us should, will cherish forever the rights, privileges and duties of American citizenship.

Whether Lou’s love is newfound or longstanding, I’ll take the man who nightly bewails our “Broken Borders” at his word. A love for immigrants presupposes that Lou would support laws that treat immigrants fairly, humanely, and with due process. A lover of immigrants like Lou would also, one imagines, denounce the failures of the government agencies charged with deciding whether to confer benefits like work permits, visas and green cards that the immigration laws allow in a reasonably prompt and even-handed manner. Lou, the fancier of immigrants, should also conceivably espouse fair-minded reforms of our immigration system to make it more transparent, more reflective of our tradition as a nation of immigrants, more supportive of our values of family unity, and more of an engine of economic prosperity that could support the needs of an aging American populace. Well, Lou, here are a few ways to show your love:

• Support a change in the law that presumes all visitors and temporary entrants to this country want to stay here forever unless the visa applicant proves otherwise. This law treats all visa applicants as untruthful and guilty until and unless they establish their innocence and sincerity to the satisfaction of a U.S. consular officer (whose decision is final and unreviewable). The law – known as Section 214(b) – allows consular officers to behave in an arbitrary way, and rekindles the image of “the Ugly American” at a time when the President and his administration are trying to make friends and build coalitions abroad. A change in 214(b) would not presage an open-door policy. Legal standards for admission to the country would still exist. But the people of other lands would begin again to see America as a friendly place that welcomes deserving people to our country and treats all applicants fairly and compassionately, under a system of rules that prevent arbitrary denials based on bureaucratic whim, fancy or prejudice.

• Support laws that hold immigration bureaucrats accountable. Require them to publish all past-due immigration regulations within six months. Require them to issue decisions within a reasonable time. In other words, a short-term benefit should be decided quickly; a long term benefit like a green card should take no more than six months. This has been the “Sense of Congress” and the mission of both the Clinton and Bush Administrations – but the delays and backlogs are still as far as the eye can see and much greater than reasonable patience can tolerate.

• Use your bully pulpit to expand the debate beyond illegal immigration and driver’s licenses. Focus more on what a sound legal immigration policy should look like. How can we grow this nation’s prosperity? How can we maintain and improve the standard of living of American citizens while still benefiting from the innovations and energy of immigrants who have had the gumption to leave family, hearth and home, and come to America, the land of opportunity, brimming with new ideas, energy and passion to make a better life.

Lou, I can hear you now, just as you said on the same March 3 show: “The violins are starting to move so high.” Yes, these violins can stir the passions of lovers – Amorati of the American dream. Or, they can be dismissed as so much schmaltz. I’ve listened to you often, almost nightly, and I believe in the intensity and sincerity of your patriotism. Patriotism for America can, as you suggest, include a love of immigrants.

Go for it Lou! Show us all the way!