Posted by Angelo A. Paparelli on April 24, 2009

The Government Should Also Play by the Immigration Rules

In a refreshing break from the Bush Administration's enforcement strategy, John Morton, President Obama's nominee to head Immigration and Customs Enforcement (ICE), testified before the Senate Committee on Homeland Security and Governmental Affairs that, if he is nominated, immigration law enforcement efforts would focus less on unauthorized workers and more on the employers who hire them: “We need to place renewed focus on employers to ensure that they are playing by the rules.”

At Morton's nomination hearing, Sen. Claire McCaskill, D-Mo., who supports his nomination, said American employers who have employed unauthorized foreign workers show “absolutely no fear that they would ever face meaningful enforcement.” She added that Morton's new focus on employers “will really be like shooting fish in a barrel. I’m looking forward to seeing some of those fish float.”

If playing by the immigration rules is the au courant enforcement theme, then Morton should also take aim at another full barrel of fish -- the bureaucrats and enforcement officers who flout the immigration laws. Recent reports from the courts suggest that judges have taken the government to task for their treatment of religious workers, widows and widowers applying for green cards and foreign citizens who seek to stay in the U.S. long enough to challenge unjust removal orders.

If confirmed as expected, Morton should reach out to such stakeholders as business and trade groups, faith-based organizations, immigrants right groups and immigration bar associations. He should ask for examples (this blog lists many) where the government has not played by the immigration rules. With the blessings of Pres. Obama and Sec. Napolitano, he should then convene a meeting of the leaders of ICE and its sister agencies in the Dept. of Homeland Security (DHS), U.S. Citizenship and Immigration Services and Customs and Border Protection. This convocation should take a probing self-inventory to see whether their enforcement, admission and adjudication practices play by the immigration rules.

In other words, Morton should cause the rule-breakers in the government to lead by example. That would be a refreshing enforcement strategy and a fine kettle of fish indeed!

--------
Posted by Angelo A. Paparelli on April 16, 2009

Amnesty for the Rich and Powerful But Not for Unauthorized Immigrants

"Equal Justice under Law" is inscribed on the facade of the U.S. Supreme Court in Washington. The theory (uttered not by the Court but by the building's architect) suggests that our government doles out justice blindly and equally, not only to the high and mighty but also to the lowly and powerless. The facade of equal justice is crumbling, however, and laid bare as a trompe-l'œil in recent news reports.

As revealed in the Wall St. Journal:

The Internal Revenue Service is offering leniency to many wealthy Americans who volunteer to pay taxes owed on assets stashed in offshore accounts, in exchange for information on the bankers who helped them hide the money. Taxpayers who take part in a new program being offered over the next six months will face lower penalties than would otherwise be due, and will likely avoid criminal prosecution, the agency said.

With similar lenity, the Justice Department has just announced that officials of the CIA who engaged in waterboarding and other forms of torture (based on legal memoranda that have since been repudiated) will not be prosecuted:

[Attorney General Eric Holder] also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

When it comes to economic refugees, however, who crossed our border to take jobs cleaning toilets, wiping the bottoms of babies and the elderly, mowing yards and washing dishes, all to feed their families, the inJustice Department's actions are robust and by-the-book. And even though deportation is a civil process, in the same way that suits against alleged torturers are civil proceedings, the accused who face immigration justice have no right to a lawyer at government expense.

Apparently, the IRS and the Justice Department understand the principle espoused by the English cleric Thomas Fuller ("rigid justice is the greatest injustice"), but don't know when to apply it.

--------
Posted by Angelo A. Paparelli on April 10, 2009

Deleting Bad Immigration Memories

The New York Times reported this week on a fascinating scientific study. Researchers have discovered the possibility that bad memories can be deleted from our minds. The prospect of applying this finding to the world of immigration is even more intriguing.

Imagine if immigration opponents like Norman Matloff, Ron Hira and John Miano could stop blathering about employment-based immigration merely by deleting the falsehoods they spout:

  • Matloff: "Underpayment of H-1Bs is usually in full compliance with the law, with employers exploiting loopholes;"
  • Hira: "Loopholes enable employers to hire H-1B workers at below-market wages;"
  • Miano: "The United States has a very generous immigration policy for skilled workers. America’s doors are wide open to the best minds in the world — both for permanent residency and for guest workers. For high-skilled workers with distinguished ability, the U.S. has “O” temporary guest worker visas, for which there is no numerical limit. The situation is the same for people seeking green cards."

As for so-called H-1B loopholes, Matloff and Hira know not of which they speak. The dozens of pages of H-1B regulations published by the Labor Department require that H-1B workers be paid the "required" wage - a term defined as the higher of the prevailing wage in the geographic area where the work is performed or the actual wage paid to similarly qualified workers in the same job at the employer's worksite. In most cases, employers merely use the prevailing wage for the particular job that the Labor Department provides. Clearly, the Matloof/Hira loophole argument is sufficiently loopy to be worthy of deletion from memory.

Miano's claim is equally forgettable. No process wrapped in the thick red tape of ever-changing immigration rules, policy memoes and press releases that takes years to untangle can honestly be called "generous" and "wide open" -- unless an uncovered manhole can be termed "wide open" and "generous" in that it offers a free ride to the sewer. Miano also shows signs of amnesia when he describes the "O" visa as requiring "distinguished ability" -- a term that formerly qualified a professional worker for an H-1B visa -- when the "O" actually requires the much more demanding standard of "extraordinary ability."

But immigration memory-deletion should not be taken to extremes. We want the Members of Congress to remember the politicians who lost their seats in the last election by opposing comprehensive immigration reform. This recollection should be etched forever in our legislators' consciousness as President Obama embarks on the fulfillment of his campaign promise to address our dysfunctional immigration system in his first year in office.

Posted by Angelo A. Paparelli on April 02, 2009

Waiting for the Immigration Shoes to Drop (or be Hurled)

Imagine a series of instant replays of a rough-and-tumble ground game involving evenly matched teams at the Superbowl. Hulks and behemoths line up on each side of the scrimmage line. The players wait for the snap of the football. The waiting seems interminable. Rage and pent-up energy build without release. This slow-motion scene resembles the first week of April in the love-hate battle that is the H-1B visa program:
  • Graduating university students and captains of industry, with their petitions now on file, wait for word of whether the paltry annual H-1B quota will be reached in the first five days of the fiscal year, thereby relegating business and career success to the vagaries of a government lottery. Whether or not a lottery is held, another year-and-a-half blackout on the hiring of new H-1Bs by for-profit businesses will soon ensue.
  • Senators Grassley and Durbin are poised to gather supporters for a protectionist bill that globalists oppose. The bill would require that all employers wanting to hire H-1B workers (not just TARP or Fed funds recipients, "willful violators" of the Labor Department's rules and H-1B "dependent" employers) must first search for and instead hire any "equally qualified" American workers.
  • Proponents and detractors toss surveys at each other proclaiming, respectively, the benefits and harms of the H-1B program. The Wall Street Journal tries to referee the numbers game and concludes that both sides' studies are seriously flawed.
  • The Fraud Detection and National Security Division of USCIS has bulked up their ranks and is fanning out accross the country searching for employment-based immigration fraud and abuse -- no doubt to add fuel to the legislative fires stoked by the good Sens. Grassley and Durbin.
  • USCIS is reevaluating eligibility criteria for H-1B workers employed by consulting firms at customer sites, perhaps to renounce a decade-and-a-half worth of policy guidance that blessed the practice.
Harken back now to the football field as the players foresake direct attack and instead doff cleats and hurl them at their foes, the frail and beleaguered H-1B visa and its kissing cousins, innovation, entrepreneurship and business growth. Alas, it's a sad week of waiting as April dawns and shoes are dropped or hurled in the battle for the H-1B. --------