Posted by Angelo A. Paparelli on July 30, 2009

The Distressed Bearer of Bad Immigration Tidings

I've always loved to travel, especially to foreign lands. In law school, I devoured all the courses that dealt with international law -- public international law (involving relations between countries and international organizations), private international law (dealing with transnational contracts between individuals or businesses), conflicts of laws, and a seminar on international business transactions. Those classes -- I thought -- would provide my ticket to see the world. After a stint ghostwriting judicial opinions for a state appellate judge, I joined a small, well-regarded firm in the late '70s and practiced international business and tax law.

I thought my dream was about to come true. After a time, however, I soon learned that the job of international-contracts scrivener was less than fulfilling. I was eager for a change. By fortunate happenstance, I stumbled on another area of law teeming with international flavor and opportunities aplenty to travel: immigration law. Better still, I discovered a passion for law that until then had not existed. It's been 30-plus years and my passion for immigration still burns brightly.

Lately, however, what I always saw as a helping profession has become a hurting occupation. I hurt because my job causes me, against my will and my heart, to transmit hurt to others. I tell clients whose petitions and applications the government has rejected (in my view, unjustly, or I wouldn't have taken the assignment) that they must set aside their American dreams and leave the country or risk a 10-year bar on returning here by appealing the denial or litigating. I also tell employers that they must terminate some of their best workers. These are the ones (the employer belatedly discovers) who lack work permission. I then imagine the cascade of hurt my advice inflicts: Families are torn asunder, businesses are threatened, and dreams are dashed.

This is the toxic effluvia of the new Homeland Security policy that dispenses with high-profile worksite raids and instead uses threats of criminal prosecution to tighten the vise on employers and thereby cause the ouster of unauthorized foreign workers from job sites nationwide. At the same time, the front page of today's Wall St. Journal proclaims that another Executive Branch agency is overwhelmed by a flood of tax cheats who pursue government-sanctioned amnesty after having secreted untaxed money in offshore accounts ("Tax Evaders Flock to IRS to Confess Their Sins").

Why the rush to put the immigration squeeze on now? Is this a cynical and heartless ploy to appease and co-opt the xenophobes in advance of the push this fall for comprehensive immigration reform?

Ironically, in the same WSJ edition, another article hits closer to home: "Got Workers? Dairy Farms Run Low on Labor -- Even in Recession, U.S. Job Candidates Are Scarce; Milk Producers Relying on Immigrants Worry About a Crackdown."

Something in these contrasting articles caused me to go back and search for a passage in President Obama's autobiographical Dreams from My Father. I find it in Chapter 16. His Aunt Zeituni (who now awaits her fate in a reopened deportation hearing) tells a younger Barack:

. . . [D]on't judge [your father] too harshly. . . . If you have something, then everyone will want a piece of it. So you have to draw the line somewhere. If everyone is family, no one is family. Your father, he never understood this, I think.

So, for now, we see where the "forgiveness" line is drawn. On one side, tax cheats; on the other, dairy workers who "deliver calves, milk cows and scrape manure." This blogger and unhappy bearer of bad immigration tidings therefore asks: Who's milking whom?

Posted by Angelo A. Paparelli on July 24, 2009

Anti-Immigration Crazies Are No Laughing Matter

Chris Matthews of the mainstream media and Jon Stewart, the faux newscaster on Comedy Central, have been all abuzz this week over the resilience of a pernicious and persistent claim by conspiracy theorists and immigration opponents. They claim that Barack Obama is an illegal immigrant (born not in Hawaii but in Kenya) who never naturalized as a U.S. citizen, and in any case, is not eligible to serve as President because (they claim) he is not a "natural born citizen" of the U.S., as required by Article II, Section 1, Clause 4 of the Constitution. The claim surfaced in federal court before the 2008 election but was dismissed.

Now, with illustrious spokespersons like convicted Watergate bungler G. Gordon Liddy, and Dr. Orly Taiz (a multi-tasking dentist, real estate agent and attorney), the diehard anti-Obama "birther movement" continues to make fantastical and facetious claims.

Another crazy who opposes immigration is an anonymous prankster with bad grammar. The prankster has lately been sending out a letter to employers, seemingly on the masthead of U.S. Immigration and Customs Enforcement (ICE) in Los Angeles. Emblazoned "First Notice," the document purports to order the employer to verify the employment eligibility of employees and to demand to see each worker's social security card, citizenship papers, green card or work permit:

"Due to resolution pass [sic] in Congress E [sic], you are obligated to verify all employees [sic] legal status . . . [and] report all illegal and illegal [sic] activities."

The notice also includes an attachment to send to ICE with the name, contact information and biodata of any persons illegally in the United States. When the letter surfaced, the local chapter of a national immigration bar association reached out to the purported letter writer - a real DHS official named John Salter, and here is the chapter's report:

Mr. Salter was contacted for his confirmation as to whether the letter was sent by him and if it was not, to advise us of ICE/OCC’s official position on the matter. His response was that: (1) he did not author such a letter, (2) that they are aware of these letters, (3) that the ICE Office of Investigations will be reviewing this matter, and that (4) he would request that we advise any businesses that receive such a letter to please save the letter and accompanying envelope. He also said that pending more detailed information, our members can send the letters to the ICE Special Agent in Charge’s office for action.

If an employer were to follow the prankster's instructions, the likely outcome is that the employer would engage in "document abuse" -- an illegal act under the immigration laws -- by demanding to see particular documents of identity and employment eligibility rather than allowing the employee to choose which documents to present. The employer would also likely expose the business to liability under state and federal employment laws. The doctrine of "constructive knowledge" which (in appropriate cases) triggers the duty to investigate could not possibly apply here because the letter writer's mangled grammar and syntax, though laughable, could not have come from ICE.

Whatever this blogger's differences with the agency, they know how to write a well-turned document, as their constant flurry of press releases shows. Let's hope ICE takes the steps necessary to apprehend and prosecute this fraudster-with-funny-phrasing who encourages violations of the laws against employment discrimination. Meantime, I can't wait till Jon Stewart or Stephen Colbert take on this un-hip hypster.

--------

Posted by Angelo A. Paparelli on July 17, 2009

Another Trash-Talking Inspector-General Report on Immigration

Federal Inspectors General (IGs) are critically-important public servants -- except when they are entranced by the siren song of individual Members of Congress who commission reports that lead to phony, pre-ordained and self-serving outcomes. When performing their responsibilities as Congress intended, the IGs work like truffle-sniffing canines, faithfully rooting out crimes, waste, fraud and abuse. They are also tasked with the duty "to provide leadership and coordination and recommend policies for activities designed . . . to promote economy, efficiency, and effectiveness in the administration of federal programs . . . and provide a means for keeping the head of the establishment and the Congress fully and currently informed about [bureaucratic] problems and deficiencies."

We've seen the regrettable pattern before, with Sen. Chuck Grassley's repeated insistence that USCIS find the widespread fraud in the H-1B visa program that he is certain exists. The result: USCIS conducted a poorly designed, internally referential (er, reverential) report that -- when results are extrapolated -- claim fraud and technical abuses are rampant. My point is not to suggest that fraud is as rare as a five-legged puppy. Rather it is that we must adopt the strategy that Ronald Reagan employed with the Soviets ("trust, but verify").

We now have another example of an IG hypnotized by the chatter of immigration-agency insiders with skewed views, a report issued back in March 2005 by theState Department's IG (but released just this week) entitled "Nonimmigrant Visa Adjudication: Standards for Refusing Applicants." State's 2005 IG report was commissioned by James Sensenbrenner, Jr., then-Chairman of the House Judiciary Committee, and Sen. Jon Kyl, Senate Judiciary Committee member, who asked the IG "to review the process by which adjudications are made and reviewed under section 214(b) of the [Immigration and Nationality Act (INA)]." They also requested that OIG review the merits of several proposals that might strengthen the Department of State's . . . ability to combat mala fide applicants, particularly those intending to do harm while in the United States."

INA § 214(b) is a nunchuk provision of law, which when coupled with § 291, gives U.S. consular officers unfettered power to knock out virtually any nonimmigrant visa applicant. Section 214(b) requires the applicant to prove that s/he (a) qualifies for the particular nonimmigrant visa sought, and (b) for most visa categories, has an unabandoned permanent residence in a particular home country to which the individual will return after achieving the purpose of entering the United States. Section 291 puts the burden on the applicant to prove to the consular officer's "satisfaction" that the requirements of INA § 214(b) have been established. (For a previous blog post and podcast on the subject, click here and there.)

The 2005 State IG report found, not surprisingly, that consular officers love § 214(b), but that it does not go far enough. Asking consular officers about 214(b) is like asking Warren Jeffs if he favors polygamy and child brides. The IG and the Conoffs want 214(b) carve-outs (introduced in the Immigration Act of 1990) removed for H-1B (specialty occupation workers), L-1 (intracompany transferees) and O-1(extraordinary ability aliens). One thing they don't want is to incorporate internal agency adjudication standards on 214(b)'s "intent-to-return-home" requirement into State Department regulations because that would reduce the officer's much-coveted "flexibility." That would also risk opening the subject to public comment under the Administrative Procedures Act and to the many nonpartisan reports criticizing 214(b) as in need of scale-back or elimination, such as the well-reasoned analysis issued by the University of California at Irvine and the Merage Foundations.

The problem with the recent spate of IG immigration reports is that they ask their questions in hermetically-sealed and cloistered environments. Open the doors and windows, much like the USCIS Ombudsman, and ask affected stakeholders, knowledgeable experts and (heaven forfend) immigration lawyers what's wrong and the IGs will get a very different earful of conclusions.

If the IGs -- when studying immigration -- are to fulfill their statutory mission of achieving "economy, efficiency, and effectiveness" and keeping Department Secretaries and Congress "fully and currently informed about [bureaucratic] problems and deficiencies," they would be better advised to study two other recent reports that reach conclusions diametrically opposed to the Conoffs' short-sighted grumblings. One report would be an enlightening study published under the auspices of the Small Business Administration ("High-tech Immigrant Entrepreneurship in the United States") and another is the recent bipartisan report of the Council on Foreign Relations (Independent Task Report No. 63 "U.S. Immigration Policy") that exhaustively and dispassionately covers the immigration debate.

Failing that, the IGs mis-reporting on immigration should take to some leisurely summer reading. As an essay last Sunday in the New York Times Book Review ("Still 'Ugly' after All These Years") reminded us, in speaking of a 1958 classic novel: "[I]t’s worth recalling that the impolitic travelers in 'The Ugly American' aren’t drunken backpackers or seniors sporting black socks, but the so-called educated elite of the diplomatic corps."

--------

Posted by Angelo A. Paparelli on July 09, 2009

Federal Contractor E-Verify: Officious Intermeddling and the Immigration Nanny-State

Homeland Security Secretary Janet Napolitano announced yesterday, in so many words, that she intends to shake, rattle and roil the still-swooning economy by endorsing a Bush Administration initiative that would make the online employment-eligibility-confirmation system known as E-Verify mandatory for federal contractors and subcontractors.

Despite the Secretary's announcement, a counter-intuitive alliance of business and pro-worker immigration advocates is challenging mandatory E-Verify on legal and practical grounds. Critics maintain that its mandatory use exceeds Presidential authority (since the 1996 legislation authorizing the system - then known as Basic Pilot - provided that participation would only be voluntary). Opponents also assert that the system is still too error-prone to risk the chance that large numbers of U.S. citizens and other authorized workers will be unjustly denied employment.

What's less well known is the pernicious effect of the Federal Acquisition Regulation (FAR) which goes far beyond the Federales' already unwarranted voluntary E-Verify system that relies on distorted principles of contract law for its enforcement teeth.

The proposed FAR rule, as Batya Schwartz Ehrens and I have noted, requires that federal contractors and subs down the line (with modest exceptions) use E-Verify to test the employment eligibility of both new hires and all current employees who are assigned in direct support of a federal contract. Until the FAR rule was proposed, existing employees have been legally off limits for E-Verify testing because of the substantial risk that employers will discriminate against workers who look or sound foreign. The FAR proposal upends that long-settled distinction between current employees and new hires.

So, how exactly does a federal contractor eager to get in on the stimulus dollars available under the 2009 American Recovery and Reinvestment Act satisfy the FAR E-Verify mandate? The prime contractor is required to make sure that all of its own workers and all current and prospective employees of its subcontractors and sub-subcontractors assigned to the federal contract have the right to work, as confirmed by an E-Verify printout.

What happens if, after the contract is awarded, E-Verify rejects so many workers that the contractor and the subs cannot perform and are in breach of the agreement?

Enter the age of government-stoked officious intermeddling. What's likely to happen will be that federal contractors will take a lesson from large employers who increasingly are using their bargaining clout in a down economy to insert immigration-compliance cram-down provisions in their contracts with vendors and service providers. As Ted Chiappari and I discussed in a recent New York Law Journal article, "Minimizing Immigration Risks from Service Providers" (provided courtesy of IncisiveMedia, the copyright holder), the trend now is to require vendors and subs to allow the corporate customer to demand random immigration-compliance audits of the provider's workforce conducted by an immigration lawyer or consultant with I-9 expertise.

What happens next is all too foreseeable. Unauthorized workers will be outed. Contractors and subs will therefore fail to fulfill their federal contracts. The intended effects of the stimulus will be diminished or delayed. The economy will remain in the doldrums. Americans will suffer.

The better approach is to put FAR E-Verify ON ICE, and instead enact comprehensive immigration reform. Unauthorized workers with otherwise clean records will then be screened, required to pay fines and back taxes, given work permission and placed on a path to legal status. Federal contractors will perform without breach. And America's economy will rebound, far sooner than if the Secretary's Nanny-State proposal becomes the law of the land.

--------

Posted by Angelo A. Paparelli on July 04, 2009

Trying Not to Sip the Immigration Kool-Aid

The Office of Ombudsman (Ombudsman) to U.S. Citizenship and Immigration Services (USCIS) has just released an outstanding 2009 Annual Report to Congress. The culmination of an especially ambitious and successful year of several spot-on recommendations, the Report focuses a laser beam on the many shortfalls in USCIS's performance.

Among the Report's many worthy insights, the Ombudsman cites numerous customer-service lapses:

* USCIS has been forced to fund day-to-day operations through the ebb and flow of filing fees rather than by Congressionally appropriated sums (this includes the $491 million dollar contract with IBM now funded solely by Premium Processing fees to pay for the agency's electronic "Transformation" initiatives which will not begin to bear fruit until February, 2011 and may yet "incur substantial additional costs").

* USCIS has not moved to enable the scanning of paper documents or the online payment of filing fees.

* USCIS has endorsed the National Customer Service Center (NCSC) adoption of a call-center scripting approach that relies on canned and unhelpful responses (Tier 1) and a rotating crew of USCIS Information Officers who lack access to agency records (Tier 2) to address egregious delays and deficiencies in USCIS's performance.

* USCIS has not met its self-imposed targets for reductions in average processing times for all categories of petitions and applications for immigration benefits.

The work of the Ombudsman is a godsend, but not a deus ex machina. With altogether too much toleration and not enough outrage for my taste, the Ombudsman's report restates longstanding USCIS problems but does not condemn the lack of significant forward movement. Why doesn't the Report seriously challenge:

* The flawed premises and exaggerated conclusions of the agency's H-1B fraud and abuse survey?

* The fact that the second-largest category of new hires involved "fraud and security positions" during the first stage of expanded USCIS hiring" funded by user fees that should be earmarked for adjudication?

* The manifest lack of accountability of adjudicators who flout policy memoranda issued by USCIS?

* The USCIS assertion of legitimacy and reasonableness that the precious right of employment authorization should ordinarily take 90 days to grant? or

* The lack of meaningful appeal rights and right to legal counsel for all parties in interest (including the foreign citizen applicants) in all categories of immigration-benefits requests?

According to a knowledgeable Congressional insider who was present at its creation, the Office of Ombudsman -- beyond its stated statutory mission of "assist[ing] individuals and employers in resolving problems" with USCIS -- was intended to take the burden of immigration-related constituent services off the backs of the Senators' and Representatives' staffs. The problem with offloading constituent complaints to the Ombudsman is that it takes pressure off Congress to hold USCIS accountable. Why hold an oversight committee hearing (Members of Congress might say candidly to their visages in the mirror) when we can read and forget each annual Ombudsman's report?

The time for tolerance is past due. Righteous indignation is needed now. Congress must bite the bullet and fund USCIS on a long-term basis with appropriated funds. It should also expand the Ombudsman's authority so that it is "Tri-Bureau" in scope, and covers all three agencies (USCIS, ICE and CBP) that together interpret and apply the immigration laws within Homeland Security. Indeed, if the Obama Administration and Congress are serious about the proper functioning of the federal immigration system, they would also create Offices of the Ombudsman for the Departments of Labor and State, and place a "Tri-Department" Ombudsman on top, so that stakeholders really have a "seat at the table" for comprehensive immigration reform.

Meantime, the USCIS Ombudsman should stop sipping the agency's Kool-Aid. It should conduct a full financial audit of USCIS's application of user fees for purposes within and outside of the adjudication-only mandate of the Homeland Security Act. It should be directly involved in all aspects of the Transformation program, including contract administration. It should abide by Immigration and Nationality Act § 452 which confers on the Ombudsman "the responsibility and authority . . . to appoint local ombudsmen and make available at least 1 such ombudsman for each State [emphasis added]."

Don't get me wrong. The Ombudsman is performing well a critically important role. But there is simply too much dysfunction in America's broken immigration system merely to compliment the Ombudsman for a solid, if temperate, report.

The heavy lifting on comprehensive immigration reform involves far more than merely enhanced border protection, a path to legal status for the undocumented and an orderly system for future worker flows. It will require a complete overhaul of the government agencies that now mismanage a slew of immigration programs that, if optimally administered, could and should be the rejuvenating lifeblood of our nation.

--------