Posted by Angelo A. Paparelli on October 29, 2009

Talkin' Immigration with Chuck Kuck: FDNS, CIR and Anti-Immigrant Tail-Spinners

Last Tuesday, Chuck Kuck, immediate Past-Prez of AILA, and I covered the landscape of current developments in U.S. immigration law and policy on "The Immigration Hour," Chuck's weekly program on America's Web Radio. If you've grown weary of the health-care debate and are hankering for the next large public controversy, give a listen.

We covered the origin and current exploits of the USCIS Fraud Detection and National Security (FDNS) unit, the latest meanderings of their outsourced compatriots who are paying visits to American employers from sea to shining sea, and the prodding of Sen. Grassley to find more and more perceived and real immigration fraud.

Next, we offered predictions on the prospects for passage of comprehensive immigration reform (CIR) before the Congressional mid-term elections. We asked aloud whether the pro-immigration coalition will splinter if legalization's proponents push so hard for the unauthorized 12 million that the employer community is left empty-handed in its quest for increased H-1B and green-card quota numbers. This would be a painful role reversal for the "split the bill" voices of the business community that abandoned the pro-immigrant community in 1996's enactment of the draconian Illegal Immigration Reform and Immigrant Responsibility Act.

We also asked whether the birthers and tea-baggers will morph into xenophobes and whether the anti-immigrant lawmakers in Congress will at last wake up and smell the strong Hispanic coffee, as the debate moves from health care to immigration. Were our ruminations mere phrenological head-scratchings? Or, did we make a valid point or two? You decide, and then kindly comment on this blog. All views are welcome.

Posted by Angelo A. Paparelli on October 28, 2009

U.S. Citizenship and Immigration SERVICES (REALLY!?!): Where the Wild Things Are

[Blogger's Note: Today's guest posting on immigration dysfunctionality offers a view on pop culture. The parenthetical "(REALLY!?!)" in the title -- inserted as an editorial comment by the blog's usual author -- suggests the smarmy skepticism of an Amy Poehler and Seth Meyers riff on Saturday Night Live. The Haloween-themed guest post is by Nici Kersey, my colleague at Seyfarth Shaw LLP and a rising star in the immigration-lawyer firmament.]

For Halloween, I have decided to dress as Max from Where the Wild Things Are. I was not able to locate a Max costume at any of the traditional Halloween costume stores, so I channeled my former costume designer self, pulled out the sewing machine, and made one. I chose Max because the costume was much easier to make than the costume for any of the other “wild things” and because I have of late been feeling a lot like Max. Bottled up anger and frustration, often directed toward the immigration authorities, make me want to tear through the woods screaming. “Roar! Roar! ROAR!”

A recent example:

A colleague asked if I could help his friend with an immigration issue. For immigration attorneys, this is a frequent occurrence. Typically, the question is about a boyfriend, fiancée, friend, nanny, or neighbor who is in the U.S. “illegally.” Those discussions are often heartbreaking, as there is frequently not much that we can do to help.

This time, the discussion was upsetting for a different reason. A gentleman who had been in the U.S. for several years, working in H-1B status, complained that his wife was unable to obtain a driver’s license. The man’s employer had violated numerous immigration laws and regulations by requiring, for example, that he pay the costs and attorney fees associated with his H-1B visa petitions and with his labor certification application, but he was not interested in trying to recoup those costs (totaling more than $10,000). His main concern was that his wife was not able to drive.

In Atlanta, not being able to drive is a fairly serious disability, as public transportation is unreliable and inconvenient. This man’s wife was suffering from a frustrating lack of independence and a serious case of cabin fever. (Still, I was surprised by the lack of concern over the ten grand.)

Due to government error in issuing the H-4 approval notice to this man’s wife, the notice did not include a start date or an expiration date. When she went to the license branch, she was turned away, as her immigration document did not contain the information necessary for issuance of the license, and the SAVE (Systematic Alien Verification for Entitlements) system could not verify that she was legally allowed to be in the United States.

She tried contacting USCIS to correct the error and was told she would have a response within 45 days. (The wild things roared their terrible roars …) No response ever arrived. (… and gnashed their terrible teeth …) We contacted USCIS and SAVE to attempt to correct the error, and we were told that we would have a response within 45 days. (… and rolled their terrible eyes …) Again, no response ever arrived. (… and showed their terrible claws …) Because of the length of time the woman’s husband had spent in the U.S. in H-1B status, her H-4 status was only valid for 1 year, and by this time, nearly half of that year was already gone.

In the end, rather than continue to seek a revised approval notice or a driver’s license, the couple decided to move to Canada, where the gentleman has been offered a job. The good news is that the new employer treats its foreign national employees well and will pay all of the immigration-related costs for the couple’s move to Canada and for their maintenance of immigration-status in Canada. More good news? The man’s wife should be able to obtain a Canadian driver’s license. The bad news is that the U.S. lost a talented individual who had hoped to make the U.S. his permanent home. He had to uproot his family, which had lived in Atlanta for nearly a decade and had come to consider this his home. All of this, over something as simple as a driver’s license. Roar.

As has been noted in this blog in the past, USCIS does not offer an acceptable form of customer service. I accept that the government makes mistakes; we all do. But it should never take 45 days to correct a clear government error – an error that could be corrected by re-printing a single sheet of paper and sticking it in the mail. Here, it took more than 90 days to not correct the error or do anything at all to cure the problem. (If I regularly treated my clients this way, I would likely be not only fired but also disbarred.) It is due to problems like this that the U.S. is becoming a less desirable destination for so many talented individuals. It is due, in part, to our immigration system that the U.S. lost the recent bid to host the Olympics.

A Canadian friend recently called and said that his J-2 work authorization was set to expire and that he needed to extend it. “Is that something you can help me with?” he asked. I said that I would be glad to help. “So, can I just bring this down to your office and you can stamp it or something?” I explained that that was not exactly an accurate description of the extension process. “But I thought that attorneys were ‘officers of the court’ and that you could take care of these types of things.” Let the wild rumpus start!

--------

Posted by Angelo A. Paparelli on October 23, 2009

Congress Gives Immigration-Agency's E-Verify Program Three More Years to Fail

Much like the drunk who looks near the street lamp for a lost key because that's the only place where there's light, House and Senate conferees have granted a three-year extension of life support to the still-tottering E-Verify system -- the only legit e-game in town for confirming employment eligibility. Congressional gamblers also double-downed on their E-Verify bet by approving an additional $137 million in the Homeland Security funding bill for the beleaguered program.

Immediately the decision provoked controversy. Republican Senator Jeff Sessions has said that three years is not enough. The bill, according to Sessions, should have made E-Verify a permanent weapon in the government's employer-sanctions arsenal and should have placed into law the Obama-approved, Bush-era regulation -- effective since September 8 -- that requires inclusion of mandatory E-Verify workforce testing in new federal procurement contracts.

Others upset by the Congressional action include E-Verify opponents who would scotch the system because it has not yet proven itself ready for prime time. E-Verify does not detect borrowed or stolen identities. It still flags about 4% of all queries as tentative non-confirmations (TNCs) of employment eligibility, adversely affecting a worker population of some nine million. As the General Accountability Office (GAO) has reported, E-verify has caused the Social Security Administration electronic database to fail twice last summer for "extended" periods, causing GAO to worry about proposals that would make E-Verify mandatory for all employers:

[F]ederal legislation has been proposed to, among other things, require the use of the E-Verify program by employers across the nation. If such legislation is enacted, agency officials estimate that the number of queries to E-Verify could quickly surpass 60 million per year—nearly 10 times the number of requests in fiscal year 2008.

Even more troubling, as reported in the Harvard Law & Policy Review, is the risk of an increase in unlawful employment discrimination and worker firings. Already wrongful termination lawsuits are blaming E-Verify as the trigger for job losses. Courts may therefore soon determine whether the DHS-endowed employer immunity from civil liability in its Memorandum of Understanding for good-faith reliance on the E-Verify database will survive close scrutiny.

One federal court has issued a temporary restraining order (at p. 16) in a comparable employer-sanctions enforcement setting (involving the now repudiated Social-Security No-Match regulation) where the Homeland Security Department purported to grant immunity against civil liability for an employer’s good-faith reliance on a government-prescribed immigration-enforcement regimen.

President Obama is expected to sign the Homeland Security authorization, including the revivification of E-Verify. Time will tell whether the expected increase in litigation and adverse impacts on employers and lawfully authorized workers will have been worth Congress' expensive bet on the problem-plagued E-Verify program.

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

With the New G-28, Immigration Agency's Rugged Individualism Defies the Rule of Law

As a recent post by an immigration colleague notes, quite a brouhaha has erupted within the immigration bar and among purveyors of immigration case management software over a new outbreak of immigration singularity. The fuss this time involves an electronic form (the new G-28). Beginning October 30, a paper printout of a completed and signed "e-G-28" must be presented to U.S. Citizenship and Immigration Services (USCIS) every time a lawyer or an accredited nonprofit enters a "notice of entry of appearance" in order to represent a person or entity before the agency. The paper form G-28 has been in use for decades, and while the old G-28 has had its limitations, its passable functionality did not generate much heat.

Just like the angst produced by the State Department's online nonimmigrant visa application, the furor over the G-28 illustrates once again the failings of the Office of Management and Budget (OMB) in accepting at face value the assertions of federal agencies about the content and operations of the immigration laws. It also underscores the importance of submitting comments whenever a federal agency announces its intention to create or renew an immigration form and seeks OMB permission to do so under the Paperwork Reduction Act (PRA). Failure to comment on form changes, as the sorry G-28 episode reveals, risks much mischief and grief as the agency's deviant brand of rugged individualism has its way with public policy and makes mincemeat of the right to counsel and the rule of law.

As the G-28 PRA approval process began in June 2008, USCIS confessed to OMB that it had an "Oops. My bad!" moment:

Recently, USCIS took the lead in revising Form G 28 and developing a new Form G 28I for use in cases filed in agency offices outside the United States. During the review process, USCIS discovered that Form G 28 had never been approved by the [OMB] under the PRA.

As a result, USCIS sought and received emergency OMB approval of the G-28 form which had been in use since before 1983. (By the way, one ironic reason USCIS offered to justify emergency OMB action on the G-28 is particularly galling in light of the thousands of unannounced site visits that its FDNS unit has conducted in the last several weeks: "If correspondence is not sent to an applicant’s representative, DHS attorneys may be in jeopardy of violating state bar ethics rules by treating applicants as if they were not represented by an attorney").

USCIS tried to say that the lapse in PRA compliance arose with the legacy agency, Immigration and Naturalization Service (INS), which had relied on a PRA exception known as the "Administrative Action" exemption. But the new USCIS, in claiming to fess up, said that this exemption, found at 5 CFR 1320.4, "no longer applies and both Form G 28 and Form G 28I require OMB approval." The public record, however, nowhere shows the OMB taking USCIS to task by asking when, if ever, the Administrative Action exemption applied. The Administrative Action exemption, at least as early as 1997 and continuing to today, applies to adversarial proceedings initiated by an agency and clearly not to requests for administrative agency benefits of the type submitted to USCIS. The relevant provision applicable to USCIS allows reliance on the Administrative Action exemption only if agency action arises "during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities [emphasis added]."

This blatant violation of the "public protection" provisions of the PRA (see p. 13 of this Congressional Research Service report on the PRA) should have raised suspicions within OMB about the reliability of USCIS's explanation of the G-28 backstory. In essence the OMB allowed USCIS to blow off the comments criticizing the new G-28 by the American Immigration Lawyers Association (AILA) and two lawyers. In my view, the most trenchant of the comments came from AILA: "The proposed form does not adequately permit the entry of appearance for multiple parties."

While AILA correctly noted the absence of a box on the G-28 to confirm the attorney's representation of the "beneficiary" of an immigration petition and the legal interest of a new "receiving" employer in a green-card portability situation, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

  • the regional center in an EB-5 immigrant investor petition;
  • the guardian of a child's interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant;
  • the corporate employer in its foreign workers' adjustment of status cases or the workers' family members' applications for extension or change of the family's nonimmigrant status;
  • the estranged or divorced citizen or permanent resident spouse in a marriage-based petition to remove conditions on permanent residence; and
  • the former "losing" employer in H-1B and green-card portability cases.

The G-28 -- indeed, the USCIS's regulations -- should be modified to recognize and allow representation of parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration issues. Homeland Security Secretary (and USCIS's departmental boss), Janet Napolitano, in one of her first interviews after her installation, told National Public Radio: "First of all, the rule of law applies on the border, and we want to make sure that that happens, No. 1."

With all respect Secretary Napolitano, your mission is more than just border integrity. The rule of law must also be applied vigorously and faithfully to the subordinate agencies which you oversee, particularly to USCIS.

--------
Posted by Angelo A. Paparelli on October 08, 2009

Immigration Service Hits Arts Presenters in the Purse

[Blogger's Note: This blog on dysfunctionality in the world of U.S. immigration law and policy welcomes principled and thoughtful commentary by guest writers. Today's guest post is by Karin Wolman, a highly regarded New York immigration lawyer with an expertise in immigration issues affecting artists, entertainers and the venues where they perform.]

U.S. Citizenship and Immigration Services (USCIS) has released an October 7, 2009 News Release that will shake up the world of arts and entertainment. The Release outlines new ground rules for O and P visa petitioners that will require every presenter on a single U.S. tour for a foreign performing artist to file separate visa petitions, with separate filing fees. (O-1 visas are for individual aliens of extraordinary ability, P-1 visas are for internationally-recognized entertainment groups, and P-3 visas are for artists coming to the U.S. to perform in a culturally unique art form.)

Traditionally, regional theaters and non-profit venues in the U.S. have pooled their limited resources, making it financially possible without breaking the season budget on one show to present important works by foreign artists to American audiences. The way this has worked until now is that one presenting theater or venue on the tour, sometimes a co-producer with the artist, would file a single visa petition for the foreign artist as the “employer” for the first stop on the tour, and as an “agent” for all the dates and venues with other U.S. employers. This one visa petition would cover every show on the U.S. tour, with evidence including the artist’s contracts with all the other U.S. presenters, and the other presenters would help defray other costs of the tour.

Except now, the USCIS is claiming the regulations never allowed that (but they have, and they do). The USCIS News Release claims that unless the initial presenting venue that would normally file one petition for a whole tour is “in business as an agent,” and has its own contracts with each of the other presenters as a “client,” every presenter must file its own petition.

That’s right, the immigration service has decided that now is the time to dig deeper into the pockets of arts organizations, already drained by the economic crisis, to demand duplicative filing fees, and illegally re-write the rules in an informal document that blatantly contradicts current regulations.

The unsigned agency Release, which does not have the force of regulation, vaporizes a part of the existing regulations without actually going through the publication, notice and comment procedures required to change the regulations. It ratchets up filing fees at a time when the arts community can least afford them, by requiring separate petitions in a common situation previously covered by a single petition.

The Release also adds a new evidentiary requirement, found nowhere in existing USCIS regulations:

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished by agent-Employer A submitting all of the [customarily] required evidence . . ., as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

Both this added evidentiary requirement, and the USCIS claim that any employer acting as an agent on behalf of other employers must also be “in business as an agent,” contradict the plain language and intent of the regulation at 8 CFR § 214.2(o)(2)(iv)(E), which states in part:

A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

Most tellingly, the regulation then divides into subsections - (E)(1) applies to ”An agent performing the function of an employer,” (E)(2) applies to, “A person or company in business as an agent, ” and (E)(3) applies to “A foreign employer, who through a U.S. agent, files a petition.” The plain language of the regulation belies the claim that an agent performing the function of an employer must also be “in business as an agent.”

To see the impact of the Release, let’s look at a not untypical fictional example:

Alba the Amazing is a Spanish aerialist/flamenco dancer/poet whose mixed-media performance art is the hottest show in Europe. Alba has earned rave reviews in 15 countries. An American theatre, the Cottage CoProducing Company, commissions a new original work and invites Alba to give the opening performances of their 2009-2010 season, for three shows in mid-November 2009. Alba books additional U.S. gigs following this premiere, for three shows each with Petite Presenter,The Tiny Theatre and the Avant-Garde Arena, running through January 2010. These three entities are small regional non-profit theatres, and are depending on Alba’s ticket sales to help maintain their subscriber base through this winter. All three were named as additional stops on Alba’s U.S. tour in the O-1 visa petition filed by the Cottage CoProducing Company, filed last week, with copies of Alba’s contracts with each presenter. The Cottage CoProducing Company is not in business as an agent, the other three presenters are not its clients, and they do not have separate contracts with Cottage CoProducing Company. The USCIS Release indicates that this petition will be approved only for the December shows at Cottage CoProducing Company, the subsequent dates will be refused, and the other three theatres will each be required to file a separate petition, incurring thousands of dollars in costs that exceed their budget.

The existing regulation explicitly permits the filing of “agent” petitions by one employer for other employers, so long as the contract between agent and foreign entertainer or artist is formalized. It does not state that one employer acting on behalf of itself and other employers must show that it is in business as an agent, nor does it require contracts between one employer and other employers. Through this informal, unsigned Release, USCIS is attempting to invalidate 8 CFR § 214.2(o)(2)(iv)(E)(1) and the second half of paragraph 8 CFR § 214.2(o)(2)(iv)(E), without amending the regulations or allowing any public comment.

Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast.

Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.

Posted by Angelo A. Paparelli on October 01, 2009

Immigration-Agency Handicappers Lose Their Wad and Their Way

The September 27 death of Pulitzer Prize winning columnist, William Safire, brought tears to throngs of readers who shared his passion for the English language (even as many disagreed with his politics). The passing on July 29 of Walter Cronkite, news anchor extraordinaire, America's most trusted person, evoked sadness among those who wistfully recalled an era when newscasters reported the day's events with fidelity and humility -- unlike the current crop who mostly ply their trade by sensationalizing reality and pumping their own celebrity. The August 25 demise of Sen. Ted Kennedy, Lion of the Senate, probably brought an end to any semblance of true bipartisanship in the halls of our contentious Congress.

Sadness and nostalgia aside, their deaths got me to thinking about a hard-to-justify policy of U.S. Immigrations and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) that has troubled me since it was announced last year. The policy in question is the Faustian, nay Machiavellian, trade-off of an extra 17 months of work permission granted to foreign students in the STEM fields of science, technology, engineering and math, as long as their respective employers enroll "voluntarily" in E-Verify, the online database that confirms or denies the employment authorization of newly hired workers.

The 17-more-months rule has bothered me, first, because there is no logical connection between the E-Verify program and the grant of extra months of "optional practical training"(OPT) to STEM graduates, over and above the standard one year of OPT that all foreign students who graduate receive. It's pure political horsetrading and handicapping -- nothing more.

More disturbing, however, is the unstated notion that STEM students are somehow more important and valuable to the nation than students in the liberal arts. From where I stand, immigration bureaucrats are no more prescient prognosticators than the commissars of the old Soviet Union who tried but more often failed to guess correctly in attempting to grow their government-planned economy. Like the Russian apparatchiks of old, the USCIS and ICE have no special expertise in picking winners and rejecting losers. Their actions in authorizing the STEM/OPT/E-Verify exchange beg a fundamental question (posed in the New York Times Magazine by historian Diane Ravitch):

Why do we educate? We educate because we want citizens who are capable of taking responsibility for their lives and for our democracy. We want citizens who understand how their government works, who are knowledgeable about the history of their nation and other nations. We need citizens who are thoroughly educated in science. We need people who can communicate in other languages. We must ensure that every young person has the chance to engage in the arts. But because of our narrow-minded utilitarianism, we have forgotten what good education is.

Imagine that young Billy Safire, Wally Cronkite and Teddy Kennedy had all been born abroad but pursued a liberal arts education as foreign students in the United States. Imagine further that each had all the human potential and talent that their actual lives later manifested. Would we have wanted the old INS, or do we want today's USCIS and ICE, deciding for U.S. employers and graduating foreign students which fields of study are more worthy? Not then, not now, not ever. Give all foreign students an extra 17 months of work authorization and let each blossom uniquely for the ultimate betterment of America.

--------