Posted by Angelo A. Paparelli on December 30, 2009

Using Immigration to Stem the Terror Threat

When respected, albeit left-leaning, members of the punditocracy, like Chris Matthews and Maureen Dowd, begin to make hard right turns, it's time to pay close attention.

Yesterday, in reaction to the Christmas Day suicide bomb attempt on Northwest Flight 253 as it approached Detroit, Matthews, the host of MSNBC's Hardball, came closer than ever before to embracing what sounded like race- and faith-based profiling of air travelers and the willing surrender of large chunks of our civil rights if those measures would make us safer.

Today, Dowd, a New York Times Op-Ed columnist, likened President Obama to Spock (not Benjamin, the anti-war baby doctor, but the famous Vulcan on Star Trek). She assailed the Commander in Chief's belated acknowledgment of “a systemic failure” and a “catastrophic breach of security.” Dowd then railed on in caustic terms no less withering than those she used against the Bush administration:

If we can’t catch a Nigerian with a powerful explosive powder in his oddly feminine-looking underpants and a syringe full of acid, a man whose own father had alerted the U.S. Embassy in Nigeria, a traveler whose ticket was paid for in cash and who didn’t check bags, whose visa renewal had been denied by the British, who had studied Arabic in Al Qaeda sanctuary Yemen, whose name was on a counterterrorism watch list, who can we catch?

We are headed toward the moment when screeners will watch watch-listers sashay through while we have to come to the airport in hospital gowns, flapping open in the back. . . .

In his detached way, Spock was letting us know that our besieged starship was not speeding into a safer new future, and that we still have to be scared. Heck of a job, Barry.

Add the Yule-Day terror attack to other recent problems (the blowback on a jobless economy, health care, Afghanistan and Iran, plummeting poll numbers, etc.), and it's clear the President needs to change the dynamic with a bold and clever move. Surprisingly and counterintuitively, executive action on immigration could be like a knight moved to the middle of the chess board that changes entirely the terms of engagement.

On Patt Morrison's Southern California Public Radio show yesterday, I debated Mark Krikorian, Executive Director of the Center for Immigration Studies, a group that opposes a path to legal status for the undocumented and supports "attrition through enforcement". As the debate on immigration enforcement versus legalization came to a close, I suggested, as I've blogged on the point before and others have proposed, that President Obama use his executive authority to grant the undocumented work permits. To my surprise, Krikorian agreed that the President has the authority to issue work permits (but that if he did so, Krikorian predicted that it would increase the pressure to impeach him).

With clear democratic majorities in both houses, a Presidential grant of work permits to the undocumented for a principled reason would not likely be found to satisfy the "High Crimes and Misdemeanors" standard for impeachment. That principled reason would be to require the 12 million undocumented among us to come forward, and submit to comprehensive security screenings in return for deferred action on deportation and the right to work. Couple the directive with a Presidential finding that, to protect the homeland, our nation must identify and screen as many of the undocumented as possible.

The screening would produce several immediate benefits:

  1. It would generate a wealth of information for the law enforcement and intelligence communities to use to connect more of the dots;
  2. It would make it easier and more cost-effective to identify and remove registrants and non-registrants who pose serious threats to the common weal;
  3. It would temporarily take the heat off immigration supporters in Congress who fear the repercussions of a "yes" vote as 2010 mid-term elections draw near;
  4. It would (partially) make good on pre-election pledges to the Hispanic community to support immigration reform despite a tough-sell in a bad economy;
  5. It would cause us to stop spending unaffordable sums that add to the bankrupting of future generations for enforcement measures directed against hard-working, taxpaying and contributing members of our communities (as the Migration Policy Institute reported this month); and
  6. It would change the facts on the ground by bringing millions of good people out of the shadows, put a human face on people heretofore demonized as faceless law violators and thus make it easier to pass comprehensive immigration reform after the November elections.

Yes, a presidential grant of the right to work and deferred action on deportation, in return for registration and full security screening, would be an audacious game-changer for the harbinger of hope. It would also make us more secure at a time when our jittery nerves could use a large dose of safety and the balm of reassurance that we are at last headed in the right direction.

Posted by Angelo A. Paparelli on December 24, 2009

An Immigration Christmas Story that Should Be Extended at Least through March, 2010

The 14th Amendment to the U.S. Constitution mandates an inclusive mathematical formula for apportioning "Representatives . . . among the Several states". It requires a decennial census count of "the whole number of persons in each State" excluding untaxed Native Americans. As the New York Times reports, a push is on, using Christmas-themed posters in Spanish, to urge Hispanics (citizens, legal residents and the undocumented, especially Evangelical Christians) to cooperate with census-takers and be counted when the tally begins in March, 2010. The effort is targeted beyond the Hispanic community, with posters offered in English ("This is How Jesus Was Born") and in four other languages.

Accompanying the posters are materials -- marking the 100th day (Dec. 22) until the start of the census -- that may be "helpful to those preparing readings and announcements, writing stories for church bulletins, or composing remarks for press conferences and other public events." The companion papers cite to the following passage from the Gospel of Luke (Ch. 2):

In those days Caesar Augustus issued a decree that a census should be taken of the entire Roman world…And everyone went to his own town to register.

So Joseph also went up from the town of Nazareth in Galilee to Judea, to Bethlehem the town of David, because he belonged to the house and line of David. He went there to register with Mary, who was pledged to be married to him and was expecting a child. While they were there, the time came for the baby to be born, and she gave birth to her first-born, a son. She wrapped him in strips of cloth and placed him in a manger, because there was no room for them in the inn.

The Constitutional mandate for an all-inclusive census may be undermined, however, by the reluctance of undocumented immigrants (a term now recognized in Supreme Court jurisprudence) to provide information that could lead to their arrest and deportation, as the Times article notes:

[T]he obstacles to an accurate count are significant. Many illegal immigrants are likely to be reluctant to fill out a government form that asks for their names, birthdates and telephone numbers. And the count comes three years into an immigration crackdown that was initiated by President George W. Bush but has continued apace, though less visibly, under President Obama.

So why then did census officials last October say they've declined to ask the Department of Homeland Security "to suspend immigration raids during the census period, reversing a policy from 2000, when an immigration moratorium was observed" (although confirming that DHS and all other government agencies would not receive census-derived identity data)?

Is President Obama fearful of another Reverend Wright episode, this time with critics focusing on faith more than race? Or is it that the President is distancing himself from any possible focus on his Aunt Zeituni whose fate now rests with an immigration judge and the decision at bar whether to order her deported? Perhaps the absence of an immigration raid moratorium is just another path yet untraveled because of holiday distractions over the health care debate.

Since President Obama is already postponing his Hawaiian vacation until the Senates votes on healthcare legislation later today, perhaps -- before he leaves Washington -- this former constitutional law professor will consider a holiday gift to the nation by following the 14th and ordering a suspension of immigration enforcement until after the census is completed.

Posted by Angelo A. Paparelli on December 17, 2009

CIR ASAP -- An Ear-Popping Immigration Reveille for Business Leaders

The Congressional starter pistol on comprehensive immigration reform (CIR) has been fired skyward with the release of a 644-page mish-mash of proposed changes to the Immigration and Nationality Act that will both please and infuriate pro- and anti-immigration combatants in the Capitol and throughout the land. Introduced by Rep. Luis V. Gutierrez (D-IL), the bill with three names (the ‘‘Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009,’’ the ‘‘Comprehensive Immigration Reform ASAP Act of 2009,’’and the ‘‘CIR ASAP Act of 2009’’) is the first sortie in the coming Congressional ground war over immigration policy.

With the release of CIR ASAP, the early furor and focus will likely be on the big issues of border security, a path to citizenship for the undocumented and stiffer penalties for unscrupulous employers of unauthorized workers. Law-abiding employers who rely on foreign citizens with brainpower, talent and rare skillsets should fly over these skirmishes and instead parachute directly into Title V and its thicket of 68 dense, befuddling and mostly anti-business provisions.

Title V (described perversely as "Strengthening the U.S. Economy and Workforce") would transmogrify three key nonimmigrant visa categories -- the H-1B (specialty occupation workers), H-2B (non-ag skilled workers) and L-1 (intracompany transferees who are executives or managers or personnel with "specialized knowledge"). If Title V is enacted, employers petitioning for these work visas would soon be buffeted by a small army of newly added bureaucratic enforcers wielding an arsenal of expanded anti-employer powers conferred on the Departments of Labor and Homeland Security. Comparably draconian is Title V's new array of foreign-worker labor protections.

If CIR ASAP's Title V or similar anti-business fusillades become law, the only clearly foreseeable economic prosperity will accrue to immigration attorneys and employment lawyers who no doubt will be beseeched by an army of employers to explain the new burdens and liabilities and prepare the business community for the mountain ranges of added red tape and the expensive litigation to follow.

Before anything like Title V or its ilk is allowed to pass, employers (as Cher said in Moonstruck with two hard slaps to the face of Nicholas Cage) must "snap out of it." Forewarned is forearmed: Read Title V.

Posted by Angelo A. Paparelli on December 10, 2009

When Will They Ever Learn? -- Immigration Denial Thrives Perniciously at USCIS

Since the early days of this blog, I've chastised immigration bureaucrats who use specious reasoning to treat small businesses petitioning for employment-related immigration benefits more harshly than their large-cap counterparts.

The latest assault on fairness and reason is reflected in a trend affecting several categories of employment-based visas -- the H-1B (Worker in a Specialty Occupation), the L-1 nonimmigrant (Intracompany-Transferee Manager or Executive) and the EB1-3 (Multinational Manager or Executive). An example of this trend is a recently released EB1-3 decision (decided May 1, 2009) of the USCIS Administrative Appeals Office (AAO) denying an immigrant visa petition for a multinational manager from abroad who owned a controlling stake in the company petitioning for the visa. The basis for the visa denial was the asserted lack of an employer-employee relationship and the supposition that the terms, "employer," "employee," and "employed" are undefined.

The AAO apparently has forgotten that it is an agency bound by precedent decisions issued by the Attorney General:

[D]ecisions of the Attorney General . . . shall be binding on all officers and employees of the Department of Homeland Security.

[8 CFR § 103.37(g)].

Ever since 1958, the Attorney General in the precedent case of Matter of M (p. 49 et seq.) has held that a corporation may legitimately petition for its owner to receive an immigrant visa. See also, Matter of Aphrodite Investments Limited. Likewise, a Federal District Court, interpreting the L-1 visa category, ruled that a sole proprietorship can form the basis for its foreign owner to qualify under the L-1 category. See Johnson-Laird, Inc., v. INS, 537 F. Supp. 52 (D. Ore 1981). Indeed, USCIS's own regulations recognize that if the sponsored employee, in immigration parlance, "the beneficiary," is a major stockholder of the petitioning company, an L-1 visa is permitted:

If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.

[8 CFR § 214.2(l)(3)(vii)].

While this evidentiary provision is essentially a dead letter because the Immigration Act of 1990 eliminated the requirement of proof of the intention to return abroad, its continuing presence in the Code of Federal Regulations stands as a testament to the agency's longstanding recognition that an owner of a company may qualify as an employee of the petitioning entity.

This is not the first time I've railed against the lawless behavior of USCIS officials. The sad truth is that the targets of their lawlessness -- small businesses -- are the very "first responders" who lead the economy out every recessionary swoon. President Obama at the Brookings Institution this week in his "Remarks on Job Creation and Economic Growth" placed the issue in stark relief:

Over the past 15 years, small businesses have created roughly 65 percent of all new jobs in America. These are companies formed around kitchen tables in family meetings, formed when an entrepreneur takes a chance on a dream, formed when a worker decides it's time she became her own boss. These are also companies that drive innovation, producing 13 times more patents per employee than large companies. And it's worth remembering, every once in a while a small business becomes a big business -- and changes the world.

At this labor-management summit, the President solicited the best ideas available to create new jobs in America. Well, Mr. President, I have one: Send the Attorney General to the USCIS AAO and the Regional Service Centers and have him stop their sophistic slaughter of small businesses.

Posted by Angelo A. Paparelli on December 03, 2009

Bad, Bad, Bad (Immigration) Vibrations from USCIS

Just when U.S. employers thought the bad vibes emanating from U.S. Citizenship and Immigration Services (USCIS) could get no worse, the agency tasked with deciding whether to approve or reject requests for immigration benefits has come up with VIBE -- its new Verification Initiative for Business Enterprises which costs a whopping $35,506,760.43.

Just imagine . . .

. . . a program in which USCIS, by using VIBE, "will acquire information from an [Independent Information Provider (IIP)] . . ., which can be used to verify the eligibility of a company while detecting multiple types of misrepresentations."

. . . a program that will run checks on the "finacial viability" of the existing population of 137,000 companies that have registered with E-Verify, Homeland Security's online employment-verification database, as well as the roughly 52,000 new E-Verify registrants each year.

. . . a program where a "Privacy Impact Assessment (PIA) [mandated by the E-Government Act of 2002] and a System of Records Notice (SORN) [mandated by the Privacy Act] will not be required."

. . . a program where USCIS flouts the spirit if not the letter of its own regulation, 8 CFR § 103.2(b)(16)(i), which requires its officers to advise a petitioner or applicant of derogatory evidence and provide an opportunity to rebut the information.

. . . a world where information collected on companies' financial viability and business operations may be inaccurate, incomplete or outdated, and yet is relied upon by USCIS to issue requests for additional evidence (RFEs) that are even more burdensome than the type we see today and that unfairly delay the grant of work permits, visa petitions and green cards to deserving companies and their employees.

. . . a world in which a cash-strapped immigration agency, whose "financial viability" is endangered because its business model relies on the uncertain ebb and flow of user fees rather than government appropriations, would probably fail IIP testing if subjected to the same sort of third-party scrutiny as it plans to inflict on the very payors of its user fees.

Well, there's no need to imagine such a program because, according to a recent letter from USCIS Director Alejandro Mayorkas to Senator Chuck Grassley, VIBE will likely be implemented in the "spring of 2010." Director Mayorkas promises to provide Senator Grassley with "regular updates as to the progress of the [VIBE] program's rollout."

Perhaps the good Director can also provide the public, through the USCIS Office of Public Engagement, and the Senate and House Immigration Subcommittees, with an explanation of why VIBE requires no Privacy Impact Assessment or Privacy Act SORN notice, or why the financial viability of E-Verify registrants must be tested, or what safeguards have been incorporated or reparations set aside for payment if an IIP provides inaccurate data or an immigration examiner misinterprets data and a petitioning company -- perhaps a startup of which the IIP is unaware -- thereby loses a major contract, or if an unjustified delay in adjudication or denial of benefits results in the loss of a key foreign worker.

Clearly, stakeholders, take note and be wary, for the Immigration Singularity is upon us.

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