Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

Today’s New York Times brims with immigration dysfunctions galore. The paper's immigration reports tellingly underscore the front-burner role this white-hot policy issue plays in the nation and the world.

In the first section alone, we see:

· An open-mike faux pas by British PM Gordon Brown, referring to an immigration opponent as a “bigoted woman,” prompted his abject apology and now risks a Labor Party loss in the UK election next week;

· A controversial opinion piece and articles on the political, legal and economic fallout of the Arizona Peace-Officers’ Suspect-and-Arrest-or-Refrain-and-Be-Sued Act;

· A report on four Dream Act marchers’ arrival in DC on a trek by foot from Miami, paired with a plea by Sens. Durbin and Lugar to former AZ Guv and Homeland Security chief (Janet Napolitano) that she grant deferred action and employment authorization to Dream Act beneficiaries as an exercise of prosecutorial discretion;

· A story on pillow-less immigration detention facilities and other atrocious indignities visited on detainees and visitors alike;

· Interviews with a trafficking coyote and would-be border crossers;

· A prosecutor-proposed life sentence (based on bank fraud, with immigration charges dismissed) -- opposed by (of all people) Nixon-era Attorney General (Ed Meese) and seven other federal AGs -- on the convicted owner of a notorious Kosher slaughterhouse raided by ICE;

· How immigrants to New York have brought with them a “remarkable trove” of up to 800 foreign languages, making the Big Apple “the most linguistically diverse city in the world”;

· Remarks at a deficit-reduction forum by President Bill Clinton on the need to increase the number of young, taxpaying high- and low-skilled immigrants as a material aid in saving the economy, Social Security and Medicare.

While all the stories add context and texture to the immigration debate, the piece most worthy of highlighting is the one offering Bill Clinton’s views on the role of immigration as a form of fiscal savior:

I don’t like that Arizona bill but I get why it happened. . . . The real reason there’s anti-immigrant sentiment is, if you look at the numbers, it’s white male factory workers without a college degree that got killed [financially in the last decade because of falling wages and the economic downturn]. . . . But they’ll get more jobs if the economy grows, their taxes will be lower if we’ve got more taxpayers. The pressures on Social Security and the changes we’ll have to make will be slightly less draconian if you have more people contributing into the system.

Well-respected author, news analyst and immigrant to America, Fareed Zakaria, expands on Clinton’s points in his must-read book, The Post American World -- a tour de force on the challenges and opportunities America faces with the “rise of the rest” (particularly China, India, Brazil, Russia as well as other emerging nations):

Immigration . . . gives America a quality rare for a rich country -- hunger and energy. As countries become wealthy, the drive to move up and succeed weakens. But America has found a way to keep itself constantly revitalized by streams of people who are looking to make a new life in a new world. . . . America has been able to tap this energy, mange diversity, assimilate newcomers, and move ahead economically. Ultimately, this is what sets the country apart from the experience of Britain and all other historical examples of great economic powers that grow fat and lazy and slip behind as they face the rise of leaner, hungrier nations.

Will America's promise and heritage as a nation of immigrants become tomorrow's bird-cage liner, or, will we take today's messages to heart and move forward with immigration reform by act of Congress or, if necessary, by Executive Order?

In staccato movements, our post-health-care President seemed to have found his rhythm: 15 recess appointments, a yet-to-be ratified arms-reduction treaty with Russia, and a world-leaders' conference on nuclear nonproliferation, the first such gathering since President Franklin Roosevelt convened the precursor meeting that would lead to the formation of the United Nations. Why then is he (and his usually powerful Michelle) showing timidity around comprehensive immigration reform (CIR)? No doubt the recent flip-flop of Harry Reid, Senate Majority Leader, hasn't helped. Over the weekend Reid promised to make time on the calendar for CIR, only to backtrack a few days later.

While the politicians in Washington dither, those in Arizona pass a bill headed for the governor's desk that would criminalize the undocumented population of the Grand Canyon State. While an inaudacious president waits for Congress to make the first move, his Secretary of Homeland Security maintains a "full steam ahead" policy of immigration enforcement.

The President's choices are clear. He can risk the ire of the CIR proponents in his base and merely blame Congress. He can declare a moratorium on enforcement. He can stay silent while the states enact Draconian criminal legislation attacking the undocumented. He can use his bully pulpit to move CIR legislation forward. Or, he can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.

In a post last summer ("The Immigration Singularity"), I accused the Department of State (DOS) of hoodwinking the Office of Management and Budget by getting OMB to approve use of a new, all-purpose nonimmigrant visa application form, the DS-160, without submitting the form itself for review under the Paperwork Reduction Act:

In my view, State snookered OMB in approving the release of the DS-160 under the Paperwork Reduction Act (PRA) without providing the public with access to a complete copy of the form and all the questions posed. The purpose of the PRA is to reduce the burden of completing government forms; it is not to allow government agencies to force visa applicants and their stakeholders to play “whack a mole” or “peek a boo” as different answers pop up unexpectedly.

Having now experienced the DS-160 first hand, I stick by my snookering charge, and my accusation in the Singularity post that the form is "an atrocity." Still, I must set the record straight by letting readers know that, apparently back in 2008, State did send OMB 117 pages of screen shots of the new form's "User Interface Design" (even though this document is not listed among the on-line documents OMB maintains for this form and the many drop-down lists on the form do not appear in the screen shots).

The Urban Dictionary defines "snooker" as "to cheat somebody, to trick him or her" and it defines "snooks" as a British slang word meaning "a stupid person." Both terms apply to an hilariously cheesy and misleading YouTube clip, posted by the U.S. Embassy (London), hailing the DS-160 as a time-saving innovation that eliminates three forms (the DS-156, DS-157 and DS-158) and makes applying for a U.S. nonimmigrant visa a pleasing experience and a paperless boon to the environment. "Snookering" and "snooks" also apply to the absurd claim by the DOS that the form can be filled out on average in 75 minutes (recently, a paralegal, a tech-savvy client and I tried completing the form and it took several hours).

My experience is not unique and perhaps is not so bad according to some comments posted on the Embassy's home page under the title “We are experiencing connectivity problems with the DS-160” and its YouTube video:

I HAVE JUST FILLED IN FOUR VISA FORMS FOR MYSELF . . . MY HUSBAND . . . MY SON . . .AND MY DAUGHTER . . . I FILLED IN EACH FORM AND THEN CLICKED ON ‘CONTINUE’. THE ONLY FORM I WAS ABLE TO PRINT OUT WAS THE LAST ONE I FILLED IN . . . DO I NEED TO FILL IN THE OTHER 3 FORMS AGAIN? PLEASE CAN YOU LET ME KNOW ASAP AS WE ARE DUE TO TRAVEL ON 3RD APRIL.

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i have visa interview appointment on 26th march. today i try to fill up DS 160 form for my b2 visa .its almost took 4 hours and still not finished. one thing i can say its really not user friendly. please do something to save our precious time.

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The DS 160 is creating an absolute nightmare please take this form down until it works. Please, Please, Please - I beg you.

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Patience my friends. I have been trying to fill out the DS160 for about 10 days and my session has timed out several times. I checked the embassy website only to find out that they are having technical issues with the online form (latency or load-balancing issues). So, I went through the DS 156/157, filled them out. I was curious about DS-160 again, I had saved off the application earlier and so I uploaded it, went on by clicking Next, next and the never-ending-next buttons; and it timed out when I clicked the "Sign and Submit" button! Doh!! Went on with this entire 3-4 more times, and succeeded. The website is slow, my interview is a week from now, and I now have all kinds of forms with me. 156, 157, 160, 999? Good luck. Keep trying.

My client's, paralegal's and personal experiences are similar. Here are our comments (there are more problems noted on the Embassy's web site):

1) Estimated Burden time of 75 minutes is gross understatement . . . ;

2) Sessions are supposed to "time out" after 20 minutes of inactivity, but they "time out" much sooner - even while actually typing into the fields;

*NOTE: If a session times out while you are working, you lose any data not "saved to file", and must reenter it. Even if you take the time to save the data into the form at the bottom of each page, the data is only retrievable for uploading into the application if it has been "saved to file".

EXAMPLE: While working on the DS-160 . . . , the session timed out on us 6 times, and we lost data each time.

EXAMPLE: Are you applying in the same country where the visa above is issued and is this country your principal country of residence?

3) Application Errors occasionally pop up and kick the user out of the system, with no explanation as to the type or reason for Error. When this happens, similarly to when a session times out, the user loses any data entered that was not "saved to file".

4) The form requires the applicant/user to complete each field on each page/section before moving on to the next page/section. In other words, an applicant cannot prepare a "draft" of the form with partial data, and complete the form at a later date when more data becomes available.

5) The applicant/preparer can not print the entire application for review before submitting; you have to print each page separately.

6) The questions asked in the Form are not always clear -

Example: Purpose of trip to the U.S.? If you choose "business", the form will assume you are seeking a B-1; you need to choose "Other", and get a list of nonimmigrant categories.

Example: E Visa - "Are there any foreign entities (corporation, partnership, etc.) associated with the U.S. business?" Associated is not defined.

Example: [Answer "yes" or "no" to a compound question]: Are you applying in the same country where the visa above is issued and is this country your principal country of residence?

7) The form does not eliminate paperwork. See [DOS Frequently Asked Questions]. :

 

FAQ # 13. When I apply for a nonimmigrant visa using the online DS-160, are additional forms required?

No, with two exceptions. When applying at a U.S. Embassy or Consulate that is using the new DS-160, Online Nonimmigrant Visa Application, you will use only one (1) form. For Embassies and Consulates that have converted to this new process, the DS-160 has replaced all of the following forms: DS-156, DS-157, DS-158, and DS-3032, which are no longer necessary.NOTE: The exceptions are Fiancee Visas (K-1/2) which still require use of the forms DS-156 and DS-156K, and the Treaty Trader/Treaty Investor visa application, which is explained in #14 below.

It is important to check the Embassy or Consulate website where you will apply for your nonimmigrant visa for information on the application process in place. Embassies and consulates worldwide will transition one-by-one to the DS-160. Therefore, those Embassies which have not yet converted to the new DS-160 online form continue to require all application forms, as necessary.

FAQ # 14. I am applying for a Treaty Trader/Treaty Investor, E Visa. Do I need to fill out the DS-160 and the DS-156E?

It depends. If you are an E Visa, Principal Investor (E-2) applicant, all you need to complete is the DS-160. If you are a Treaty Trader (E-1) or an Executive/Manager/Essential Employee you will need to complete the DS-160 and you or your employer will need to complete the paper DS-156E. (Sometime next year a new form, the DS-161, E Visa Business Information form, will be released. This form will allow you or your employer to complete an online form and submit the form electronically to the Department. Until that time all treaty traders, executives, managers, and essential employees of an E visa business will be required to complete and submit the paper DS-156E.)

8) Why do they specify that the applicant should NOT bring their entire application, but only the Confirmation Page from a successful upload? Do they want to test the applicant during the interview to ensure they answer orally as stated in the application, but without the aid of that application during questioning?

FAQ # 10. Do I bring my entire application with me to the interview, or do I just bring the confirmation page?

You should not bring your entire application. Your confirmation page is all that is needed to retrieve your application data. You must bring the confirmation page with you during all phases of the application process. Without the confirmation page, it may not be possible to access your application and process your visa case.

9) Where the client and the attorney are not in the same room, it is extremely difficult to confirm the answers provided, especially where data is lost through time-out and "application error" problems. The DS-160 discourages attorney-assisted preparation and counsel:

Notice 22 C.F.R.6 41.103 requires an applicant to sign and submit his or her own Nonimmigrant Visa Application unless otherwise exempt. Although the applicant may receive assistance from a third party in preparing the application, the applicant is required to click the "Sign Application" button at the end of the application. The applicant's failure to sign the application may result in a termination of the application.

The critical importance of attorney advice and representation in immigration matters has recently been reaffirmed by no less an authority than the U.S. Supreme Court in Padilla v. Kentucky. In a 7-2 decision, the majority determined that a defense lawyer's failure to advise his client of the immigration consequences of a guilty plea violates the Constitution's Sixth Amendment guarantee of the right to counsel in criminal cases. The majority understatedly confirms in its ruling: "Immigration law can be complex." (Slip opinion at 11.)

Concurring in the judgment, Justice Alito arrays a variety of ambiguous statutory terms in the Immigration and Nationality Act, along with their wide-ranging interpretations, and then states:

In short, the professional organizations and guidebooks on which the Court so heavily relies are right to say that "nothing is ever simple with immigration law" (slip opinion, concurrence at 7).

With the "not ready for prime time" but "mandatory" DS-160, the DOS, having spread its dissembling widely, has been allowed to foist a migraine-inducing burden upon the OMB, the immigration stakeholder community and the bar -- all in the guise of a technology solution.

I guess, we are the snooks for tolerating this agency's shenanigans.

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