Posted by Angelo A. Paparelli on July 30, 2010

Rethinking Immigration: Congress Must Behave

Amid all the pre-election hurling of vituperative, partisan accusations this week over a Federal Court's partial injunction against AZ SB 1070 (Arizona's foray into federal immigration enforcement), you would be forgiven if you overlooked two small but significant creatures in the immigration ecosystem.

A pair of remedial immigration bills, passed by the Senate Judiciary Committee, awaits a vote in the Senate. Their significance is not merely because they are examples of a rara avis -- that nearly extinct form of billmaking distinctive for its bipartisan features. Nor are they significant for the hopeful promise suggested by their titles -- The Refugee Opportunity Act, S. 2960, and the Return of Talent Act, S. 2974. Rather, theirs is a semiotic significance in that they symbolize, in microcosm, many things wrong with the federal immigration system.

The purpose and scope of the measures are described in www.micevhill.com (a wonderful compendium of all things immigration):

Return of Talent Act.The Senate Committee on the Judiciary has approved S. 2974, the "Return of Talent Act," which was introduced in the Senate by Senate Foreign Relations Committee Ranking Republican Richard Lugar (R-IN) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT). As approved by the Committee, S. 2974 would establish a new program, called the "Return of Talent Program." The new program would allow up to 1,000 aliens per year who are legally present in the United States to return temporarily to the country of their citizenship or nationality and have the time spent outside of the United States count toward towards the naturalization physical presence requirement. In order to be eligible for the program, an alien would have to be returning to a country that is engaged in post-conflict or natural disaster reconstruction, and the alien would have to be "making a material contribution to reconstruction efforts" in his or her country of citizenship or nationality. . . .

Refugee Opportunity Act.The Senate Committee on the Judiciary has approved S. 2960, the Refugee Opportunity Act, which was introduced in the Senate by Senate Judiciary Commitee Chairman Patrick Leahy (D-VT) and Senate Foreign Relations Committee Ranking Republican Richard Lugar R-IN). As approved by the Committee, S. 2960 would exempt aliens who have been admitted as refugees or granted asylum and are employed overseas by the Federal Government from the one-year-long physical presence requirement for adjustment of status to that of aliens lawfully admitted for permanent residence. . . .

If the[se] measure[s] [are] taken up by the Senate, [they] likely would be taken up by unanimous consent. That cannot happen until the measure[s] [have] been cleared by the Senate Democratic and Republican Cloakrooms.

So what's wrong with two benign measures that allow law-abiding foreign citizens to be absent from the United States for worthy reasons? The fault lies not in the good intentions of their sponsors but in the havoc they would unwittingly wreak on the administration of the immigration laws and the disrespect for the rule of law the measures would engender:

  • Both bills contribute to the public's frustration over immigration in that they make small-bore corrections of comparatively minor problems when comprehensive solutions to much larger societal ills cry out for redress.
  • Both bills are unfunded mandates, unlikely to be paid by the government (despite the foreign policy interests that inspire them) but by the already rickety user-fee apparatus that leaves USCIS without a reliable and consistent revenue stream.
  • Both bills will likely require the revision and approval of new immigration forms and the writing of regulations in compliance with the Administrative Procedures Act -- a time-consuming duty honored by agencies more in the breach than the observance -- or by policy memoranda, agency documents of uncertain legal authority.
  • Both bills add to the towering babble of complexity that is the Immigration and Nationality Act (INA).
  • Both bills undermine existing legal principles and policy choices embodied in existing law (eligibility criteria for asylees to become permanent residents and for permanent residents to naturalize).
  • Both bills raise the question: If this measure is a good idea to solve an existing problem, then why does it stop short of a complete remedy?
  • Both bills create significant problems of proving eligibility in that they require the applicant for the statutory benefit to establish conditions that occurred abroad, often in countries facing significant turmoil and disorder.

Take The Return of Talent Act. The bill begins by making an absurd statement. A person shall be considered physically present in the U.S. even though the individual is in a foreign country. Why not just say that the physical presence requirement will not be imposed on persons who fit within the conditions stated in the new law. Mush that defies facts already exists in abundance in the INA. Congress should not add to the pile.

Furthermore, the bill allows doctors and health care professionals to be away from the U.S. and still qualify for naturalization if they provide services in a country "engaged in post-conflict or natural disaster reconstruction." What about ecologists, builders, architects and scientists who want to help in natural-disaster reconstruction? What about lawyers and judges who want to help draft new constitutions and set up new court systems and democratic governments in countries that have achieved a fragile peace after prolonged conflicts ended? The Return of Talent Act does nothing for these worthy volunteers or for the U.S. national interests that they would serve. Worse yet, even if the bill takes only a first step in addressing a problem, and if it's a good first step, why limit the law to only 1,000 persons per year? Why create a new and costly bureaucratic structure and an obligation to report results to Congress periodically for such a pittance of an improvement over the status quo?

The Refugee Opportunity Act is also flawed. It provides, among other things, that a person already granted refugee or asylum status can qualify for a green card even if the individual returns to the country of feared persecution. All that is minimally necessary under the bill is for the person to be employed by a U.S. contractor in the "alien's country of nationality or last habitual residence [for up to one year] . . . under the protection of . . . a [U.S. government] contractor while performing work on behalf of the U.S. Government during the entire period of employment." What does this provision say about asylum law? It suggests that the proven fear of persecution disappears if the person goes back to the country of persecution under the protection of a U.S. government contractor. How would the person prove that they were under the protection of the contractor? Would coming back alive be enough? Would the contractor's word be sufficient, or, would USCIS require photos of armed security guards hovering around the asylee to protect her while she works for the contractor?

My point is that current immigration laws -- as admittedly atrocious as they are in many aspects -- should not be made more complicated, costly, illogical and unfair by small-scope measures that sound patriotic in theory but are woefully deficient and misguided when the laws of unintended consequences that they would unleash are considered. Congress must work together -- Republicans and Democrats -- to fix the broken system in a comprehensive way that fully achieves the important national interests that an enlightened immigration policy could serve. Don't just put a bandage -- even if it's a pretty one -- on a patient in extremis.

Posted by Angelo A. Paparelli on July 24, 2010

Rethinking Immigration: Who's on First?

I've written time and again on the mission amnesia that afflicts federal immigration agencies. For students of bureaucratic behavior in the immigration ecosystem, another key lesson on forgetfulness can be learned in a teachable moment offered at taxpayer expense if we examine federal decisions in the pre-spill era before the offshore and onshore catastrophe in the Gulf of Mexico.

To be sure, most of the blame for the failure of government to have refused permission to deploy the Deepwater Horizon rig goes, deservedly, to the Minerals Management Service (since rebranded as the Bureau of Ocean Energy Management, Regulation and Enforcement). Yet, another federal agency -- the Fish and Wildlife Service -- had the chance to ask for more study of the threat deepwater drilling might pose to coastal flora and fauna. Instead of carefully studying the risks, FWS signed off with MMS and allowed the drilling to proceed. As the New York Times reports, "the wildlife agency agreed with the minerals service’s characterization that the chances . . . deepwater drilling would result in a spill that would pollute critical habitat was 'low.'"

So applying this lesson to the immigration agencies, I conclude: A single agency with a clear mission and unimpeded authority must not unthinkingly defer to another with a different mission.

Congress seems to have reached the same conclusion about bureaucratic failures last week in passing financial-reform legislation that created a Consumer Financial Protection Bureau. Just as the discovery of cross-bureau mindlessness led Congress to establish a laser-focused consumer watchdog, our legislators must empower and hold accountable a single official who can define immigration law rights and obligations for all stakeholders. Instead, the cross-agency players who pronounce immigration rules are even more befuddling than Abbott's naming of the baseball lineup to Costello.

A non-exhaustive list of immigration-law proclaimers includes five Departments (and multiple subdivisions in each):

Homeland Security (USCIS [including the Office of the Ombudsman, the Fraud Detection and National Security division, the Administrative Appeals Office and the Office of Service Center Operations], CBP [including ports of entry and the Border Patrol] and ICE [including the Office of International Operations, SEVIS, and E-Verify]),

State (including consular posts and embassies worldwide, and the Visa Office, Office of Public and Diplomatic Liaison and Overseas Citizen Services, all in the Bureau of Consular Affairs),

Labor (the Office of the Solicitor, the Administrative Law Judges, the Appellate Review Board, the Employment & Training Administration [including the Office of Foreign Labor Certification] and Employment Standards Administration [including the Wage & Hour Division] and the Office of Federal Contracts Compliance Programs),

Justice (the Office of the Attorney General, the Office of Special Counsel for Unfair Immigration-Related Employment Practices, the Office of Immigration Litigation, the Office of the Chief Administrative Hearing Officer and the Executive Office for Immigration Review) and

Treasury (the Social Security Administration).

To complicate matters even further, a plethora of Memoranda of Understanding between and among these governmental units share or delegate authority over increasingly thinner slivers of the immigration landscape, while the Office of Management and Budget serves as perfunctory gatekeeper over all immigration-related regulations and forms.

Yet all of these federal entities purport to interpret and apply one and the same law, the Immigration and Nationality Act (INA). No single entity or officer is empowered with unimpeded authority to provide a harmonized interpretation of the immigration laws notwithstanding this gobbledygook from INA Section 103(a)(1):

The Secretary of Homeland Security shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

But wait a minute, you might say, what about the last proviso? the Attorney General has ultimate power over immigration law ("determination[s] and ruling[s] by the Attorney General with respect to all questions of law shall be controlling"). The concept sounds fine in principle but falls flat in practice. Except in rare and highly public pronouncements (e.g., ineffective assistance of counsel), the AG has simply given up on reconciling and harmonizing the answers to zillions of legal questions that perplex immigration stakeholders.

While we wait for the midterm elections and Congressional interregnum to pass, immigration stakeholders (who I count as all Americans) must pressure our leaders to clarify and centralize the authority to pronounce the immigration rules and appoint an accountable Executive-Branch umpire to make sure all the players play nice. Until then, I disagree with Abbott. Who's not on first. No one's on first.

Posted by Angelo A. Paparelli on July 16, 2010

Immigration-Enforcement Preparedness: Is Your Business Ready?

[Y]ou have to be prepared at any moment to face difficulties and even dangers by knowing what to do and how to do it.

Agnes and Robert Baden-Powell, How Girls Can Help to Build Up the Empire

Be Prepared in [m]ind . . . by having thought out beforehand any . . . situation that might occur, so that you know the right thing to do at the right moment, and are willing to do it.

Robert Baden-Powell, Scouting for Boys - Campfire Yarn No. 3 - Becoming a Scout

Excerpts from the Scout Motto: "Be Prepared."

When immigration-beat writers for the Sentinels of the Left and Right, the New York Times and the Wall St. Journal, report on a new trend in government enforcement actions against employers, prudent businesses must take note.

The NYT's Julia Preston reports: "The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies' records for illegal immigrant workers." In a similar vein, Miriam Jordan of the WSJ writes: "Even as the Obama administration cracks down on companies that hire illegal immigrants, it is simultaneously going after employers that it says go too far in vetting job applicants to ensure they are entitled to work in the U.S."

The truth is many U.S. employers are as eager to think about immigration audits as are politicians thrilled to be You Tubed during a lurid escapade in the Red Light District. When it comes to U.S. immigration enforcement trends, however, "struthiousness" is downright reckless. (No, that's not a word coined by Stephen Colbert, but rather an obscure noun meaning ostrich-like behavior -- averting one's eyes from a clear and present danger and pretending it's not there.)

As my colleague, Nici Kersey, and I note in our recent AILA Annual Conference article ("No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters"), readiness for the immigration agents' knocks on the door is essential. The threat stems not merely from ICE (Immigration and Customs Enforcement), but also from an array of ALL-CAPS federal agencies that enforce immigration regulations governing the worksite: The OSC (the DOJ's Office of Special Counsel for Unfair Immigration-Related Employment Practices), FDNS (the USCIS's Fraud Detection and National Security division within DHS), and the DOL's OFCCP (Office of Federal Contracts Compliance Programs) and WHD (not to be confused with WMD or WD-40 -- it's the Wage and Hour Division).

As the article explains, immigration-enforcement preparedness must involve not just HR and the office of general counsel. Rather, it requires a host of additional corporate players: Occupants of the "C" Suite (the CEO, COO, CFO, CIO and others), the messengers (corporate communications), the internal enforcers and protectors (corporate compliance and corporate security), the greeters (the receptionists), and of course, foreign workers (whether employed by the corporation or by its vendors) and your immigration counsel, to name a few.

Readiness is also about checklists, protocols, data collection (the required immigration paperwork and related personnel, payroll and tax information), internal compliance audits and practice drills. Immigration preparedness involves strategic choices and business judgments that must mesh with the company's corporate ethos and culture. All of this preparation takes time.

Forewarned is forearmed. Be good Scouts!

Posted by Angelo A. Paparelli on July 09, 2010

The Right Immigration Question is at Last Approved by the OSC

Every once in a while a government agency in the immigration space does the right thing. If I'm to maintain credibility and objectivity in the eyes of readers, I need to call out functional behavior when I see it -- notwithstanding that this blog is dedicated to dysfunctions in the immigration ecosystem.

The agency worthy of plaudits is a unit within the Civil Rights Division of the Department of Justice known as the Office of Special Counsel for Immigration-Related Employment Practices (OSC). Under Immigration and Nationality Act (INA) § 274B(c) [8 U.S. Code § 1324b(c)], the OSC is charged, among other duties, with responsibility to accept complaints and prosecute employers in civil proceedings alleging any violation of the antidiscrimination provisions of the INA.

Prohibited forms of discrimination policed by the OSC include citizenship status discrimination against persons within a "protected class." Members of this protected class consist solely of American citizens, green card holders, refugees, asylees and temporary residents (if any still exist in that status) recognized as such under the Reagan-era amnesty (legalization) program for agricultural workers and others who violated immigration status in a manner known to the government during a certain period in the 1980s. Foreign citizens not included within the protected class include persons with temporary employment authorization or in work-authorized nonimmigrant visa status such as an E-1, E-2, E-3, H-1B, L-1, TN, O-1 or P or Q visa status.

For years now, a number of employers and their immigration counsel have been asking the OSC for help in developing a lawful way to avoid hiring foreign applicants for employment who must be sponsored in the future for work authorization under the immigration laws.

There are any number of legitimate reasons why an employer might adopt a policy in which it declines to petition for permission to employ a foreign national:

  • Government filing fees are expensive and increasing;
  • Immigration lawyers must be paid to avoid tripping over red tape and achieve compliance with the INA;
  • The period of future employability could be abruptly cut shorter than needed if the petition is denied;
  • Training new hires costs money that will be lost or not fully amortized if the renewal of work permission is refused;
  • Persons seeking to invoke adjustment of status portability need a special letter from the new employer requiring that employer to attest that the job offered the individual is in the same or similar occupational classification as the former employer's labor certification application, an application which the new employer may not have seen and never be able to access; and
  • Patriotically, the employer prefers, as the law allows, to hire American citizens and members of the protected class.

For just as many years, the OSC has cautioned employers to avoid posing questions on job applications that might run afoul of the antidiscrimination provisions of the INA. OSC has only allowed two questions that employers can use on the application for employment without fear of a discrimination charge:

  1.  
    1. Are you legally authorized to work in the United States? ___ Yes ___ No; and
    2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? ___ Yes ___ No.

    2. The OSC's historic refusal to allow other questions on job applications because they posed a discrimination risk brings to mind a story, probably apocryphal, told many years ago at an immigration bar conference by my colleague, Mary Pivek:

    A group of monks -- desiring to smoke cigarettes -- wrote to the Pope seeking permission: "Holy Father, may we smoke while we pray?", they asked. The Bishop of Rome responded: "No."

    Some time later in a different monastery, another group of brothers wrote to the Pope with a similar but slightly differently worded request: "Holy Father, may we pray while we smoke?", they requested. A papal missive came back in reply: "Yes."

    The moral of the story is that it's all in the way you ask the question.

    I guess I asked the OSC the right question (that included a preface) and would replace Question 2 above. Here it is:

    For purposes of the following question "sponsorship for an immigration-related employment benefit" means "an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and 'job flexibility benefits' (also known as I-140 portability or Adjustment of Status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer." (Please ask us if you you are uncertain whether you may need immigration sponsorship or desire clarification.)

    Will you now or in the future require "sponsorship for an immigration-related employment benefit?" __ Yes __ No

    The OSC -- while not offering "an advisory opinion on any set of facts involving a particular individual or company" -- nonetheless gave the desired answer:

    As you noted, an August 14, 1991, technical assistance letter issued by this office cautions against using overly technical language not easily understood by a lay person. However, because the language you propose to use clearly applies only to temporary visa holders, it does not implicate the INA's protection against citizenship status discrimination.

    Kudos and thanks to the OSC.

Posted by Angelo A. Paparelli on July 02, 2010

No Time for Lame Ducking on Immigration

I don't live in Washington, but almost every time I travel there, as I've done this week, something comes over me. Inside the Beltway, talk can give off the illusion of action. The mouthing of words, however powerful on the printed page or eloquent when spoken, is seen here as equivalent to progress.

President Obama's July 1 speech on immigration has been described as "a very clear call for action" that places pressure on Capitol Hill -- a euphemism for Republicans and wobbly-kneed Democrats -- "to answer." This time, however, the phantasmagoric politics of the city didn't sway me, and the President's speech fell flat. Words, though artfully phrased, can come too late, or be delivered with too little energy, to reach (let alone pass) the tipping point.

As I told the Orange County Register:

He said all the right things [but] I didn’t see the passion in the delivery I would have liked. . . . it was ultimately unsatisfying. It’s always puzzled me, frankly, because I had . . . naively assumed that the son of a Kenyan immigrant would care more, [b]ut I just don’t see the fire in the belly.

One passage that employed a classic straw man argument -- an oft-utilized Obamian rhetorical flourish -- really troubled me:

There are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws. And often this argument is framed in moral terms: Why should we punish people who are just trying to earn a living?

I recognize the sense of compassion that drives this argument, but I believe such an indiscriminate approach would be both unwise and unfair. It would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration. And it would also ignore the millions of people around the world who are waiting in line to come here legally.

Who is suggesting that we simply provide people who are here illegally with legal status? Who is arguing that we ignore the laws on the books and cease deportations until we have better laws? Knocking down these straw men won't change the truth.

The President can use executive authority to register and screen people who lack the right to be here and give them, not legal status, but a Notice to Appear for removal proceedings, i.e., a presence under color of law, and a work permit, until we as a nation figure out how to deal with a problem requiring a pragmatic solution that is respectful of the rule of law. On his own, he can also use the power vested in him as President of the United States to provide substantial improvements to what he correctly described as "our creaky system of legal immigration."

While some make the moral argument about the need to earn a living, most fair-minded immigration advocates espouse a different moral argument (that all citizens benefit from the sweat of unauthorized workers and thus all must accept part of the blame and the responsibility to fix the problem without sanctimony).

Taking a page from Jorge Ramos' new book, A Country for All: An Immigrant Manifesto, the President makes a compelling argument that clearly proves too much:

[Americans know it is not] possible to round up and deport 11 million people. . . . Such an effort would be logistically impossible and wildly expensive. Moreover, it would tear at the very fabric of this nation -– because immigrants who are here illegally are now intricately woven into that fabric. Many have children who are American citizens. Some are children themselves, brought here by their parents at a very young age, growing up as American kids, only to discover their illegal status when they apply for college or a job. Migrant workers -– mostly here illegally -– have been the labor force of our farmers and agricultural producers for generations. So even if it was possible, a program of mass deportations would disrupt our economy and communities in ways that most Americans would find intolerable.

Despite the President's critique of recalcitrant Republicans, of "political posturing and special-interest wrangling" -– and his recognition "that tackling such a thorny and emotional issue is inherently bad politics," he can curl his pointing fingers around his presidential signing pen and -- quite sensibly -- fix big parts of the "broken" and "creaky" immigration system on his own.