Posted by Angelo A. Paparelli on August 28, 2010

Dealing with 'the Reality of What Is': The GOP Quandary over Immigration

"I'm having to deal with the reality of what is. You can't wish it away. What is, is." So says a glum Ohio Democrat, Governor Ted Strickland, according to reporter Laura Meckler in this weekend's edition of The Wall St. Journal ("Democrats Face Economic Facts: Updraft Unlikely"). Meckler's article reports on the prospect that Democrats "will lose their majority in the House," citing two nonpartisan election handicappers, the Rothenberg Political Report and the Cook Political Report.

What would shared power portend for immigration reform if the GOP took control of one or both houses of Congress? Before that question can be answered, Republicans must first resolve conflicting policy arguments among themselves.

Last night, conservative talk show host Laura Ingraham (and Kerry-like flip-flopper, "I was for the Ground Zero Mosque before I was against it") subbing for the eponymous host of the O'Reilly Factor, highlighted the tensions on immigration within the Party of Lincoln. In in a segment entitled "Is the Tea Party Toxic for the GOP", Ingraham confessed that she found it hard to distinguish immigration policy sentiments of "influential conservative" Michael Gerson, a former Bush speechwriter, from those of former Democratic Party Chairman, Howard Dean, and über-liberal, MoveOn.org.

Gerson's jousting with Ingraham was prompted by his recent Op-Ed piece in the Washington Post, in which he worried aloud about the Tea-Party leanings of the GOP on immigration:

A . . . question of Tea Party candidates: Do you believe that American identity is undermined by immigration? An internal debate has broken out on this issue among Tea Party favorites. Tom Tancredo, running for Colorado governor, raises the prospect of bombing Mecca, urges the president to return to his Kenyan "homeland" and calls Miami a "Third World country" -- managing to offend people on four continents. Dick Armey of FreedomWorks appropriately criticizes Tancredo's "harsh and uncharitable and mean-spirited attitude on the immigration issue." But the extremes of the movement, during recent debates on birthright citizenship and the Manhattan mosque, seem intent on depicting Hispanics and Muslims as a fifth column.

There is no method more likely to create ethnic resentment and separatism than unfair suspicion. The nativist impulse is the enemy of assimilation. In a nation where minorities now comprise two-fifths of children under 18, Republicans should also understand that tolerating nativism would bring slow political asphyxiation.

Tolerating or opposing nativism is not the only irreconcilable immigration difference within the GOP. In the immigration sphere, Republicans must decide if they are for or against: (1) protectionism, (2) small-business entrepreneurship, (3) intrusive government regulation, and (4) higher taxes. The posts linked in the preceding sentence suggest that these seemingly easy questions are surprisingly difficult to answer for a party that loudly proclaims its allegiance to free-market capitalism.

Setting aside their policy differences over how best to tackle the problem of illegal immigration, Republicans must decide whether they will push for reforms of the system of legal immigration that foster rather than impede economic prosperity. They must decide whether (a) Sen. Chuck Grassley (R. IA), who sides with Sen. Dick Durbin (D. IL), in opposition to the H-1B and L-1 work visa categories, will be their standard-bearer on employment-based immigration, or (b) the GOP will at last heed the long-repeated warnings of business leaders who foretell a deepening slide in our global competitiveness unless more innovation-friendly immigration policies are quickly enacted.

Republicans cannot have it both ways on immigration. They cannot remain silent when American Apparel, a company that has insisted on producing goods within the U.S. using domestic workers, reportedly suffers a sharp decline in stock price by the loss of a huge chunk of its workers because the federally-imposed system of employment-eligibility verification is broken, as Fast Company and the L.A. Weekly report. (WARNING: Those with Victorian sensibilities should NOT click on the Fast Company link and instead check out L.A. Weekly, while more worldly readers who'd like a new answer to the perennial presidential campaign question, "Boxers or briefs?, may run with Fast Company.)

Republicans will not win over many Mama and Papa Grizzlies, or their voting-age cubs -- especially those working in the Human Resources departments of companies owned by members of any political party -- if the immigration laws now in force treat them like (gender-irrelevant) "fall guys." As Ted Chiappari and I note in this week's New York Law Journal ("Lawbreaker, Naïf or Stooge? – The HR Representative and I-9 Crimes"):

While large-scale foreign-national employee prosecutions and removals in connection with worksite raids under the Bush administration attracted more publicity, the number of criminal prosecutions of business owners and managers also increased. The Obama administration has moved away from high-profile worksite raids, favoring instead “audits” (called “silent raids” by some) that in effect force employers to terminate the employment of unauthorized workers. Even so, Homeland Security Secretary Janet Napolitano in her Senate confirmation hearings also pledged “appropriate criminal punishment” for “unscrupulous employers.” So, regardless of which party is in office, employers and their human resources representatives have to be aware of potential criminal liability. (Footnotes omitted.)

The GOP would be wiser to consider another alternative than criminalization of employers under the immigration laws, perhaps something like the New Employee Verification Act (NEVA), a bill sponsored and defended by Rep. Sam Johnson (R. TX) that has been languishing since first introduced in April 2009. NEVA would take the onus of employment-eligibility verification off the backs of business and place it rightfully on the government (or authorized third-parties).

However the Republicans resolve their multiple-personality disorder on immigration, if they succeed in taking the House, they should use their newfound authority wisely and in the best interests of the nation. Rep. Darrell Issa (R. CA) would chair the House Oversight Committee, and wield the power to convene hearings, including sessions on the administration of our immigration laws. Rather than Obama-Administration witch hunts, as many fear, perhaps Rep. Issa will use his hoped-for new authority to ask what Republicans and surviving Democrats can do -- in legion with the Obama Administration -- to make the system of legal immigration a jump-starter for America's economy.

Posted by Angelo A. Paparelli on August 22, 2010

The Dark Sides of Immigration Fame and Anonymity

For someone whose career had seemed in rocket-vectored ascendancy, Piers Morgan -- famed British journalist, TV host, 2008 winner of Donald Trump's Celebrity Apprentice, and 2006 season judge of America's Got Talent -- has encountered an implacable obstacle. The object reportedly in his way is so impenetrable that, even with help from CNN, Piers cannot pierce it.

As first reported in the New York Post, government approval of CNN's U.S. work visa petition to allow Morgan to be the new host of Larry King Live has reputedly been delayed. Another journalist, Richard Adams, who blogs on U.S. politics and culture from the Guardian newspaper's Washington DC bureau, summarized the apparent problem thusly:

The unstoppable force of Piers Morgan's career has finally met an immovable object: the US Citizenship and Immigration Services. . . . The nature of the delay is unknown . . . [I]t comes at a time when immigration is a hot-button issue in US politics. . . . [Q]ualification for a US work visa is a long and often fraught process . . . US immigration authorities are famously unimpressed by celebrity, and a delay of several months is not uncommon in even the most straightforward cases.

Others (here and there) are quick to discount the story.

I have no idea whether CNN, on behalf of Morgan, an author of eight books, and host of two BBC series (The Importance of Being Famous and The Dark Side of Fame with Piers Morgan), has not received swift visa-petition approval from USCIS. If USCIS is indeed the reason why Larry King will linger longer, then I speculate that perhaps Morgan's multifarious career has been too much a moving target and King's iconically idiosyncratic show too unique a form of entertainment for USCIS examiners to link together. Or maybe hosting a talk show is seen by USCIS as too different from judging a talent show, in the same way that the agency decided that “arguably one of the most famous baseball players in Korean history” was unqualified for a green card to serve as a baseball coach for the the Windy City's White Sox team because his fame was solely as a player rather than as a coach. See, Lee v. Ziglar, 237 F. Supp.2d 914, 918 (N.D. Ill.2002).

The Post speculates that Morgan needs a "special visa," while Blogger Adams suggests that Morgan has "options" available to him ("'Individuals with Extraordinary Ability or Achievement in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field' for which Piers would surely qualify"). At the same time, a TV.com staff writer -- in a snarky slap to the immigration bar -- asks: "Aren't there people [Morgan] can hire to take care of that?"

I'm not ready to pass judgment on USCIS in d'Affaire Morgan (or to remain silent when uninformed outsiders unfairly slime immigration lawyers).

I note with satisfaction, however, that under the administration of Alejandro Mayorkas, USCIS Director, the agency has taken unprecedented steps to improve adjudication of EB-1 (Employment-Based First Preference) immigrant visas requiring regulatorily prescribed levels of extraordinary attainment. As Los Angeles Times reporter, Teresa Watanabe, reported recently, quoting the Director:

Mayorkas said he was determined to "get it right and get it fast." "The community deserves consistency," he said. "These are our customers, and we are committed to improving customer service."

The latest example of the changes wrought by Director Mayorkas is an opportunity to allow the public to comment on interim guidance memorandums before they becomes effective in final form. This type of pre-effective-date chance to comment never happened before with the old INS or the pre-Mayorkas USCIS. The early-peek opportunity for comment allows the agency to withdraw with dignity intact from a position that stakeholders may show is contrary to law or legitimate business practices. For example, USCIS is now accepting comments on a guidance memo with a dry title but a topic of great significance to many prospective green-card applicants with high levels of accomplishment: "Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions."

This particular guidance memo arises from a debunking the agency received from the Ninth Circuit Federal Court of Appeals in Kazarian v. USCIS, 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774). The Court in Kazarian held that USCIS (in this case the Administrative Appeals Office) may not "unilaterally impose novel substantive or evidentiary requirements” without support in the Immigration and Nationality Act or agency regulations.

While Kazarian dealt with EB-1 (extraordinary ability or achievement) green-card eligibility criteria, the interim agency guidance cited extends this also to the EB-2 immigrant visa category for exceptional ability aliens. In my view, USCIS should have issued a guidance memorandum more broadly. Stakeholder feedback should have been issued on a guidance memorandum (which I'd be happy to craft upon request) entitled "Illegality of Unilaterally Imposing Novel Substantive or Evidentiary Requirements."

Although the proposed title of my suggested USCIS memo is admittedly just as dry as those the agency issues, its scope is more important. The guidance memo I propose would cover all formal decisions ("adjudications") that USCIS must make and not be limited solely to green-card grants or denials. It would apply to naturalization, asylum, work visa petitions, marriage petitions, investor petitions, battered spouse determinations, human trafficking and crime victims cases, waiver requests and more.

To be sure, Hollywood v. USCIS is a battle of great moment. Still, everyday supplicants who pay USCIS ever-steeper user fees deserve fair and prompt adjudications and the same equitable consideration as celebrities like Piers Morgan. I'm not saying that I'm happy that Morgan's immigration case may have been delayed. But I will savor the last few pre-nostalgic months before Larry King retires his suspenders.

 

Posted by Angelo A. Paparelli on August 14, 2010

Rethinking Immigration: Stop with the Protectionism

For a supposedly-sleepy dog day of summer, last Thursday produced a disturbing clash of views on employment-based immigration in the two Washingtons -- DC and WA.

Seattle, about as far from the Beltway as one can go in the lower 48, hosted the Northwest Summit of ImmigrationWorks -- a coalition of large and small businesses bent on reforming the immigration laws in ways that will enable the economy to grow. At the same time, the Senate reconvened from its recess for about a half hour to pass H.R. 6080, a $600 million border enforcement law whose protectionist elements triggered an immediate complaint from the Government of India to the U.S. Trade Representative.

The Northwest Summit offered speaker after speaker from far-flung industries describing a set of immigration rules and restrictions that prevents the economy from growing. Throughout the day, farmers, seafood harvesters, restaurant owners, executives in the service industries, and entrepreneurs in technology companies decried a broken system that demonizes law abiding businesses for the failings of federal officials. Even more compelling were the corridor conversations where individual business owners -- grizzled veterans of their industries -- spoke privately of the fear of criminal prosecution and loss of livelihood despite scrupulous efforts to obey the immigration laws and the daunting challenge of running legitimate businesses plagued by domestic labor shortages.

A continent's width away, Senator Charles Schumer, lead Democrat on immigration policy, defended the financing mechanism for the border bill -- the doubling of H-1B and L-1 visa filing fees -- as a poetically just surcharge on companies whose very "business model" contravenes Congressional intent and "[is] ruining the reputation of the H-1B program." He blamed these firms (which he had earlier called "chop shops" but corrected himself and then termed them "body shops" that engage in "labor arbitrage") for a host of ills:

According to the Economic Policy Institute, [misuse of H-1B visas by these companies is] lowering the wages of American tech workers already in the marketplace [and] . . . discouraging many of our smartest students from entering the technology industry in the first place [because they balk at paying tuition for advanced degrees] when the market is being flooded with foreign temporary workers willing to do tech-work for far less pay. . . .

Congress does not want the H-1B program to be a vehicle for creating multinational temp agencies where workers do not know what projects they will be working on or what cities they will be working in when they enter the country. The fee is solely based on the business model of the company, not the location of the company.

If you’re using the H-1B to innovate new products and technologies, that’s a good thing regardless of whether the company was originally founded in India, Ireland or Indiana. But If you're using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of this program, I and my colleagues believe you should have to pay a higher fee to ensure that American workers are not losing their jobs because of the unintended uses of the visa program, and this belief is consistent whether the company that uses these practices is founded in Bangalore, Beijing or Boston. . . .

[Based on press reports, the] leaders of this business model are agreeing that our bill will make it more expensive to bring in foreign tech workers to compete with American tech workers for jobs here in America. That means these companies are going to have to start to hire U.S. tech workers again. . . . This bill [thus] has the . . . advantage of creating more high paying American jobs.

Sen. Schumer's rationale for sticking foreign companies who sponsor H-1B and L-1 workers in volume with the cost of protecting the U.S. border is flawed on several counts:

The Senator cites no evidence that American students are refraining from the study of STEM (science, technology, engineering and math) subjects because of a flood of lowly paid tech workers. As the White House attests, good STEM teachers make for dedicated STEM students. Rather, a report prepared by Public Agenda for The National Center for Public Policy and Higher Education confirms that, as a general matter, "many Americans are becoming more skeptical about whether colleges and universities are doing all that they can to control costs and keep tuition affordable." Thus, the skyrocketing of tuition costs, not a deluge of poorly compensated foreign workers, is the primary reason that some students refrain from pursuing higher education.

The meme that the H-1B visa program allows access to underpaid foreign workers ignores the law's requirements. As the American Immigration Lawyers Association made clear in challenging the findings of an Economic Policy Institute report (a study prepared in partnership with the AFL-CIO, and the same report cited by Sen. Schumer):

The H-1B program carefully protects wages by requiring that companies pay the higher of the wage paid by their competitors for comparable positions or the wage the company itself pays to other comparable workers. These protections are enforced by the Department of Labor and non-compliance already includes heavy penalties, including complete bars from petitioning for any foreign worker. Furthermore, H-1B employers are required to pay a $500 fraud prevention and detection fee for the initial H-1B petition which funds the government's ability to investigate potential fraud in the H-1B program, not to mention the fee of up to $1500 filed with each petition to help train U.S. workers. If employers are deliberately violating the program requirements, the DOL can and should levy penalties. But the characterization of these programs as a means of obtaining cheap, indentured labor is false and irresponsible.

Temporary staffing agencies are not the same as global sourcing companies that provide IT and business-process solutions and other innovative services. Temp agencies, whether domestic or foreign, supply temporary workers to fill short-term needs, sometimes at lower costs. Global sourcing enterprises use a legitimate business model that significantly benefits governments, businesses, citizens and customers by offering better quality, 24/7 service across time zones, and speedier start-up and delivery, while allowing customers to focus on core competencies. Global service providers are not "glorified international temp agenc[ies]." They are no less vital to American businesses than are the hundreds of private contractors who serve the federal government, including the Departments of Justice and Homeland Security. Regrettably, the border-law's definition of businesses that must pay the ramped-up H-1B and L-1 filing fees is not carefully tailored to reach only temp agencies engaged in body-shop activities. It unjustly imposes a protectionist tax on legitimate multinationals in the global sourcing industry.

The fees generated by the new border law won't "ensure that American workers are not losing their jobs because of unintended uses of the visa program." None of the money raised will be provided to the two government units with primary authority to investigate and enforce H-1B and L-1 visa requirements -- the Department of Labor (Wage & Hour Division) and the Fraud Detection and National Security division of U.S. Citizenship and Immigration Services. Rather, as the last sentence of the border bill provides, "all amounts collected pursuant to the fee increases authorized . . . [must] be deposited in the General Fund of the Treasury."

The border law is not a carefully crafted statute intended to pay for border security by making it more costly for a narrow band of perps to engage in a specific type of visa abuse. It is blatant protectionism, something that hurts all of us in the long run, as Milton Friedman reminded us soon before his death. President Obama and a number of world leaders were right last March when they said:

The G20 [nations] must go beyond merely advocating for trade and against protectionism. . . We must continue to resist protectionist pressures, and to promote liberalization of trade and investment through the national reduction of barriers . . .

Notwithstanding these anti-protectionist sentiments, each time the President has had the chance to sign a new bill containing immigration provisions, protectionist elements crept in. It happened with the Employ American Workers Act and now again with the border law. It's clear that NYU Law Professor, Samuel Estreicher, could have been speaking of the border law when he said:

Over the last several decades, trade unions in the United States increasingly have been unable to realize their objectives at the bargaining table and have turned more and more to politics.

It's little comfort to multinational businesses that they dodged a bullet this time. Free-trade opponents and their Congressional enablers have even more changes planned -- enfeebling amendments to the H-1B and L-1 visa categories that "carry a significant likelihood of being ruled inconsistent with U.S. commitments under the GATS [the General Agreement on Trade in Services]." Still, the H-1B category is not without its supporters. Even the vehemently anti-immigration organ, the Center for Immigration Studies, has found a reason to support the beleaguered visa category: The Center proposes H-1B visas for foreign judges who can be imported to the U.S. to help in ordering the deportation of removable aliens.

As Yakov Smirnoff, the Russian émigré, sardonically observed:

"What a country!"

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Posted by Angelo A. Paparelli on August 06, 2010

Rethinking Immigration: No More Border Voodoo Economics

Supporters of stricter border enforcement must have uncorked the champagne yesterday. The Senate, in bipartisan fashion, broke a deadlock over funding and passed S. 3721, a $600 million emergency appropriation that would bring 1,500 more federal enforcers and unmanned aerial drones to the U.S. border. Last week, the requisite number of House members voted "yea" to a similar bill with a $701 million price tag. Some form of enhanced border security legislation is likely to reach the President's desk soon.

The Senate's border funding tussle involved a face-off between Republicans (who wanted to pay for the bill by diverting money from Recovery Act stimulus funds) and Democrats (who claimed Republicans would "take . . . away from job-creating programs by robbing the Recovery Act"). Ultimately, the Dems found a way to pay for the bill: Increased immigration filing fees on large-volume users of the H-1B (specialty occupation) and L-1 (intracompany transferee) visa categories are expected to cover the tab. For companies that "employ 50 or more employees in the United States if more than 50 percent of the [petitioner's] employees" are either H-1B or L-1 nonimmigrant workers, then between the date of enactment and September 30, 2014, H-1B filing fees and anti-fraud fees will rise by $2,000 per petition and corresponding L-1 per-petition imposts will increase by $2,250.

In a press release lauding their effort, Sen. Charles Schumer (Chair of the Senate Immigration Subcommittee) proclaimed that this "package shows a serious commitment to securing the border, even though we know it will take comprehensive immigration reform to fully address the problem." Further, the good senator stressed, the bill "doesn't add a dime" to the deficit and "doesn't take away money from jobs programs to do it." Senator Mark Begich also exuded happiness (although unwittingly disclosing that he hadn't read the actual text of the bill): "I am . . . very pleased the bill is paid for by increasing fees for H1-B [sic] and L visas for companies who have half of their work force overseas, as this will protect American jobs and industry.”

Republican Sens. McCain and Kyl were ultimately persuaded that increasing filing fees was the only way that the border would be better protected, and added their names as co-sponsors of S. 3721, even though they are listed as signers of the Anti-Tax Pledge espoused by Grover Norquist. Ironically, their Republican colleagues in the house just rejected an equally public-spirited bill that would have provided long-term funding for 9/11 first responders because it would increase taxes. The legislation, according to the Associated Press, "would have prevented foreign multinational corporations incorporated in tax haven countries from avoiding tax on income earned in the U.S."

So, let's get this straight. It's okay to jack up the H-1B and L-1 filing fees imposed on certain American companies but it's unacceptable to require foreign entities established in overseas tax havens to pay taxes on income they earn in America. Go figure.

Well, you say, crafting legislation requires lawmakers to take difficult decisions among alternative proposals. Someone's got to pay for protecting the border and we can't foist these costs on future generations; right?

Let's assume more money for border enforcement is a wise investment (although the nonpartisan Migration Policy Institute reports that the added costs required to seal the border are disproportionate to the anticipated benefit to be gained and may only marginally stanch the entry of unauthorized immigrants). Also assume that ratcheting up immigration filing fees is an appropriate, indeed the only, way to fund increased border enforcement.

Still, an important question remains: Will an immigration-filing-fee funding mechanism actually produce $600 million by September 2014 to fund these border measures?

It takes two gargantuan leaps of faith to believe that increased border appropriations will ultimately be deficit-neutral:

Leap # 1: S. 3721 assumes that revenues gained from tax increases follow a static rather dynamic formula. In other words, if taxes are increased, tax revenues will increase correspondingly. This Leap forgets the teaching of the Supreme Court in Gregory v. Helvering, 293 U.S. 465 (1935): "The legal right of an individual to decrease the amount of what would otherwise be his taxes or altogether avoid them, by means which the law permits, cannot be doubted." This principle applies to immigration-filing-fee increases no less than to tax hikes. Witness the Adjustment of Status surge in the summer of 2007. As the then-Director of USCIS, Emilio Gonzalez, testified to Congress: "Most surges relating to a fee increase are followed by a commensurate dip in filings . . ." S. 3721 will likely trigger an upsurge in H-1B and L-1 petition filings by large-volume users before the increases take effect, followed even more assuredly by corporate decisions to move jobs abroad because America is obviously and increasingly hostile to global businesses.

Leap # 2: S. 3721 assumes that there are now and will be sufficient numbers of petitioners in the United States who employ 50 or more employees, more than half of whom are H-1B and L-1workers. Who and where are these employers? Where are the statistics to show that such employers exist? Has the Congressional Budget Office scored the effect on the deficit of S. 3721? No, CBO has not published any such scoring to date. Moreover, I've looked and there are simply no USCIS statistics suggesting that the presumably multitudinous petitioners described in S. 3721 exist.

My prediction: The anticipated fee money to fund border enforcement simply won't be there. The deficit will rise and the effect on border security is likely to be very little additional bang for many unfunded bucks. All this will happen "even though," as Sen. Schumer suggested, "we know it will take comprehensive immigration reform to fully address the problem."

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