Posted by Angelo A. Paparelli on October 31, 2010

Rethinking Immigration: Time to End the IRCA Squeeze

With Republicans salivating at the prospect of capturing at least one chamber in Congress, and President Obama and the Democrats in (perhaps temporary) retreat, the time seems right to reflect on how much trouble our broken immigration system has caused both parties and the country.

Repeatedly, on both sides of the partisan aisle, the hiring of an unauthorized foreign housekeeper, nanny or landscaper has waylaid or shaken a DC insider's grand career plans. Recall the famous who tripped on illegal immigration -- Lou Dobbs, Timothy Geithner, Mitt Romney, Bernard Kerik, Zoe Baird, Kimba Wood and Linda Chavez. Now add to the list Meg Whitman, candidate for California governor. Her campaign has been polling negative ever since news broke that she employed an unauthorized housekeeper for nine years (perhaps with knowledge of the worker's illegal status). Meg now cries what seem like crocodile tears over the legally necessary ("the law is the law") deportation of the person she once described as a "member of our extended family."

You don't need an Andy-Warhol quarter-hour of fame, however, to be blind-sided by the immigration laws. Even nondescript employers face serious problems because Congress structured the Immigration Reform and Control Act of 1986 (IRCA) badly from inception.

IRCA took a police function -- the identification of foreign citizens with no right to be in the country -- and outsourced it to America's seven million employers. At the same time (E-Verify notwithstanding), the government failed to establish a fraudproof system of issuing and verifying identity documents and work permits. Just as bad, Congress crafted IRCA to punish employers who take their deputization as junior G-men too seriously by illegally discriminating against workers who look or sound foreign. IRCA also proscribes "document abuse" -- a violation (quite different from the act Christine O'Donnell decries) involving an employer's demand to inspect more or different papers than those the employee chooses to present.

Now the chickens are coming home to roost. With scant sense of regret or irony, the Obama administration -- while proclaiming the need for Congress to grant legal status for the undocumented -- has dramatically ramped up civil and criminal enforcement of the immigration laws against employers. At the same time, ICE maintains a trophy room of press releases on its website where the many employers taken down by IRCA are now mounted.

Even if owners seek to sell their businesses, IRCA may scotch the deal. Just as "the Supreme Court follows the election returns," buyers of businesses are fearing the anti-immigration tilt to the right by the electorate and Tea'd off candidates. Although M &A activity is generally on the rise, venture capitalists, private equity firms and other business buyers are increasingly demanding that sellers show clean hands on immigration compliance. My latest New York Law Journal immigration column, co-authored with Ted Chiappari, "M & A Lawyers Beware: Immigration Risks Lurk in Your Next Deal," reports on a new trend that will only put an extra IRCA squeeze on sellers.

Taking a page from the strategy that ICE pressured Wal-Mart into demanding of its vendors, buyers are insisting that an independent third-party with subject-matter expertise, typically an immigration lawyer or firm, conduct a full IRCA compliance audit and report to the buyer any findings of immigration deficiencies and corrective measures taken. As the NYLJ article notes:

An independent immigration compliance audit would be helpful in flagging correctable errors that seller should cure before the closing, and in quantifying the potential fine range that ICE could impose (for which seller should indemnify buyer). An independent immigration audit might also reveal more serious violations, or could well trigger a loss of a significant cohort of the seller’s workforce if I-9 reverification is required and workers either fail to show up for work or are unwilling or unable to complete the current version of the I-9 form by providing acceptable documents of identity and employment eligibility of the worker’s choosing [thus resulting in "silent" ICE raids] . . . .

Substantial potential exposure to fines and civil or criminal immigration penalties might make the deal less enticing to the buyer or might result in a negotiated reduction of the purchase price (or a clawback provision that allows the buyer to retrieve a portion of the purchase price if ICE [later] imposes monetary sanctions or the post-closing workforce proves insufficient to maintain the surviving entity’s business operations).

None of these maneuvers would be necessary if Congress were to restructure the process of employment verification. Ideally, the government would no longer outsource the function but instead directly confirm every worker's employment eligibility and communicate a positive result by a secure online system so the employer could safely hire the individual. Alternatively, it should enact a bill known as the New Employee Verification Act (NEVA) which would outsource the duty to verify employment eligibility to specially trained third-party firms and thereby immunize the employer from liability. Regrettably, this bill is NEVA gonna happen, unless Congress also clears the path to legal status for the 11 million undocumented persons in our midst.

The current ICE strategy of triangulated IRCA squeezes and silent raids will only postpone that day of reckoning. The Obama Administration reportedly thinks that pushing ahead soon with comprehensive immigration reform (CIR) is a winning strategy that will put Republicans on the hotseat in 2012. Republicans, however, are raring for a fight to oppose CIR.

Meantime, the flawed-from-the-start IRCA system of indirect and rebounding shots, better suited to a billiard table than a national stage, continues to torment law-abiding business owners who find it harder than ever to follow a broken immigration law.

Posted by Angelo A. Paparelli on October 24, 2010

The Immigration Star Chamber's Star-Crossed Stakeholders

Trouble, we got trouble, right here in Immigration Country (apologies to Meredith Wilson, lyricist for The Music Man). As the song goes, "either you're closing your eyes to a situation you do not wish to acknowledge or you are not aware of the caliber of disaster indicated." I refer not to the ersatz "professor" Harold Hill's remonstration against the game of pool but rather to the mock justice that masquerades as an adjudication system at U.S. Citizenship and Immigration Services (USCIS).

As this is written, Sen. Chuck Grassley has called on the carpet Department of Homeland Security Secretary, Janet Napolitano, and asked the DHS inspector general to investigate pressures by the leadership at the USCIS's DC headquarters (USCIS HQ) allegedly exerted against adjudicators at the agency's California Service Center (CSC). The pressures reputedly imposed, the senator asserts, have attempted to foster a "culture of yes" and to require approval of requests for immigration benefits submitted by or for fraudulently conniving or legally undeserving parties.

The senator's ire had already been raised by a draft USCIS HQ memorandum leaked last July. The memo offered what appeared as a brainstorming session to outline ways to address dysfunctional elements of the immigration system (including temporary status for unauthorized migrants) if -- as appears likely -- Congress were to fail to enact comprehensive immigration reform legislation. After President Obama confirmed that there would be no back-door legalization plan, the noise generally subsided, except for the outraged grumblings of Sen. Grassley.

Over the summer two senior CSC officials were reassigned and a new CSC director appointed following recurrent stakeholder complaints that the CSC repeatedly and improperly had issued numerous, highly burdensome requests for evidence and flouted USCIS HQ policies in denying approvable cases, particularly in employment-based immigration cases. Sen. Grassley's staff has interviewed seven CSC adjudicators who regaled the staff with horror stories of allegedly improper actions by USCIS Director, Alejandro Majorkas. In the view of many lawyers, however, the charges against Mr. Mayorkas are a sham perpetrated by the inmates running the lower depths of the agency asylum who don't want their unaccountable antics, their "culture of no," to end. Early reports of stakeholders give Director Mayorkas high marks.

The problem with the Grassley charges, as AILA President David Leopold correctly observes, is that the senator is listening to a narrow group of complainers, in my view, an amen-chorus of wolves howling in the henhouse. The CSC grousers are no doubt the same ones who have stymied justice for years by writing outrageous kitchen-sink demands for documents (RFEs or Requests for Evidence), and issuing denial notices, notices of intent to deny petitions and revocations of prior petition approvals founded on specious and illegal grounds. If the DHS Inspector General, and better yet, Congressional oversight committees and the USCIS Office of the Ombudsman, are to investigate the adjudication system, then let's open the inquiry and solicit the views of knowledgeable stakeholders -- the individuals, businesses, community-based organizations and immigration lawyers with in-depth experience of USCIS and CSC abuse.

The situation, alas, is likely to get much worse before any improvement can be expected. This week USCIS convened an Administrative Appeals Office (AAO) "Listening Session" which offered the following highlights [with my response in brackets]:

  • The practice of filing one or more petitions after the initial request is denied constitutes an "abuse" of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]
  • The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator. [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. § 1003.1(d)(3), that eschews fact finding and only considers de novo "questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges." Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]
  • The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals. Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]
  • The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]
  • The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer. Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency "policy."]
  • Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers. [While, as was claimed during the Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

With its current configuration and mode of operation, the AAO, not unfairly, could be likened to the Star Chamber, but on closer observation, that would be improper and defamatory because the Star Chamber, as the U.S. Supreme Court has noted, at least offered swift and efficient, if unfair, rulings:

'The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it - a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .' L. Friedman, A History of American Law 23 (1973). See generally 5 W. Holdsworth, A History of English Law 155-214 (1927). [Footnote 17 in Faretta v. California.].].]

The many-faceted flaws of the AAO, like the comparable deficiencies of the USCIS as an agency, and its predecessor, the Immigration and Naturalization Service, if not as longstanding as the Star Chamber, nonetheless bear some similarity to that ancient British court. As the conjoined history of INS and USCIS teaches us, "high state policy [cannot] be entrusted to a system so chancy as [the immigration law]."

The fundamental problems that plagued INS have persisted in the first seven years of USCIS, namely, the irreconcilable tensions between the enforcement mentality of so many in the agency and the customer-service mindset that would willingly grant immigration-related legal benefits to those supplicants who demonstrate -- based on a fair and reasonable review of the evidence and of existing eligibility criteria -- that they deserve to have their petitions granted. This problem was supposed to go away with the passage of the Homeland Security Act, which separated the benefits function from enforcement. Regrettably, the first major directive of the DHS Secretary, Delegation No. 0150, delegating duties to USCIS included police functions that predictably served to perpetuate the historic tensions, namely:

Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable.

Like I said, "we've got trouble in Immigration Country." Let the investigations begin. Let's become fully "aware of the caliber of disaster indicated." Let's fix this dysfunctional system once and for all.

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Posted by Angelo A. Paparelli on October 16, 2010

The Immigration Log in Our Eyes

A recent article in the Dallas Morning News by Los Angeles Times writer Gregory Rodriguez ("We're All Hypocrites on Illegal Immigration"), brought to mind a biblical quote:

Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and the measure you give will be the measure you get. Why do you see the speck that is in your brother's eye, but do not notice the log that is in your own eye? Or how can you say to your brother, "Let me take the speck out of your eye," when there is the log in your own eye? You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your brother's eye." (Jesus, Gospel of Matthew 7:1-5)

Rodriguez first pointed to the controversy involving Meg Whitman and her erstwhile housekeeper, Nicandra Diaz Santillan, an unauthorized immigrant, and the ensuing vitriolic debate between Whitman and Jerry Brown who vie for governor of California. (I also recently weighed in on KABC Talk Radio concerning the clamor that arose against ICE for failing to deport Ms. Diaz as soon as her illegal status became known, explaining factors that make immediate deportation unwise from a constitutional standpoint and impossible from a resource perspective.)

Rodriguez then posed a question and challenged all of us:

[Is] Whitman all that different from the rest of us? [Rodriguez could have also included in his query Lou Dobbs, Timothy Geithner, Mitt Romney, Bernard Kerik, Zoe Baird, Kimba Wood and Linda Chavez.]

When it comes to illegal immigration, nobody seems to take responsibility, and we are all, through action or inaction, complicit. . . . . [W]hatever your feelings about illegal immigration, if you eat vegetables, enjoy restaurants, reside in a house built in the last 30 years or ever let a valet park your car, the chances are you're implicated in the hypocritical politics that allows 7 million to 8 million people to work illegally in the country.

I've also written on immigration hypocrisy several times:

Immigration and “the Better Angels of Our Nature”

The hate speech and hate crimes, the demonization of immigrants by some, cannot be allowed to represent to the world the values that America holds dear. The hypocrisy and prejudice of non-native nativists, whose forebears displaced the indigenous peoples of North America, cannot be permitted to stanch the lifeblood of this country, its ever-vibrant tradition of renewal and reinvention through immigration.

The justifiable fears of many Americans about an economy run amok ought not blind us to the manifold contributions to our prosperity that immigrants have always made and, if permitted, will continue to make. Shekhar Gupta, editor of The Indian Express put the point eloquently to New York Times columnist, Thomas Friedman:

Dear America, please remember how you got to be the wealthiest country in history. It wasn’t through protectionism, or state-owned banks or fearing free trade. No, the formula was very simple: build this really flexible, really open economy, tolerate creative destruction so dead capital is quickly redeployed to better ideas and companies, pour into it the most diverse, smart and energetic immigrants from every corner of the world and then stir and repeat, stir and repeat, stir and repeat, stir and repeat.

* * *

Goodbye, Hello, Lou Dobbs: Whither this Nation of Immigrators?

In post-9/11 America, the Nation of Immigrators includes:

The amnesiac, hypocritical, outraged or just plain apathetic American people who:

  • forget that they enjoy the blessings of America only because their ancestors came here as immigrants,
  • refuse to admit that immigrants are not “illegal” people but mostly honest and hard-working human beings, some of whom may have broken a largely unenforced and very confusing law,
  • will not acknowledge that they enjoy low prices and low inflation because of immigrant labor, earn lower or higher wages because some immigrants are exploited and others create new and better jobs for American workers, [and]
  • are indifferent and therefore fail to hold federal government leaders accountable for an incompetently administered, outdated and dysfunctional immigration policy.

* * *

Amnesty for the Rich and Powerful But Not for Unauthorized Immigrants

As revealed in the Wall St. Journal:

The Internal Revenue Service is offering leniency to many wealthy Americans who volunteer to pay taxes owed on assets stashed in offshore accounts, in exchange for information on the bankers who helped them hide the money. Taxpayers who take part in a new program being offered over the next six months will face lower penalties than would otherwise be due, and will likely avoid criminal prosecution, the agency said.

With similar lenity, the Justice Department has just announced that officials of the CIA who engaged in waterboarding and other forms of torture (based on legal memoranda that have since been repudiated) will not be prosecuted.

When it comes to economic refugees, however, who crossed our border to take jobs cleaning toilets, wiping the bottoms of babies and the elderly, mowing yards and washing dishes, all to feed their families, the inJustice Department’s actions are robust and by-the-book. And even though deportation is a civil process, in the same way that suits against alleged torturers are civil proceedings, the accused who face immigration justice have no right to a lawyer at government expense.

* * *

So what should we do to reduce immigration hypocrisy, to move out the immigration logs from our eyes? I propose logrolling. No, not in the sense of "reciprocal backscratching," where politicians trade legislative favors with one another. Rather, I think it should be used in its original sense of neighbors helping neighbors ("The term originates from the early days of neighbors helping each other clear land to build homes"). If we roll away the logs of immigration hypocrisy, we will see clearly that we are all brothers and sisters who can thrive together best by helping rather than hating each other.

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Posted by Angelo A. Paparelli on October 10, 2010

For the Government Oversight Committees: Immigration Questions on a Silver Platter

Prognosticators, pontificators and pundits across the political spectrum predict that, no matter the outcome of the November elections, grinding out any new laws in the next Congress will be especially difficult. The 24/7 news cycle, the "gotcha" politics of personal destruction, and the collective eyes on the big prize in 2012 will all make bipartisan lawmaking as likely as a natural reversal of global warming. With a subject as contentious as immigration, the prospect of comprehensive or piecemeal legislative reform is even more improbable.

What else can politicians do when lawmaking is nigh impossible? They can issue subpoenas, convene hearings, take testimony and investigate real or perceived wrongdoing, while calling malfeasants discovered in the process to account.

The universe of potential subjects of investigation is immense. The Senate Committee on Homeland Security and Governmental Affairs has the "duty" (among others) to study "the efficiency, economy, and effectiveness of all agencies and departments of the [Federal] Government" and evaluate "the effects of laws enacted to reorganize the legislative and executive branches." The House Committee on Oversight and Government Reform is that chamber's principal investigative arm. It is authorized to investigate "any federal program and any matter with federal policy implications."

As fingernails are chewed to the quick while awaiting the citizenry's November 2 decision, those who would lead the Senate and House government oversight committees should pass the time pondering the following non-exhaustive list of suggested immigration-related questions for their respective committees to investigate. (Please tweet me any questions that I may have omitted at @angelopaparelli, and I'll post a supplemental list.)

Department of Justice

  • What tangible progress has been made in improving due process and the just and efficient administration of the Immigration Courts?
  • Why has the inventory of cases awaiting resolution by the Immigration Courts reached a record high of 247,922 in June 2010?
  • What steps have the Executive Office for Immigration Review (EOIR) and Homeland Security's police agency, Immigration and Customs Enforcement (ICE), taken to resolve these problems?
  • Have conditions of foreign citizens in immigration detention improved or worsened since the New York Times and various advocacy groups reported on the deplorable treatment of detainees earlier this year?
  • What steps are the EOIR and the DOJ taking to address the special needs of the more than 8,000 unaccompanied foreign children per year who are placed into immigration custody?
  • How much does immigration detention and removal cost American taxpayers, and has the money been well spent?
  • Why has the Attorney General not taken a more active role in exercising the power given under the Immigration and Nationality Act to resolve immigration-related legal issues, and why has he routinely deferred instead to the Departments of Homeland Security, State and Labor.

Department of Labor

  • Why does the Department of Labor (DOL) -- as a prerequisite to issuing a labor certification -- require employers to prove a negative (the absence of available U.S. workers) when the Bureau of Labor Statistics is far better qualified to determine labor market unavailability?
  • Why has the DOL failed to implement a Labor Market information Pilot Program to define up to 10 occupational classifications in which there are labor shortage, a program authorized by the Immigration Act of 1990 as an alternative to the labor-market test under the agency's PERM program?
  • How does DOL justify the cruel hoax that the labor certification process (a theoretical labor market "test") perpetrates on U.S. workers who desperately seek employment?
  • To what extent has DOL's elimination of the role of the 50 State Workforce Agencies in determining the local prevailing wage improved the accuracy and speed of wage determinations, lowered the cost or enhanced the operations of the H-1B, H-2A, H-2B and permanent labor certification programs?
  • What is DOL doing to reduce the processing backlogs and delays associated with its PERM labor certification audits and its supervised recruitment programs, that now take years to complete?
  • How much do the foreign worker labor certification and labor attestation programs cost American taxpayers, and has DOL spent the money wisely?

Department of State

 

  • In what measurable ways, has the implementation of the Memorandum of Understanding between the State Department and the Department of Homeland Security made America more safe from security and terrorist threats?
  • Does the State Department's reliance on its historic extraordinary powers over the issuance or refusal of visas (e.g., subjectively-applied and arbitrary grounds of visa refusal, lack of transparency, nonreviewability of visa refusals by the courts, authority to refuse or revoke visas without explanation of the reasons why, protection from disclosure of records, lack of attorney representation at consular posts) materially hurt America's reputation as a country committed to the rule of law, substantially hinder the entry of law-abiding foreign citizens to the U.S. or create ill will toward America among the citizens of foreign nations?
  • What has State done to improve the operation of the online visa application system that has been plagued by software glitches(Form DS-160)?
  • Why aren't Visa Office Advisory Opinions published so that the public can gain insight into the requirements of the immigration laws as interpreted by State?
  • Why has State not implemented better, more efficient and less expensive ways to reduce the cost to American taxpayers and improve the operation of the visa system than those now in place (e.g., video-recording of consular interviews rather than the building of expensive consular posts)?
  • Why hasn't State more frequently exercised its discretionary power to waive a visa applicant's physical presence in the consular district and instead resume the former practice of visa reissuance in the U.S. (this would cause suspected terrorists and criminals who apply for visas to be immediately arrested and prosecuted by the Justice Department rather than be allowed to escape apprehension or oppose extradition in a foreign country)?

 

Department of Homeland Security

  • Why has ICE declined to investigate and prosecute most cases of immigration-benefits fraud even though the Homeland Security Act (HSA) tasks it with this responsibility?
  • What steps has ICE taken to improve the accuracy of E-Verify and make it less prone to evasion by identity thieves and fraudsters?
  • What steps has ICE taken to reduce the number of E-Verify "Tentative" and "Final" Non-Confirmations that improperly inconvenience lawfully authorized workers or deprive them of the right to work?
  • What metrics can ICE produce to show the effectiveness of its current I-9 enforcement strategies?
  • What studies has ICE conducted to determine the feasibility of alternative measures to enforce the immigration laws against persons or entities who employ workers while knowing of their unauthorized status?
  • What specific progress has U.S. Customs and Border Protection (CBP) made to enhance border security and prevent illegal entries, and how much has it cost and will it cost American taxpayers?
  • Has CBP responsibly exercised its authority to order expedited removal without judicial review or has the agency unjustly deported significant numbers foreign citizens for reasons not grounded in law?
  • Has CBP engaged in illegal profiling by country of nationality when seeking to identify immigration-related violators, as suggested by incidents this year at the Newark airport port of entry involving Indian foreign workers (AILA document 10020237)?
  • What protections has CBP put into place to assure that constitutional rights are not violated when searching laptops, cell phones and thumb drives at ports of entry and border posts?
  • What is U.S. Citizenship and Immigration Services (USCIS) doing to eliminate or minimize the inherent tension and conflicting missions that originated with the legacy agency (Immigration and Naturalization Service [INS]) and still persists between benefits adjudication (the work of district and regional offices) and law enforcement (the activities of its Fraud Detection and National Security Directorate [FDNS])?
  • By what legal authority does FDNS investigate civil and criminal violations of the immigration laws in the guise of performing "administrative inquiries" even though the HSA places this responsibility exclusively on ICE and CBP?
  • To what extent does FDNS deprive petitioners and applicants for immigration benefits of the right to counsel by conducting surprise site visits of parties represented by counsel?
  • Have lawyers in the USCIS Office of Chief Counsel expressly approved FDNS's administrative inquiries, notwithstanding the ethics rule in all 50 states that prohibits an attorney from engaging in direct or indirect communications with a represented party?
  • Why has the Administrative Appeals Office (AAO) failed to reduce its longstanding backlogs that now exceed one year in temporary worker cases and two years in green card cases?
  • Does the AAO, an administrative tribunal, merely interpret and apply the law or also formulate immigration policies?
  • Does the AAO engage in any ex parte communications with other units of USCIS in reaching its decisions or does it abide by the usual prohibitions against unilateral tribunal contact with only one party to a proceeding?
  • What were the root causes of the adjustment of status (AOS) "surge" in the summer of 2007 that required an unprecedented 30-day extension to file for AOS despite an unavailable immigrant visa quota and what has been done to prevent a recurrence?
  • Why has USCIS repeatedly failed to fully utilize the annual allotment of immigrant visas, thereby causing hundreds of thousands of green card opportunities to be lost due to bureacratic delays at the close of successive fiscal years?
  • Why has USCIS failed to regularly engage in notice and comment rulemaking and publish proposed new rules on statutes that have existed for several years, e.g., the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)?
  • What measures has USCIS adopted to sanction Immigration Officers who flout agency policy?
  • Has the USCIS considered the adverse effect of its use of Requests for Additional Evidence and its soon-to-be adopted VIBE program on business petitioners, especially on small businesses and startup entities?
  • Why has USCIS not developed and published a comprehensive policy and procedure for determining the continuity of employment authorization, the preservation of pending immigrant visa eligibility across all immigrant and nonimmigrant employment-based visa categories, and eligibility for successorship in interests in situations involving mergers, acquisitions, spinoffs and other forms of corporate restructuring?
  • Has the immigration user-fee system of funding USCIS operations proven sufficient to maintain homeland security and a functioning benefits-adjudication system during times of low demand, or, must governmental appropriations be increased to provide a consistent base level of funding?
  • Why has the USCIS Office of the Ombudsman not established representative offices in each of the 50 states as authorized by law?
  • Why has the USCIS Office of Transformation shown so little visible progress even though "Transformation" has been an initiative of legacy INS and USCIS for decades (e.g., why can't supporting evidence be submitted electronically with e-filed applications and why must foreign citizens repeatedly submit to the retaking of unchanging fingerprints when port-of-entry fingerprint scanning has been in place for years)?

* * *

The foregoing are but a few questions that our congressional Oversight Committees should ask. American taxpayers have for too long been the unfortunate "beneficiaries" of our dysfunctional immigration system. If laws cannot be passed to improve the system, then Congress and the Executive Branch must work together to identify and eliminate the waste, inefficiencies, blunders, and law violations that plague the existing immigration system. A Nation of Immigrants must demand nothing less.

 

Posted by Angelo A. Paparelli on October 03, 2010

Immigration Absurdity: You Can Work Here But You Can't Be Here

What happens when the laws of America clash with the laws of physics? In the Never-Never Land of Immigration, the natural laws of physics must defer to human-made law. This is the absurd answer of U.S. Citizenship and Immigration Status (USCIS), the Board of Immigration Appeals (BIA) and the Court of Appeals for the Fifth Circuit (CA5) in its Sept. 29 decision, Bokhari v. Holder.

The case involves the interpretation of a USCIS regulation, 8 C.F.R. § 274a.12(b)(20), which came into being because of the problems caused by bureaucratic delay. The regulation allows the automatic grant of work permission for up to 240 days whenever the employer of a foreign citizen (who derives legal status under one of a large number of work visa categories) files a timely application to extend the worker's right to remain in the country. Because it necessarily takes time for USCIS and its predecessor, the Immigration and Naturalization Service (INS), to decide whether to grant the employer's request, 8 C.F.R. § 274a.12(b)(20) allows the preservation of the status quo. As long as the agency takes under 240 days to decide the request to extend the period of authorized stay, the employer may continue employing the worker, and the worker may remain lawfully employed -- and everyone is happy.

Everyone, that is, except USCIS. The agency would have us believe (and the BIA and CA5 agree) that the right to work in this country does not entail the right to be physically present in the United States. Bokhari v. Holder thus holds that any foreign citizen who works after the initial period of authorized stay expires -- while a lawfully and timely filed application to remain longer is pending -- has the right to work in this country but not the right to be here. Thus, any foreign worker so foolish as to trust the regulation -- the CA5 concludes -- may be denied a green card for lawfully working here while displaying the effrontery to be here without "status."

Perhaps USCIS has a special distinction in mind that would harmonize the laws of physics and the agency's own regulation: human levitation. By hovering a few feet above the ground, the law-compliant foreign citizen could work "in" (albeit in the airspace of) the U.S. without being "on" U.S. soil.

Should Bokhari v. Holder ever reach the Supreme Court, it will be fascinating to see USCIS try to persuade the nine Justices that work permission does not include legal status. Surely, agency lawyers would cite the reputed origin of the power to levitate, the "unified field" of quantum mechanics,"the fundamental nonchanging field of life . . . [that] is eternal, unbounded, beyond space and time, wherein are contained all possibilities. . . . the unmanifested field of pure potentiality from where all force and matter fields emerge." In further support for its reading of 8 C.F.R. § 274a.12(b)(20), USCIS could refer the Court to the cases of other noteworthy "levitants" who -- had they been lawfully admitted to the U.S. -- would have been in legal immigration status, such as St. Joseph of Cupertino ("the Flying Friar"), Yogi Millarepa (a 13th Century Tibetan mystic), and more recently, "Yoda" of Star Wars.

Perhaps before Bokhari v. Holder reaches the Supremes, however, careful USCIS "administrative inquiry" -- the euphemism for "investigation" favored by the agency's Fraud Detection and National Security (FDNS) directorate -- might call into question even this elevated form of attempted law obeisance, as this BBC clip suggests.

Or, more plausibly, other federal courts might make a better, more "grounded" decision. They could adopt the reasoning of El Badrawy v. Dept. of Homeland Security. In this federal district court decision, the judge rightly determined that legal immigration status necessarily inheres in the grant of permission to work in the United States.

Still, those who try to reconcile natural physical laws and our artificially constructed immigration laws may wonder how the high-flying decision in Bokhari v. Holder came to rise in prominence. Perhaps a plausible answer lies in the September 27 issue of the Orange County Business Journal, which lists the "Best Places to Work" and cites as number 10 the USCIS "California Service Center" -- with its 1% turnover rate -- an employer offering, among other employee enticements, "onsite gym membership" featuring as one of its offerings the ancient healing art of "yoga." This supposition is surely no less implausible than the strained and ethereal distinction in Bokhari v. Holder between the vaporous grant of work permission and the landed right of physical presence.

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