Posted by Angelo A. Paparelli on February 26, 2011

Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take NOW

The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE).  These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.

In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm.  Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork.  Thus, large employers pursued a strategy of "just right":  Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid. 

All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.  

Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal.  Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage: 

1. Review  Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations. 

2. Decide How the Auditor Should Present the Report.  Consider the pros and cons of an oral versus a written audit report.  An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance. 

3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected.  Careless employers will fare worse.  Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once.  Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.

4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply.  Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.

5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria.  Protect against cronyism.  Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions.  Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.

6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.  Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants.  Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

7. Strengthen Global Mobility Management.  It's not just about complying with U.S. immigration laws.  Foreign countries' immigration statutes can be just as nasty when the rules are violated.  Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored.  Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.

In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers.  Beware the ICE Bears.

Posted by Angelo A. Paparelli on February 20, 2011

Time for Congress to Streamline the H-1B Visa Process

On February 18 and 19, the University of California (Irvine) hosted a symposium where many of U.S. immigration's Rock-Star professors came together to try and solve "Persistent Puzzles in Immigration Law."  The topics covered a wide expanse. A subject discussed that particularly interested me is Congress's often inexplicable delegation of regulatory authority among a surfeit of federal agencies that administer and enforce the immigration laws, each with its area of real (or presumed) expertise and overlapping responsibilities. 

One speaker mentioned her concern about the possible mis-use of E-Verify by some employers to screen current or would-be workers for employment eligibility, even though that kind of screening violates the terms of use under the memorandum of understanding with Homeland Security (DHS).  She proposed that perhaps Congress should authorize the Department of Labor (DOL) to investigate and punish this type of violation.  During the Q & A, I suggested that, even if the problem is as widespread as the speaker feared, the Department of Justice (DOJ) should do the policing, because, based on my experience, DOL must first improve its abysmal record of administering the immigration laws before Congress grants it any more power.

Regular readers of this blog would be forgiven for assuming, given my recent rants on labor certification (here and here), that the DOL's PERM program had come to my mind.  No, actually I was thinking of the H-1B program and a January 2011 Government Accountability Office report (GAO-11-26). Although the report contains a wealth of data, and is written from a glass-half-empty perspective, it actually shows that access to cheap foreign labor -- the usual slam against the category -- is not the real motivation for its use.  Rather, as the National Foundation for American Policy notes in its analysis of the GAO data, "hiring the best candidate for the job, whether U.S.-born or foreign-born, is the primary consideration for employers" who sponsor H-1B workers.

I will offer many critiques of the economy-harming H-1B program in future blog postings, and assail the GAO's flawed analysis and implied bias reflected in the title of its report ("H-1B VISA PROGRAM - Reforms Are Needed to Minimize the Risks and Costs of Current Program").  For now, in the au courant Washington spirit of reducing government expenditures and eliminating unnecessary regulations that burden business, I propose that Congress take the DOL out of the H-1B application process altogether, and that USCIS serve solely to approve or deny H-1B visa petitions and grants of nonimmigrant status.  

To gain a visual understanding of my point, consider this GAO chart depicting the current H-1B process:

How to get an H-1B Visa or H-1B Status.jpg

As the chart shows, the only role for the DOL at the outset of the H-1B process is to perform a ministerial task, i.e., to review an employer attestation form (known as the Labor Condition Application or LCA) to confirm that it is not "incomplete or obviously inaccurate."  The GAO agrees with me that Congress should consider eliminating this step, and instead requiring U.S. Citizenship and Immigration Services (USCIS) to receive and certify the LCA when adjudicating the H-1B visa petition:

To reduce duplication and fragmentation in the administration and oversight of the H-1B application process, consistent with past GAO matters for congressional consideration, [Congress should] consider eliminating the requirement that employers first submit a Labor Condition Application (LCA) to the Department of Labor for certification, and require instead that employers submit this application along with the I-129 application to the Department of Homeland Security’s U.S. Citizenship and Immigration Services for review.

Eliminating the LCA review by DOL would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to "certify" the LCA. This savings of time is especially important each year in March when every day counts as employers scramble to file their H-1B petitions by April Fools Day in order to fall within the woefully small H-1B annual quota. 

USCIS opposes the GAO's suggestion, however, offering the following rationale to the GAO:

Homeland Security officials believed that Labor would be better suited to review the LCA because Labor has specialized knowledge about the computation of prevailing wages.

USCIS's justification for shirking a task that would result in an obvious time- and cost-savings doesn't stand up to close scrutiny.  Most employers use the DOL's online O*Net database and Standard Occupational Classifications to obtain the prevailing wage, and USCIS could easily cross-check those sources (as it now does with its VIBE system) to make sure the correct wage figure is used.  Even in the comparatively rare situations where an employer submits an alternate wage source, USCIS could easily adopt and apply DOL's regulations on the requirements for use of a union contract, an "independent authoritative source" survey, or "[an]other legitimate source" of prevailing wage data, or consult with the DOL.

Avoiding front-end delay is just a first step in process improvement.  The more urgent challenge is how best to consolidate enforcement of the H-1 program in one agency.  The current enforcement hodgepodge is reflected in this GAO chart:   

 Agency Roles.jpg

There is no reason that H-1B employers, by regulation, must be prepared to face a triad of investigations by three federal agencies housed in three different departments.  H-1B enforcement responsibility should be consolidated into one agency, and the rules governing the procedures, scope and duration of an investigation, along with employer due process protections (such as the Good Faith Compliance defense added by the H-1B Visa Reform Act of 2004) should be promulgated under the customary requirements of public notice and opportunity for comment under the Administrative Procedures Act. 

As I suggested to the immigration law professors, my recommendation would be to place all immigration policing authority with the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) in the Justice Department under an expanded grant of authority.  The money we'd save and the burdens lifted by permitting USCIS to serve as sole H-1B adjudicator and pinning on OSC the lone sheriff's star would be substantial. An added benefit would be that a neutral actor, the Justice Department, would have no dog in the fight, unlike the DOL whose mission is "foster[ing] and promot[ing] the welfare of the job seekers, wage earners, and retirees of the United States," rather than according fair process to employers. 

So, Congress, in keeping with the zeitgeist, can you spell?:

I-M-M-I-G-R-A-T-I-O-N

D-E-F-I-C-I-T

R-E-D-U-C-T-I-O-N

Posted by Angelo A. Paparelli on February 13, 2011

What about "Legal Immigration" Don't You Understand?

I must be becoming more wizened than wise at this stage of my legal career to judge a bill by its title.  But the label of the proposal to be introduced this week by Sen. Orrin Hatch (R. Utah) lulled me into a state of naïve credulity. It seemed like a refreshing change from the usual stew of comprehensive immigration reform proposals in which a path to legal status for the undocumented tends to grab most of the headlines. 

The first part of the title to Hatch's bill seemed as if, finally, reforms of the legal immigration system will be front and center (even if the last part of the title is all too familiar): 

"Strengthening Our Commitment to Legal Immigration and America’s Security Act." 

I should have known that, at a time when Sen. Hatch faces a primary challenge on his right flank by the Tea Party, he would not again show the colors of the old Orren.  That Sen. Hatch, as OnTheIssues.Org reminds us:

  • Voted YES on allowing more foreign workers into the US for farm work. (Jul 1998)
  • Voted YES on visas for skilled workers. (May 1998)

No, latter-day Orren has done a bait-and-switch with the title of the bill, because, as he describes its contents, nothing in it would improve the legal immigration system or help those who play by the rules.  His bill would instead:

  • Take away from the President the blanket authority to grant parole and deferred action, except on a case-by-case basis, 
  • End the Diversity Lottery,
  • Require "law enforcement agencies that are selected and enrolled in the 287(g) and Secure Communities programs to fully comply with the requirements of such programs or risk losing federal reimbursement for incarceration expenses,"
  • Provide "consular officers the necessary legal authority to deny members of known gangs from coming into our country,"
  • Require the Homeland Security Secretary to create a mandatory exit procedure for foreign visitors to the United States,
  • Require the Secretary of HHS to track and annually report the amount of welfare benefits diverted to illegal immigrants,
  • Ensure that tax dollars are being used to cover only American children in federal insurance programs,
  • Increase criminal penalties for identity theft, eliminate defenses and require the IRS to report to the apparent identity-theft victim (or his/her parents) if an employer has not corrected a Social Security No-Match discrepancy involving the victim's SSN in 60 days after receiving notce that a no-match has been spotted,
  • Keep our national parks and federal lands safe and free from drug traffickers and marijuana cultivation.

Some of these measures may well be worthy.  For example, I have long considered the 50,000 green cards squandered annually through the Diversity Lottery program a national humiliation.  The DV program seems mostly a Congressional confession that pure luck is better at allocating scarce visa numbers than any form of thoughtful merit-based system our legislators could conceive -- particularly given that for the last 20+ years the law has allowed only 140,000 employer-sponsored green cards per year.  I also think it makes sense to notify victims of possible identity theft about the improper use of their SSNs. 

The rest of the proposals simply seem beside the point with unemployment staying put at 9%.  Indeed, the enhanced consular authority Sen. Hatch would provide already exists to exclude persons if consular officers have "reason to believe" they are gang members or may engage in law-breaking activity after entering the United States.  And the limit on Presidentially exercised blanket parole authority seems a particularly unwise tying of the Executive's hands, since that authority has been used properly by Presidents for many decades (recall the mass paroling of refugees by Presidents Truman and Eisenhower).

Aside from wistful nostalgia for the Orrin of old, what comes to my mind when considering his SOCLIASA bill are questions: 

  • Why not propose the recapture of the 600,000 unused green cards that our bureaucrats failed to issue over the last several years, so that Chinese and Indian scientists and engineers won't return home rather than be forced to wait up to 20 years for U.S. permanent residency?
  • Why not vote to expand the annual 65,000 H-1B visa quota that already ran out with eight months left in the fiscal year (still the same number as when first established in 1990!)?
  • Why not add farmworker visas to help struggling farmers whose produce rots because legal workers can't be found?
  • Why not pass the Start-Up Visa Act and the Founders Visa Act and eliminate immigration bars to foreign entrpreneurs who will create jobs for Americans?
  • Why not give a boost to the military and academia by allowing innocent DREAMers to get on a path toward legal status?
  • Sen. Hatch, why not stand up for your former principles on legal immigration rather than opt solely and clearly for personal job security? 

Indeed, Sen. Hatch, where are the JOBS that a well-drafted legal immigration bill would create? 

Posted by Angelo A. Paparelli on February 06, 2011

U.S. Immigration's Egyptian Moment

Since January 25, the events in Cairo's Tahrir (Liberation) Square have transfixed the world.  Following on the heels of the Tunisian people's overthrow of their despot, the Egyptian uprising reveals a fundamental law of physics: In a closed system, energy can be neither created nor destroyed. 

So too in politics.  Universal political energy -- the pent-up longing for freedom and self-determination -- is now leveraged and magnified in new and unpredictable ways by Twitter and Facebook. Inexorably, that energy, as the Egyptian protestors have shown us, will ultimately be released. 

Hosni Mubarak's 30-year authoritarian, pressure-cooker reign, supported throughout by the unmonitored and unaccountable Egyptian police, is coming to an end. And once again, as many times before, the American government and political establishment have been caught flat-footed, on the wrong side of history, knocked over by popular energy, while supporting a fallen dictator.

 A similar dynamic is playing out inside America.  The tightening of the border by "deploying historic levels of manpower, resources and technology and increasing collaboration with federal, state, local and tribal, and Mexican partners" has achieved unprecedented levels of impregnability -- according to Homeland Security Secretary Janet Napolitano in remarks at the University of Texas in El Paso last week.  America is rapidly becoming a closed system. 

At the same time, the energy-pressure readings -- of Latinos, Asians and other immigrant groups who rightly perceive themselves as targets of xenophobia -- are escalating.  As reported by the nonpartisan Migration Policy Institute and the Government Accountability Office, the immigration enforcers, in league with state, regional and city police agencies operating under the Congressionally authorized 287(g) program, are largely unmonitored and unaccountable.  The 287(g) program, touted as a means of apprehending and removing dangerous foreign felons, has instead gone "rogue" and mostly netted petty immigration violators and small-scale misdemeanants, while arousing ire and fear in local immigrant communities. 

As the energy of righteous anger builds, not only traditional Democrats but even conservative Latinos chide President Obama for abandoning his campaign promises, and failing to try hard, let alone deliver, on immigration reform. The Republicans (notwithstanding Norm Coleman's recent rebuke of Tom Tancredo) are even more adrift on immigration, mounting a campaign against "anchor babies" and trying to override the 14th amendment's guarantee of birthright citizenship.

Meantime, despite a virulent economic recession and a record number of deportations, the unauthorized immigrant population (11.2 million in 2010) remains virtually unchanged from the year before, according to the Pew Hispanic Center. 

All of the essential requirements for an energized reaction are present. DREAMers have nowhere to go but to the street and to their smartphones.  Spanish- and other foreign-language media will report growing resentment, anger and the desire for justice among their U.S. citizen and immigrant readers  -- reporting largely unnoticed in the Anglo mediascape.  U.S. politicians of every stripe, like Hosni Mubarak, will be caught unawares when the energy is released. 

Sir Arthur Conan Doyle was correct:  "The world is full of obvious things which nobody by any chance ever observes."  To politicos of the left and right, the only proper response is, "Duh!"