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

Writing for The Hill, pundit Kathy Kemper just published a thoughtful piece on "Debt and immigration."  In it she contrasts American policy-makers' obsession with the financial Sword of Damocles, set to behead us on August 2, with Norway's all-consuming focus on the aftermath of a xenophobic madman's gutless acts of murder and mayhem. 

Americans, it seems, can think only of financial insecurity (apparently because Casey Anthony remains in hiding), while Norwegians grapple with societal insecurities and aspirations, and ultimately, the proper response to racial and religious hatred.

Kemper reasons that security is about more than fiscal rectitude and the age-old debate over spending on guns versus butter:   

In reality, defending the homeland requires a continuous flow of the world’s best: individuals who understand the changing constellation of threats to our nation; discern which among those will grow more important in the years to come; and design “hard” systems and “soft” policies to respond to them dynamically.

There are at least two other reasons why immigration is so crucial:

(1) ‪It keeps our nation young. Indeed, if — and it’s a big if — we’re able to sustain our immigrant inflow, we should be able to avoid the demographic challenges that beset the EU and ‬Japan (and which, within another decade or two, will begin to take a toll on China).

(2) America, above all, is an idea, perhaps the most important component of which is openness: openness to people, to ideas, to risk taking. An America that closes itself off will guarantee its decline. Harvard University’s Joe Nye has argued that “the greatest danger to America is not debt, political paralysis or China; it is parochialism, turning away from the openness that is the source of its strength and resting on its laurels.”

If, as Kemper rightly posits, America is an idea, then to keep our mental synapses firing, we as a nation need many more immigration thought leaders. 

In the immigration sphere, thought leaders are not likely or often found in the halls of Congress.  Rather, they are all around us -- in our schools, coffee shops, law offices, think tanks and foundations.  They are Tweeters, bloggers, artists, activists, journalists and especially, DREAMers.  While they can be sighted in many places across the country, their numbers are insufficient to turn the tide of anti-immigrant hate speech, jingoism and Fortress-America messaging that passes as the "fair and balanced" offering of competing ideas. 

Immigration thought leadership is about speaking truth to power, about setting aside any pretense of faux objectivity, as Paul Krugman opined today in "The Centrist Cop-Out":

Some of us have long complained about the cult of “balance,” the insistence on portraying both parties as equally wrong and equally at fault on any issue, never mind the facts.

I've thought quite a bit about the scarcity of immigration thought leadership (especially when my muse escapes me on any given Saturday as I scrounge for a fresh topic to post on dysfunctionality in our visa and entry policies).  Recently, Martindale-Connected, the social media site for lawyers, offered me the chance to ruminate on thought leadership via podcast (available here) and in writing here: "5 Steps to Go From Thoughtful Lawyer to Thought Leader on Social Media Sites (and Other Places)."

The five steps I described apply to any form of thought leadership, but especially to immigration and to budding thought leaders with no "Esq." after their names:

1. Thought Leadership Requires a Provocative and Enduring Topic. Blogging and article writing often serve as the centerpiece of many a thought-leadership strategy. More than a few lawyers who blog or write law-related articles, however, make the mistake of using the medium as merely a way of reporting on key cases and new statutes in order to demonstrate expertise in the subject. Thought leadership demands more. Thought leaders do not merely report new legal developments; they shed light on fundamental problems, offer critical analysis, discuss practical implications in the real world, and suggest solutions. Thought leaders are never boring. They take adverse possession from other lawyers over a particular area of law and own it by developing a voice and overcoming the fear of being too controversial. They select a topic that interests them (so that their passion remains on display), and a subject with legs that will generate eyeballs. One way to do this is by focusing on the actions of the government, federal or state, executive, legislative or judicial. As my blog www.NationOfImmigrators.com, illustrates, government officials are always doing something controversial that upsets someone. A controversial topic is one that readers naturally want to understand. The thought leader’s writings help them, over time, to understand the controversy and make up their own minds. Thought leaders are not afraid of controversy, but they always remember that they need not become the controversy.
2. Thought Leaders Are Remarkable and Grow a Tribe. Seth Godin is a maven of thought leadership. Among many of Seth’s suggestions, two stand out: A) Be remarkable; and B) Build a tribe. Thought leaders generate conversations. They are worthy of discussion among existing and prospective clients, colleagues, government officials and adversaries. They are remarkable. They are never boring or lackluster, and are not afraid of tooting their individual horns tastefully, for unless they do, they know that there might not be any music. Given these characteristics, thought leaders necessarily draw people to them. They form a tribe around their chosen topic, a community of interest, not necessarily all of like mind, that wants to know and learn more. Ask yourself, Attorney: Is your writing dull and soporific? Do you reflect your passion in your posts? Do you offer a point of view? Do you go outside your comfort zone in expressing yourself in visible ways? Are you operating from a Rolodex of disconnected people or have you built a network of thoughtful and interested members who see you as a thought leader? Do you share with your tribe the interesting thoughts of others? Do you connect tribe members with each other?
3. Thought Leaders Understand and Use Leverage. Thought leaders do not write single articles. They mount visibility campaigns around each and every article they author. Thought leaders know (no matter what a publisher says) to keep the copyright on their writings so that they can be repurposed in other publications, perhaps with an updated or tailored introduction to suit the new audience, or perhaps not. They Tweet and post status updates in Facebook and LinkedIn about every one of their articles, speeches, case victories (with client consent) or significant activities, offering link-backs to their analytical writings and their online profiles. They also regularly post links to new government announcements, new cases and statutes and the writings of others, usually also with a link to their own analysis of the latest development and its impact, and suggested strategies. They join and actively participate in Martindale Connected. They post articles on Google Knol and search for article directories to find additional opportunities and venues through which to post.
4. Thought Leaders are Disciplined and Reliable. No flash in the pan, thought leaders understand that consistent messaging, over time, with predictable regularity, is the only way to gain visibility and mindshare. Rain or shine, they write, post, update, Tweet and repeat the cycle, over and over. Too many lawyers think that one article every six months is enough to produce results. It is not. Thought leaders recognize that building a tribe means being responsible to your community. It is less a job than a calling. Nothing is worse for one’s reputation as a thought leader than a blog with a stale posting, months old, or the occasional posting, months apart.
5. Thought Leaders are Ethical and Responsible. Publicity without propriety does not a thought leader make. Thought leaders respect the rules of professional responsibility, refrain from misrepresenting the truth or engaging in personal attacks, label their writings as “attorney advertising” where required by state ethics rules, and do not take public positions that conflict with the interests of their clients. Thought leaders are not empty suits. They provide excellent client service and zealous advocacy, for these attributes are not only inherently important but also create the environment from which new insights and thoughts with which to exhibit leadership sprout.

If we Americans are to maintain our unhaughty claim of Exceptionalism, that is, our heritage as a perpetually vibrant and constantly replenished nation of immigrants, then we must produce many more thought leaders who can win what Kemper describes as the "debate over immigration [which] gets to who we are and, more importantly, who we will be." The growing ranks of immigration thought leaders, however, must not, as Krugman warns, make "nebulous calls for centrism, [the] big cop-out. . . that only encourages more bad behavior."  Rather, in my view, they must call out extremism wherever it surfaces and help direct our people to embrace the nation's true saving grace -- more enlightened and just immigration policies.

Are we a trustworthy nation?  The world waits to see if the American government becomes a deadbeat on August 2, when the debt ceiling is hit.  Will the country break faith with its creditors?  Will it stiff Social Security recipients, the ill and disabled, fallen warriors and others whose lives or fortunes depend on Uncle Sam's unflagging reliability.

The New York Times reported recently on a set of already broken American oaths. Many would-be "Special Immigrants" in Iraq who've worked for the U.S., are stranded there, facing death threats, living in stairwells, checking for car bombs underneath their vehicles, losing hope that their oft-promised yet long-delayed U.S. visas will ever arrive -- green cards that Congress ordered to be fast-tracked -- all the time chastising themselves for their gullible belief in America's words.

A letter writer commenting on the Times story bewailed our "exceptional[ly]" roguish behavior: 

What have we become? Our word means nothing now. We break our word to Iraqi friends who helped us. Do we think that those whom we’ve left dangling in the wind will remain our friends? We want to break our word on debts we’ve already accrued.

Do we think that our creditors will continue to invest in us because we are “exceptional”? . . . I despair for a country that I see becoming . . . more removed from what I once thought were our high moral standards. And a country that does not keep its word.

As these despondent Iraqis have come to realize, institutional word-breaking is endemic within the U.S. immigration ecosystem. One small example tells a tale.

Consider the H-1B visa available to nonimmigrant workers in "specialty occupations" who possess at least a university sheepskin or its equivalent in the workaday world.  For those who prefer their learning via chart rather than text, click here; otherwise, read the following indented paragraphs:

This visa started life in 1952 as the H-1 for employees of "distinguished merit and ability" -- a term later interpreted to refer to degreed or degree-equivalent "professionals." In 1990, however, Congress rebranded the visa the H-1B and added an array of worker protections to be enforced by the Department of Labor (DOL), including a requirement that foreign citizens in H-1B status receive at least the going rate (the "prevailing wage") in the local area. The process was designed to be speedy.  It would be "attestation-driven" with penalties applied only later if DOL were to investigate a complaint and find that an employer had violated the worker-protection duties of the law.  The employer's attestation, in the form of promises that must be kept, is made under oath on a form known as a "Labor Condition Application," or LCA. 

The DOL is obliged to "certify" an LCA unless it is "incomplete" or "obviously inaccurate."  The employer then submits the certified LCA to an agency of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), together with a work-visa petition. USCIS then determines if the job and the worker qualify as "specialty occupations," meaning that the job requires and the individual possesses that combination of theoretical and practical knowledge typically gained in a baccalaureate program or through equivalent work experience. Thus, the DOL protects H-1B workers, while USCIS confirms visa eligibility.  All was well with the world, or so we thought . . .

Because the prevailing wage is defined by geography (usually the wage considered prevalent in a particular metropolitan area), the DOL maintains listings of prevailing wages for locales around the country.  If an employer learns of an unforeseen business need to dispatch an H-1B worker to a worksite not listed in the LCA, the DOL requires the employer to file a new LCA and obtain DOL's certification.

USCIS's H-1B regulations, however, do not expressly require employers to submit a new or amended visa petition when the change merely involves a job relocation.  After all, there'd be no reason, in principle, why such a filing would be necessary, since the employee and the job itself would not have changed.  Both would still be the very same specialty occupations that USCIS had already screened and approved. 

To be sure, at one point in 1998, USCIS's predecessor, the Immigration and Naturalization Service (INS), had proposed a rule that an amended petition be filed for such job changes, but never took final action.  Instead, INS twice issued policy guidance, the Hogan and Aleinikoff memos, that each confirmed there is no need to report such changes unless the change invalidated the LCA.  The problem for INS and now USCIS, however, is that the DOL regulations do not prescribe any situations which invalidate an LCA.  Under DOL rules, an LCA may only be withdrawn by the employer or allowed to expire.

The view that a "geographic move" by an H-1B worker is not a material change (presumably because such a move does not by itself invalidate the associated LCA) was then confirmed by a senior USCIS official, Efren Hernandez III, Director of the agency's Business and Trade Branch, in 2003 correspondence to the American Council for International Personnel.

Now comes the institutional word-breaking.  Recently, USCIS has begun to rule in numerous individual cases that the employer's failure to amend the H-1B petition (something only the employer can do) and secure the agency's okay for a worker's change of job location means that the H-1B worker -- merely by following her employer's instructions to appear at a new worksite -- has violated nonimmigrant status.  Failing to maintain status is no small matter.  It is a violation of law that can lead to the worker's and her family's removal from the United States and banishment for at least five years.  It can also cause the employer to be charged with continuing to employ the worker while knowing that the right to work has been terminated -- a felony  -- unless the employer immediately fires the worker. 

The bitter irony here is that by relying on the USCIS to keep its word the guileless, relocated worker (the supposed "beneficiary" of H-1B labor protections) and the trusting employer have been placed into a cauldron of hot immigration water. Also ironic is the notion that serious thought is given to "Rewarding Employers Who Play by the Rules," as the Migration Policy Institute recommends, when the agency conferring the reward has systematically failed to publish intelligible rules of play.

How could this happen?  Four plausible theories come to mind:

1. Failure to publish a final rule.  Legacy INS and its successor, USCIS, must be greater believers in "The Secret" (visualize intention and it will manifest) than in the notice-and-comment prescripts of the Administrative Procedures Act.  Just because the agencies float an idea publicly does not make it binding law.
2. Ignorance of DOL regulations.  When Messrs. Hogan and Aleinikoff issued policy guidance, it seems no one bothered to study the DOL regulations.  Had they done so, they would have understood that LCAs can never be "invalidated." Hence, they would not have referred to the "invalidation" of the LCA, but would have at least expressly stated in policy guidance (or better yet in a final regulation) that an H-1B worker's change in work site from one metropolitan area to another requires the filing of an amended H-1B petition.
3. Writing a letter does not make the letter binding law. USCIS and INS know the rules of procedure and precedent.  They should not have allowed the release of informal, non-binding letters that can only serve to mislead stakeholders.
4. USCIS's creeping mission.  As armies of USCIS Fraud Detection and National Security ("FDNS") investigators and contractors performing "site visits" have appeared at business doorsteps nationwide, some learned that the H-1B worker whose file was to be audited had moved to another job site.  To an unschooled investigator (see # 2 above), this "suspicious" conduct looks like either fraud or a technical violation of the H-1B rules (even if the employer proffers an LCA covering the new worksite). 

None of these reasons justify indifference to the unpaid debts of promises unkept.  The poet, Robert Service, whose surname is what USCIS should be all about, said: "A promise made is a debt unpaid." USCIS should heed the poet's wisdom and put "Services" rightly back into its own name by promptly paying its debts to the stranded Iraqis endangered by American loyalty and by repairing the damage it has caused to relocated H-1B workers and their employers falsely accused of violating U.S. immigration law.