Posted by Angelo A. Paparelli on November 27, 2011

Immigration Magnetized, Privatized and Depersonalized

Magnet.jpgThe recent CNN GOP debate on foreign policy surprised many for what it included and excluded.  Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America.  The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:

"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

This prompted an attractive or repellant response (depending on one's views) concerning magnets. Candidates Bachmann and Romney chided Gingrich on the magnet of amnesty and the magnet of taxpayer-subsidized college tuition for DREAMers -- although post-debate reporting and opposition research revealed that both Willard Mitt and Michele Marie have espoused positions on legalization similar to Newton Leroy McPherson (Newt's name at birth).

However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs.  It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America.  Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade.  Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad.  Or so the theory goes.

In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset.  Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work. 

Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge.  None of these choices attract, magnetically or otherwise.  An extended stay at Club Fed is not desirable.  Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.

As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:     

                             

Some may think that the problem of job magnets will be solved once E-Verify, the federal employment verification database, becomes mandatory, as House Judiciary Committee Chairman, Lamar Smith (R. TX) has proposed.  It will not -- because E-Verify suffers from the law of GIGO.  The database is debased because it depends on the doubtful accuracy of Social Security Administration and Homeland Security Department records.  Moreover, although E-Verify has recently (and rather quietly) gained access to Department of State records on American citizens who've received a U.S. passport or passport card (I for one don't remember giving permission), and Mississippi DMV records, the e-system remains incomplete.  It still cannot catch identity theft and citizen impersonators.  It will not be foolproof until every American, not just every foreigner, is in the database.

red hand print.jpgThat's not likely to happen anytime soon.  Witness the strange bedfellows of immigration who have opposed the REAL ID Act and encouraged states to drag their feet or demand waivers of the requirement that states satisfy federal standards for issuing new drivers licenses.  Opposition is also growing over a similar identification requirement, the Voter ID laws cropping up across the country. 

Politicians skirmishing for debating points will not solve our immigration dysfunctions.  The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn.  We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane.  Are we ready to be biometrically identified in a digital dossier to get a job?

Posted by Angelo A. Paparelli on November 20, 2011

Has Immigration Fraud Really Gone Viral in the DOL PERM program?

Russia2.jpgOne of the most durable historical myths, Potemkin's villages, involves the trompe-l'œil hamlets purportedly created at the direction of Grigory Potemkin to impress Catherine II during her 1787 trip to Crimea. If director James Cameron of Avatar fame were to reimagine and modernize the fable of Potemkin's villages, he might well place the story, in 3D no doubt, at the Frances Perkins Building on Constitution Avenue in Washington DC. 

There a unit of the Department of Labor (DOL), the Employment Training Administration (ETA), maintains its Office of Foreign Labor Certifications (OFLC) whose mission, in part, is the administration of the nation's permanent labor certification program.  This ETA program, bearing the acronym, PERM (Program Electronic Review Management), is a veritable Potemkin village of black-box bureaucracy featuring repeatedly non-functional technology, secret algorithms and surreptitious data mining. 

For the uninitiated, a labor certification, as DOL has structured it, is a recruitment exercise imposed on employers to see if there are any able, willing, qualified and available American workers in a particular U.S. metropolitan area.  If the recruitment is conducted under DOL-mandated steps, yet fails to find a suitable U.S. worker, the Secretary of Labor will certify the failure. Thus, the Secretary's certification acknowledges that the grant of permanent residence to a sponsored foreign citizen will not adversely affect the wages and working conditions of similarly employed workers in the United States.

DOL inaugurated PERM in 2005 for two stated reasons: (1) to use automation to winnow a backlog of paper-based applications for labor certification that went back five years in many cases, and (2) to address the concern of the DOL's Office of Inspector General (OIG), expressed in a 2004 report, about "the vulnerability of DOL's foreign labor certification programs to fraud by non-traditional, transnational organized crime groups."  Perhaps more than owing to worries over global crime syndicates, DOL seems to have devised PERM because it had been hoodwinked and humiliated by a Virginia lawyer, Samuel Kooritzky, into approving hundreds of bogus labor certifications, the same lawyer who had defeated the agency in federal court and thus secured an order that preserved the (now-extinct) practice of substituting one foreign national for another on an approved labor certification.  

DOL's worries about fraud in the PERM program persist. Listed among the "2011 Top Management Challenges Facing the Department of Labor" is the need to "maintain the integrity of the foreign labor certification programs":

ETA is challenged to ensure the integrity of the [Foreign Labor Certification] programs it administers. OIG investigations continue to uncover schemes carried out by immigration attorneys, labor brokers, and transnational organized crime groups. OIG investigations have repeatedly revealed that fraudulent applications filed with DOL on behalf of fictitious companies, as well as schemes wherein fraudulent applications were filed using the names of legitimate companies without the companies’ knowledge.

To address the apparently widespread incidence of labor certification fraud, DOL is piloting a "new risk management model [which] allows ETA to assign risk ratings to individuals applying to its PERM program and spend the appropriate amount of time reviewing the higher risk applications and reducing overall reviewing timeframes." (Source: DOL "Agency Financial Report for Fiscal Year 2011," p. 181.)

The evidence DOL cites, however, does not back up its exuberant claims of a PERM program rife with fraud.  The Highlights of the DOL OIG's Semiannual Report to Congress mention only two, admittedly egregious, cases: a family that used 11 staffing companies to import over 1,000 H-2B nonimmigrants; and an attorney employed by U.S. Immigration and Customs Enforcement convicted of a slew of federal crimes including labor certification fraud. Another report, the DOL's "Permanent Labor Certification Debarment List," names only nine entities and individuals who are prohibited, by virtue of serious regulatory violations, including fraud, under 20 CFR 656.31(f), from participating in the PERM program. To place these reported incidents of fraud in context, consider that, according to the notes of an October 5, 2011 OFLC Stakeholders Meeting  (AILA InfoNet Doc. No. 11102768), DOL has adjudicated year to date a total of 73,000 PERM applications.

Despite the absence of evidence from DOL showing that PERM fraud proliferates, ETA is developing a new and growing backlog.  The new queue is attributable to the increasing number of DOL audit requests (which extend the life of the average PERM case from three to eight months, according to DOL's published processing times) and orders for "supervised recruitment" -- the pre-2005 system of agency-micro-managed recruitment that PERM was devised to replace. This back-to-the-future backlog requires the hiring of third-party contractors and their newly recruited workers. It also creates lengthy processing timespans that DOL declines to publish.

No one suggests that fraud is non-existent or that ETA's Fraud Detection and Prevention unit (oh heavens, another FDNS!?) should not try to maintain PERM program integrity.  Rather, DOL should tone down its group defamation and burdening of law-abiding lawyers and businesses by lumping them in with unnamed "immigration attorneys, labor brokers, and transnational organized crime groups".  Instead, if DOL wants to make real strides at fraud prevention in 2011, it should finally do what lawyers proposed in 2005 and at last prohibit notarios and consultants from representing employers and foreign nationals in PERM applications: 

Despite two detailed comments suggesting that [non-lawyer] agents should no longer be allowed to represent the parties to a labor certification because their conduct constitutes the unauthorized practice of law and is prohibited in all 50 states, the DOL [has] allowed agents to continue practicing before the agency. The DOL reasoned that the agency has always allowed agents to file labor certification applications and to bar them now ''may have serious consequences'' for individuals serving as agents. 69 Fed. Reg. at 77,336 (supplementary information).

Source: Angelo A. Paparelli, "Policy Choices Driving the Labor Department's New PERM Rule," 10-5 Bender's Immigr. Bull. 1 (May 1, 2005).

help wanted 2.jpgThe DOL's preoccupation with unsubstantiated fraud is not merely an academic concern.  As reported in a recent poll by the Society for Human Resource Management (SHRM), over 50% of organizations are finding it difficult to recruit "skilled workers for specific job openings, with engineering, medical, technical and executive positions especially hard to fill."

As Mark Schmit, SHRM's vice president for research, observed: 

American businesses are facing a paradox — high unemployment and the inability to fill key jobs in their organizations. Our research shows that gaps between unemployed American workers’ skills and those required for open jobs in the United States are a major reason for this seemingly unlikely contradiction. It follows logically that if key jobs cannot be filled in organizations, then other less critical jobs requiring less skill cannot be created either because the organizations’ growth potential is stunted. Thus, the cycle of low or no job growth continues.

The requirement to secure a DOL labor certification as a prerequisite to an employment-based green card was established by Congress to protect U.S. workers. Yet, ironically, the Department charged with the duty to protect U.S. workers and certify job shortages has erected a false front of supposedly virulent, but unproven fraud, an apparition worthy of Potemkin, to mask its maladministration of the DOL's dubiously conceived and backlog-regenerating PERM program.

Posted by Angelo A. Paparelli on November 13, 2011

Immigration's Hobgoblin: A Foolish Inconsistency

Europe is at a tipping point.  Will the European Union be dashed on Greek or Italian shores.  Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell. 

As this is written, European pols, especially those of the Teutonic variety, may well be mulling the words of Emerson, the American transcendentalist, in his essay on Self-Reliance:

skeleton_eyes.jpgA foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.

America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." 

Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee.  Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration. 

President Obama is no less immune to criticism.  The Deporter-in-Chief campaigned for a first term on comprehensive immigration reform.  When challenged for nonfeasance, however, he pleaded that he could not "wave a magic wand and make it happen". Yet by allowing Homeland Security officers to exercise prosecutorial discretion in immigration matters and issuing executive orders to ease the housing crisis, the burden of student loans, and soon healthcare deficiencies, he has acted unilaterally, saying "[w]e can't wait" for Congress to act.

So when is consistency a virtue and when is it foolish?  In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.

PERM labor certifications should not take three months in one case and 27 in another (even if an audit ensues) -- the current range of DOL processing times, as I learned yesterday at the AILA California Chapters Conference in San Francisco.  A blanket L-1 visa applicant in Chennai should be just as deserving of her visa if an identically qualified blanket L-1 applicant is approved at a U.S. consulate elsewhere. An H-1B work visa petition for a small business approved at the USCIS Vermont Service Center should not be denied on virtually identical facts at the VSC's California counterpart (likewise the general consensus of panelists describing the regional-service-center status quo at the San Francisco AILA conference). 

The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers).  A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").

Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical. 

Consistency creates what we lawyers call a "reliance interest."  Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering.  As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.

ghoul.jpgWorse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions.  Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.    

Posted by Angelo A. Paparelli on November 04, 2011

Missive from Mumbai: Why Are U.S. Immigration Agencies Attacking India and Hurting America?

Bangalore immigration.jpgAt least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again. 

Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”

My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software.  The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration."  Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures. 

In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition.  Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.

Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants.  More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan. 

Woman with hand stop.jpgOh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years.  Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers. 

Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States: 

  • They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals.  (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
  • They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past. 
  • They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance. 
  • They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers. 
  • They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
  • They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
  • They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
  • They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.

Indian angst over discriminatory U.S. immigration policies is neither apocryphal nor paranoid. As Stuart Anderson of the National Foundation for American Policy recently reported.  Citing State Department data, his research reveals that "[t]he number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011 while L-1s "issued in the rest of the world rose by 15 percent." I share the inference that Mr. Anderson, former INS Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner, drew from this wide divergence in L-1 approval rates:

This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.

My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:

India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.

Indian man.jpgNo kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India:

India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .

Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.

The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":

On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].

The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August.  As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:

The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].

While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai.  India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States.  The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants.  The official explanation for this change is phrased in a way that would make George Orwell smirk: 

This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]

I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way.  Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.