I’ve not always seen eye to eye with AILA – the American Immigration Lawyers Association — although I’ve been a supportive member and active participant in its programs and initiatives for decades, and served on its Board of Governors from 1987 to 1994.  At times I grow increasingly dispirited as the interests of its many members too often seemed at cross purposes, and its understandable dependence on revenue from publications and educational programs made me fear that it had lost some of the fire in its belly and some of its soul. 

I often wax nostalgic about the early days of AILA.  I miss the days when one could leave an AILA conference inspired by its grizzled fighters for immigration justice, with none more inspiring than the late Sam Williamson of Texas. I search the AILA website and, sadly, find little residue of Sam’s influence, other than a “Mentor Award” in his name, given since 1992 for “outstanding efforts and excellent counsel to immigration attorneys by providing mentoring assistance.” I’m happy that AILA honors Sam’s memory but don’t remember him so much as a mentor than an inspiring firebrand who would stand up, point a curled, arthritic finger in the air and shout in reference to the immigration authorities: “Sue the [illegitimate offspring]!” 

Sam inspired me because his views, reflected in a 1989 article, were much the same as my own:

. . .if you have a sense of injustice, you will feel anger and outrage, and you, too, will come to look upon the law as a weapon, which it is, and with which you can venture to assuage such injustice and lift these people [immigrants to America] from their degradation. I find such efforts to be worthy. What appears anomalous to me is to find that others do not feel as I do.

I always left every AILA conference where Sam cried out in righteous indignation freshly energized to pursue my clients’ interest as zealously as possible within the all too draconian constraints of America’s immigration laws.  Recent AILA conferences have never been the same without Sam (although many new and old members, to be sure, have achieved marvelous outcomes in their immigration cases, while generously mentoring lawyers and modeling best practices in the quest for immigration justice).

Something happened this week, however, to remind me that the spirit of Sam still exists and shines brightly in AILA.  In an eloquent, persuasive and lawyerly 24 pages, AILA’s USCIS Headquarters Liaison Committee unmasked as exercises in vacuous reasoning a January 8, 2010 USCIS policy memorandum (and kindred non-precedent decisions of the USCIS Administrative Appeals Office) that deny employment-based immigration benefits to working owners of companies. Although the Obama Administration has proclaimed that the United States government does not engage in torture, the AILA Liaison Committee’s letter to the USCIS Chief Counsel, in a calm and dispassionate way (certainly not in Sam’s style), demonstrates that USCIS tortures logic and smites reason: 

[Our correspondence] relates to recent USCIS Administrative Appeals Office decisions and USCIS Service Center adjudications, as well as the [January 8] Neufeld Memorandum, that misapply the reasoning of Supreme Court cases . . . to reach the conclusion that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant (e.g., L-1, H-1B and O-1) or immigrant employment-based petition. We strongly believe that this USCIS position departs from longstanding binding precedent, ignores the plain language of the Immigration and Nationality Act (INA) and its implementing regulations, thwarts Congressional intent respecting the purpose of the INA, and leads to absurd results.

My point here is not to repeat AILA’s arguments for the absurdity and illegality of USCIS’s reconstruction of immigration jurisprudence and history to ban a class of otherwise deserving entrepreneurs (I’ve already offered my views on the subject).  Rather, I applaud the AILA Liaison Committee’s letter because it reminds me that, despite my occasional misgivings about organizational drift and the challenges of speaking in a unified voice, AILA retains the depth of soul and conflagration of belly that makes me (and I hope Sam as well) very proud to stand within its ranks.

The week’s news dealt a body-blow to the prospects for comprehensive immigration reform, as if the movement to fix our broken immigration laws were blind-sided in a collision with a former pinup driving a pickup — which it was. With the election of new Massachusetts Senator, Scott Brown, to take the seat of the late Ted Kennedy, the godfather of more humane and just immigration laws, supporters of CIR (Comprehensive Immigration Reform) are swallowing their sadness and putting on their game faces, saying there’s still no stopping the CIR train from arriving at its destination.

It’s hard to maintain optimism, however, as President Obama’s pledge to move on CIR within his first year in office reached its anniversary and expired. Worse yet, soundings from the White House suggest that the Administration will wait for Congress to take the lead on CIR.

There’s no telling what Congress will do as Democrats remain engaged in trying to put the wheels back on health-care legislation. Already a group of Republicans and Democrats are building a BRIDGE that would offer no footpath, however tortuous, to citizenship for the undocumented (BRIDGE being the syntax-shattering formal name of H. Res. 1026, the Bipartisan Reform of Immigration through Defining Good Enforcement resolution). Adding to the pessimism, Sen. Kennedy’s erstwhile CIR partner, Sen. John McCain, although still assertedly a CIR supporter, offers doubts that it will come to pass in this election year.

Throwing a clanking crowbar into the wheels, the Supreme Court’s Citizens United decision will allow anti- and pro-CIR organizations to spend unlimited funds, unleashed from the prior restraints of the Federal Election Commission’s spending caps. While some in the pro-CIR camp view the ruling as a positive development, the greater likelihood is that the opponents of CIR will offer untruths on the economic harms of CIR to frighten a financially-beleaguered citizenry who still favor CIR.

While we wait to see if the CIRistas can outjump Evel Knievel, there is still the possibility, however, for the undocumented to try and remain longer in the hopes that CIR someday will arrive, especially if they can “lawyer up.” SCOTUS ruled this week that even though Congress has the power to strip the courts of jurisdiction to review discretionary immigration-agency decisions, the Executive Branch may not, by regulation, label its actions “discretionary” and thereby prevent immigrants from seeking justice in federal court.

So, the wheels on the CIR bus go round and round . . . all year long.

For those of us in advanced stages of decrepitude who still remember what it was like to practice immigration law before the advent of broadband and universal Web access, the immigration process was much simpler then. Unlike today (with the e-publication of new nonbinding “policies” posted on www.uscis.gov as press releases, FAQs and agency memoranda), immigration rulemaking in the pre-Internet era followed a predictable pattern.

The old INS (the Immigration and Naturalization Service) took a a well-worn path when proposing a new regulation.  First the agency would draft a suggested rule and seek approval from the Office of Management and Budget (OMB).  Sometimes, OMB would approve the rule without change, and at other times, it would send INS back to the drawing board to retool the rule. Next, after OMB green-lighting, INS would arrange for the proposal’s publication in the Federal Register.  Then, the public, especially stakeholders with an interest in immigration, would have 30 or 60 days to comment on the suggested change.  Finally, the INS reviewed the comments and published a final rule with the announcement of an immediate or future effective date. 

Accompanying both the proposed and the final rule would be a section entitled, “Supplementary Information.”  This is the section, I’ll call it the preface, that explained the INS’s thinking.  The preface to a proposed rule would tell why the INS thought the change in regulations was necessary, the circumstances in which the rule would and would not apply, and the legal consequences in terms of eligibility for a particular immigration benefit.  The preface to the final rule would offer INS’s response to the public’s comments, make some changes after the public had road-tested the concept, while rejecting others, and offer additional, more definitive legal analysis and agency interpretations. 

Immigration lawyers loved these prefaces, even though they never made it into the Code of Federal Regulations, because a preface could be cited in future situations whenever a new adjudicator tried to claim that the text of a regulation meant something other than that which the old INS had explained in the Supplementary Information.  The prefaces therefore kept everyone honest. Moreover, pre-screening by OMB meant that an independent set of eyes within the White House took pains to be sure that the proposal made sense and followed statutes and executive orders on proper rulemaking procedures. The system worked.

In the 21st Century, however, everything (including the release of new immigration “rules”) happens at Internet speed.  While we all love our “app for this” and “app for that,” too much digitial sharing, as Jaron Lanier (the early online evangelist who coined the term “virtual reality”) warns in his new “manifesto” (You Are Not a Gadget), can create a “global mush.” 

The global mush is extra thick when U.S. Citizenship and Immigration Services (USCIS) pours out new changes on its home page.  Case in point:  USCIS Headquarters January 8, 2010 memorandum, a porridge of new and indigestible pronouncements entitled “Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements.” In true shrink-wrap-software style, the memo comes complete with its own FAQ.

The memo and FAQ spell out how USCIS immigration officers at the Regional Service Centers, from this day forward, are permitted to decide, in a variety of fact patterns, whether a prospective H-1B worker will be considered legitimately ”employed” by the enterprise petitioning for his or her services.  To its credit, USCIS acknowledges that the touchstone for approval is that the petitioner will have the “right to control” over “when, where, and how” the H-1B nonimmigrant performs the work, even if there is no proof that actual control of the person’s work will occur.   This right to control, USCIS notes, is often difficult to recognize in the modern world of work, where vendor personnel and consultants, who are paid by a contractor, render services that look like “work” at various customer worksites. That’s why the memo authorizes adjudicators to ask for an array of contractual paperwork.

The enterprise must also establish that the ”right to control,” according to USCIS, “will continue to exist throughout the duration of the [H-1B worker’s] employment term with the petitioner.”  The “throughout the duration” requirement will be shown by the existence of a contract with a specified term.  Thus, if the contract runs for merely a year, USCIS reasons, the agency will approve the H-1B petition only for one year (ironically, all the better for cash-strapped USCIS to collect more user fees when the time for H-1B petition extension arrives).  After all, USCIS explains, its H-1B regulations require submission of an itinerary if the H-1B nonimmigrant will work at more than one job site, especially at a site neither owned nor controlled by the H-1B petitioner.

USCIS’s allegiance to the “right to control” versus “actual control” distinction lasts no longer, however, than the twinkle in a digital avatar’s eye. By Page 6, Footnote 9, of its memo, USCIS announces that ”an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him [sic] or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite ‘control.’”  What kind of control? The right to control? Or, the actual exercise of control?  USCIS fudges and doesn’t say.  Even more confusingly, USCIS admits in the same footnote that “a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner.” 

Wait a minute.  If a sole owner of a company can be “employed” by that company and if the company is a separate legal entity from its sole owner, then how is it that the “beneficiary [the H-1B worker, a natural person] . . . is also the petitioner [the company, a legal entity that is distinct from its living owner]”?  Apparently, to USCIS, the sole owner of a company is also the company, and the company is also the sole owner, even though they are “separate,” and the stock-owning human can be “employed” by the legal entity, but not for H-1B purposes, even if s/he has the bylaw-given  ”right to control” the way the H-1B human does his job.   In short, Footnote 9 is unadulterated gobbledygook. 

Harkening back to immigration’s bygone era, this blogging geezer asserts that the OMB of old would never have allowed such mush to splatter the pages of the Federal Register.  Perhaps even the current OMB, notwithstanding the celebrated meanderings of its current director, would likewise reject the turgid spillage of the USCIS’s January 8 memo. Why am I so sure?  Because INS — in 1998 – published a proposed rule covering the very same subject.  As the late William F. Buckley, in one of his less articulate moments, might have said: “You Could Look It Up.”  Check out the INS preface at 63 Federal Register 30419 (June 4, 1998): 

Since promulgation of [the H-1B] regulation [requiring submission of an itinerary if the H-1B worker will perform services in more than one location] . . . many industries in the United States, such as the health care and computer consulting industries, have begun to rely more frequently on the use of contract workers. It has been the experience of the Service that many bona fide businesses which provide contract workers to certain industries under the H–1B classification have experienced difficulty in providing complete and detailed itineraries due to the unique employment practices of such industries. For example, companies which are in the business of contracting out physical therapists or computer professionals often get requests from customers to fill a position with as little as 1 day advance notice. Clearly an H–1B petitioner in this situation could not know of all particular contract jobs at the time that it first files the H–1B petition with the Service. As a result, many such bona fide employment contractors do not know all of the locations where a contract worker will be employed at the time the Form I–129, Petition for a Nonimmigrant Worker, is initially filed.

Moreover, some employers who use the H–1B classification may have a legitimate, but unforeseeable, need to transfer their employees on short notice from one work site to another within the organization, such as from the employer’s Los Angeles office to its New York office. Under the current regulation, however, such an employer is required to submit with its petition a complete itinerary listing all of the locations where the contract workers will be employed. The regulation as now written, therefore, does not fully reflect current legitimate business practices.

In response to these problems, the Service now proposes to amend its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR 214.2(h)(2)(i)(F) to allow certain petitioners to submit a general statement describing the locations where the alien is to be employed, thereby eliminating the necessity of submitting a complete itinerary. A complete itinerary must be submitted only in those instances where the employer is aware of the actual itinerary or where the petitioner is an agent that does not actually employ the beneficiary but merely represents the alien and the alien’s employer. In those instances where the employer does not yet know the alien’s complete itinerary at the time the petition is filed, the employer must submit, in lieu of a complete itinerary, a list of the places where it knows the beneficiary will definitely be employed, together with a description of the alien’s job duties at those locations. In addition, the employer must submit, to the extent possible, a list describing the alien’s possible places of employment and the duties which the alien would perform at such locations. The employer may also be asked to submit a letter with the petition describing its past hiring practices, including a list of past places where it has employed similarly situated persons. The letter must describe the employer’s tentative plans to use the beneficiary in an H–1B capacity in the future. However, the absence of a past hiring practice is not a bar to the approval of the petition.

So in the good old days, INS didn’t require a contract that would run for as long as the maximum period of H-1B petition validity (then as now, for three years).  It didn’t make an elaborate fuss over the employer-employee relationship.  It honored Matter of Aphrodite’s holding that a corporation is distinct from its sole shareholder and that the former could receive approval of an H-1B petition on behalf of the latter.  Curiously, however, for reasons never explained, INS never promulgated a final rule on the subject, even though its well-reasoned views on the sufficiency of evidence in H-1B cases are forthrightly and clearly stated in the 1998 proposed rule. 

USCIS apparently didn’t want to follow the prescribed path by picking up where the 1998 proposal left off, explaining what had changed in business practices or immigration laws, and then proceeding with the OMB-proposed-rule/final-rule approach.  Instead, we get tainted mush, delivered electronically, with no chance for stakeholder or stockholder comment. 

Why have the “legitimate business practices” of 1998 become illegitimate, or at least highly suspect and requiring reams of long-term contractual proof, in 2010.  USCIS’s January 8 memo and companion FAQ never say.  We at least can hope that the agency will tweet us its answer on Twitter.

In 1729, Jonathon Swift caused quite a stir when he published “A Modest Proposal For Preventing The Children of Poor People in Ireland From Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Public.” Swift suggested, in jest, that the Irish eat their own children.

This blogger’s “Modest Immigration Proposal,” will not espouse cannibalism or infanticide, but may be met nonetheless with comparable revulsion by the Immigration Courts. I propose, without a trace of irony, that the Executive Office for Immigration Review (EOIR) abolish a rule that imposes a form of involuntary servitude on lawyers who submit a Notice of Appearance before an Immigration Judge. Rule 2.3(d) of the Immigration Court Practice Manual, itself ironically entitled, “[l]imited appearances,” imposes a form of near-permanent yokedom on immigration lawyers, in these words:

Once an attorney has made an appearance, that attorney has an obligation to continue representation until such time as the alien terminates representation or a motion to withdraw or substitute as counsel has been granted by the Immigration Court.

To the same emphatic effect, Rule 2.3(i)(ii) provides: 

Until a motion to withdraw is granted, the attorney who filed the motion remains the alien’s attorney of record and must attend all scheduled hearings.

To be sure, Immigration Judges are under stress and suffer from “compassion fatigue” given that their courtrooms are bursting at the joists and rafters with the arrival each day of ever-increasing throngs of foreign citizens (”respondents”) issued Notices to Appear for removal hearings.

Why then abolish rules requiring lawyers to remain with the client for the duration of the immigration case before the judge (unless dismissed by the client or the Court)?  After all, unrepresented immigrants fare quite poorly. For example, a foreign citizen represented by a lawyer is nearly three times as likely to be granted asylum than an immigrant without legal counsel.  Worse yet, in just one recent fiscal year (2008), 168,810 pro se respondents appeared before immigration judges.

The reason to withdraw the “lawyer-for-the-duration” rule is simple.  More attorneys would provide legal services to needy immigrants and the stress on Immigration Judges caused by unschooled self-represented individuals would be lessened if EOIR were to adopt the increasingly popular approach known as “limited-scope legal assistance.”  As the Chief Justices of New Hampshire and California urged in a recent New York Times Op-Ed piece:

[A]n inaccessible, overburdened justice system serves none of us well. . . . It is essential that we promote . . . efforts to close the “justice gap.” One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities.

Limited-scope legal assistance is especially suitable for use in the Immigration Courts.  Immigration laws are notoriously complex, and the laws on deportation and forms of discretionary relief from removal perhaps even more exasperating.  Yet many immigration lawyers and attorneys in other fields who might otherwise be eager to learn the ropes in Immigration Court are reluctant to try because of the fear that the immigration case and the mandatory attorney-subjugation rules, quoted above, will require unsustainable tours of duty. 

Ironically and perversely, more immigration lawyers would pursue specialty certification in immigration and nationality law if limited-scope representation in the Immigration Courts were allowed.  In California, for example, where approximately 1,500 lawyers are members of the American Immigration Lawyers Association, only 147 attorneys (a ratio of only 1 in 10) are certified by the State Bar’s Board of Legal Specialization in the field of immigration and nationality law.  Why the low number?  Because certification requires, among other things such as testing and peer review, certain experience requirements, including not less than 150 immigration cases, at least 25 of which must be in “[r]emoval, deportation, or exclusion hearings before immigration judges [and not] less than three cases in this category must be contested proceedings.”  Few immigration lawyers focused on business or family-based immigration can afford the multiple trips to the Immigration Court that the EOIR’s attorney-yoking rules require. As a result, immigrants facing removal must go it alone.

With limited-scope representation and the unbundling of immigration legal services, lawyers and clients could agree that the attorney would appear at the master calendar hearing only, where critical decisions must be made — conceding or contesting the government’s factual allegations and assertions of legal grounds for deportability.  Other lawyers, with client consent, might appear only at the individual merits hearing in order to make sure that evidence is properly authenticated and admitted into the record, cross-examine government witnesses, directly examine the respondent, and raise objections or argue legal issues.  Surely, this would promote the cause of immigration justice more than a mandatory-continuous-presence rule that frightens many attorneys from ever entering the courthouse. 

As the Chicago Appleseed Fund for Justice and Latham & Watkins LLP recommended in their comprehensive evaluation of the U.S. Immigration Courts, Assembly Line Injustice:  

The top priority should be to ensure as many people as possible are represented by competent counsel. For those immigrants who remain on their own, the goal should be to make the process simpler.

Limited-scope representation would achieve these goals and promote greater lawyer competence through specialty-bar certification programs. 

So my modest proposal, channeling Ronald Reagan, shouts out to EOIR: “Your Honors,’Tear Down That Rule!’”