From time immemorial, the world has been a dangerous place; no less so today. Those with the means and will have have always relocated to less threatening or merely more desirable locales. In today’s globalized and interconnected era, the European debt crisis, terrorism, declared and undeclared wars, restrictions on religious and political freedom, and the remarkable rise to world leadership of a bi-racial man with roots in Kenya, Indonesia and Hawaii –- all of these developments, and still other enticements, have coalesced to make the United States the world’s premier immigration destination for affluent individuals.

The federal government, however, has mismanaged the opportunity to capitalize on the willingness of foreign citizens seeking long term work visas or green cards to invest in the United States.  Unlike countries such as Canada and Australia (which make the exchange of cash for visa privileges comparatively simple), American lawmakers have been miserly in creating immigration blandishments that would motivate foreign citizens to invest in this nation of immigrants. 

We currently allow overseas investors to obtain immigration benefits if a foreign national puts a “substantial” amount of capital in a U.S. business enterprise and satisfies the myriad other requirements specified under one of two tedious categories — the E-2 nonimmigrant visa and the EB-5 immigrant visa.  (For an extended treatment of the complexities and problems plaguing these visas, see “Investing in America through the E-2 and EB-5 Visa Categories,” co-authored by this blogger, Stephen Yale-Loehr and Ted Chiappari and published last Tuesday in The New York Law Journal.)

The E-2 “treaty investor” category is available to citizens hailing from a “treaty country” — comprising roughly half of the nations of the world. The list of E-2 treaty countries includes some surprises and quirky provisions. Iran but not India, Taiwan but not China, are signatories with the U.S. of E-2 treaties. Citizens of countries not on the approved E-2 treaty list are out of luck.

Moreover, the E-2 category is blighted by an array of complex and subjectively interpreted provisions: “substantial amount of capital,” “irrevocably committed, at-risk funds,” “non-marginality,” “sliding-scale reverse proportionality,” and “real, active commercial enterprise,” to name a few.  Woe to the individual investor who plunks down cash in a business, maintains it profitably for a decade, and then is told by an anonymous government functionary that the enterprise is too marginal, as the New York Times reported recently,”Maine Business Is Shut Without a Renewed [E-2] Visa.”  Even those who succeed in building non-marginal businesses, cannot transition from the E-2 visa to a green card, even at retirement age.

Investors seeking green cards under the EB-5 “employment-creation” category face an even more harrowing journey which begins with the investment of $500,000 or $1 million (depending on location in the U.S.) and the bureaucratic equivalent of a full-body scan as immigration officers pore over reams of documents detailing the investor’s source of funds, job-creation activities (ten full-time jobs for U.S. workers must be created and “sustained”), business plans, five-years of worldwide tax returns and extensive personal histories. 

Would-be investors who’d prefer that someone else operate the business must evaluate up to 100 “regional centers” — entities pre-designated by U.S. Citizenship and Immigration Services to accept investments from foreign nationals — and hope that the chosen center creates the jobs and safeguards the investment over what is typically a five- to seven-year holding period. The evaluation process is daunting notwithstanding our well-intentioned securities laws that try but too often fail to protect investors.  For all this grief and uncertainty, the EB-5 investor gets a “conditional” green card, with the body-scanners returning two years later to repeat the review process in order to determine if the conditions on residence should be lifted.

These statutory and bureaucratic impediments to investment have produced all too predictable results.  A mere 28,000 to 29,000 E-2 visas have been issued in each of the last four fiscal years.  The EB-5 green card demand has been a tiny fraction of the quota allotment, as the U.S. Government Accountability Office has reported (”Immigrant Investors: Small Number of Participants Attributed to Pending Regulations and Other Factors“).

If Congress is serious about creating jobs, fostering innovation and reinvigorating strapped cities and nearly-bankrupt state governments, then Congress must look at more enticing, user-friendly investor visa categories.  As my colleague Rami Fakhoury proposes, why not declare the entire City of Detroit (full disclosure: my home town) and other municipalities with threadbare budgets and abundant vacant land as eligible for a $250,000 green card investor visa if two jobs are created?  Why not allow foreign investors to team up with angel investors under the The Start-Up Visa Act proposed by Senators Kerry and Lugar?  Why not allow foreign investors, properly screened, to invest in state bonds and obtain immigration benefits, much like the financial syndications that Canada allows? Why not enact The E-2 Nonimmigrant Investor Adjustment Act and allow E-2 visaholders to settle permanently in the United States?

Nothing prevents us from making intelligent changes to our investor visa categories other than the unimaginative lassitude of our lawmakers.  We can clearly do better for ourselves and for generations to come if we more wisely manage our most valuable asset — the right to live, work and prosper in America.

It seems like ages since the federal government transformed the rules on when and how foreign citizens apply for visas to enter the United States.  Actually, the most dramatic changes occurred in the summers of 2003 and 2004. 

In 2003, the government dramatically restricted the authority of American consular officers to waive the appearance of visa applicants for an in-person interview.  In 2004, the U.S. State Department stopped “revalidating” (renewing previously issued but expired) nonimmigrant visas from a central processing facility in the United States. More changes have followed.  Now all applicants must submit the visa application on-line (all the better to store and mine data and facilitate internal record-keeping) using a woefully designed and often nonfunctioning software program, the Form DS-160. 

The requirement to interview all but a few visa applicants and the elimination of domestic revaidations have caused substantial disruptions to U.S. businesses, universities, families and globetrotting individuals.  Quite predictably as well, understaffed U.S. consular posts have developed waiting times until visa interviews can be scheduled.  The personal interview requirement has also persuaded many would-be travelers from countries not allowed in the visa-waiver program to forgo trips to the United States (because they are unwilling or unable to travel up to a thousand miles to a U.S. consular post in their home country to appear for a personal interview).  This has resulted in the loss of the substantial dollars these people would otherwise spend.  The elimination of revalidations has visited hardships on foreign students, foreign workers and U.S. businesses who cannot afford to risk the possibility of visa refusal overseas or prolonged delays caused by “security advisory opinions” and clearances. 

No doubt the changes were made to enhance U.S. national security and improve governmental efficiency.  But are they the best ways to achieve these goals?  Can technology be used more intelligently to preserve our safety while also encouraging other national interests in creating jobs, promoting exports, achieving foreign policy goals and encouraging tourism? Can we apply fresh thinking to our foreign-policy and national-interest concerns to improve our visa procedures so that they foster these goals?

I’ve long advocated that visa interviews be videorecorded in order to preserve data and images that would be useful to enhance homeland security and also make sure that consular officers conducting interviews (whose images would not be recorded under my proposal) might be induced by the sentinel effect to be more courteous and fair. 

An even better idea would be to employ secure videoconferencing technology.  Fortunately, the House of Representatives has included in the Foreign Relations Authorization Act (H.R. 2410) – now awaiting Senate action — a pilot program of videoconferenced interviews:

SEC. 236. VIDEOCONFERENCE INTERVIEWS.

(a) Pilot Program- The Secretary of State may develop and conduct a 2-year pilot program for the processing of tourist visas using secure remote videoconferencing technology as a method for conducting visa interviews of applicants.

(b) Report- Not later than 1 year after initiating the pilot program under subsection (a) and again not later than 3 months after the conclusion of the 2-year period referred to in such subsection, the Secretary of State shall submit to the appropriate congressional committees a report on such pilot program. Each such report shall assess the efficacy of using secure remote videoconferencing technology as a method for conducting visa interviews of applicants, including any effect such method may have on an interviewer’s ability to determine an applicant’s credibility and uncover fraud, and shall include recommendations on whether or not the pilot program should be continued, broadened, or modified.

When the idea was first broached in 2006 (but ultimately not pursued), one Bush Administration official reportedly said that the use of digital videoconferencing technology “could be the biggest qualitative change in the way we handle visas in 150 years – it’s a generational shift.” 

For its part, the Senate is encouraging new thinking on visa application procedures (ironically, as part of an effort to facilitate change within the Islamic Republic of Iran). S. 3454 (the National Defense Authorization Act for Fiscal Year 2011) contains Section 1234.  If enacted, Section 1234 would perhaps address the “single-entry” visa policy that dissuades Iranian students in the United States from returning home (because a new student visa is required before they can return and resume studies).  Section 1234 provides:

(8) STUDENT VISAS- With respect to student visa policy, an assessment of opportunities for the United States and Iran to engage in educational exchanges, including– (A) opportunities for expanding educational exchanges for Iranian students to study in the United States; and (B) the feasibility and advisability of expanding the number and types of visas issued to Iranians for educational exchanges.

These changes, if adopted, would be transformative. The visa application process should facilitate rather than impede our national interests and foreign policy objectives. We deserve better. The current system must be improved.

As the nation viewed 24/7 live footage of oil decimating livelihoods and befouling our shores, I flew to Washington on Sunday to take a pulse reading on the prospects for immigration reform. En route, I read an Op-Ed piece by New York Times writer Frank Rich.

One of my favorite columnists, Rich offered a spot-on diagnosis of an administration that seemed helpless to stanch the gusher in the Gulf or the anger and anguish in the people’s hearts. He harkened to an earlier era when a determined president contained Big Oil, invoking the memory of a Republican with whom President Obama shares many “moral and intellectual convictions.” With President Obama facing a “Teddy Roosevelt pivot-point,” Rich suggested, convincingly, that the present occupant of the Oval Office must first overcome his default approach to problem-solving:

Obama can’t embrace his inner T.R. as long as he’s too in thrall to the supposed wisdom of the nation’s meritocracy, too willing to settle for incremental pragmatism as a goal, and too inhibited by the fine points of Washington policy.

After spending this week in Washington conferring with policy wonks and federal officials, I’m convinced that Rich’s analysis applies at least as strongly to the oily politics of immigration.

To recap events since January, 2009: The President arrived in the White House, having been carried aloft by campaign pledges of immigration reform in Year One. He embraced the received Beltway wisdom that an all-or-nothing approach to reform legislation, the “grand bargain,” was the only viable strategy. Unless, as his brainiacs pontificated, border security were yoked to the twin must-haves of legal status for the undocumented and a plan for future inbound flows, nothing would be accomplished. Well, Obama and his advisers were right: Nothing has been achieved.

The supposed cognoscenti who claim to understand the “fine points of Washington policy” now urge proponents of reform to accept the reality of “incremental” (or more accurately, uneventful) “pragmatism,” and wait for just the right time. Nothing will happen, the wise ones say, until willing Republicans see the light – perhaps during the lame-duck session, or maybe very early in 2011, well before the presidential campaign season ramps up and makes any bipartisan deal impossible. But, they add, if Hayworth unseats McCain, all bets are off.

Meantime, immigration dysfunctions fester:

• The winds of fear that began in Arizona are spreading to other states, even to unlikely Massachusetts.
• Two tech titans win the Republican ticket in California after tacking sharply rightward with xenophobic campaign ads and stump speeches.
• The Sheriff’s Department of St. Bernard Parish asks federal police to check the papers of workers cleaning Louisiana beaches (implying that “anyone who might lack documentation and appears to be Latino is a criminal”).
• Dream-Act fasters outside the offices of Senator Chuck Schumer stage a “die-in,” and
• Two real deaths this month and last – the tasered killing of a Mexican man reportedly resisting deportation and the shooting of a youth near a bridge between Ciudad Juárez and El Paso – bring the problems caused by “pragmatic” delay into sharp relief.

In my view, the only pragmatism worth pursuing is the piecemeal kind that makes substantial down payments on comprehensive solutions to our immigration crisis. Why shouldn’t Congress pursue enactment of smaller bills with historically bipartisan support like the Dream Act and AgJobs? Why shouldn’t the President use this time of crisis to act forthrightly, and issue executive orders and new regulations that provide relief to dispirited foreign citizens who’ve languished for years in the domestic line for green cards? Why not use presidential authority to defer action on the millions of unauthorized heads of households and grant them work permits, while ICE pursues drug and sex traffickers and violent criminals?

Rich observes that “Obama has yet to find a sensible middle course between blind faith in his own Ivy League kind and his predecessor’s go-with-the-gut bravado.”

Change the facts on the ground, I say, and get much of the immigration crisis behind us now. This is the “sensible middle course.” Otherwise, our inability to stop the gooey crude from polluting America’s Southern coast stands as a metaphor for the learned helplessness that is this federal government’s response to our polity’s broken immigration laws.

[Blogger’s Note: It’s often beneficial to get a fresh perspective on a topic from someone with a special insight born of long experience. Here then is a thought-provoking take on what real reform of the immigration laws would require. Reader beware, however, that the following views may be considered controversial and are solely those of my anonymous friend, colleague and long-time observer of U.S. immigration law and policy in the real world.  The views in the guest post below do not necessarily reflect the views of www.nationofimmigrators.com or your faithful blogger.  Your comments are welcome and encouraged.]

Possibly the most popular topic for television’s talking heads in recent months is immigration. The popular catch phrase is “Comprehensive Immigration Reform.” But the most vocal proponents of such reform seem to hold views that comprehend only one extreme or the other: a 3000 mile long wall (whether real or virtual) euphemistically called a “secure border,” or a massive amnesty coupled with increases in the level of immigrants to satisfy the apparent demand for visas, euphemistically called “a path to earned citizenship.”

As someone who has been directly engaged in the field for nearly 40 years, I often bristle when listening to simplistic dialog on the subject. Sadly, the prevailing views expressed on the cable talk shows are those of legislators and others who have staked out positions on the fringes. They cater to constituencies that are not reflective of mainstream America. In my own view, neither of these extreme positions is workable or desirable. Neither serves the national interests of the United States which, after all, should be the driving force behind any immigration (or any other) legislative effort. Either approach would result in little more than further growth in the already burgeoning bureaucracies at CIS, ICE and CBP.

Everyone’s opinion is valuable when it comes to immigration. But everyone doesn’t get to write their own section (which is what appears to have been the origin of nearly all immigration legislation enacted over the last 50 years). Anyone responsible for drafting a new immigration law should be selected based on his or her neutrality on immigration issues. He or she should be tasked with drafting a thorough, balanced bill based on a set of pre-established principles. Although I hesitate to suggest it, a bipartisan commission (not unlike the ill-fated Jordan Commission) could provide these principles. When complete, the bill should not be subject to countless toxic amendments advocated by the usual special interests. It should be managed more like the contentious Defense Base Closure and Realignment Commission legislation: straight up or down, to minimize the influence of special interests.

The current INA must be discarded. It can’t be patched any more. A new law could include everything necessary to administer a complete, well-reasoned national immigration policy while at the same time reducing the number of words in the law by 2/3. This is not an impossible goal. Most of the INA today consists of special interest provisions and gross micro-management of the bureaucracy. As an occasional student of immigration legislation in at least a dozen other countries, I can attest to the fact that bigger is not better. And legislating immigration the way the U.S. has done for the last hundred years is a recipe for the same miserable results.

For whatever it is worth, I offer these random notions for anyone tasked with writing fair, workable, immigration legislation. It’s time for a very different approach.

1. Immigration quotas serve a valid purpose. But the numbers should be based on the needs of the nation and its ability to absorb newcomers, not on an arbitrary number revised about as often as the arrival of Halley’s Comet. Quotas should apply to every class of immigrant and to nonimmigrants who are working in the United States. Just because someone is married to a citizen doesn’t mean he or she has no effect on the culture and economy of the nation. Congress should be required to assess needs and set quotas annually for all classes of immigrants and working nonimmigrants. Quotas should be easy to administer. INS and now CIS have amply demonstrated they can’t count. Why rub their noses in it?

2. All aliens may have been created equal, but they don’t stay that way. Some absorb into the fabric of the country and contribute. Some don’t. There is nothing wrong with a well-reasoned, transparent, mechanical “point” system for selecting immigrants. This would ensure that migrants with best chance of success in the United States will be able to expeditiously obtain residence. It should be applied to all would-be migrants.

3. Bureaucrats are not capable of administering discretionary provisions. For this reason, no provision should include words like “extreme and unusual hardship,” “extraordinary ability,” and the like. Waivers should be based on objective, measurable criteria rather than a creative fiction writing competition. Rather than a myriad of discretionary waivers, various grounds of inadmissibility should simply not be applicable in certain situations (e.g. when a certain family relationship exists, after a specific period of time has elapsed, etc.) Similarly, the notion that an adjudicator ensconced in a cubicle somewhere can equitably determine whether someone is of extraordinary ability in a field of endeavor and is coming to perform services requiring such ability is equally ludicrous.

4. The immigration courts are broken. The answer isn’t more judges. In my view, an immigration court should be in place solely for the purpose of providing an impartial review of the decisions of the administrative agency. The IJ and BIA are not there as a convenient way of indefinitely protracting the stay of an obviously deportable alien. There should be a price to pay for losing in court. This can be accomplished simply by taking away the option of voluntary departure from the IJ and Board: The immigration court system should either grant actual relief (asylum, residence, admission as a nonimmigrant, or citizenship) or give an order of removal with the consequences of deportation attaching immediately. How well would our criminal court system work if the defendant could wait for the jury’s verdict and imposition of a sentence before negotiating a plea bargain?

5. The diversity visa program is a lousy concept and should be dumped. There are sending countries for a reason. Migrants come to the United States for the same economic and social reasons they have always come. The DV program does nothing to promote the interests of our nation.

6. The nonimmigrant alphabet should be pared down to no more than 10 letters. Many of the current distinctions among classifications are pointless and confusing.

7. The labor certification process is hopeless. The notion that it somehow provides protections for U.S. workers is patently false: only a fraction of immigrants and nonimmigrants entering the labor market are subject to labor certification. Some other countries have adopted a more pragmatic approach to importation of labor. Rather than vainly attempting to examine wages, working conditions, skill sets and availability of workers, these countries simply apply a serious monthly visa surcharge fee, based on the category of labor, for visas issued to non-citizen workers. If employers need to import workers badly enough to pay such a surcharge, then in all likelihood they really need the particular skills of those workers and training U.S. workers isn’t a viable option. The scale could be periodically adjusted based on shortages in particular occupations, etc. The surcharge fee should apply even to students on practical training and to dependents of workers who engage in employment.

8. In connection with the previous recommendation, all work-authorized visas (including students on practical training and dependents of workers) should be considered indefinite (quasi-immigrant) for as long as the visa holder is engaged in the occupation and the employer continues to remit the monthly fee. The notion that an arbitrary limit of 5, 6 or 7 years has anything to do with business needs or labor markets has no basis in reality. The current limits for nonimmigrants have no effect other than to force companies and aliens (and their lawyers) to scramble for available loopholes in the INA. After a prescribed period in status as a worker, such long-term residents should have the opportunity to apply for naturalization, just as any other legal resident. This process would eliminate the need for all work-related immigrant classifications.

9. Forget about “knowingly.” If an employer hires an illegal alien and gets caught, there should be a hefty fine per violation. No excuses, no mitigation. The fine should far exceed the cost of hiring a worker the right way, as prescribed in recommendation 7. But the law also needs to be a bit more reasonable on the anti-discrimination stuff. Employers should be given a clear set of procedures which, if followed, would shield them from unreasonable anti-discrimination lawsuits.

10. Curtail chain migration. Preferences for siblings, adult and married sons and daughters and parents need to go. Let’s face it; migration to the U.S. isn’t migration to another galaxy. Despite the eruption of an occasional volcano in Iceland, world travel is cheap and available. If you want to see the extended family now and then, hop on the plane or send them an e-ticket. And bringing mom and dad here so they can apply for SSI and go back home isn’t such a good thing for the U.S.

11. There should be no nationality-specific provisions. Immigration to the United States should not be based on national origins or the special affinities of lobbyists and legislators.

12. Finally, I have one administrative recommendation. I strongly support the “user fee” concept for immigration benefits. But I do not think it is reasonable to charge today’s immigrant benefit applicants for things which have nothing to do with processing the benefit they seek. Presently, applicants support, in whole or in part: refugee and asylum processing; all immigration benefits provided to residents of Puerto Rico, Guam and the U.S. Virgin islands; persons granted fee waivers; diplomatic and official benefit application fees; and EAJA fee awards. In addition, the full cost of infrastructure improvements is absorbed in current year budgets, effectively making today’s applicants fund improvements that may only benefit future applicants. These costs should be paid from appropriated funds, not the fee account. Infrastructure costs should be funded more like a bond issue. If CIS is expected to operate like a business, then all the rules of business should be applicable. The first customers to a new store should not have to pay the entire cost of the building. The present fee account structure is little more than a thinly disguised Ponzi scheme with the current fees used to defray the cost of processing last year’s benefit requests.

There are other ideas where these came from, but you get the point. “Comprehensive” doesn’t mean an amnesty, more fences and finishing off the nonimmigrant alphabet. I personally believe the immigration issue could be settled in a fair, rational manner without imposing a huge burden on the taxpayers. But I have no illusions that it will be.