Ever since the people of Minnesota elected Al Franken their U.S. senator, there's been a hole in my comedic heart.  The good Senator doesn't keep counsel with me, but I've discerned that he's made a personal vow to never again offer a hint of his former incarnation as one of the nation's most hilarious comedians and sketch comedy artists.  

In other words, he has adopted a serious mien, a gravitas befitting his membership in that elite conclave of the 100.  So far as I can tell, he hasn't said anything really funny since before July 7, 2009 (when he took his senatorial oath before Vice President Joe Biden), and has rarely even mentioned the word "comedy" (except when offering a eulogy to his former writing partner, Tom Davis).

But since last Thursday, I have been consoled, although not comedically.  That's when I was reminded of his famous role on Saturday Night Live as the "caring nurturer" and "member of several 12-step programs," Stuart Smalley.

I thought then of Stuart's famous tag line, and tweaked it because of what Sen. Franklin did. He clearly showed that he's still more than "good enough . . .  [and] smart enough,"  and that "doggone it [immigration reform advocates really] like [him]."  

While nonetheless sticking to his vow of steadfast unfunniness, he persuaded his colleagues on the Senate Judiciary Committee to adopt by voice vote an amendment (Franken 4) to the Gang of Eight's comprehensive immigration reform (CIR) bill, S. 744.  If CIR is enacted with Franken 4 included, it would establish within U.S. Citizenship and Immigration Services (USCIS) an "Office of the Small Business and Employee Advocate" (the SBE Advocate), whose purpose would be to "assist small businesses [firms with 49 or fewer employees] and individuals in complying with the [Form I-9 (employment-eligibility-verification) requirements" of the immigration laws, "including the resolution of conflicts arising in the course of attempted compliance with such requirements."

The new role for the SBE Advocate complements the expanded authority of the USCIS Ombudsman under another amendment engrafted onto S. 744.  Like the Ombudsman, the SBE Advocate is empowered to provide assistance to the public, resolve I-9 compliance problems and make recommendations for changes to immigration laws and regulations.  

Unlike the bully-pulpit authority of the Ombudsman, however, the SBE Advocate would be authorized to issue an "Assistance Order" if any employer (not just a small business) or an individual has suffered or will likely suffer a "significant hardship" relating to I-9 compliance.  The SBE Advocate can also consider "significant hardship" more favorably to the small business or individual if USCIS does not follow its own "applicable published administrative guidance" and require the Secretary of Homeland Security under the terms of an Assistance Order:

• to cease any action, take any action, or refrain from taking any action, with respect to the small business or individual under the I-9 provisions of the immigration laws; 
• to determine whether any employee is or is not authorized to work in the United States; or 
• to abate any penalty under such laws that the SBE Advocate determines is inappropriate or excessive.

The anticipated creation of the Office of SBE Advocate follows on the longstanding difficulties encountered by small businesses in trying to comply with immigration law requirements and the more recent laudable attempts by USCIS to espouse (and, alas, inconsistently demonstrate) support for small-business entrepreneurship under that agency's Entrepreneurs in Residence program, which has provided useful training to its adjudicators and continues to grow.

So, all in all, I'm pleased with Sen. Franken and his Minnesota niceness; but I still miss Stuart Smalley.  Although mollified by Franken 4, but still unable to fill that comedic hole in my heart, I searched the web to find out what morphed Stuart into Senator Franken. Lo and behold I think I've found it.  It was obviously his encounter with erstwhile presidential candidate and inventor of the internet, Al Gore, that turned Stuart into a politico:

Doggone you, Al Gore!

Frugality, something second nature to our colonial forebears, is a trait we Americans seem to have forgotten.  We are profligate in our material acquisitions and in their disposition. (Witness the growing mountains of toxic electronic waste that are almost as hard to be rid of as spent nuclear fuel.)   Saving for a rainy day is not the meme it once was.

Similarly, in the immigration ecosphere, federal officials are just as wasteful of finite resources.  Over many years, administrators at U.S. Citizenship and Immigration Services and the State Department's Visa Office have bungled the distribution of a most precious commodity under their charge -- the annual allocation of immigrant visas. Unlike material waste, however, immigrant-visa quota numbers evaporate without a trace rather than linger in the environment.  Every September 30, all unused immigrant visas for that fiscal year disappear.  

Moreover, unless Congress intervenes, nothing can be done to recapture a green card lost because immigration bureaucrats gave it to the wrong person or otherwise failed to make it available in time to a deserving would-be immigrant.  

Unfortunately, "courts are not time machines" capable of undoing immigration-agency mistakes, as the Ninth Circuit Court of Appeals ruled last week in Li v. Kerry. The three judges deciding the case found themselves powerless to help a group of plaintiffs born in China who claimed they were the victims of improper green card allocation by USCIS and the State Department.

Although these agencies reportedly violated a law requiring the conferral of immigrant visas on a first-come, first-served basis, they instead gave green cards due the plaintiffs to other foreign citizens.  The judges' response:  Too bad, too sad -- for Congress created no penalty or remedy that the courts could apply when immigration officials, however often, misallocate or waste green cards.  As Judge Reinhardt noted in his concurrence:

Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas. . . . [A]ccording to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China. These visas—numbering over 2,300—would have permitted applicants from China to live and work in this country as legal permanent residents and to start on a path to United States citizenship at the time intended by Congress. Instead, the government erroneously gave these visas to individuals from other countries, many of whom had been waiting far less time for the same type of visa than their Chinese counterparts. . . .

[W]hat is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it. Although we dismiss Plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result.

If courts can't fix the problem, then our elected leaders, having claimed repeatedly to be ultra-concerned about the interests of law-abiding immigrants who have played by the rules and patiently waited in the green-card line, must act.

The solution is not just for Congress to recapture lost green cards, as it did twice before in 2000 and 2005 when passing the American Competitiveness in the Twenty-First Century Act and the REAL ID Act, and as the President has just suggested ("The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas . . . ").

As part of comprehensive immigration reform, Congress should enact a law providing that unused quota-limited immigrant and nonimmigrant visas in any fiscal year should automatically roll over for use in later years. The law should also grant courts the power to craft equitable remedies for persons like the plaintiffs in Li v. Kerry, short-changed by erroneous actions or omissions of immigration bureaucrats, without taking away vested visa benefits already conferred on others.

This new law ought to be a no-brainer.  It grants not a single extra visa beyond the quota set by Congress.  Rather, it reaffirms that we are not just a nation of immigrants but a frugal people as well. 

The New I-9:

Why Now When We Need Immigration Amnesty for Employers?

---

By Nicole Kersey and Angelo A. Paparelli

Irony was plentiful last week in Washington and around the country. 

One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul's filibustery droning against drones in protest of John Brennan's nomination as new CIA director. 

Also last week President Obama met with religious leaders to promote "Commonsense [sic] Immigration Reform" as the "leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations" -- especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).  

At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, "aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship," is accused of flip-flopping on immigration.

Last week also witnessed the release of two noteworthy publications on immigration.  

One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility: 

Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)

The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.

All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS).  The agency projects that the new I-9 -- consisting of seven pages of instructions to complete two pages of the form itself (up from the current one-page form) -- will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million. 

Why now?

With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?

CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary.   Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.

Why did the form change?

The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:

-          The old form “expired.”

-          The expiration gave USCIS an opportunity to implement improvements to the form.

-          Improvements (according to USCIS) include:

-          Adding “helpful” fields such as the employee e-mail address and telephone number

-          Revising Section 1 to make it “easier to read and understand”

-          Adding an area for a 3D barcode to “promote the modernization of USCIS forms”

-          Giving employers more space

-          Making the instructions clearer and easier to understand

Whether this was truly the most opportune time to make changes to the form is highly questionable.  Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now.  Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date?  USCIS doesn't say.

Did USCIS adequately respond to public comments?

Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments.  While this suggests that USCIS actually read the comments, the agency's response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form.  The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.) 

What changed?

The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions.  The List of Acceptable Documents still occupies a single page.   Aside from formatting and stylistic changes, there are also substantive changes:

• The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.  
  • Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
  • Confirmation that P.O. Boxes are not acceptable.
  • A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
  • Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
  • The addition of instructions for minors and disabled employees.
  • In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
  • More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
  • The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
  • New fields have been added for employees to record telephone numbers and e-mail addresses.  These fields are optional.  The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
  • Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name). 
  • Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form.  This relates to CBP’s plans for automation of the I-94 card.  Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data.  Others are instructed to write “N/A” in these fields.
  • The signature box for the employee has been improved to prevent employees from signing outside of the box.
  • In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.”  While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
  • “Alien #” has been changed to “Alien Registration Number/USCIS Number.”  For many, this causes confusion.  Let us make it clear:  the numbers are the same, but some government-issued documents use different terms to refer to the same number.
  • A 3D barcode box has been added to the form.  This is a mysterious box, as it is unclear what the government plans to do with it.  All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
  • A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
  • Additional dedicated fields for recording “extra” List A documents have been added.  These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards.  They may cause confusion, however, for others.  It is still not clear which document should be recorded first, second, or third.
  • The employer’s attestation statement has been changed somewhat.  It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
  • Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes.  Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
  • The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not  valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”

What should employers do?

USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.

With that somewhat clunky guidance, we suggest that employers do the following:

Consider waiting to use the new form until you take time to:

• Read and digest the revised M-274 Handbook for Employers, available here. 
• Update your company policies and protocols to reflect changes to the form.
• Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them. 
• Anticipate questions and issues that may arise.
• Be ready to fix the foreseeable mistakes that are likely to arise.
• Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.

* * *

Sen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.  

Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.

One of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.

The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.  

Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:

[There] are instances – even during tough economic times – when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . . 

[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today’s technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.

The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:

The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.

The problems with the concept, however, are many.

For one, we tried this before and it went nowhere.  In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]  

When the Labor Department proposed its initial list, however, all hell broke out.  Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified.  Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:

Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers must carry the burden of recruitment under an artificial labor certification program (DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers) that is an "empty ritual":

PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.

Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:

[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.

I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled.  I offer, however, some friendly amendments.  

U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs.  A simple print-out of the screen shot from the government's forthcoming database showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition.  Thus, DOL's current PERM labor certification procedure could be eliminated.

Moreover, there should be no change in current H-1B requirements  relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas.  As I explained to NPR's Martin Kaste:

These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.

So let us now face the question posed in the title of this post:  

Will the new labor-business accord produce an immigration death panel?  The answer is "NO"  -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.  

But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."

Steadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:

• Why don't they just get into line like everyone else?
• Why don't they wait their turn?
• Why don't they just follow the law?
• Why should we reward lawbreakers who disrespect our laws?
• Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?

All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than enduring extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.

The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reform apparently has swallowed these memes whole hog:

[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.

The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:

["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.

To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:

The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.

As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:

Instead of dying in the desert, they might just die waiting to become permanent residents.

Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system: 

With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration "wait-your-turn" memes:

[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

As President Obama has said: "Today we have an immigration system that is out of date and badly broken." 

[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:

As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.

The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)

The situation of getting "in line" is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:

1. There are multiple lines, not just one;
2. Unless you have a family or employer sponsor, there is no line whatsoever available;
3. It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
5. There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".

The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The "line" flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

We didn't always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:

The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"): 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.

Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static "line."

Bipartisan outrage erupted in the House last week, with usually loyal Republicans among the most furious and outspoken in the GOP-controlled chamber. Rep. Peter King, a Long Island Republican, chastised House leaders for conduct that is "absolutely inexcusable . . . absolutely indefensible." Declaiming that "we cannot just walk away from our responsibilities," King said that "anyone . . . who contributes one penny to congressional Republicans is out of their minds."

Outside the House, another outspoken Republican, New Jersey Governor Chris Christie, pointed the finger squarely at his party and the Speaker of the House:

There is only one group to blame for the continued suffering of these innocent victims: the House majority and their speaker, John Boehner . . . This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last night. Last night, politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch.

The object of their criticism was the House's failure to pass bipartisan legislation, already approved in the Senate, that would grant financial relief to victims of Hurricane Sandy. Their words, however, could apply with equal vehemence and accuracy to the House's other major year-end failure -- its refusal to vote on renewing and expanding the Violence against Women Act.

VAWA, as it's known, has been an undeniable success since signed into law in 1994 by President Clinton under the sponsorship of then Senator (now Veep) Joe Biden. The incidence of domestic violence has dropped 67% from 1993 to 2010, and, according to the White House, from 1993 to 2007, "the rate of intimate partner homicides of females decreased 35 percent and the rate of intimate partner homicides of males decreased 46 percent.”  

The House GOP, led by its Majority Leader, Eric Cantor, opposed various elements of the VAWA-extender bill that passed overwhelmingly in the Senate: the bill's provision of domestic violence protections to members of the LBGT community and undocumented immigrants, and a section that gives American Indian tribes jurisdiction over non-Native defendants in cases alleging domestic or dating violence. 

The House version that purported to reauthorize VAWA (HR 4970) would have harshly restricted the immigration-related protections of the law.  As the National Task Force to End Sexual and Domestic Violence against Women explains, there are several key failings of HR 4970:

Section 801 eliminates crucial confidentiality protections for victims in the VAWA self-petition and cancellation of removal processes who are married to U.S. citizen or Legal Permanent Resident spouses. By requiring notification to the alleged abuser that his/her spouse has filed a VAWA self-petition, this endangers victims (many of whom may still be living with an abusive spouse since their options are extremely limited as a result of their undocumented status). It would also allow abusers to continue to manipulate the immigration process as a tool of abuse by providing them an opportunity to block her access to legal status. Additionally, it creates duplicative and unnecessary bureaucracy by dispersing VAWA adjudications from specially trained officers in a centralized unit, and increases barriers to safety for vulnerable victims by imposing a stricter standard for approval of VAWA cases than for other forms of humanitarian relief under immigration law.

Section 802 imposes arbitrary and unreasonable barriers for victims, and undermines the law enforcement purpose of the U visa, by narrowly restricting the circumstances in which law enforcement certifications can be issued.

Section 806 discourages crime victims from cooperating with law enforcement, especially in complex or dangerous criminal investigations or prosecutions, and eliminates stability for vulnerable crime victims by terminating their eligibility for permanent residence.

Section 814 burdens victims and existing state criminal court processes addressing domestic violence by discouraging plea bargaining. Because this provision will allow evidence outside the criminal conviction record in determining if someone is deportable due to a domestic violence conviction, it will be impossible for defendants to know whether to accept a plea. The resulting additional criminal trials will result in more victims being forced to face their abusers in criminal cases and most likely, more abusers who do not face any type of conviction when victims are fearful of appearing in criminal cases.

Sections 803 and 804 . . . omit critical amendments that were included in S. 1925 [the Senate bill] to prevent serial abuse and exploitation of so-called “mail-order brides” and other immigrating foreign spouses and fiancé(e)s of US citizens, as well as abuse of the visa system.

When the GOP hue and cry over Sandy burst out, John Boehner and Eric Cantor quickly took steps to make amends. On January 4, the House passed a bill (with the Senate also concurring) that set aside $9.7 billion in relief for regions that Sandy devastated. On January 15, Speaker John Boehner reportedly will bring up a vote for $51 billion more in Sandy relief measures, as requested by President Obama.

Where is the outrage over VAWA?  With Republicans claiming to have heard and now to understand the increasingly pro-female and pro-immigrant voices of the new electorate, the VAWA debacle suggests that the GOP is still clueless.  Are the "innocent victims" of domestic violence any less deserving than the post-Sandy constituents who will soon get relief?  

Channeling Peter King and Chris Christie, I say it is "absolutely inexcusable . . . absolutely indefensible" for the House GOP to have "walk[ed] away from [their] responsibilities. . ." to victims of domestic violence.  "This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last [week]. Last [week], politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch."

America is a forgiving and tolerant nation -- to a degree.  The House GOP needs to wake up quickly, and pass a bill reauthorizing VAWA in the image and likeness of last term's Senate version.  Or else this party of "angry white guy[s]" will only hasten its flight to irrelevance.

With the Obama Administration and lawmakers in both parties promising to fix our dysfunctional immigration system, it's time for a reality-based understanding of global migration and a fresh choice of words.  

As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:

Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent. 

Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.

Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency.  We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.

Consider too these dictionary definitions:

alien /ˈeɪlijən/adjective

1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to 

▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.

2: from another country :foreign

▪ alien residents

3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy

4: from somewhere other than the planet Earth 

▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.

alienate  /ˈālēəˌnāt/Verb

1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: "the association alienated its members".

1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed

2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law

3: to cause to be withdrawn or diverted

Synonyms: alien, estrange, disaffect, disgruntle, sour

When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:

Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."

But times and phrasings have changed.  We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians.  So, "aliens" -- the word -- must go.

We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity.  Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.  

If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto":

America need not surrender its sovereignty.  It need not open the borders for all to enter.  It must make hard choices, yet do so with respect for the dignity of all.  As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":

We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . . 

We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . . 

We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .

To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .

When the rights of migrants are denied the rights of citizens are at risk.

Dignity has no nationality.

On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:

We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.

Let's start by banishing bullying words, hate speech and statutory epithets.  Let's stop the name-calling and start the welcoming.

As Republicans join Democrats in contemplating reform of the nation's dysfunctional immigration system, the final line of the Pledge of Allegiance ("with liberty and justice for all") is the best place to start. 

Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world. 

While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky.  We have posted a "road closed" sign when we should be cleaning off the welcome mat. 

Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who've too often espoused an inhospitable "culture of no."  

America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge's promise of justice and liberty for all.  Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:

Be more respectful and stop treating visa applicants like suspects and liars. Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants.  Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures.  In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers.  Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, "Ugly American" consular behaviors are a turn-off to those whom we would welcome.

Eliminate consular absolutism. No one -- not even someone as admired until recently as General David Petraeus -- is infallible.  Yet current law says that no government official, not the President or the Secretary of State or the Attorney General or any federal judge, can correct mistaken findings of fact made by a consular officer when deciding to refuse a visa application.  Justice for all means due process for all and it means that no one, not even consular officers, are above the law.  Congress should create a means of challenging consular visa refusals and visa revocations, especially where the rights of American companies and families are adversely affected.  The review process can begin with a pilot program covering all immigrant visas and nonimmigrant visas for investors and work-visa applicants, and then be expanded to cover additional categories.

Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation.  When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated "third-degree" style of border enforcement must give way to the rule of law and enhanced due process protections.

Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions.  Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-"tribunal" that has failed to fulfill its professed mission.  It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.  It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard. 

Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor's Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.

Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security's Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.

Reassign Agency Roles.  The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants.  FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor's Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as "labor certification."  Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists.  Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.

Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and -- through remittances sent back home -- in the exporting nation as well.  Why then should there be a quota on economic growth?  The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration.  Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics.  Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes.  The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low.  So, why have a quota on "smart people" (as business leader and philanthropist Bill Gates has asked)?

Establish uniform privileges across all work visa categories.  There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited.  If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories.  There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return.  Nor is it logical that H-1B visa holders have "portability" of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges.  And the mother of all illogical immigration notions -- the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven -- should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).

Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents.  Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system.  Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination.  Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators. 

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.

* * *

These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers. 

While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.

With one week to go before the election, the final days have been marked by heated arguments over the proper role of government.  In the prime battleground state of Ohio, the Presidential candidates have crisscrossed virtually every county, arguing over whether and when government should intervene to save or create jobs.

Political comic, Jon Stewart, recently offered his usual sarcasm-saturated take on the topic, pointing out that -- whether the choice is made by government or the private sector -- consistently investing in winners while passing on likely losers is hard.

The same debate is playing out in microcosm on both coasts. In Washington and Laguna Niguel, officials of U.S. Citizenship and Immigration Services (USCIS) at the agency's DC headquarters and its California Service Center struggle and temporize over the selection of victorious and vanquished EB-5 Regional Centers. 

The EB-5 "employment-creation" immigrant visa category -- despite its 22-year, topsy-turvy history -- is finally beginning to capture the attention of U.S. dealmakers who seek project-financing alternatives to the nation's banks, which remain skittish about approving loans. Wealthy foreigners, however, still see America as attractive. The lure of green cards has produced a bumper crop of non-citizens willing to invest here, especially in Regional Centers, which are allowed by Congress to count both direct and indirect job-creation. 

So, in this land of caveat emptor and moral hazard, where the EB-5 regulations require that funds be "at risk," and Congress allows USCIS to approve Regional Center designations based merely on "general predictions . . . concerning . . . the jobs that will be created directly or indirectly as a result of . . . [EB-5] capital investments," why is USCIS falling down on the job?  Why is the agency requiring reams of detail, elaborate econometric reports, and extensive financial plans and projections, yet is still not quickly approving applications for new or amended regional center designations? Why too is USCIS seemingly usurping the investor-protection role of the Securities and Exchange Commission rather than merely up-or-down adjudicating requests for immigration benefits in prompt fashion as Congress intended? 

I raised these questions in a colloquy with senior USCIS officials at a recent EB-5 stakeholders engagement, suggesting that the more evidence the agency demands, the more likely that foreign investors will infer that approved regional centers are government-vetted, -approved and -endorsed. Wouldn't it be better, I asked, that USCIS disabuse investors of any such inferences by following Congress's design?  The EB-5 is a two-stage process involving classification of investors first for conditional green cards, and then 24 months later, taking another look when a petition to remove conditions on permanent residence is filed.  Thus, if the jobs are not created or the investment is not sustained at the two-year check-in, then why not merely deny the petition to remove conditions? 

Here is the essence of USCIS's response -- "Open Questions from Room, Q2" (which, to me, is unsatisfying):

• Conditional green cards confer precious rights;
• USCIS has a duty to find by a preponderance of the evidence that a reasonable basis has been shown allowing the agency to infer that ten jobs per investor will likely be created;
• USCIS has a duty to protect American job seekers and foreign investors from sketchy investment deals;
• Denying petitions to remove conditions on residence would disrupt the lives of investors and create adverse financial consequences for many parties;
• The agency therefore must ask for all the evidence it needs and take sufficient time to reach the conclusion that however many jobs a regional center predicts will be created will in fact result.

In a perfect world, this explanation might be plausible; but in the real world of business, deals can't wait months and months to determine if EB-5 investor financing will be permitted.  Congress declared that regional centers merely submit "general predictions" that the required "jobs . . . will be created directly or indirectly as a result of . . . [EB-5] capital investments . . ."

I offered USCIS a compromise solution:  If a regional center predicts that 300 jobs will result from an aggregation of EB-5 investors' funds, but USCIS believes the evidence only establishes 250 reasonably likely jobs, why not approve the regional center designation and only allow investments capped at the amount needed to support this lesser number of jobs?  The reflexive USCIS initial response was that such a finding might be interpreted as an endorsement by the government that the creation of 250 jobs is assured.  Fortunately, however, the USCIS official leading the stakeholder engagement agreed to give further thought to the suggested compromise.

If USCIS adopts the suggested practice of capping the amount of permitted investments by issuing a decision that permits but does not require a prescribed number of reasonably foreseeable jobs to be created, then a virtuous cycle ensues: 

• Regional centers and prospective EB-5 investors would be given the freedom to exercise their respective business judgment and independently decide whether or not the deal still makes sense; 
• If the scaled-back deal seems sound and investors still invest, they place their funds "at risk," as Congress intended;
• Each investor, rather than the government, picks the hoped-for winner, as the god of Capitalism intended;
• The rule of law would be honored by USCIS more in the observance than the breach, and
• Immigration stakeholders would be one step further removed from living in a bureaucratically contrived Nanny State. 

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.  

TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:

• 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
• Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
• The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
• Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
• R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
• Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.

Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

"[A] riddle, wrapped in a mystery, inside an enigma"  ~ Winston Churchill

The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939.  U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts.  Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.

If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items -- border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents.  It must also strive to simplify the law.  

Consider what should be a straightforward concept -- following the rules.  How does a noncitizen comply with the immigration laws?  What does it take to maintain legal immigration status?  Sadly, the answer is as clear as fracking fluid runoff.  

For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a "nonimmigrant") through the action of a third party, say a parent or spouse, a spouse's employer, a university official, or a lawyer, can "fail to maintain nonimmigrant status," be in a condition known as "unlawful presence" and "not [be] in a lawful nonimmigrant status" -- three phrases in law or regulation that often don't mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for "duration of status," a condition that carries no date-certain expiration. Go figure.) 

Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as "advance parole") and then reenter in order to await the grant of a green card under the adjustment of status process.  Such a person would not have maintained nonimmigrant status -- indeed would not have any legal status (because parole is not a status) -- and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.

Or, consider a foreign person with a U.S. work permit.  As I've noted in an earlier post about human levitation, you may have the right to work here but not to be here.

Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one's passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.  

Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened.  The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period.  Or s/he may be misled by the DMV which issues a driver's license with a validity period extending to the later end date on the clip-out I-94.  

Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person's immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal -- all because of confusion over the simple concept of maintaining legal immigration status.

If that's not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the "last action rule" in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The "rule" sounds simple enough: Whichever status was the last one granted ("the last action") controls the person's nonimmigrant status.  Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II). 

Still worse, if the immigration laws make it virtually impossible to know who's in legal status, they make it harder than a Rubik's Cube to figure out who's here illegally, as DREAM activist Prerna Lal explains in "It's More Complicated than Legal vs. Illegal," her open letter to Ruben Navarette -- which challenges his defense of the slur, "illegal immigrant."

If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed -- assuming that the immigration agency exercises its heart (which it occasionally does).  Still, it's a shame USCIS doesn't heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that "yield up meaning only grudgingly" to reveal "morsels of comprehension [which] must be pried from mollusks of jargon." 

The federal government regularly auctions airwaves and drilling leases.  Should it also auction humans?  This is the startling question posed recently at a May 15, 2012 Hamilton Project conference in a paper, a slide presentation and the transcript of remarks offered by Giovanni Peri, an economics professor at the University of California (Davis). Prof. Peri provides an intriguing, market-based proposal ("Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth") -- in three phases -- to reform America’s sputtering immigration system. 

Surprisingly to me, a well-griddled and grizzled immigration lawyer, conference participants expressed largely enthusiastic support for his proposal, but doubted that Congress has the near-term will or ability to tackle comprehensive immigration reform. In my view, while Prof. Peri’s description of current immigration dysfunctionalities is spot on, his ideas for a better system are replete with moral dilemmas, inequities and logistical impediments. 

In Phase One, Peri would have the Department of Commerce supervise (or outsource) two online auctions of three-year permits allowing businesses offering the highest bids to employ foreign citizens on provisional U.S. visas.  One auction would be for low skilled immigrants (similar to the H-2 visa) to fill jobs that Americans tend to shun; the other would be for H-1B workers in specialty occupations (and possibly also TN workers from Mexico and Canada under NAFTA and L-1 intracompany transferees). The number of permits to be auctioned would be based on average annual usage in the corresponding nonimmigrant categories over the prior ten years. Permits could be traded in a secondary market to hire a replacement foreign worker, or resold for the unexpired term, if a foreign worker invokes the right of job portability.  Peri says he would also protect small businesses by allocating a minimum number of permits to them or by capping the number of permits that any single employer could buy via auction. 

Phase Two would extend the auction to all other “labor-based” nonimmigrant and green card categories.  Phase Three would take into account the number of foreign citizens who have entered under the labor-based categories and then adjust (“rebalance”) the family-based categories (presumably because fewer family-based immigrants will be needed).  Along the way, he would create a path to legalization for the 11.5 million undocumented foreigners in the U.S., and use funds from the permits to enhance E-Verify, protect the border, pay for Commerce Department auction expenses, and allow the Labor Department to conduct more immigration audits, given that the agency would no longer be supervising tests of worker availability under the temporary and permanent labor certification programs. 

Prof. Peri does not dub the monies paid through the Commerce Department auctions as new taxes but that’s in effect what they are.  I suspect that Grover Norquist and his obeisant promise-keepers might agree that a levy imposed on companies for the privilege of employing a foreign worker seems just as much a “tax” as the gas-guzzler tax that must be paid for the privilege of buying a fuel-inefficient luxury vehicles. More troubling to me, however, is that Prof. Peri’s proposal and those of other auction proponents seem too reminiscent of 18th Century slave auctions except that the auctioned permits convey not ownership but a temporary right to import a foreign worker for up to three years as long as employer and employee remain satisfied with the arrangement. 

I share Peri’s interest in market-based solutions, but believe market-testing has already proven that -- at least in the nonimmigrant sector -- artificial visa quotas are not necessary.  History shows (as Peri notes) that when the economy sizzles, the annual allotment of quota-based visas has been consumed in days, but when it is frail, the quota supply has not run dry. 

There are better ways of improving the immigration system that nonetheless promote Peri’s goals of simplicity, fairness and economic growth.  Here are a few: 

1.      Simplicity. By reducing unneeded visa categories and consolidating immigration authority in one department, the unnecessarily byzantine complexity of immigration laws could be replaced by a far more rational system. 

• Each employment-based nonimmigrant and immigrant visa category was created for a specific purpose, but many categories overlap.  Sometimes the overlap is beneficial, e.g., the B-1 in lieu of H-1 subcategory of business visitor serves as a safety valve when H-1B quota numbers have run out and provides a ready alternative to the cumbersome and costly H-1B category for short-term entrants who will remain employed abroad and not be hired by a U.S. employer.  But many times the duplicative categories make little sense.  We don’t really need four types of intern/trainee categories: a J-1 intern/trainee, an H-3 trainee, and a B-1 in lieu of H-3 trainee and a Q-1 cultural trainee.
• We don’t need multiple categories of dependent family members of principal work-visa holder (H-4, L-2, E-1, E-2, E-3 ad infinitum); they should be grouped under a single dependent category with spousal employment rights. 
• We don’t need multiple agencies administering their separate immigration turf across multiple Executive Branch departments.  We really only need one enforcement directorate and one benefits directorate within a single Department of Immigration led by a Secretary who sets policies and resolves intra-departmental disputes, as well as an independent Article III Federal Immigration Court to perform traditional judicial functions within this specialized area.   

2.      Fairness. By insuring procedural due process, consistency and transparency, our immigration system would be less a trap for the unwary and unlawyered, and more an example to the world. 

• Congress should declare an Immigration Stakeholder Bill of Rights and Responsibilities that, wherever possible, would apply uniformly across all immigration categories, and allow for attorneys fees and costs to be reimbursed if a party claiming material infringement of rights prevails in an administrative claim against the infringer, whether that be the government or an employer. 
• There is no reason why applicants for adjustment to green-card status in H and L visa categories may travel on their existing visas and thus are relieved of the burden of applying for advance parole travel authorization while those in E, F, M, J, O and other categories are treated as having abandoned their adjustment applications if they leave the country without advance parole and reenter on their valid nonimmigrant visas. 
• There is no reason why EB-5 investors and Special Immigrant religious workers may not apply for adjustment of status unless they have an approved immigrant visa petition, while virtually all other applicants can apply for adjustment concurrently with the filing of an unapproved immigrant visa petition.
• There is no reason that numerous parties with a legal interest in an immigration matter should be deprived of the right to be heard in a case affecting that interest.
• As noted, all spouses of principals on work visas should be given open-market employment authorization, not just E and L spouses.
• The fault or adverse actions of others should not be attributed to innocent parties.  DREAMers brought here through the violations of their parents should be given avenues for relief.  A worker faultlessly fulfilling the terms of a particular employment-based visa should not lose status when his/her employer terminates employment.  Adjustment of status portability should be a benefit enjoyed by the employer who sponsored the worker’s labor certification application as well as the worker/beneficiary (the “cell-mitosis” theory of portability that I’ve espoused before). 
• Foreign citizens in removal proceedings should be given meaningful rights akin to those of criminal defendants.
• Unfair and unevenly applied legal presumptions, such as the presumption of immigrant intent, should be eliminated; instead, applicants for visas and immigration benefits must merely be required to establish eligibility for the visa or benefit sought based on the facts and law.
• Vested rights, such as the right to work, should not be taken away while an adverse decision is pursued in a non-frivolous administrative appeal.
• The newly created Article III Federal Immigration Court should conduct de novo hearings and review appeals of denials of visas, waivers and applications for extension, change or adjustment of status without any deference accorded to the agency because of its presumed expertise but decide the case solely on the facts and law. 

3.     Economic Growth. In addition to the usual recommendations (elimination of per-country immigrant visa quotas, expedited green cards for STEM graduates, etc.), there are many ways that immigration can spur economic growth: 

• Nonimmigrant visa quotas should be eliminated since it makes no sense to have a quota on the number of smart, talented and hard-working people we allow in to help us grow the economy and create jobs.
• Just like the spouses of U.S. citizens, immediate family members of lawful permanent residents (who can provide support to sponsored relatives at 200% of the federal poverty guidelines) should not be subject to immigrant visa quotas.
• Dependents of employment-based immigrants should not be charged against the annual immigrant visa quota.
• Congress should enact the $$$ Visa, allowing three-year, renewable periods of authorized stay and work permission, for foreign citizens who purchase homes in the U.S. valued at $500,000 or more.
• Congress should pass a law granting the newly established Department of Immigration authority to conduct an annual immigration “race to the top” whereby states who propose market-based immigration incentives that are likely to promote significant local hiring of Americans or investment in the state are awarded a set number of work visas and green cards to confer on grantees.
• Family-owned businesses with real jobs for real money should be allowed to bring in their relatives from abroad to work in those jobs as a means of promoting family values and immigrant entrepreneurship.
• Congress should create a Golden-Spoon/Retirees’ Green Card for high-net-worth immigrants who have no desire to work in the U.S. but who purchase and hold at least $3 million worth of U.S. Treasury bonds.
• Congress should authorize a Create-American-Jobs program that would provide blanket approvals and expedited adjudications of applications seeking immigration benefits for U.S.-based with a proven track record of using the immigration system to create jobs in the United States. 

Just like the anticipated Congressional reaction to Prof. Peri’s proposals, the realist in me knows that my suggested immigration policy reforms will likewise be rejected in the near term.  That said, he and I are not “two wild and crazy guys” unfamiliar with the way things are done here.  We merely believe that later, or preferably sooner, our people and our leaders will come to see that the immigration status quo is “broke" and desperately needs "fixin’.” 

[Bloggers Note:  This post is authored jointly by Brandon Meyer and Angelo A. Paparelli] 

Some scandals raise eyebrows; others cause real economic harm.  The one we're about to reveal -- known as "tenant occupancy" -- does both.  It makes the GSA's Las Vegas cavorting pale in comparison. (Immigration lawyer alert:  For those with prurient interests [you know who you are], "tenant occupancy" is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)

Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department's immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America's immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA”) have typically been honored in the breach and ignored in the observance.

Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS's spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.

Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB).  Instead, the agency posts proposals on USCIS.gov.  Each mode of public notice allows for stakeholder comment and engagement.  But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS's web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.

Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.  

Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November's elections.  In particular, we speak of the EB-5 employment-creation investor green card program. Section 11033 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how a group of long-unresolved investor cases would be decided.

Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final. 

Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.

What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on "hold" at the headquarters level while "issues" remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.

Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.

For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds.  This is presumably the new expertise that USCIS's "newly-hired economists and business analysts" would bring to the analysis of job-counting methodology. 

The 2002 EB-5 legislation, however, already provides the proper analytical framework.  In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note): 

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)

Thus, Congress dictated that "general predictions" on "jobs . . . created directly or indirectly as a result of [EB-5] capital investments" should suffice.  So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?

Lawyers and petitioners who've filed Regional Center applications containing tenant-occupancy calculation methods soon found out.  Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs”), symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.

Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol. 

Although USCIS's RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.

The agency's RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”

These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.

If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)

USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration's own statements acknowledging that counting jobs is not an exact science but instead requires "crude" measures that involve admittedly inexact presumptions.  See, e.g., "Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009," Executive Office of The President Council Of Economic Advisers, May, 2009. 

The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).

Will USCIS announce its intention to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)?  Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS's lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA's OIG has done of that agency's Vegas escapades)?  Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA's mind reader to find out.

At President Obama’s signing ceremony for the JOBS Act last week, White House guests slapped high fives with bipartisan glee. They came to the Rose Garden to help “Jumpstart Our Business Startups,” as the new law’s title optimistically promises to do. With pen in hand, the President joined in the merriment, observing that it’s not about blather but action:

One of the great things about America is that we are a nation of doers -- not just talkers, but doers. We think big. We take risks. And we believe that anyone with a solid plan and a willingness to work hard can turn even the most improbable idea into a successful business. So ours is a legacy of Edisons and Graham Bells, Fords and Boeings, of Googles and of Twitters. This is a country that’s always been on the cutting edge. And the reason is that America has always had the most daring entrepreneurs in the world. . . . [M]aybe one of them or one of the folks in the audience here today will be the next Bill Gates or Steve Jobs or Mark Zuckerberg. And one of them may be the next entrepreneur to turn a big idea into an entire new industry. That’s the promise of America. That’s what this country is all about.

With an eye to November and an 11% approval rating, members of the House and Senate are trying at last to rebrand themselves as a “done-something” Congress. Would it were so with the DREAM Act or with urgently needed reforms to our antiquated system of legal immigration whose last major enactment occurred in 1990. Regrettably, when it comes to immigration, the American people get claptrap not high fives.

Three years ago the Council on Foreign Relations (CFR) issued a bipartisan report and recommendations on U.S. immigration policy, the work of a task force study led by Florida Governor Jeb Bush and Thomas F. "Mack" McLarty III, former White House Chief of Staff to President Clinton. Last month, another bipartisan CFR task force, this one headed by Condoleezza Rice, former Secretary of State under the second President Bush, and Joel Klein, ex-Chancellor of the New York City education department and Counsel in the Clinton White House, issued its study and suggestions to improve U.S. national security by reforming education.

Taken together, these reports sound a clarion call for immediate legislative action on legal immigration.

As the Bush-McLarty report proposed:

The Task Force recommends that the United States tackle head-on the growing competition for skilled immigrants from other countries and make the goal of attracting such immigrants a central component of its immigration policy. For decades, the primary goal has been to ration admission; in the future, recruiting the immigrants it wants must be the highest priority.

The Rice-Klein study on education reform and national security concurs:

Too many schools have failed to provide young citizens with the tools they need to contribute to U.S. competitiveness. This, coupled with an immigration system in need of reform, poses real threats to the prospects of citizens, constrains the growth of the U.S. talent pool, and limits innovation and economic competitiveness.

The epicenter of the logjam on immigration bipartisanship – at least in the Senate – is Iowa Republican, Chuck Grassley.  Although he voted “Yea” on the bill that became the JOBS Act, Sen. Grassley is an immigration obstructionist, seemingly blind to the links between employment-based visas, U.S. prosperity and job creation for our citizens.

Despite passage in the house by a 389 to 15 vote margin, he has held up a vote on the Fairness for High-Skilled Immigrants Act — a bill that would eliminate the per-country caps on employment-based immigrants and thus allow foreign workers born in China, India and other quota-backlogged countries to obtain a green card more quickly. Sen. Grassley has also blockaded a proposal pushed by fellow Republican Senator, Scott Brown, which would give Irish citizens parity with Australians in receiving E-3 visas.

The Iowa senator worries that “flooding the employment market with foreign workers when high-skilled Americans are seeking jobs at unprecedented levels, just doesn't square with improving the home-team advantage, let alone fostering a level playing field.”

Even more worrisome to Sen. Grassley are immigration fraudsters who steal jobs from Americans. He sees them everywhere, much like the young boy, Cole Sear, in the 1999 film, The Sixth Sense, who sees dead people all around:

Cole Sear (played by Haley Joel Osment): I see dead people.

Malcolm Crowe (played by Bruce Willis): In your dreams? [Cole shakes his head no]

Malcolm Crowe: While you're awake? [Cole nods]

Malcolm Crowe: Dead people like, in graves? In coffins?

Cole Sear: Walking around like regular people. They don't see each other. They only see what they want to see. They don't know they're dead.

Malcolm Crowe: How often do you see them?

Cole Sear: All the time. They're everywhere.

Sen. Grassley wants to place even more rigid controls on the H-1B visa (for Specialty Occupation Workers) and the L-1 visa (for Intracompany Transferees). The senator would inflate the wages that U.S. employers must pay skilled foreign workers (even though the law of supply and demand is producing that result already without an act of Congress), require feckless labor market testing of workers in occupations with low unemployment rates, and give even more authority to the Labor Department to send disruptive auditors to the worksites to investigate the supposedly ever-present fraud that he perceives.

And as Congress dawdles on legal immigration, Sen. Grassley has been a one-man lightning rod, jolting the immigration agencies under the W and Obama administrations and intimidating them so that they jump to his bidding.

Under pressure from Sen. Grassley, U.S. Citizenship and Immigration Services (USCIS) and the Department of State have denied and revoked visas and work petitions, while sending ever larger legions of immigration gumshoes from the USCIS Fraud Detection and National Security Directorate (FDNS) on unannounced and repeated visits to worksites around the country.

Not content to engage in officious intermeddling with an Executive Branch immigration agency, Sen. Grassley has also been busy tasering the Department of Homeland Security (DHS) Inspector General (IG) into issuing breathless reports based on unscientific measurements that unpersuasively document "evidence" of perceived fraud (links available here, here and here).  It's not as if the IG has nothing to do; rather, he should be spending more time investigating DHS's internal operations.

No knowledgeable observer would deny the existence of immigration fraud. I see its victims often among the immigrants who seek my counsel after having been bamboozled not just by a few unscrupulous lawyers but also by the larger ranks of incompetent and dangerous consultants and notarios – a population still coddled by the Labor Department even though USCIS, quite laudably, has mounted a campaign against them. And of course, some percentage of employers will bend or break or simply misunderstand the befuddling “rules” that the immigration agencies have written (or failed to write) in response to the existing crazy-quilt of laws passed by Congress since at least the 1950s. Despite the massive aggrandizement of law-enforcement resources to guard the immigration system since September 11, little evidence exists to show that visa fraud is widespread or that it occurs at any greater rate than in other federal programs.

We can electrify and fortify our borders, and send in the immigration drones and detectives, but we still need law-abiding sojourners and immigrants to reinvigorate our economy and uplift our people.

As much as NationOfImmigrators assails the wrongdoing of the immigration agencies, this blogger knows nonetheless that they are peopled mostly with patriots trying to do the right thing (as a USCIS Service Center Director correctly reminded me last week and as the USCIS’s Fiscal Year 2011 Highlights Report confirms).

They make mistakes, to be sure, and engage in insincere Washingtonian wordsmithing. Take for example the oft-repeated conceit that FDNS site visits are merely cleverly surprising methods to insure integrity in immigration petitions and are not law-enforcement actions subject to Fourth Amendment protections.

The veil’s been lifted on that falsehood, however, with the issuance of a March 30, 2012 federal court order in a Freedom of Information Act (FOIA) suit by the American Immigration Lawyers Association (AILA) against USCIS and DHS. AILA’s lawsuit seeks release of three USCIS documents, viz., its H-1B Benefits Fraud Compliance Assessment Report (BFCA), H-1B Petition Fraud Referral Sheet and H-1B Compliance Review Worksheet. Although the suit continues, the court generally affirmed for now USCIS’s assertion that its actions in refusing disclosure are justifiable under the FOIA exemption found at 5 U.S.C. § 552(b)(7)(E). This section protects records or information compiled for law enforcement purposes from disclosure “to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The agency relies on exemption 7E because the requested records, as USCIS’s own pleadings assert, have been “withheld to preserve the integrity and effectiveness of certain techniques and operations of current law enforcement significance.”

On what are these “techniques and operations of current law enforcement significance” based? The court’s order offer’s a tantalizing snippet:

The final page of the BFCA Report identifies several primary fraud or technical violation(s) indicators: (1) firms with 25 of fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies; (2) firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with annual gross income greater than $10 million; (3) firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years; (4) H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories; and (5) beneficiaries with only bachelor’s degrees had higher fraud or technical violation(s) rates than those with graduate degrees.

Ironically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree.

Clearly, USCIS and its FDNS unit are now running scared by Sen. Grassley’s gassy harrumphing, and see fraud where the President and most members of Congress, including the Senior Senator from Iowa, see opportunities for job creation.

The solution is to debunk the notion that American job losses are caused by increased legal immigration; rather, as the National Foundation for American Policy has shown, more employment-based immigration creates more jobs for U.S. workers.  

One true believer in the power of immigration, Steve Case (former AOL founder and now venture capitalist), who was instrumental in gaining the votes for the JOBS Act, says, "[m]omentum begets momentum."  Case now has set his sights on passing job-creating immigration laws before the November election (a controversial subject among some immigration proponents who believe that only a comprehensive solution, including remedies for the undocumented, will rectify America's immigration dysfunctions).

Perhaps with the help of Steve Case and other business leaders, Sen. Grassley may yet be persuaded to spend less time calling the President “stupid” and, instead let his love of job-creating startups push him to transform his antipathy into appreciation for employment-based, legal immigration reform.  

[Blogger's note:  This week’s guest blog is by Steve Yale-Loehr, a good friend who teaches immigration law at Cornell Law School and co-authors the leading U.S. immigration treatise. Steve has just finished co-editing Green Card Stories, a book that features dramatic narratives of 50 recent U.S. immigrants—each with permanent residence or citizenship—in compelling essays by nationally recognized journalist Saundra Amrhein and exquisite portraits by award-winning documentary photographer Ariana Lindquist.

Steve addresses pragmatic, legal and moral questions raised by GOP proposals that would drop the option of pursuing higher education and instead require DREAM Act youth to serve in the military as the only way to attain legal status. 

Reading Steve's post, I am reminded of the despicable term, "cannon fodder," and the hypocrisy of sending "expendable" youth into harm's way, where many lives will likely be cut short, wasted in wars started by their elders.

Shakespeare penned it best when he had the cynical Falstaff say in Henry IV, Part I:  "Food for powder, food for powder; they’ll fill a pit, as well as better."

A military-only DREAM Act -- more aptly dubbed the NIGHTMARE Act -- sends a terrible message.  Congress should keep the education-option available to innocent men and women (brought here by their families) who by any definition -- other than in law -- are Americans all.

Blogger's postscript to his note: I must apologize for having used the term "cannon fodder" and suggesting that some might view soldiers recruited through a military-only version of the DREAM Act as "expendable."  I now understand and regret that reasonable readers might view this as a criticism of the U.S. military. My intent was to criticize politicians not our armed services.]

DREAM or NIGHTMARE?: 

Why Congress Should Reject a Military-Only Version of the DREAM Act

By Steve Yale-Loehr

First proposed in 2001 by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL), the Development, Relief and Education for Alien Minors (DREAM) Act would allow certain undocumented noncitizens a chance to legalize their status by going to college or serving in the military. Since then it has been introduced regularly both as a stand-alone bill and as part of comprehensive immigration reform bills, drawing bipartisan support each time in both the House and Senate. The closest it has come to enactment was in 2010, when it passed the House but failed to get through the Senate.

Congress has watered down the DREAM Act over the last decade.The original 2001 version would have granted permanent resident status (green cards) to any undocumented child who had been in the United States for at least five years, as long as they had good moral character and were attending a college or university.

By contrast, the Senate’s 2011 version of the bill would require individuals to have entered the United States before they were 15; have graduated from a U.S. high school or received a GED from a U.S. institution;be under 35 on the date of enactment; and have lived in the United States for at least five years. Prior versions of the bill did not include an age cap. Similarly, the current version of the bill would require beneficiaries to stay in conditional resident status for six years before they could get permanent green cards. Early versions of the DREAM Act would have immediately granted green cards to individuals who met the bill's requirements.

The current version would also make applicants subject to more grounds of inadmissibility, deportability, and other restrictions. Some want to water down the DREAM Act even more.Republican presidential candidates Mitt Romney and Newt Gingrich say they would support a DREAM Act — but only for young immigrants who join the military. Representative David Rivera (R-FL) has introduced a bill along similar lines.

Problems with a military-only DREAM Act range from the practical to the philosophical. For example, Representative Rivera’s bill would require people to enlist within nine months; otherwise they would lose their eligibility under the bill. The bill fails to realize, however, that people can’t start the enlistment process until they are legal and have a social security number. It can take longer than nine months to complete the enlistment process, and the military services have annual quotas that get filled quickly when the economy is bad, forcing people into the next fiscal year.

In addition, some potential enlistees may fail to qualify for medical reasons. Suppose someone gets temporary status under the Rivera bill, tries to enlist, and turns out to be colorblind. Do we tell them, "Sorry, we are deporting you because you are colorblind. No refund of the immigration fees you paid to start the DREAM Act process"?

The call for a military-only DREAM Act also poses moral problems. It effectively tells undocumented noncitizens that they are only useful for war, not for improving our economy through their hard work or inspiring the next generation by teaching in our schools. Those professions are just as noble as fighting for our country. As a new book, Green Card Stories, points out, people who legalize their status help this country in a variety of important ways.

Proponents of a military-only DREAM Act also forget the economic benefits of enacting a broader bill. For example, A 2010 study by the UCLA North American Integration and Development Center estimates that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion. Similarly, a 2008 study from Arizona State University found that an individual with a bachelor’s degree earns approximately $750,000 more over the course of his or her lifetime than an individual with only a high-school diploma. In these tough economic times, we need the earnings of everyone in this country as much as we need their military service.

Langston Hughes once wrote:

What happens to a dream deferred?

Does it dry up like a raisin in the sun? 


Or fester like a sore and then run?

Does it stink like rotten meat?

Or crust and sugar over, like a syrupy sweet?

Maybe it just sags like a heavy load.

Or does it explode?”

Politicians should watch out. Trying to dilute the DREAM Act may backfire on them and cause DREAMers to explode in widespread demonstrations and cries of outrage, if necessary to enact a true DREAM Act.

The 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.

That'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?

The Occupy Wall Street movement began with a poster, a word cloud, a QR Code and three lines of text:

#OCCUPYWALLSTREET

September 17th. Bring tent.

www.occupywallst.org. 

Steve Jobs launched his massively successful "Think Different" rebranding campaign for Apple in 1997 with a TV commercial and this script:

Here's to the Crazy Ones. The misfits. The rebels. The trouble-makers. The round pegs in the square holes. The ones who see things differently. They're not fond of rules, and they have no respect for the status-quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world...are the ones who do!

Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Service (USCIS), recently announced with the flourish of a press release an ingenious "Think Different" initiative that may well transform this vexed and vexing immigration agency.  His announcement heralded the new Entrepreneurs in Residence Program (EIR), an experiment that will tap the wisdom and experience of seasoned startup veterans to inject fresh air and fresh insights into USCIS.

The EIR, as the press release explained, "will utilize industry expertise to strengthen USCIS policies and practices" affecting foreign "investors, entrepreneurs and workers with specialized skills, knowledge, or abilities." As Director Mayorkas explained, the "initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth . . .  [with the] introduction of expert views from the private and public sector [which] will help [USCIS] to ensure that our policies and processes fully realize the immigration law's potential to create and protect American jobs."  A two-stage effort, the EIR begins as a "series of informational summits with industry leaders to gather high-level strategic input" and then the heavy lifting follows with the assembly of a "tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions."

The EIR occupation of USCIS cannot come a millisecond too soon.  Just like a Dream Act kid who keeps getting blamed for the mistakes of her undocumented parents, USCIS, only nine years old, keeps receiving many of the same brickbats that bombarded its ancestor, the former Immigration and Naturalization Service (INS).  Unlike the DREAMers, however, USCIS has magnified INS's peccadilloes and committed new more egregious ones of its own.  Ted Chiappari and I describe the venial and mortal sins of USCIS at length in our article, published last week in the New York Law Journal, "Intubation and Incubation Two Remedies for an Ailing Immigration Agency" (link courtesy of ALM Enterprises).

Whether intended or inadvertent, EIR is a deft stratagem, even more artful than Clintonesque triangulating.  Cleverness taken to the fourth degree, EIR, captured in one word, is all about quadrangulation.  If it is to succeed, EIR must task its occupiers to infiltrate and attack from within the four-sided challenge that is USCIS today: (1) the immigration stakeholder community and the USCIS Ombudsman clamoring for more user-friendly enhancements to fusty USCIS interpretations of work-visa eligibility, (2) the ever-campaigning President saying "we can't wait" for the enactment of job-creating legislation, (3) Socialism-incliningRepublicans in Congress, led by GOP commissars Smith and Grassley, who seem, counter-intuitively, to embrace immigration regulation more than job creation, and (4) the agency's anti-business, unionized adjudicators who prefer chaos theory over customer service.

Who will Director Mayorkas tap as the EIR's movers and shakers to prod, awaken, reeducate and redirect USCIS? As noted in the NYLJ  "Intubation/Incubation" article, ideally they should be "industry leaders" with just the right background:

[Entrepreneurs who] harbor a strong interest in an expansive reading of the employment-based immigration laws. Their likely interpretation would view the immigration laws as offering many opportunities to grow startup and established businesses in the U.S. by harnessing the innovations and skills of bright, energized and talented non-citizens. Prospective EIR participants with such interests and perspectives probably will have already used and intend to use again the employment-based immigration laws to secure USCIS's permission to hire foreign workers.

As the EIR experiment in intramural administrative sport begins, an October 29-30 Wall Street Journal editorial ("The Other Jobs Crisis") captured spot-on the immigration dysfunctions that beset America today. Migrant farm workers flee Alabama and Georgia, two states with nativist laws that cause produce to rot in the field. With few Americans willing to descend to back-breaking stoop labor, "incarcerated criminals" are dragooned to "work the fields." Republicans in Congress, the supposed "champion[s of] deregulation and business-led growth" focus on "immigration control" as "one of their main passions," while continuing "to ignore the economic costs" and the need "to overhaul the guest worker program to widen avenues for legal immigration."  Meantime, ironically on www.WSJ.com, GOP Presidential front-runner and pizza-chain turnaround artist, Herman Cain, callously rebukes the Occupy Wall St. protestors: "If you don't have a job and you're not rich, blame yourself! ... It is not a person's fault if they succeeded, it is a person's fault if they failed."

Like his Chief of Staff, Herman Cain is just blowing smoke.  He should know that not everyone can find a job in a nation with a 9.1% unemployment rate (but if Cain is truly "counter-factual" on the cause of U.S. joblessness, he is manifestly unfit for the presidency).  America desperately needs more job creators, the salutary byproducts of a functioning, business-friendly immigration system.  Since Congress will not act, and the President can't wait, my hope is that Director Mayorkas will install "demented" entrepreneurial occupiers of USCIS, "Crazy Ones" who "are crazy enough to think they can change" America by occupying his benighted agency.  

I think that . . . there's no doubt about the seriousness of the problem . . . We have a cancer--within, close to the Presidency, that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself. 

[John] Dean [recapping] the history of the Watergate break-in and subsequent cover-up for . . . President [Nixon]. March 21, 1973

Perhaps only slightly less virulent than the Watergate variety, a cancer is spreading within U.S. Citizenship and Immigration Services (USCIS). The malignancy began with the persistent refusal of U.S. Immigration and Customs Enforcement (ICE) to fulfill its Congressionally appointed police mission under the Homeland Security Act (HSA). Beginning in 2003 ICE routinely turned a deaf ear to the pleas of USCIS adjudicators to pursue suspected immigration-benefits fraud. Frustrated that fraudsters were going unpunished, USCIS similarly ignored the HSA and created a unit, now elevated to a Directorate, known as Fraud Detection and National Security (FDNS). 

The HSA's walling off of immigration-benefits adjudication (a task Congress assigned to USCIS) from immigration enforcement (the shared province of ICE and U.S. Customs and Border Protection [CBP]) reflected a conscious legislative decision.  Hearings in the late 1990s laid bare the longstanding problems of the former Immigration and Naturalization Service (INS) whose conflicting missions of enforcement and benefits had generated decades of immigration dysfunction. 

Afflicted with selective amnesia, however, Congress failed to rebuke ICE or USCIS for crossing the prescribed lines.  Instead, federal lawmakers fueled the mission-creep by larding FDNS with anti-fraud fees paid by businesses seeking immigration benefits for H-1B and L-1 workers.  The result has been that FDNS, staffed with 700 officers and an untolled number of private investigators, has conducted tens of thousands of "site visits" at business organizations and religious institutions throughout the country. 

An August 24 New York Law Journal article, co-authored by Ted Chiappari and me, available here, describes what can go wrong when FDNS site visits (which really should be called what they are, governmental investigations) are structured in a way to create merely an impression that the integrity of the immigration-benefits adjudication process is safeguarded when, in reality, the requirements for a meaningful and fair investigation are ignored.  As one truth-telling FDNS officer explained to the DHS Office of Inspector General (p.15): 

Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. [Headquarters] HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNS’ frustration with the field because we aren’t finding it…. Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality.

So why, then, do I liken the activities of FDNS to a spreading cancer?  Here goes:

1. Free Radicals.  FDNS, like the free radicals that damage healthy organisms, takes aggressive actions without regard to the well-being of the functioning corpus politicus.  FDNS has not published a notice in the Federal Register allowing public comment on how it conducts investigations of the H-1B and L-1 visa categories and has never undertaken a Regulatory Flexibility Act analysis to determine the impact of these investigations on small businesses. 
2. Vulnerable Victims. FDNS through its unannounced site visits invades the premises of unsuspecting and unprepared petitioning organizations. These on-site interrogations, akin to fishing expeditions, are not based on probable cause that a violation of the immigration laws has occurred; nor are they supported by a judicial search warrant.  FDNS provides no prior notice of the investigation to attorneys whom the agency knows are representing the sponsor or the foreign beneficiary.  The records FDNS asks to inspect and the individuals it seeks to interrogate are often, quite legitimately, at other locations; yet the investigators do not allow an opportunity to summon the records or the persons or reconvene at a later date.  Instead, its officers merely write a report that outlines "suspicious" circumstances. 
3. Voracious Behavior. Like a spreading cancer, FDNS breaks down healthy structures. Its investigative techniques flout existing USCIS regulations which prescribe that if the agency desires additional information or testimony it must send a written request for evidence or schedule an interview at a USCIS office.
4. Toxic Effects. Like a cancer, the growing influence of FDNS is debilitating the adjudication process by impairing customer service, speed of adjudication, and predictability of outcome, as last year's internal revolt at the California Service Center and the ongoing opposition of USCIS adjudicators to headquarters policies reflect. FDNS has arrogated to itself a policing function, rightly the role of ICE under the HSA, that is at cross purposes, just like at the old bipolar INS, to the core function of USCIS -- the rendering of a decision, based on the evidence of record, to approve or deny a request for a particular immigration benefit.
5. Surgery and Radiation.  While cancer as yet has not been cured, medical science often succeeds in causing a state of remission.  Doctors typically do this by means of surgery and radiation. So too with FDNS.  Congress or the President should excise this alien growth from the benefits-adjudication process. It should also apply irradiation prophylactics to prevent a recurrence of anti-fraud tumors within USCIS.   To the degree that purgatives are required to remove harmful impurities and maintain the health and integrity of our U.S. immigration system, they should be exclusively of the ICE-y variety.

John Dean's words about Watergate and its cancerous effects could just as readily be applied to the pernicious behaviors of FDNS:  "We have a cancer . . . that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself."  Just as Watergate posed a threat to constitutional government, FDNS is dealing a body-blow to the Fourth Amendment's protection against "unreasonable searches and seizures."  Cut it out.

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.

Credibility is the cornerstone of reputation.  That's why, despite the shock and awe that regular readers of NationOfImmigrators.com may experience, this blogger (who sees immigration dysfunction virtually everywhere, especially under the Obama Administration) now heartily applauds recent actions of two immigration agencies within the Department of Homeland Security (DHS) -- ICE (Immigration and Customs Enforcement) and USCIS (U.S. Citizenship and Immigration Services). 

As suggested below and in a Bender's Immigration Bulletin Podcast I recorded on June 18 at the 2011 American Immigration Lawyers Association (AILA) annual conference in San Diego, Directors, Alejandro Mayorkas of USCIS and John Morton of ICE, as well as the President and DHS Secretary Janet Napolitano, must be commended for taking significant steps to improve the administration of immigration justice (and along the way help the economy).

Mr. Mayorkas, to a far greater degree than any USCIS Director or legacy INS Commissioner in the last 30 years, expresses sincere respect for the rule of law.  He understands and requires compliance with the obligation of his agency's personnel to apply statutory immigration law in good faith as written and adhere to precedent decisions and national policies.   Mr. Mayorkas has brought the dispassion and intelligence of a lawyers' lawyer to USCIS, making changes based on reason and law, without favoring any person or interest, and committing to a policy of justice and equality of treatment and access.  (For any who may doubt or challenge my assertion, check out two sessions of the AILA conference in which Mr. Mayorkas offered his views [CD Nos. 17 & 86, purchase required]. If you think I routinely gush over the statements of USCIS officials at AILA conferences, disabuse yourself by checking out this prior rant.])

Mr. Morton -- despite a vote of no confidence by the ICE labor union -- has chosen to exercise leadership.  He has released two significant policy memos encouraging his officers to exercise  prosecutorial discretion, based on a 19-factor analysis, in favor of low-priority immigration violators and victims and witnesses of crime, and against perpetrators of violence and other serious felonies.

Most immigrants' rights groups chastised Mr. Morton, however, for not having gone far enough.  They attack ICE for not surrendering on the star-crossed program known as Secure Communities that has ensnared and deported far more petty immigration violators than hardened criminals. 

On the other hand, the nonpartisan Immigration Policy Center and AILA, the national immigration bar association, have lauded the new prosecutorial-discretion (PD) memos as positive moves.  They argue persuasively that in the absence of comprehensive immigration reforms which would align America's broken and wobbly immigration system with our national interests, and in an era of limited resources, the memos reflect a leadership decision to apply "smart enforcement" policies.  Smart enforcement, as the memos articulate, ensures that ICE's officers on the ground make individualized determinations of eligibility for prosecutorial discretion. 

Noncitizens whose personal circumstances, immigration history and foreseeable path to legal status cause them to rank low on the enforcement-priorities list -- the memos declare -- should be given deferred action.  Deferred action, in turn, makes them eligible for a work permit.  On the other side of the PD equation, individuals with particularly unsavory backgrounds or with rap sheets suggesting that they are dangerous to the communities should be fast-tracked on the due-process train headed for a removal hearing.  (One less understood but welcome aspect of the memos is that now an ICE attorney can set aside any Notice to Appear that he or she determines would involve an individual who is better suited for deferred action than a removal hearing, thereby freeing up precious judicial and executive resources to remove highly undesirable or dangerous noncitizens.)

Despite the deserving plaudits at the top of USCIS and ICE, it remains to be seen whether these interim, though important, initiatives will bear fruit.  Will the line officers and supervisors of each agency embrace their leaders' moves?  Or, as is perhaps more likely, will they engage in passive-aggressive behavior, palace intrigue and heel-dragging? 

Given the ICE union's condemnation of Mr. Morton and his policy memos (and their probable unwillingness to excersise conscientious compassion), as well as the resistance of some within USCIS to Mr. Mayorkas' commitment to the rule of law, the stakeholder community must apply its own leverage.  Here are a few things insiders and outsiders can and should do:

1. What Get's Measured and Rewarded Gets Done.  ICE must take steps to collect metrics on requests for prosecutorial discretion and individual ICE officer decisions.  The agency must make sure that it receives sufficient raw data to determine whether decisions on discretion align with ICE's national enforcement priorities.  For officers who persist in repeatedly routing objectively deserving cases to the immigration courts rather than to deferred action status, appropriate warnings and discipline should ensue.  Those, however, who instead apply the PD policy within its spirit and letter should receive ICE's approbation and career promotion. 
2. The Sunlight Brand of Disinfectant. DREAM Act supporters and others with favorable immigration equities should mount a grass-roots campaign to pressure ICE to publish meaningful data on the agency's actual exercise of prosecutorial discretion or enforcement.  To make this happen, community-based organizations (CBOs) should campaign to encourage individuals requesting prosecutorial discretion to waive personal privacy over key data fields that correspond with the worthy and adverse factors in their individual cases. If such waivers are coupled with the requesting parties' insistence that the decisions be released, then CBOs, the public and the media would know whether or not the PD policy is working. Congress can also make sure through its oversight function that reliable data is made available for all to see.
3. USCIS Must Issue Its Own PD memos. ICE holds no monopoly on discretion.  As legacy INS Commissioner, Doris Meissner, made clear in 2000, immigration adjudicators also have power to show leniency in deserving cases.  Mr. Mayorkas should formally instruct all USCIS officials that they too will be held accountable if they waste precious resources issuing burdensome requests for evidence and notices of intention to revoke or deny petitions or applications where a wise exercise of discretion under existing USCIS regulations would otherwise fairly resolve the case.  There should be no more spitting-on-the-sidewalk rulings placing otherwise law-abiding foreign citizens "out-of-status" who seek immigration benefits. A fairly administered PD policy could create immigration miracle cures that allow USCIS to forgive minor visa missteps.
4. You Get What You Pay For. Immigration notarios and unlicensed consultants (notwithstanding the commendable federal campaign to eradicate them) will no doubt continue to harm unrepresented immigrants by claiming that prosecutorial discretion is the new way to obtain work permission. Because there is no government form to request PD, however, the myriad immigration form-preparer outfits cannot legally represent persons seeking PD.  Only "accredited representatives" and lawyers in good standing may do so.  The business and nonprofit communities should therefore provide funding to lawyers (in compliance with ethics rules) so that well-documented and deserving PD requests with a good chance of success are submitted. Employers and labor unions who have tussled of late over the Obama Administration's "silent raid" policy should instead cooperate and identify/assist loyal and deserving workers with legal-fee-subsidized PD requests. 
5. Oppose Hypocrisy.  PD is not "back-door amnesty." No doubt House Judiciary Committee Chair Lamar Smith dislikes eating the words he wrote in 1999: "The principle of prosecutorial discretion is well established."  He also knows that the votes are not there to roll back smart enforcement or override an assured Presidential veto of any such measure.  Don't let Rep. Smith and his ilk get away with any false claims or ill-advised policy reversals.
6. Oppose Hate.  Immigration restrictionists are not pleased with the PD memos and will do whatever they can to attack any discernible trend to exercise discretion favorably.  The antidote to hate is the telling of truthful narratives by deserving persons who are allowed through PD to pursue, however tentatively, the American Dream. So, stakeholders, tell the truthful stories of honest people striving for a chance to make it in America and allow prosecutorial discretion to flourish. 

* * *

At least until our politicians begin to act like leaders who value country over power, let us hope that the new memos and the new direction signaled by DHS allow a meaningful chance for American justice to prevail against the insensate mob. 

The sage of the current age, Wikipedia, defines the term "nonmaleficence" -- from the Latin primum non nocere -- as a principle of medical ethics, one that in my view is equally applicable to the immigration sphere.  The princple holds that "given an existing problem, it may be better not to do something, or even to do nothing, than to risk causing more harm than good." Nonmaleficence comes to mind with the recurrence of an old controversy (largely out of public view) which, if its proponents win the day, could badly batter America's economy at a time when too many of our citizens are still reeling from the crash of 2008.  

The fight involves a "gallimaufry of foreign citizens" whom I listed in a 2000 article, "The Incredible Rightness of B-ing," including "truck drivers, tailors, computer professionals, missionaries, household workers, trainees, medical students, yachting crews, executives, seminar attendees, investors, athletes, corporate directors, plaintiffs, defendants, and expert witnesses."

They are not characters in search of an author, like the "lost souls in the Pirandello play." No, the members of this motley crew are all categorized as "business visitors" under U.S. immigration regulations and State Department guidance. Together with tourists, these soujourners from abroad comprise the "B" visitor visa category, and are also admitted as entrants to the U.S. with the designations "WB" (Waiver Business) and "WT" (Waiver Tourist) under the Visa Waiver Permanent Program.

In the 21st Century's first decade, however, visa hassles, security screens, faraway locations for consular interviews and other government-induced frustrations, have dissuaded legions of foreign visitors from coming to the U.S. and thus caused the loss to our economy of more than a half trillion dollars and 441,000 jobs, according to a Feb. 2010 report by Oxford Economics and the U.S. Travel Association ("The Lost Decade: The High Costs of America’s Failure to Compete for International Travel"). The problem continues in the second decade, as recent cyberspace postings (here, here, and here) attest.

Now Sen. Charles Grassley, a legislator on a vendetta to restrict legal immigration, has taken a swipe at a highly useful subcategory of business visitor, known in the arcane argot of immigration as the "B-1 in lieu of H-1" ("BiloH," for short).   In a letter to Secretaries Clinton and Napolitano (of State and Homeland Security, respectively), Sen. Grassley insists that the BiloH be eliminated as a lawful means of entry to the United States.  To understand his gripe, readers should first consider the longstanding interpretation of the BiloH here originating from the legacy agency, Immigration and Naturalization Service (INS), or this helpful explanation from the U.S. Embassy (Mumbai):

Any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:

* Hold the equivalent of a U.S. bachelor’s degree

* Plan to perform H-1B-caliber work or training

* Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.

* The task can be accomplished in a short period of time.

Sen. Grassley voices concern, based on unproven allegations yet to be litigated, that the BiloH is being "abused" by multinationals to circumvent "the annual caps and prevailing wage requirements of the H-1B visa program" while "defy[ing] the intent of Congress."  

For newcomers to immigration, the labor protections of the H-1B visa category to which the Senator refers were first introduced with the enactment of the Immigration Act of 1990 (IMMACT) -- a law that made no change to the visitor classifications or to the preexisting BiloH subcategory. As readers of this blog know, the H-1B category for workers in specialty occupations holding at least a bachelor's degree or the equivalent involves a convuluted process that only a bureacrat or pol could love.  In the years since 1990, the annual H-1B numerical quota has run out early several times, and businesses had to give up on otherwise lucrative projects because qualified workers with the needed education and skills could not be found domestically or imported until the next year's quota allotment.

In 1993, however, INS and the State Department tried to eliminate the BiloH and impose added restrictions on visitor visas, 58 Fed. Reg. 58982 (proposed November 5, 1993), 58 Fed. Reg. 40024 (proposed July 26, 1993).  Their proposals faced a storm of opposition and were never finalized.  Those opposed to eliminating the BiloH challenged the agencies' assertion, now resurrected by Sen. Grassley, that in passing new requirements on the H-1B in IMMACT, Congress must have intended (albeit silently) to eliminate the BiloH. 

Opponents, including this blogger, argued at the time that Congress must have wanted the BiloH to continue in use.  We maintained that the BiloH acts as a safety valve in situations where there is no U.S. job of an enduring nature to fill -- just a short term project that will go away before long.  This is in keeping with the agencies' view of the business visitor classification as a temporary "catch-all" category covering a wide array of commercial activities that are no threat to U.S. workers.

As even the most confirmed Luddite would be forced to admit, globalization has transformed the U.S. economy since 1993.  Thus, the importance of facilitating the entry of business visitors is even more important today than in decades past.  Regrettably, however, the State Department has responded to Sen. Grassley by rolling over.  Joseph E. Macmanus, State's Acting Assistant Secretary for Legislative Affairs, in a letter, replied that State is working with the Department of Homeland Security (DHS) to "remove . . . or substantially modify . . . [the BiloH]," but this "may require Federal Register notice."

No kidding that Federal Register notice would be required.  But not just notice; how about an opportunity to comment, as well?  We've seen this pattern all too often before.  Sen. Grassley complains about a perceived abuse and the agencies cower in fear and obsequiousness -- without regard to the facts, or the legal merits of his asserted concern. If State and DHS can't stand the heat then perhaps a cabinet-level Department with a mandate to espouse immigration and thereby promote our economic interests should utter the nonmaleficence principle in plain English:  "If it ain't broke, don't fix it." 

Our government leaders often ignore elementary rules of ecology and economics when trying to grapple with America’s immigration problems.

Ecology teaches that a system cannot thrive or long function if inputs far outnumber outputs. When rainwater enters the Mississippi in a volume that exceeds the river’s carrying capacity, levees are breached, adjacent lands are flooded, and people are devastated.

Economics teaches that because we live in a world of scarce and finite resources, a more or less functioning system of resource allocation will perforce arise. Not every one of the world’s inhabitants can sport a watch made of gold when this precious metal breaches the $1,500 per ounce price point, as has occurred recently. Thus, some mode of gold-watch allocation (be it capitalism, communism, despotism or another form of wealth transfer) will inevitably surface. The same or a similar system inevitably develops to allocate food, water, clean air and the real necessities of life.

Consider then the interplay of ecology and economics as the Federal Government tries, but mostly fails, to deport foreign citizens whom Congress has declared, in a very long list, are undesirable. The process is broken and dysfunctional because ecology is ignored (many more persons are brought before immigration judges and ordered deported than actually forced to leave) and economics is given short shrift (deportation resources are not targeted to first remove the most dangerous or vile offenders).

Deportation system breakdown, like success, has multiple fathers:

• A multitude of reasons to require leaving. The grounds for deportation (or "removal," as it is technically known) range widely. Included are evildoers (such as terrorists and human predators), economic migrants (if they are without proper papers), and the unlucky or merely careless (the unfortunate, if capable, souls who are fired from a job for which a work visa had been issued; those who’ve unwittingly exceeded their required departure date by even just a day or a week; or, persons whose request for permission to stay longer than initially planned has been denied). 
• Too many ticket printers. Multiple officials within various units of the Department of Homeland Security (DHS) exercise authority to start the deportation process by issuing a Notice to Appear (NTA) at a removal hearing before an immigration judge (IJ). These include the Border Patrol, within Customs and Border Protection (CBP), adjudicators employed by U.S. Citizenship and Immigration Services (USCIS), and the deportation police at Immigration and Customs Enforcement (ICE). Surprisingly, with CBP, USCIS and ICE all issuing NTAs, there are no published statistics, by issuing authority, on the numbers or percentage of newly opened immigration cases destined to appear before the immigration courts. This is a case of the left hand, the right hand and the other right hand not knowing what their counterparts are doing.
• No bouncers. DHS has not established an orderly and intelligently-designed system to determine the integrity and propriety of each NTA that has been issued.  No designated official systematically decides which NTAs should or must be filed with the immigration court, and which ought be held in abeyance or disposed of in one of several non-judicial ways. (Almost every NTA, although styled as a "notice to appear" before a judge, contains no courtroom and date certain for the convening of a removal hearing. Instead, the document states factual allegations and legal grounds for removal and tells the person receiving it that the date and place of hearing will be announced in a future notice.) The system as presently operated requires no formal screening of NTAs to determine whether each is legally justified and sufficiently serious to warrant a hearing before a judge, potential incarceration, appellate review, and actually-enforced removal from this country. Clearly, some NTAs should be rejected. Why schedule an IJ hearing for a more-than-six-months, less-than-a-year overstay who can avoid the blotch of removal and a three-year-bar to reentry by complying with an administrative order of voluntary departure? Why waste an IJ’s time if the obvious resolution is to let time pass and await the individual’s turn in the green-card queue?
• No ushers. Only a finite number of NTAs can be processed to the point of actually removing the person to his or her country of origin. This is not just an example of the theoretical principle of prosecutorial discretion. It is a rational system of ecological management (refraining from flooding the system beyond its carrying capacity) and economic realism (allocating scarce resources of money, time and energy to process only the most compelling cases for actual removal). 
• Too few referees with too little power. Without appointing more IJs (and providing other required resources, like courtrooms, detention facilities, interpreters, law clerks, etc.) the over-issuance and over-filing of NTAs with the courts create the reality of assembly-line (in)justice and the illusion that the removal laws are carried out. Either the IJs should be given more authority to terminate proceedings where NTAs are improvidently issued or grounds for relief from removal are best handled outside the immigration courts, or, Congress must allocate sufficient judicial resources to accommodate the flood of NTAs.

* * *

Our federal lawmakers and the Obama Administration need to be told by Progressives, Tea Partiers, frugal independents and traditional partisans that the innumerable NTAs and outstanding but unfulfilled orders of removal flooding our deportation system mock both the duty to make and execute the laws faithfully, and proven principles of ecology and economics. We simply cannot and should not deport everyone for whom a technical ground of deportation can be cited. Some we should allow to stay, because they exemplify our values and their presence enriches us. Others who are really bad must go. A wise polity knows and acts on the difference.

On the first day of the second quarter of 2011, I fell for a joke.  As the Urban Dictionary (definition #2) would word it, I was "punk'd"!  I didn't merely fall for just any immigration-related ersatz news item (like the passage of the CIRAF bill reported by my colleagues in ABIL), I breathlessly embraced as the truth an emailed report I quote below and forwarded it to an immigration reporter for a prominent newspaper, asking if the reporter would like a quote from me on this "big news."

Written by an author who knows immigration parlance and the real names and titles of immigration agency officials, the disinformation that gulled me was this:

April 1, 2011

Washington, DC - U.S. Citizenship and Immigration Services (USCIS) announced today relief for tens of thousands of people caught in long waits for immigrant visa availability. USCIS Director Alejandro Mayorkas said in a statement "These people have been living in a state of limbo in the United States for too long."

This program is initially going to be targeted at immigrants who have an approved "I-140 Immigrant Petition for Alien Worker" filed on their behalf, but cannot receive permanent residence because of backlogs in immigrant visa availability.  The new "Conditional Resident" status will be extended to such individuals who have had approved petitions filed on their behalf, and who have waited at least one year for availability of an immigrant visa. The Conditional Resident status will extend the same rights as Lawful Permanent Residence with two conditions: 1) Status will be extended for periods of 3 years, renewable indefinitely, and 2) Status will conditional on an immigrant visa not being available to the holder. Once an immigrant visa is available, the Conditional Residence will automatically be converted to Lawful Permanent Residence without further application being required by the immigrant.

James McCament, Chief of the Office of Legislative Affairs indicated that this change will take place by an administrative rule change, and that a Notice of Proposed Rulemaking (NPRM) should be published with the details of the proposed new status within the next 30 days. After a comment period, the new rule will take effect 60 days after publication in the Federal Register.

For more information, please contact the USCIS Office of April Fools at aprilfool@mailinator.com.

Similarly, recent immigration news -- regrettably, 100% reality-based -- suggested an April Foolsy, all-too-incredible quality.

On the enforcement front, a former Assistant Chief Counsel of U.S. Immigration and Customs Enforcement (ICE), Constantine Peter Kallas, perhaps wishing that he were merely a fictional character in an April Fool's prank, received a 17-year sentence and a $297,000 fine following his conviction "for taking bribes to help immigrants fill out false paperwork to remain legally in the country."

In the Executive Branch, both President Obama and his Homeland Security Secretary, Janet Napolitano, despite chants both minstrel and a cappella, threw ICE water on the notion that executive authority and administrative remedies might be used instead of police powers to provide even a fitful respite from the Administration's precedent-setting record of deporting foreign citizens largely without criminal records.  Unwilling to use the executive authority and discretion he clearly possesses, the President perhaps should consider adopting the robotic approach to immigration and border security now in a testing phase abroad.

Although Secretary Napolitano maintained that DREAM-Act-eligible students are not a priority enforcement target, neither explained why the extraordinary executive remedy of "parole in place" was used on a blanket basis as recently as in the last 12 months (with nary a peep from Congress) to help foreign citizens of the Commonwealth of the Northern Mariana Islands who just as innocently as the DREAMers violated the immigration laws. Nor did the President explain (despite his claim of thinking about jobs upon rising in the morning and retiring in the evening) why he has not endorsed the Startup Visa Act, a bill that a knowledgeable staffer for Republican Senator Richard Lugar predicted has "almost no chance of passage" unless the White House supports it.

In Congress, another form of unreality was on display at a hearing Thursday of the House Judiciary Committee's Immigration Policy subcommittee. The hearing considered whether the H-1B visa category was (select one:) too generous/too restrictive and whether we should (select one:) grant/not grant more green cards for tech workers.  Trying to achieve synthesis among competing views, House Judiciary Committee Chair, Lamar Smith (R. TX), offered prepared remarks in which he noted: 

Foreign workers are receiving H-1B visas to work as fashion models, dancers and as chefs, photographers and social workers . . . There is nothing wrong with those occupations, but I’m not sure that foreign fashion models and pastry chefs are as crucial to our success in the global economy as are computer scientists . . .

Tell that to viewers, judges, creative crew and participants in the popular, economically-vibrant TV shows, America's Next Top Model, Top Chef, So You Think You Can Dance, and Dancing with the Stars, and the less familiar but promising, Talk Therapy Television. Moreover, these are strange words indeed from a Republican about the H-1B visa (a $3 billion government-revenue generator) since the GOP claims to want to minimize regulation and refrain from trying to direct the economy.

On the hustings, at "a conservative conference last week organized by immigration hardliner Rep. Steve King . . . several possible GOP candidates present (Mississippi Gov. Haley Barbour, former House Speaker Newt Gingrich, even Rep. Michele Bachmann (R-Minn.)) didn't want to talk about immigration. Perhaps, the GOP is at last smelling the Hispanic java, demographically speaking.

Given these verisimilitudinous developments, I hope readers will forgive me for my (hopefully fleeting) naïveté.  After all, if Rip Van Winkle had not fallen asleep and then awakened during the Revolutionary War era, but had instead slumbered at about the middle of the last century and awakened today, he too would have concluded that nothing whatsoever changes about the U.S. immigration system, a broken process that perpetually "draw[s] . . . borders with pens that split lives like an ax."