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.
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."
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.
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:
[Blogger's Note: This post -- originally published on March 31, 2013 -- is a guest column (updated on April 3, 2013) to reflect actions by the 11th Circuit Court of Appeals and U.S. Citizenship and Immigration Services.
The original post was authored by a former federal government official who played a substantial role in immigration policy. The revisions were added by your blogmeister. Our guest columnist desires anonymity but provides thoughtful commentary on a work visa program gone awry.
The H-2B visa, it seems, has become everyone's punching bag -- from the courts, to Congress, to the administrative agencies that implement our immigration laws, not to mention organized labor and business interests.
As the final stumbling block to comprehensive immigration reform is removed – a system to provide for future flows of lower skilled workers, we can only hope that this presumed successor to the H-2B will prove more functional than the present convoluted skein it will replace.]
Oh What a Tangled Immigration Web We Weave: A Knotty Future For the H-2B Program
H-2B (or not H-2B) is indeed the question on the minds of many employers following a recent federal court decision in the Eastern District of Pennsylvania. In a situation befitting the indecisiveness of Shakespeare’s Hamlet, employers who rely on the H-2B program -- the visa category for temporary and seasonal workers, other than those in agriculture (H-2A) and specialty occupations (H-1B) -- find themselves beset by uncertainty on all sides: the courts, the Congress and the Department of Labor (DOL).
First, the uncertainly from the courts. In just the past four years, legal disputes over the H-2B program and DOL’s authority to issue regulations have grown increasingly complex, involving no fewer than four separate lines of litigation heard by judges in four district courts and three courts of appeals, with cases presenting overlapping issues and claims producing conflicting decisions affecting different groups of plaintiffs, defendants and intervening parties. Presently, contradictory decisions from federal courts in Pennsylvania and Florida about whether DOL possesses authority to issue H-2B regulations are on appeal at the 3rd and 11th Circuit Courts of Appeal, respectively.
The litigation began in Pennsylvania in 2009 with a suit by a worker advocacy group challenging DOL’s first-ever H-2B regulations. A 2010 decision in that case found flaws with the notice and comment process relating to DOL’s 4-tier wage calculation methodology in the program. As a result of the court’s decision, DOL continued to use the 4-tier wage structure while they attempted to promulgate a replacement rule.
In August 2011, DOL proposed a replacement rule, commonly known as the H-2B Wage Rule. But in doing so, DOL fundamentally altered the longstanding wage methodology in the program forcing some employers to immediately absorb wage increases of more than 100%. In the fall of 2011, facing the prospect of economic ruin from DOL’s wage rates, employers filed suit in Louisiana (subsequently transferred to Pennsylvania) challenging the agency’s authority to issue the Wage Rule. Shortly thereafter, DOL published another set of H-2B regulations, which were then enjoined by a federal court in Florida and that decision was upheld in 3-0 decision by the 11th Circuit Court of Appeals on April 1.
Last week, the Pennsylvania judge added to the uncertainty for employers by issuing a decision relating to the original H-2B case from 2009. In the opinion, the judge removed from the H-2B regulations, the 4-tier wage calculation that had been found procedurally invalid in the 2010 opinion (by the now-deceased judge who originally heard the case), but which DOL was continuing to use as a result of the other litigation and intervening congressional action.
DOL’s actions add to the uncertainty. In response to the Pennsylvania ruling, DOL declared in a March 29 Notice, that as of March 22 it is no longer issuing H-2B wages to employers unless they seek a wage based on (1) a collective bargaining agreement, (2) a Service Contract Act determination, (3) a Davis-Bacon Act determination, or (4) a private wage survey. DOL further indicates in the Notice that it will publish yet another rule within 30 days describing how it will issue H-2B wages in the future.
But, in the midst of the litigation back in the fall of 2011, Congress sided with employers opposed to DOL’s Wage Rule by attaching a “rider” to the agency’s appropriations bill that prohibits the agency from implementing that rule. The rider has repeatedly been renewed, including as recently as last week when the President signed into law the 2013 government funding bill on March 26. As part of the ongoing restriction on DOL’s appropriations bill, Congress (and the President) have directed DOL to continue to apply the very same 4-tier wage methodology vacated by the Pennsylvania judge on March 21.
So what will DOL do when it issues a new wage rule in the next few weeks? Curiously, DOL’s Notice says it will promulgate a rule “that complies with the court’s interpretation of what the statutory and regulatory framework require.” Missing from that statement is any recognition that Congress has already dictated what is required by DOL. And DOL’s Notice obviously does not reference the just-released 11th Circuit Court of Appeals decision, which says DOL lacks authority to issue H-2B regulations. What DOL will do next is anyone’s guess.
Congress started it all. Much of this uncertainty stems from the language Congress used (or didn’t) when the H-2B program was created as part of the Immigration Reform and Control Act in 1986. The sparse statutory language describing the H-2B program, particularly when compared to the language describing the H-2A program, has led to real questions about the extent, and even the existence, of DOL regulatory authority over the program. Those questions continue to produce a growing mountain of court decisions, congressional directives, regulations, enjoined regulations, and statutory language [8 U.S.C 1101(a)(15)(H)(ii)(b)] that have tied the H-2B program in knots. But now, the 11th Circuit, in the only appellate decision weighing in on the topic, seems to have resolved that question (for now) in declaring that the statutory language reflects a conscious decision by Congress not to grant DOL rulemaking power in the H-2B program.
The H-2B program is a critical lifeline for many seasonal businesses that cannot find sufficient numbers of U.S. workers who want to take the relatively short-term employment opportunities. Studies have shown that these seasonal jobs filled by foreign workers are, however, important to our economy and lead to the employment of many thousands more year-round U.S. workers. If the DOL fails to provide H-2B employers with market-based wage rates, critical seasonal jobs will go unfilled and as a result, businesses and their U.S. workers will suffer.
Congress has an excellent opportunity to clear up the uncertainty about the H-2B program as part of comprehensive immigration reform legislation. Unfortunately, as many learned observers have noted, real concerns persist about whether an immigration deal can be reached given the hostility some interest groups reportedly have towards any type of guest worker program.
If, as an old Pope once said, “hope springs eternal,” let’s hope the arrival of spring brings some untangling of uncertainties for employers who rely on the H-2B program to meet their short-term and seasonal labor needs.
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 purpose of the [Immigration and Nationality Act is] to prevent an influx of aliens which the economy of individual localities [cannot] absorb. . . . Entrepreneurs do not compete as skilled laborers. The activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist.
In addition, a shoeleather-avoidant "Virtual March for Immigration Reform," dubbed the "March for Innovation," is set for a day this spring in order "to ensure that the broad immigration bills being considered in Congress include provisions to boost innovation and entrepreneurship, and . . . to seize the moment and get immigration reform passed."
While we obsess on the need to invite more immigrant entrepreneurs, why is there no comparable fixation on the importance of welcoming entrepreneurship's kissing cousin, creativity?
We acknowledge the creativity of knowledge workers, yet we fail to see the urgency of freely inviting members of the creative classes, our free-lance artists, writers, journalists, poets, painters, inspirational speakers, filmmakers, bloggers, videographers, performing artists, multi-media stylists and other creativity entrepreneurs. As the artist, Konishi, convinced the court, the "activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist."
Regrettably for America, however, our immigration laws are just as broken and dysfunctional when applied to creatives as to entrepreneurs. Foreign artists, even if they possess "extraordinary ability," or manifest their artistry in "culturally unique" ways, must still be tied to an established U.S. agent or an employer. They must also present a "consultation" from a peer group (usually a labor union that extorts a protectionist fee to confirm for the benefit of Homeland Security that its guild members' would accept the foreign artist into the fold on payment of union dues). Similar restrictions apply to media free-lancers who must present journalistic credentials and a contract with a U.S. company even if they propose to enter the U.S. to offer or produce creatively presented information or education.
Surprisingly, although we recognize the compelling need to eliminate immigration barriers for noncitizen entrepreneurs, we ignore the job-creating qualities of foreign artists, even though both groups share Steve Jobs' remarkable insight into the creative process -- one that likewise motivates many immigrants to embark for America:
If you want to live your life in a creative way, as an artist, you have to not look back too much. You have to be willing to take whatever you’ve done and whoever you were and throw them away. The more the outside world tries to reinforce an image of you, the harder it is to continue to be an artist, which is why a lot of times, artists have to say, “Bye. I have to go. I’m going crazy and I’m getting out of here.”
Artists and creatives are everywhere, yet America mostly spurns them. Our legislators and the Obama Administration, just like the commissars of the old Soviet Union, must ultimately wake up to the reality that the Federales have no special talent for picking winners, and that planned economies, more often than not, tend to overlook the budding artist and the possibly math-phobic virtuoso.
Let us also therefore revise our immigration laws to welcome these promising, early-stage artistic strangers even before they find an audience. With fair and open-hearted screening processes we surely can craft a way to identify creatives offering the potential to spawn new art forms, new industries and new jobs.
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.)
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.)
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.
"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."
Nothing of substance has changed since I offered that post last August, save for a groundbreaking election that reversed years of Republican opposition and Democratic indifference, leading to a bipartisan effort to reform the immigration laws comprehensively.
While federal legislators and the Obama Administration are putting in place new scaffolding for immigration reform, the foundation remains broken and shaky. A path to citizenship, enhanced border security, disincentives to illegal entry and employment, and adequate future flows of legal workers are all well and good. But the superstructure of the new immigration system will topple and the temptation to enter illegally or overstay will return if the basic approach to justice, fairness and due process is not dramatically transformed.
Reforms of the immigration justice system could conceivably be narrow or wide-ranging. A necessary, if partial, solution -- just a first step -- would reform the appellate process within U.S. Citizenship and Immigration Services (USCIS). This agency countenances a woefully unjust appellate body, the Administrative Appeals Office (AAO), that reviews decisions of USCIS field offices and regional service centers denying requests for immigration benefits submitted by American and foreign citizens and U.S. employers.
As I've noted recently, the AAO “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.” The AAO, however, is only part of the problem; reforms to the system of administrative justice at USCIS must be holistic and comprehensive.
Administrative reform (which Congress should enact into law rather than trust the agency to promulgate) must begin with a change to the USCIS rules which now limit the types of parties (a) who are permitted to appear before the agency and (b) the even smaller population of persons and organizations allowed to appeal an adverse decision. Moreover, the initial decision by a USCIS adjudicator must include an articulation of the evidence submitted and a detailed ruling on each of the legal issues raised.
Real justice reforms in the immigration arena would produce efficiencies, cost savings, improved access to justice, and beneficial changes to the way binding legal precedents are decided. As detailed at length in a February 27, 2013 New York Law Journal article, "Appealing Alternatives: Immigration Justice System Re-Imagined," by Ted J. Chiappari and me, Congress should establish a single Federal Immigration Court with full powers under Article I of the Constitution to hear appeals of all immigration-related administrative decisions rendered by the several agencies and departments in Washington.
Such reforms would also upgrade the professionalism and commitment to zealous advocacy of the immigration bar (whether in private practice or government service), while making the law more understandable and accessible to the public and the growing numbers of lawyers whose substantive expertise is other than immigration but who laudably engage in providing pro bono immigration legal services to individuals and non-profits.
Modeled after the Federal Bankruptcy Court, the proposed Federal Immigration Court would allow judges to develop the necessary expertise in all areas of immigration law. It would also preclude the announcement by the federal agencies and departments of policy by administrative ruling rather than by the promulgation of proposed rules under the Administrative Procedure Act, which offers the public prior notice and the opportunity to comment before any immigration regulation would be made final.
So let's cut to the chase. Here is the essential kernel of thought to digest from the introduction and conclusion of the cited New York Law Journal article:
If, as author Robert Sherrill maintained in his 1970 book, Military Justice is to Justice as Military Music is to Music, then immigration justice in 21st Century America is as melodious as an atonal, off-pitch cacophony. The forms and forums for truth-seeking and dispute resolution under the U.S. immigration system are wide-ranging, largely counter-intuitive and often too dysfunctional to mete out true justice. . . .
[I]mmigration justice today is unmelodious and painful to sit through. With a new Immigration Court as orchestral director, however, the several administrative agencies and immigration stakeholders sitting in musicians’ chairs could render a tour de force ensemble production, a command performance to delight Lady Justice and all citizens, foreign and domestic alike, who care deeply for her continued health and well-being.
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.
[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:
No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .
Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.
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.
[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."
Winston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform. Instead he was commenting on the Allies' post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:
This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most. The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.
What's the connection? Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners. Given much less, if any, attention, however, is whether the government's immigration bureaucracy can competently manage, regulate and enforce all these laws. Are the immigration bureaucrats, judges and police up to the task?
To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that "go from good to great":
. . . start not with "where" but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.
I submit -- as I've argued elsewhere and often in this blog -- that:
The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system ("boarding the right people onto the bus");
The heel-draggers and naysayers among the immigration bureaucracy, the cultists of "No," the feather-bedding careerists, and the power-mongers -- all must be exited ("getting the wrong people off the bus"); and, especially important,
Our immigration leadership must be deployed strategically and intelligently ("putting them in the right seats on the bus").
So what's this got to do with the SEC's civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.
The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters. The agency's professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy. Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America's goods and services.
The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. -- U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively -- have no special expertise in assessing legitimate or illegitimate business practices.
If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives: The StartUp Visa Act and the Startup Act 2.0. These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.
The StartUp Visa Act asks DHS to decide if "a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested" at least $100,000 on behalf of a "qualified immigrant entrepreneur . . . whose commercial activities" in two years will "create not fewer than 5 new full-time jobs in the United States," and "raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue."
Similarly, the Startup Act 2.0 expects DHS to assess whether a "qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . . at least 2 full-time employees . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . . during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5 full-time employees . . ."
I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS's mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.
Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.
If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS's immigration inspectors and State's consular officers determine the question whether the individual investor or family member is or is not admissible to the United States. In other words, USCIS's role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.
For this to occur, however, Congress must really think big. It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.
Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, "you may say that I'm a dreamer, but I'm not the only one." For as Winston Churchill also said:
We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.
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.
[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:
[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:
There are multiple lines, not just one;
Unless you have a family or employer sponsor, there is no line whatsoever available;
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;"
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
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 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 illegals 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.
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."
[Blogger’s note: Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman. Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws. Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]
A New Immigration Recipe:
Specialty Chefs Need a Dream Act Too!
By Nathan Waxman
A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws: the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status.
Fast forward eight years. Despite the economic doldrums, gastronomic diversity is here to stay.
Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.
Taquerias increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.
Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.
Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country.
So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?
In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.
Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines.
Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise, to use such nonimmigrant visa categories as H-1B, E, L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America's Heartland or in an emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days.
The four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.
A pioneering authentic Thai restaurant in the Chicago area
A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).
Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current.
Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged. Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen. They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of § 245(i), or amendment of § 212(a)(9) to provide realistic opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time.
An Armenian restaurant in a working-class New Jersey town
In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.
Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.
A pricey Mughlai tandoori restaurant in Manhattan’s East 50s
A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003. A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog. The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?
A Chinese restaurant in the northernmost county of Maine
Disclaimer: I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification) employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.
Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.
While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.
* * *
In my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.
Will Congress come to our aid?
Will Congress rescue the many food aficionados among us with a Dream Act for restaurant workers?
And, while they’re at it, can they make it easier for the local repair shop to bring in a German mechanic to fix my European diesel?
Ultimately, tax-paying American employers who satisfy the Department of Labor’s test of labor market unavailability through the PERM process should be able to serve their constituents and communities by adding to their work force tax-paying employees earning the prevailing wage, whether at a restaurant, a car repair shop, or a foreign language school.
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."
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.
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.
As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.
Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).
The 2012 IMMI Awardees
Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:
Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.
Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:
[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.
Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals"). Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.
So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.
No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied": The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).
Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status. Nolan notes:
The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.
Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values). Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics. Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration. Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."
Taxing Non-Solutions. The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions." There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.
Well, thats a wrap for our 2012 IMMI awardees. The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.
Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama. Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:
Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.
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.
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.
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:
§ 101(a) Definitions
As used in this Act-- . . .
(3) The term "alien" means any person not a citizen or national of the United States.
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.
“ And there took place . . . [in the U.S. Senate] so many “extended discussions” of measures to keep them from coming to a vote that the device got a name, “filibuster,” from the Dutch word vrijbuiter, which means “freebooter” or “pirate,” and which passed into the Spanish as filibustero, because the sleek, swift ship used by Caribbean pirates was called a filibote, and into legislative parlance because the device was, after all, a pirating, or hijacking, of the very heart of the legislative process. ...”
Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the "World's Greatest Deliberative Body" without respite. Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill). Reid would make changes that -- as Washington Post reporter, Ezra Klein, notes -- are "not dramatic":
[Sen. Reid] wants to be able to make the motion to debate a bill -- but not the vote to pass it -- immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.
Klein also suggests:
None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)
His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced. Furthermore, with such a change, the sway of the swing vote -- just as in the Supreme Court where Justice Anthony Kennedy carries great clout -- would minimize polarization. It would also promote greater compromise and empower moderates of the minority party and independents.
Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and "attrition through enforcement" played in marginalizing the GOP and the anti-immigration fringe in the last election. Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CIR).
In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery -- a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.
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.
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 the elasticity of a yoga master, former stalwarts for comprehensive immigration reform (CIR) in the Senate, who had later pivoted to the Tea-Party right to survive reelection, including Orrin Hatch (who's "willing to listen" on CIR), Lindsay Graham (who wants the poison pill of Birthright Citizenship added to CIR) and John McCain (who has moved from "complete the danged fence" to "support[ing]" CIR), are now bowing in "Downward Dog" to the popular will.
Sensing the prospect of irrelevance (an "angry white guy" problem) and perhaps extinction, much like the Beach Boys, whose fans -- according to Bill Maher -- "are dying" out, Republicans now are bending quite flexibly in an about-face "evolution" on CIR, including support for a path to citizenship, even if dubbed "amnesty."
Post-election discussions of strategy among family- and employment-based immigration stakeholders have ranged from the taking of baby steps in the lame duck session to more fundamental reforms in the next Congressional term. Although in a different political environment I've recognized the CIR-piecemeal approach of politics as the art of the possible ("Timing is Everything for Hungry Immigration Reformers"), I think the country has shifted tectonically in its embrace of CIR, as confirmed by exit polls revealing a 65% preference among all voters for granting unauthorized immigrant workers "a chance at legal status."
As with the Fiscal Cliff and the imminent increase of revenue (through elimination of the Bush tax cuts) and the automatic spending cuts (demanded by Sequestration), so too with immigration. President Obama holds the upper hand, and Republicans can be made to stand tall like a skier in Dancer's Pose or to fall in the new American yoga of immigration reform. His Administration's exercise of executive power through DACA -- a cost-free contribution to his reelection -- is but one of many examples of "pen-stroking" actions he can take to change the system, preferably with, but if necessary, without, Congressional cooperation on legislation.
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 ofcaveat 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.
Immigration has been dubbed the third rail of American politics, along with Social Security, Medicare, gun control, and a variety of other hot-button issues. To me, it's more like a downed power line snaking low across the ground and electrocuting whomever fails to give it respectful attention. As the eyes of the nation turn to the first Presidential debate this Wednesday, will immigration supercharge the colloquy or -- as in years past -- be wholly ignored or disregarded as annoying static electricity?
Governor Romney, your immigration advisor, Kris Kobach, has supported laws which reportedly have caused economic harm to states and localities adopting them. What immigration measures would you adopt to spur their economies?
President Obama, your Secretary of Homeland Security has instructed Immigration and Customs Enforcement to treat LGBT couples as "family relationships" in removal proceedings, and your Justice Department no longer defends the Defense of Marriage Act. Will you issue a regulation or executive order in your second term that authorizes the approval of same-sex, marriage-based immigrant visa petitions?
President Obama, why are 31-year-old and older DREAMers ineligible to file for DACA benefits?
Whatever the outcome of the debates and the November election, maybe all this electrifying talk about immigration is simply the wrong metaphor. Americans seem far less troubled about immigration, according to a recent report from the Pew Research Center for the People & the Press:
Immigration is . . . less of a focus in 2012. In [our] new survey, 41% view the issue of immigration as very important – the lowest of 12 issues tested – compared with 52% in August 2008.
Maybe the best debate questions should therefore be posed to each of them:
What specific actions will you take to cattle-prod Congress into enacting comprehensive immigration reform?
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.
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":
Congress has spread a table laden with reheated immigration delicacies, while still engaging in the usual posturing, pretend friendships and verbal fisticuffs.
In a spirit of convivial bipartisanship, the House on September 13 passed by a vote of 402-3 legislation the Senate had approved in August, S.3245 ("A bill to extend by 3 years the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program"). Presumably, it will land on the President's signing desk before the September 30 sunset of the four programs.
Positioning has also begun in the House over competing Democratic and Republican versions of a STEM jobs act that would give green cards to highly-educated math, engineering, tech and science graduates of U.S. universities. The primary difference in approach is over whether to provide STEM green cards by eliminating the 55,000 Diversity Visa lottery (the GOP proposal). As explained by Rep. Luis V. Gutierrez (D-IL), the Democrats want to vote on "a clean STEM increase . . . without doing damage to other parts of our legal immigration system." Given the GOP's House majority, expect the Republican version to be approved soon and sent to the Senate where it will face an uncertain fate.
After next week, Congress will likely go dark until after the November election as each party campaigns for hegemony in the executive and legislative branches. A lame duck session will likely follow. Perhaps then winners and losers will at last put country before party on immigration and a host of other issues. Maybe legislators whose careers are ending through a loss at the ballot box or retirement -- with nothing to lose -- will grow spines. Perhaps the losing side will become more pliant as demographic changes cause them to wake up and smell a new brand of java. It's happened before with such major lame-duck legislation as the Immigration Act of 1990, which passed on November 29, 1990.
If there is to be an immigration meal, it must be piecemeal. If immigration supporters cannot have a multi-course feast at a single sitdown dinner, then tapas eaten seriatim will more than satisfy the hungry reformers' appetites.
The challenge will be to avoid modestly beneficial compromises that add to complexity and include something bad for everyone, and instead forge good deals that foster our bedrock immigration values of family unity, economic prosperity, and refuge for the persecuted.
If Mitt Romney wins, perhaps the best we can hope for is a Nixon-to-China moment on immigration reform, with the scales tipped in favor of employment-based visas and heavier-than-Obama enforcement (if that's even possible). More immigration hope and change can be foreseen if President Obama carries the day, and the Dems maintain control of the Senate while making gains in the House. Perhaps anti-filibuster reforms early in the new Congressional term (as explained procedurally here and here) will be the secret door to comprehensive immigration reform.
Wonks, stakeholders and, of course, citizens: Stay tuned.
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, 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).
[Blogger's Note: This week's guest column is by Jennifer Oltarsh, an immigration lawyer practicing in Manhattan. She writes about how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.]
Immigration Law -- Moving away from Individual Rights
By Jennifer Oltarsh
Immigration laws are increasingly more complex. When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.
Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects very poorly on this country. These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system. Many of these laws have ultimately proved to be an embarrassment. A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed. Under this law all Chinese were banned from immigrating to the United States and to naturalize. Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902. This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II. 130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.
In 1996 two laws were passed with the goal to deprive judicial review and discretion. The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review. Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation. As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well. As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.
This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy. The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA. The law is based on the false premise that we need mass detention and deportation to keep dangerous "criminal aliens" off our streets. In reality immigrants are less likely to commit crimes than native-born Americans. Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses. In the 15 years since IIRIRA's passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained. Taxpayers pay for these detentions. The detention include thousands of immigrants and permanent residents who pose no threat to the community. It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.
We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety. Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!
The failure to take individual circumstances into account has always resulted in untold human costs. We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society.
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.
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.
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).
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.
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:
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’.”
An essay in today's New York Times, "Unexceptionalism: A Primer," by the novelist, E. L. Doctorow, describes in four "phases" how America can take steps to become unexceptional, that is, "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world."
Phase one begins withBush v. Gore, a ruling that "ignore[s] the first sacrament of a democracy and suspend[s] the counting of ballots in a presidential election."
If you're a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.
He apparently assumes that exceptionalism declines when the foreign-born among us are locked away for trivial or modest immigration violations, even when they pose no threat of escape or of harm to society. He might also be suggesting that by separating them from their U.S. citizen relatives after their right to be in the U.S. has been tested and denied in removal (deportation) proceedings too often threatens American families with poverty and a life of needless suffering.
If Doctorow instead meant to refer to the treatment of suspected wrongdoers under either the immigration or the criminal laws, this otherwise brilliant author is flat wrong.
Criminal suspects are guaranteed rights that people charged with violating the immigration laws can only envy. Defendants in criminal trials in most cases enjoy the right to a trial by jury. Their guilt must be established by proof beyond a reasonable doubt. Under the Ex Post Facto Clause of the U.S. Constitution, they may only be convicted for conduct that Congress made illegal before the forbidden act occurred. Indigent criminal defendants are entitled to appointed defense counsel at government expense.
Whether rich or poor or in between, criminal suspects have Constitutionally endowed Miranda rights (the warning that anything they say to police can and will be used against them in a court of law). They have a right to examine any exculpatory evidence in the government's possession, and the right to confront the witnesses against them and insist that the court exclude purely hearsay evidence. The judges who preside in criminal cases are subject to the canons of judicial ethics. Criminal proceedings are transcribed by court reporters so as to establish an accurate record and make sure that the right to appeal a conviction is preserved.
Although not treated as punishment under the immigration laws, removal (or its virtual twin, inadmissibility) hurts no less. A former Attorney General might just as well have been talking about removal rather than inadmissibility in Matter of S- and B-C, 9 I & N Dec. 436, at 447 (BIA 1960; A.G. 1961), when he said:
Shutting off the opportunity to come to the United States [or, as I would also put it, forcing someone to leave] actually is a crushing deprivation to many prospective [and current] immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.
If America treated immigrants in removal proceedings as if they were criminal defendants, the foreign-born whose status is at risk would enjoy significantly greater rights, and the harsh rule of immigration law would be tempered with justice. At present, however, respondents in immigration proceedings are at greater likelihood of being found at fault than criminal defendants. Here's why:
No presumption of innocence but proof "beyond doubt." An applicant for admission to the U.S. as well as a so-called "arriving alien" is not presumed innocent. Rather s/he must prove "clearly and beyond doubt [that s/he is] entitled to be admitted and is not inadmissible. . . ." The "clearly and beyond doubt" burden of proof imposed on the foreign citizen is even more difficult to establish than the duty imposed on prosecutors to prove a criminal defendant's guilt "beyond a reasonable doubt." Even for foreigners who have already been granted admission, the noncitizen (whose alienage the government has proven) must establish by clear and convincing evidence that he or she is in the U.S. based on a lawful admission. Only then is the government required to prove by clear and convincing evidence that the respondent is deportable.
No Jury. Respondents in removal proceedings have no right to a jury trial.
No government-paid legal counsel for the indigent or incapacitated. Unlike criminal defendants, respondents facing removal (even minors and the mentally impaired) who cannot afford a lawyer have no right to legal counsel at government expense.
Limited access to exculpatory evidence. Immigrant respondents are not automatically given access to evidence that may establish their innocence of the charges against them or their eligibility for relief from removal. They must file Freedom of Information Act (FOIA) requests or request the immigration judge's permission to subpoena documents or witnesses. Even if such evidence is not made available to the respondent, the immigration judge can find the person removable and ineligible for various types of discretionary relief.
In-person proceedings with court reporters transcribing every word not allowed. Immigration court cases are conducted without court reporters. Instead, they are audio- or video-recorded. Too often this denies them justice. Audio recorders are often turned on and off at the sometimes hasty flick of an immigration judge's finger -- at times thereby leaving out crucial factual information or legal argument. At other times, the recordings are garbled, incomprehensible or defective. This is usually discovered months or years later on appeal, thus requiring a remand to the immigration judge for rehearing. Live video recording -- which occurs with detained immigrants -- often interferes with the effective representation of counsel or prevents a clear understanding of the proceedings by the person most affected, the respondent.
Retroactive culpability. Immigrants can be removed from the U.S. for conduct that would not have warranted deportation when the act was committed. This is because Congress can and often does change the grounds for immigration removal retroactively. There is no Ex Post Facto rule prohibiting deportation for past non-culpable conduct.
I'd rather see our leaders deservedly stake claim to the notion of American Exceptionalism and distinguish our nation "from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world," by, whenever possible, granting immigrants the same legal rights as we give to criminal defendants.
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.
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 ongeneral 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 indirectlyas 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.
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.
I worry a lot about the future facing America's young adults. Saddled with Dickensian levels of college and grad-school debt, largely unable to find opportunities in their preferred careers, our young fear that they'll be relegated to work in low-paid, dead-end jobs. They and their parents are rightly concerned that the middle class is disappearing, the gulf between the ultra-rich and the poor is growing, and citizens coming of age today may never achieve the American Dream of economic progress.
The country's political, labor and business leaders seem to think the solution lies in restoring our nation's former prominence in manufacturing:
At the Second Annual Conference on the Renaissance of American Manufacturing held in Washington on March 27, speakers from the Obama administration, the Mitt Romney and Rick Santorum presidential campaigns, Republican and Democratic senators, CEOs, and representatives from labor, think tanks and trade associations all agreed: the renewal of American manufacturing should be a top economic priority.
I'm not persuaded. Don't get me wrong, this native Detroiter was glad when the Obama Administration stepped in to save the U.S. auto industry. Despite the protests of a certain "Son of Detroit," the de facto GOP nominee for president, who would have "Let Detroit Go Bankrupt," and now derides the auto bailout as "crony capitalism," maintaining a base level of domestic manufacturing is an important element of our national security.
[If] you look at America’s metropolitan areas, it’s clear that manufacturing-oriented places are relatively poor. The wealthy clusters in the United States are built around things like software, biotechnology and medical devices, higher education, finance, and business services. Places like California, Minneapolis, Seattle, and the Northeast corridor are far richer than the factory-oriented Rust Belt and Southeast.
Rather than overemphasize the rebuilding of its industrial base, America should play to its true strengths. We are the "crazy ones" who "think different", the dreamers (and DREAMers), the visionaries and innovative problem-solvers. Although we've fallen behind in the STEM fields, and must therefore refocus our emphasis on math and the sciences, we are blessed as a nation with an abundance of creative savants who color outside the lines. Our technology dazzles and transforms the world as Hollywood entertains it.
These strengths illustrate the fundamental economic principle of comparative advantage -- do only what you do best and let others do their own best thing. It works domestically, for example, when companies make the "buy or build" decision and choose to focus on core competencies. It would work as well in the global economy if trade were truly free and fair, protectionism were eliminated, and guarantees of minimum labor standards and trade dislocation payments were universally achieved.
If America played to its strengths, our leaders would promote basic research and development, and generally decline to let government pick winners and losers. They would recognize that service industries today account for almost three-fourths of all American jobs, and that the upside potential for better-paying jobs lies more in services than in manufacturing.
Similarly, The New York Times' Catherine Rampell reported last week:
In the United States, services increasingly dominate the economy. Employment in this sector has risen steadily since the 1960s, with 70 percent of Americans now working in service industries. And America already exports more services than any other country in the world, even more than the next two competitors combined. In 2011, that amounted to $612 billion exported in services, up 10.1 percent from 2009, and up 136 percent since 1991.
Still, there is great untapped potential for more, since all of these exports are being sold from a tiny share of all the American companies that could participate in the global marketplace.
Steel protectionism is another culprit. Our would-be trading partners have seen America (the leading proponent of free trade) as behaving hypocritically when President George W. Bush imposed tariffs on imported steel in 2002 and again when Congress enacted and President Obama signed the American Recovery and Relief Act in 2009 (with its "Buy American" requirements to purchase iron, steel, and manufactured goods for use in public construction and public works projects).
Global trade in steel and farm products are important to be sure. Lowering these trade barriers globally or regionally (while providing trade adjustment assistance and retraining for displaced workers) would be beneficial. It would allow American consumers to purchase more goods at lower cost. The real promise of American prosperity lies, however, not so much in eliminating barriers to trading tangible commodities, but rather in exploiting our lead in the international trade for services.
The Times'Catherine Rampell in sleuthing out the cause for global restraints on trade in services concludes her article by identifying the prime culprit:
Perhaps the most basic constraint is not abroad but here in the United States, which has relatively tight immigration controls. Services often require workers to travel freely across borders. Asking India to allow American consultants to enter and leave Delhi at will is difficult if the United States cannot — or, more accurately, will not — reciprocate. Economists acknowledge concerns about freer trade displacing some American workers. But they say the United States would nonetheless have a net gain in jobs if borders everywhere were more open.
“We need to have a visa policy that allows businesses to operate efficiently at home and abroad, and that allows all professionals to be able to move back and forth between corporate offices,” said Jeffrey J. Schott, a former trade negotiator and now senior fellow at the Peterson Institute. “If we don’t, why would anyone else?”
If demography is destiny, the U.S. economy may be in the midst of a decades-long slowdown. The U.S. labor force is growing at about half the rate it was 20 years ago; according to recent projections by the Bureau of Labor Statistics, it will continue to expand at a slightly lower pace through 2020. . . .
“In the end, what an economy is depends upon how many bodies you have,” said Anthony Carnevale, an economist and director of the Georgetown University Center on Education and the Workforce.
Carnevale added that if the diagnosis for what ails the economy is the size and quality of the workforce, that may be good news, at least compared to theory that the biggest problem is foreign competition. “To the extent this is a domestic demographic problem, it’s more in our control,” he said. “We can’t blame the Chinese for the quality and quantity of our domestic labor force.”
Indeed, America's domestic demographic problem is in our control.
The U.S. will only correct its trade imbalances, redouble the nation's sizable lead in the global trade for services, and create high-paying U.S. jobs for present and future generations, by modernizing our creaky, crotchety immigration laws.
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.
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 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.
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.
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.
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).
At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.
The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama's signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children.
The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin. Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of "all the hate" coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon's death. As the Washington Post reported, President Obama said:
I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.
Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America. He recalled an indomitable father who lost his livelihood and property in Castro's Cuba and yet built a new business in faraway California. He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.
Love of children, however, only goes so far within the Beltway. Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do." These under-age advocates, however, didn't rely solely on the heart and soul. Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America.
Their petitions, though politely received, seemed mostly to fall on deaf ears. The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November's election.
Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful. I challenged him, noting that none of the members of ICE's union, constituting the bulk of ICE's 7000-person workforce -- have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, "I'm a deportation officer, not a discretion officer." Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.
Worse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer's well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit -- the opportunity to vegetate in America, like a bromeliad, on thin air.
Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director. Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.
If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin. He must also explain what "every parent in America should be able to understand" and show "why it is absolutely imperative" that we not waste our DREAMers' young lives.
The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum. The point system should feature a two-way override. ICE should have discretion where warranted to overturn a presumptive "yes," and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive "no." This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience.
The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action. In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.
* * *
As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "life, liberty and the pursuit of happiness" as cited by the junior high students who last week urged passage of the DREAM Act. America's seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week ("The Founders' Immigration Policy"), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had "appealed to [the British people's] native justice and magnanimity" to reverse the "usurpations" of King George III, but nonetheless they "have been deaf to the voice of justice."
Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice. If you could adopt more children, they should look like our DREAMers.
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.
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.
Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation.
Usually, the intention to publish a rule is no cause for huzzahs. But this Notice of Intent is different. It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.
Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act. Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).
The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage.
The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'” The IG does not identify any wrong-doers by name. Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign.
The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case". The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS. The reporter, moreover, presumes that the griping adjudicators actually know the immigration law -- even though precious few adjudicators are lawyers.
I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report. Her answer: "We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup." Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority.
The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post.
Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file. Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability. On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning. In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.
Indignant at the charges, Rep. Smith told The Daily:
“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”
(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)
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."
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:
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?
Europe is at a tipping point. Will the European Union be dashed on Greek or Italian shores. Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell.
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.
America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisiset non quieta movere: "to stand by decisions and not disturb the undisturbed."
Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee. Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration.
So when is consistency a virtue and when is it foolish? In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.
The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers). A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").
Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical.
Consistency creates what we lawyers call a "reliance interest." Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering. As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.
Worse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions. Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.
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.
Today, the 10th anniversary of the terrorist savagery of September 11, 2001, the nation pauses to remember the fallen and reflect on how our country has changed in the decade past. PBS and The New Yorkeroffer worthy contemplations on the changes since 9/11 and today, and two immigration lawyers, Cyrus Mehta and Jonathan Montag, on opposite coasts, ponder the immigration aftermath of the tragedy. (My own writings not long after the event are here, here, here and there.)
Amid the many reflections, Twitter has been even more abuzz than usual. One exchange of tweets caught my eye. Michelle Malkin, anti-immigration commentator on Fox News, argued with a fellow who maintained that none of the 9/11 hijackers were undocumented immigrants. She posted a link and got him to admit that although all of them had entered legally, three had overstayed their visas. She ended the exchange with this coup de grâce:
[@TweepNameOmitted] You are willfully blind to the nexus between lax immigration enforcement & homeland security. Shame.
Few objective observers would deny that immigration enforcement and homeland security are linked, or that too lax an enforcement regimen could well threaten our country's safety. But a fundamental question remains. Has the federal government properly achieved the right balance in the middle between the extremes of super-enforcement -- a hermetically sealed country that would atrophy without external refreshment -- and a breezily open-door approach that allows the bad to enter with the good? Has it balanced immigration enforcement with immigration benefits?
My answer would be mostly "no." The problem originated with Congress's effort to try and fix things. It placed the benefits-conferring function of the abolished Immigration and Naturalization Service within the Homeland Security Department when it should have remained under the Attorney General at Justice. No adjudicator can focus on eligibility for benefits when the mission and message of homeland security is that if there is the slightest, even phantasmagorical, doubt, keep people out.
Thus, we see the penchant for adjudicator rejection by any means necessary at U.S. Citizenship and Immigration Services and at U.S. consular posts abroad of worthy immigration-benefits requests. It matters not if the means are pretextual, circuitous, dilatory or disingenuous. Any boilerplate Request for Evidence, Denial, Refusal or Revocation based on spurious grounds will do. The Congressionally-induced and media-generated perception of pervasive fraud as a straw-man for delay and refusal likewise will suffice. Hypocrisy, thus, is salved by the false ointment of feigned patriotism.
Real patriotism, in my view, would bear in mind these anti-Malkinesque messages, also found on Twitter:
#Obama: As a nation of immigrants, the United States welcomes people from every country and culture. #911
In other words, we as a nation must heed the "Call to Courage" and "Reclaim . . . Our Liberties," as the ACLU reports. Yes, of course, we must perform all manner of security checks, fully and efficiently, thoughtfully scrutinize all immigration benefits requests for compliance with law in good faith, and keep out the dangerous and undeserving.
But never tie the tourniquets so tightly that you cut off our limbs. The torch-bearing Lady Liberty, who lights the Golden Door, must never become an amputee.
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.
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).
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.
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:
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.
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.
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.
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.
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.
"Youth! There is nothing like youth. The middle-aged are mortgaged to Life. The old are in Life's lumber-room. But youth is the Lord of Life. Youth has a kingdom waiting for it."
Oscar Wilde, British author.
"Violence among young people ... is an aspect of their desire to create. They don't know how to use their energy creatively so they do the opposite and destroy."
Anthony Burgess, British author.
"Hey. Don't ever let somebody tell you... You can't do something. You got a dream ... You gotta protect it. People can't do somethin' themselves, they wanna tell you you can't do it. If you want somethin', go get it. Period."
Chris Gardner, American author.
Britons are aghast at the rampage, looting and destruction witnessed on the streets of London and other English cities this past week. Politicians have cut short their normally sacrosanct August holidays in the Tuscan sun to return to an emergency session of Parliament. British Bobbies are chided for standing by as youthful looters took their sweet time to find just the right mobile phones, pairs of running shoes and assorted Bling to swipe, not with credit cards but five-finger discounts.
The soul-searching and blame-gaming has begun in a country that knows, indeed invented, the Importance of Being Earnest. One of the most insightful analyses I've seen is Guatam Malkani's "Britain burns the colour of 'A Clockwork Orange," which compares the recent nocturnal uprisings to the 1962 Anthony Burgess novel and "its depiction of a lawless Britain, where the police command neither confidence nor deference and residents live in fear of feral youth". Malkani, a journalist with the Financial Times, notes the self-destruction that is "more dystopian than even nihilism" in these British rioters:
[The] first buildings and cars to burn in London were not in the resented districts of the rich, but those in the perpetrators' own communities. So not only was there no discernible political agenda to improve their lot (save for a few fleeting material possessions), the rioters were actually destroying their own.
I can't help but contrast these self-destructive behaviors with the inspiring and courageous actions of America's DREAMers, "a group of approximately 65,000 youth . . [who] are smeared with an inherited title, an illegal immigrant." Just compare their sentiments here and here with the behaviors on display across the Atlantic. If you do, you'll see that Chris Gardner's quote above originating from his memoir, The Pursuit of Happyness, is found among the DREAMers' "Inspirational Quotes," not as a justification to take what is not owned, in the manner of dystopic Brits, but to quest for what one justifiably deserves.
Yes, the British are justifiably alarmed by their riotous youth. We Americans, however, should be appalled by our uncivilized adults, who spout platitudes about the rule of law yet deny our American DREAMers the chance to live out their aspirations in laudable and lawful ways. Whose shame is worse?
Oscar Wilde had it right. The last line of his quote, which I omitted from the excerpt above, could well be referring to the American adults who dash DREAMs: "Every one is born a king, and most people die in exile."
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.
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:
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.
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?
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.
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.
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.
In these parlous times, our nation is regularly compared to the nearly deadbeat country of Greece, which tried recently but unsuccessfully to sell off some of its sovereign assets. Fortunately for the U.S., however, the sale of our national patrimony is not imminent. Mount Rushmore, Old Faithful and Lady Liberty are safe, at least for now. Still, America clearly needs more revenue. With pledge-bound Republicans and Tea Partiers having taken tax increases off the table (except when labeled as immigration user fees), the prospect of near-term levies on the domestic population are virtually nil.
Maybe, just possibly, perhaps, cross the fingers, our financial desparation will at last cause a tripartisan immigration consensus to emerge. Even though comprehensive immigration reform (including a path to lawful status for the undocumented) seems a non-starter at present, one revenue-generating reform to the legal immigration system may be the graspable piece of fruit hanging low to the ground.
As a patriotic American, a 35+ year immigration lawyer and former tax attorney, who has learned a few things about exceptionally affluent foreigners, I offer a royalty-free, open-source concept for the Committee to consider.
Enter our deus ex machina: A worthy and viable revenue-raising immigration reform -- The $$$ Visa. My proposal for the $$$ Visa is based on fundamental truths about super-rich foreign nationals:
They enjoy and will pay for special privileges;
They don't like unpleasant surprises;
They consider themselves VIPs who deserve red-carpet treatment;
They usually don't want to immigrate because green card status entails U.S. taxation of their worldwide assets and an exit tax for long term residents who later leave America for good;
They create a passel of jobs by hiring minions of lawyers, accountants, financial advisers, chauffuers, interior decorators, designers, stylists, household workers and security personnel who perform for them an array of quotidian tasks (look up family offices here);
They seek safety, security and predictability;
They are fearful of political risks and want to hedge their bets with safe lodging in America as a backup plan;
They have gobs of disposable income; and
They are lured to America by its many enticements.
I therefore propose that the $$$ Visa be established as a revenue-raising, jobs-creating vehicle that would permit the ultra-wealthy to help us by helping themselves. Here are the attributes of the $$$ Visa:
For a nonrefundable filing fee of $1 million made payable to the U.S. Treasury, U.S. consular officers abroad and U.S. Citizenship and Immigration Services (USCIS) officers in the U.S. would grant a qualifying foreign citizen, together with his or her spouse and minor children, a $$$ Visa or corresponding $$$ nonimmigrant status, with the visa valid for up to five years on a multiple-entry basis, and each change or extension of status, and each admission period to the U.S. under the visa, granted in two-year increments.
Neither U.S. consular officers nor USCIS adjudicators would be authorized to delay $$$ Visa issuance by the need to investigate whether the money so paid came from lawful funds. Instead, the Treasury Department under its current "government-wide multisource financial intelligence and analysis network," known as FinCEN, would establish by regulation the procedure to issue a "certificate of financial eligibility (CFE)." As an inducement to lift the veil on bank secrecy and encourage federal tax compliance, the federal government would make expedited and streamlined CFE issuance available to citizens of countries that have enacted IRS-approved "Know Your Customer" laws (although nationals of other countries could still qualify for the CFE through more routine and likely slower procedures).
A small portion of the revenues generated from the $$$ Visa would be used to establish a red-carpeted VIP lane at U.S. ports of entry. It's the least we can do to thank them for their contributions to deficit reduction.
All of the usual immigration screening procedures would apply to applicants for the $$$ Visa. No drug cartel chief, terrorist with money, pedophile or other personae non grata could enter on this visa.
IRS tax residency rules will stay the same and apply to $$$ Visa holders who remain in the U.S. for periods that satisfy the "physical-presence" test. Thus, $$$ Visa holders who remain in the U.S. for comparatively short periods would still be classified as nonresidents for income tax purposes while those who stay here longer would be taxed as residents and thereby subject their worldwide income to U.S. taxation.
Renewals of $$$ Visas for the same validity period as the original grant would be allowed in the U.S. or abroad at an American consular post for another nonrefundable payment to the U.S. Treasury of $1 million.
The $$$ Visa would provide no path to U.S. citizenship, although such visa holders would still be eligible to attain green card status and to naturalize through other existing legal avenues. Thus, no one could claim that we are selling citizenship.
Critics would likely charge that we are showing preference to the wealthy and privileged. Not so. The U.S. already grants immigration benefits to many individuals of typically modest means, such as battered spouses, victims of human trafficking, asylees, refugees, students on scholarships, lottery winners and a host of temporary workers paid down-to-earth salaries. The $$$ Visa would merely level the polo field.
After all, America, we can easily entice the ultra-wealthy to come to our country by citing our very own famous quotesmith, Mike Hammer, who said: "There are no pockets in a shroud." Or, Congress, as the author of the quote at the start of this post reminds us: "Take the money and run!"
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.])
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:
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.
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.
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.
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.
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.
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.
True to his word, hearings on worksite enforcement and E-Verify have been held. And at last, a draft of a mandatory E-Verify bill, current as of June 8, is circulating on Capitol Hill. Tentatively titled the “Legal Workforce Act” (LWA) and labeled a "Discussion Draft," the proposal would profoundly change hiring processes in the United States, and introduce expensive compliance obligations on all employers. It would also increase the burdens on federal and state courts and on public and private prisons by creating a host of new LWA criminal penalties involving sentences to run consecutively (read: longer incarceration periods).
Curious readers can take an early peek at a few key provisions of Rep. Smith's proposal:
Mandatory Use Phased in. Employers would be required to enroll and use E-Verify by a set deadline based on the number of current workers. From the date LWA is enacted (if ever), E-Verify would be required within: 30 days for covered federal contractors; six months (for employers of 10,000 of more personnel); 12 months (for firms with 500 to 9,999 employees); 18 months (20 to 499 workers); two years (1 to 19 workers); and three years (for employers of farm workers).
E-Verify Use Only for New Hires. Except for federal vendors who must verify current employees assigned to a covered federal contract, the LWA will only apply to new hires. Also, it will not apply to farm workers returning to a former employer.
No Preemption of AZ-style E-Verify Laws. LWA would permit the proliferation of state laws and local rules mandating E-Verify use as recently blessed by the Supreme Court in U.S. Chamber of Commerce v. Whiting: "A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system".
Weakened Good Faith Compliance Defense. The LWA enfeebles the Sonny Bono amendment, enacted in 1996, which gives employers 10 days to correct technical or procedural Form I-9compliance failures after ICE points them out. Although the Smith proposal would extend the curative period to 30 days, it would apply the defense only to compliance errors that are "de minimus." Good faith compliance would be available, however, for E-Verify queries that failed because the online system was unavailable at the time.
Criminal Penalties for false I-9 attestations and improper use of E-Verify. Individuals would face criminal penalties of up to two years and fines for knowingly furnishing a social security number or DHS-approved ID or authorization number that does not belong to the person or submitting such a number in an E-Verify screening. Helpfully, however, the LWA waives a good faith first violation of the unlawful hiring rules.
Change in retention period. Employers would now be required to hold on to electronic or paper verification records for the later of five years from date of hire (currently it's three years) or one year from date of termination.
Back in January, Rep. Smith characterized mandatory E-Verify usage as something of a no-brainer, or in business-speak as low-hanging fruit, suggesting that 70% of Americans would agree with his assertion. Given the sweeping harshness of the LWA, however, U.S. employers, proponents of immigrant rights and the American people must do more than just talk about Rep. Smith's "Discussion Draft." The fruity guantlet from the right has been hurled into the political arena. It's time to give it the Gallagher treatment.
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.
The U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when five Justices used a four-word exception to the Immigration Reform and Control Act of 1986 (IRCA) -- an act which, among its extensive provisions, banned the employment of foreign citizens whom the employer knows lack work permission -- to trample the immigration landscape. The majority ruled, based on the exception, that IRCA is not the final or sole word on the extent of punishment for unauthorized employment.
Relying on an IRCA exception for "licensing and similar laws," the 5-3 majority decided that Arizona may use the threat to revoke a business license as a means to punish AZ employers for the unauthorized hiring of foreigners and to require all the state's public and private employers to enroll in the Feds' E-Verify online work-clearance database.
Among the dissenters, Justice Sonia Sotomayor challenged the use of this squib of an IRCA exception as a means for the majority to undermine the "carefully constructed [and] uniform federal scheme for determining [unauthorized employment]." She cited an earlier case which observed that Congress "does not . . . hide elephants in mouseholes." (Ironically and perhaps poetically just, all of the Justices in the majority had been appointed by presidents of the Republican party, whose avatar is the pachyderm.)
1. Expect that mandatory E-Verify will spread to more states. As shown in this link, states are all over the map on their divergent requirements concerning E-Verify. Some -- like AZ, SC and MS -- require it of all employers. Others limit it to public entities and state contractors. The Supreme Court's decision essentially green lights the states to regulate facets of immigration compliance that fall within traditional state police powers. The only requirement is that the state law find a connection to the broad police power over licensing. In essence, what was largely an exclusively federal domain, will now expand -- with the Court's blessing -- into the inner workings of most businesses. Expect state and city micro-management of immigration to the Nth degree.
2. Expect some states to require E-Verify use as to current workers. As many states rush to enact laws mandating E-Verify, it would not be surprising if one or more extend its scope. Except for certain federal contractors and subs, E-Verify may not now be used to verify the work eligibility of current employees. While the extension of E-Verify at the state level to current workers would technically violate the terms of the E-Verify Memorandum of Understanding that employers must sign, such a stretch would not be a surprise. Consider Utah's recent legislation which adopted a guest worker program notwithstanding that -- at least until the Whiting decision -- the authorization to grant work permission had been seen as exclusively a federal power. Note as well that Florida's governor has issued an executive order expressly encouraging the state's employers to use E-Verify to check the work status of current employees.
3. Expect higher rates of discrimination claims. The dissenters in Whiting predict that employers will follow the path of seemingly least resistance by becoming hyper-vigilant in inspecting job applicants' documents of identity and work eligibility while finding subtle or overt ways to resist hiring persons who look or sound foreign or demanding to see specific documents or more documents than legally required. Although the majority noted that such discriminatory acts are already prohibited at the federal level, the likelihood is that the immigration agency charged with antidiscrimination prosecution and enforcement will be understaffed and short on resources to deal with the anticipated flood of complaints of unfair or illegal practices.
4. Expect more court battles over the extraterritorial reach of state immigration laws. What happens when poorly phrased state immigration laws come into contact with multi-state employers? Must a multi-state employer use E-Verify only as to its AZ new hires, or does AZ's E-Verify law require that company to use the online system as to new employees nationwide? What will courts decide if a company chartered in AZ loses its license to do business in that state, and as a result, is disqualified to maintain its licenses to engage in business in other states? These are but a few of the foreseeable claims likely to congest the state and federal courts as state immigration laws proliferate after Whiting.
5. Expect a public backlash over state enforcement of the immigration laws. The devastating tornadoes in Missouri and Alabama likely caused the loss or destruction of many U.S. citizens' documents of identity and work permission. When such citizens try to pick up their lives by moving to other states (where mandatory E-verify is in force), how will they prove their right to work? Such citizens are not likely to go gently or quietly into the good night. They will scream to high heaven, and the media will listen and publicize their complaints. Other citizens, though not facing the effects of natural calamities, will likewise be erroneously rejected by E-Verify, as the National Immigration Law Center predicted last April in testimony before Congress. They too will rise in protest if denied employment to which they are entitled with jobs already hard enough to find in the current economy.
6. Expect some states to back away from immigration enforcement and instead seek federal waivers for immigration benefits. Just yesterday, Republican Gov. Rick Snyder of Michigan, perhaps signalling a trend in the opposite direction, expressed his opposition to an AZ-style immigration enforcement bill, noting that it would be "divisive" and bad for business. As noted above and at length in this blog before, Utah has passed legislation creating a guest worker visa program (that will require a Federal waiver).
7. Expect that states will seek more snitch visas or favorable discretion for stool pigeons from the federal government. The "S" visa category (what we in the trade call the Snitch Visa) allows any state or local law enforcement official to seek special immigration benefits, including a work permit, to allow a foreign citizen to participate as a witness in a criminal prosecution. Federal immigration authorities can also exercise prosecutorial discretion and grant work permission at the request of a state or local police agency or prosecutor. In states where immigration policing is a high priority, just as with the justly maligned Secure Communities program, criminal prosecutions under state immigration laws will likely generate requests for special privileges and leniency to foreign workers who agree to rat out alleged immigration violations of their employers.
8. Expect a battle royal in Congress over mandatory federal E-Verify. The business and pro-immigrant communities will not take lying down the likely GOP push to make E-Verify mandatory for all employers nationally. While this push, if enacted, would take the wind out of the states' sails, opposition to the move would point to the persistently high rates of false positives and negatives in E-Verify and the budget busting consequences of a national mandate.
9. Expect busier days ahead for immigration lawyers. Notwithstanding that the demand for H-1B visas this year has been underwhelming, lawyers practicing immigration law have reason to be hopeful that business will pick up. The already mind-boggling complexity of federal immigration law will become more complicated, perhaps by a factor of 50, as the states get into the act. This quantum leap doesn't take into account the cities and regional governments that may have politicians, even now, planning a Barletta-like push for fame and higher office by espousing "mouse-that-roared" immigration ordinances.
10. Expect that Congress or the President will act. Before we reach the point of proliferating and conflicting 50-state and countless-municipal "solutions" to America's dysfunctional immigration laws, this blogger -- always a glass-half-full type -- envisions that statesman-like behavior or public outcries will cause action at the federal level to end the nonsense. Businesses cannot function, and lawfully-authorized American citizens and residents cannot find jobs, if we balkanize our immigration polcies. I say, fingers crossed, that cooler heads will prevail.
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.
A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely. It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers. These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.” She wrote:
[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011. One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer. We have always felt pride in our nation’s ways, and pride isn’t all bad. But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.
Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet). The construct of the federal courts that I’m about to describe rests on tottering and false assumptions. These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation.
(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion. Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president. Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.)
The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous. As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous. Thus, the courts are under orders to let the agencies call the shots.
So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws? My 30-plus years as an immigration lawyer compel me to shout a “NO” answer.
Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA). The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws. DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS). The converse is also true, as USCIS readily admits.
Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws. Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization. These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]).
As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies. Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies.
These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law. They are an affront to Congressional power and a testament to legislative lassitude over immigration. Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere. As Peggy Noonan concluded in her op-ed:
The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.
And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them.
We have work to do at home, on our culture and in our country.
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.
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."
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.
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 . . .
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."
Ever since studying Constitutional Law years ago, I've never really resolved in my mind the tension between federal supremacy and states rights. Most days, I see the need for national uniformity of law and lean toward federal power. At other times, I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.
The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration." Chazkazoid, an apparently precocious college student, wondered aloud why Georgia, in trying to outdo Arizona, proposed a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").
I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having "50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation." My hope has been that the U.S. Supreme Court in the already-argued case of U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to neuter the federal preemption doctrine by attempting to regulate immigration. After reading the transcript of oral argument in Candaleria, however, I've become less hopeful that preemption will prevail.
The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle. (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to state. And, yikes, how would I ever learn 50 state immigration codes?)
Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration," that gave me cause for modest hope. Utah state Senator Curtis Bramble, a Republican from Provo, has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress. Sen. Bramble's bill would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the Utah Department of Workforce Services for a temporary work permit. The bill, assigned number 288 (as amended), is premised on the Utah Compact. The Compact rests on five principles:
FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries. We urge Utah’s congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.
LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.
FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.
ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.
A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.
A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt Lake Chamber of Commerce, explained her support to Riley in his Wall Street Journal op-ed:
Utah has a growing economy that's ready and able to put people to work. Our business leaders are saying, 'Let's not diminish our labor supply. Let's not reduce our customer base. Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'
Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria is decided in Arizona's favor). Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category. (Utah, by the way, is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)
While Utah moves forward on a humane and pragmatic state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:
Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.
For my part, I see less reason for optimism. I join in the "stinging rebuke" leveled in the March issue of Arizona Attorney by my former partner and recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership" of official Washington in the passage below (emphasis mine):
Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?
The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action. Indifference, anyone?
. . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?
However, not everyone stood down. CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history. . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration. The groups who hijacked the immigration conversation will never be appeased. Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?
Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to] inventive lawyers representing them."
It's not too late for the Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing. Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role in immigration policy, our pusillanimous "leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or at least grant Utah and other states the right to fix our dysfunctional system.
* * *
POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level. One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes. The federalism/states-rights tension continues.
The grandson of Italian immigrants, Angelo Paparelli is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits...
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