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:

I hope these speculative studies will be entrusted mainly to those on whose hands time hangs heavy, and that we shall not overlook Mrs. [Hannah] Glasse’s Cookery Book recipe for the jugged hare—"First catch your hare."  -- The Last Lion: Winston Spencer Churchill: Defender of the Realm, 1940-1965,  by William Manchester and Paul Re.

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.

For examples in the EB-5 context see:

• Immigration's NannyStateGate: Picking EB-5 Winners and Losers
• The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?
• Immigration-Agency Lawbreaking Revealed: USCIS's EB-5 "Tenant-Occupancy" Scandal
• What Are We Paying for? USCIS and the I-526 Exemplar Process
• Dollars and Jobs for EB-5 Green Cards: A Challenging Route to U.S. Residency
• The Relevance of U.S. Securities Laws to Immigrant Investors, Eb-5 Regional Centers and Their Advisors
• Investing in America through the E-2 and EB-5 Visa Categories.

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.  

As for business and investment cases, particularly the EB-5 immigrant and E-2 nonimmigrant categories, decisions about investment sufficiency, investor protection, and job creation prospects should be vested in the Commerce Department or a similarly qualified department or agency of government. See, "Economic Prosperity - The Missing Immigration Mission," and February 19, 2010 Memorandum of the Alliance of Business Immigration Lawyers  to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, Headquarters (USCIS) Re: "Employment-Based Immigration Proposals for Inclusion in Comprehensive [Immigration] Legislation":

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.

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

Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"How old would you be if you didn't know how old you are?" ~ Satchel Paige

One of the benefits of having played in the immigration sandbox for a long time is to see old friends return. A fondly remembered playmate -- who left in 1995 and returned in 2010 -- is a good ol' cuss named ACUS -- the Administrative Conference of the United States. Not to be confused with ACORN, ACUS (at a glance or in historical context) left the sandbox because it became homeless (Congress cut off its allowance).  

Back in the day, ACUS was a great friend to advocates of more functional immigration laws.  It adopted Recommendation 89-9 (Processing and Review of Visa Denials) at the urging of a tireless law professor, James Nafziger, who has long railed against the scourge of consular nonreviewability, or as many prefer, consular absolutism, an injury that can still hurt years after a visa refusal.  Apparently to save its funding ACUS claimed in 1995 that it had indeed made progress on consular review -- a fib I forgive, given ACUS's latest activity (described later in this post):

89-9 Processing and Review of Visa Denials Partially implemented. Recommends that the Department of State implement changes in its procedures for review of visa applications at United States consulates abroad. The recommended changes include permitting the assistance of attorneys, increased explanation of the basis for denials, making public advisory opinions of the Visa Office, and studying the development of an administrative appeals process for visa denials. The Recommendation was transmitted to the Secretary of State and to relevant Congressional committees. In 1990, the ABA adopted a resolution supporting most elements of this recommendation [p. 56]. In 1990, the Legal Adviser of the State Department indicated, in a letter to the Chairman, that the Department was considering implementing specified parts of the Recommendation but would likely not initiate a study of the implementation of administrative appeals. In 1992, H.R. 5173 was introduced to establish a Board of Visa Appeals in the State Department. In 1993, the State Department issued a cable emphasizing the need to give explanations of the reasons for visa denials, and providing additional information in cases where an advisory opinion is being sought. (Italics in original.)

(In addition to the ACUS and ABA proposals for consular review, AILA's Board of Governors adopted a resolution urging consular review based on an article I co-authored with Mitchell Tilner: “A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases,” Interpreter Releases, October 7, 1988.) Defiantly, however, the State Department remains as intransigent as ever in opposing any system for review of visa refusals (indeed, State even eliminated the Board of Appellate Review which protected U.S. citizens who challenged governmental claims that they'd expatriated).  Congress never established a Board of Visa Appeals. Attorneys still are barred from most consular interviews and advisory opinions are not published. 

While that battle is in pause mode, ACUS is proposing a slew of administrative reforms for consideration on June 16 that would apply generally to all Executive Branch agencies. The most important for immigration aficionados would make the immigration system more just and efficient.  The ACUS proposal offers a cornucopia of improvements (37 in all) to the immigration courts and the removal process which would help take the 800 lb. kangaroo out of the court room. The recommendations are backed up by a 133-page report by Law Professor Lenni Benson (I'm proud to say she was my former partner at Bryan Cave [see her here as she explains CIR's promise and peril in this 9-minute video]) and Russell Wheeler, a visiting fellow at the Brookings Institution.

If ACUS approves the recommendation to fix the immigration removal system, that will surely change the national dialogue.  Although the reincarnated ACUS hasn't yet tackled comprehensive immigration reform, this public-private partnership will deflate the arguments of immigration hardliners who oppose CRI and just hate it that border crossings are down. By showing how the system can be made more efficient, less costly and more just -- meaning that people who really ought not be here are removed quickly and cheaply, while those with equity are allowed to reclaim their quest for the American Dream -- ACUS will help force the opponents of reform to face the inevitable need to fix the two other legs of the CRI stool (the undocumented who are here and future flows of those whom we need). 

Among the other ACUS proposals for consideration on June 16 is one that likewise addresses immigration dysfunctionality.  As the Federal Regulations Advisor Blog describes it, the proposal would "Improv[e] Coordination of Related Agency Responsibilities:

The Committee on Collaborative Governance makes recommendations on the perceived problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. In reviewing the report by Jody Freeman (Harvard) and Jim Rossi (Florida State), agencies will need first to determine their jurisdiction, an issue of large concern by itself.

The problem of endemic dysfunctionality in the perpetual brouhaha that masquerades as interagency dialogue in the immigration space, however, is not one of mere perception. To be sure, sometimes the separation of functions can serve as a helpful system of checks and balances as for example when Congress wisely separated immigration enforcement from benefits adjudication in enacting the Homeland Security Act of 2002. But mostly the problems of mission creep and mission avoidance remain.  Even more troubling to stakeholders is the despicable reality that immigration officials in one agency rarely learn let alone understand or master the overlapping regulations of another agency in what ACUS refers to as "shared regulatory space."

So I'm delighted that ACUS is back in the immigration sandbox.  Although the cynics might say that ACUS builds castles in the sand, I'm with many American forebears who would urge ACUS to continue striving.  These, I fancy, would include the age-defiant Satchel Paige in the quote above and Henry David Thoreau, whom (for the sake of maintaining my sandbox metaphor) I paraphrase thusly: "If you have built castles in the [sand], your work need not be lost; that is where they should be. Now put the foundations under them."

Welcome back ACUS. Let's Quixote-like (as opposed to coyote-like) build CIR castles with solid foundations and tilt at more dysfunctional windmills in the immigration sandbox together!

With more than three decades of experience under my belt, I like to fancy myself an expert in immigration.  Yet however much I think I understand the subject, new things surface that blow my mind and puncture my inflated sense of self.  I have come to realize that much of what I "know," I merely surmise or sense. It's like looking at an arabesque from a distance, and then homing in, and being stunned by unnoticed details.

Such was my experience reading the prepared remarks and listening to opening statements, testimony and the questioning of government witnesses at a March 6 subcommittee hearing of the House Homeland Security Committee.  Convened by Rep. Candice Miller (R-MI), Chairwoman of the Subcommittee on Border and Maritime Security, the hearing delved into efforts by U.S. Immigration and Customs Enforcement (ICE) and the Department of State to deter, detect and apprehend visa overstayers, a problem population that Rep. Miller described as comprising 40% of all illegal immigration in America. 

The video of the hearing, "From the 9/11 Hijackers to Amine el-Khalifi: Terrorists and the Visa Overstay Problem," offers an eye-popping view behind the purdah of government data collection in the immigration space.  The statistics-laden statements of ICE's Peter T. Edge and John Cohen and of State's David Donahue are even more revealing.

Here are revelations, from ICE, that were new to me:

1. ICE now conducts visa security investigations at 19 high-risk visa adjudication posts in 15 countries. In FY 2012 to date, VSP [Visa Security Program] has screened 452,352 visa applicants and, in collaboration with DOS colleagues, determined that 121,139 required further review. Following the review of these 121,139 applications, ICE identified derogatory information on more than 4,777 applicants.
2. [ICE's] Counterterrorism and Criminal Exploitation Unit (CTCEU) is the first national program dedicated to the enforcement of nonimmigrant visa violations. Today, through the CTCEU, ICE proactively develops cases for investigation in cooperation with the Student and Exchange Visitor Program (SEVP) and the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program.
3. These programs enable ICE to access information about the millions of students, tourists, and temporary workers present in the United States at any given time, and to identify those who have overstayed or otherwise violated the terms and conditions of their admission.
4. Each year, the CTCEU analyzes records of hundreds of thousands of potential status violators after preliminary analysis of data from the Student and Exchange Visitor Information System (SEVIS) and US-VISIT, along with other information. After this analysis, CTCEU determines potential violations that warrant field investigations and/or establishes compliance or departure dates from the United States.
5. Between 15,000 and 20,000 of these records are analyzed in-house each month. Since the creation of the CTCEU in 2003, nearly 2 million such records using automated and manual review techniques have been analyzed. On average, ICE initiates approximately 6,000 investigative cases annually and assigns them to our special agents in the field for further investigation, resulting in over 1,800 administrative arrests per year.
6. Biometric information sharing between the Federal Bureau of Investigation’s Criminal Justice Information Services (FBI-CJIS) and US-VISIT is the foundation of Secure Communities’ use of Automated Biometric Identification System (IDENT)/Integrated Automated Fingerprint Identification System (IAFIS) interoperability.
7. Through Secure Communities’ use of IDENT/IAFIS interoperability, aliens—including those who have overstayed or otherwise violated their immigration status— who are encountered by law enforcement may be identified as immigration violators when fingerprints are submitted to the FBI-CJIS’s biometric database, IAFIS, and then to DHS/US-VISIT’s biometric database, IDENT.
8. Secure Communities’ use of this technology is deployed in over 2,300 jurisdictions in 46 states and territories. US-VISIT also analyzes biographical entry and exit records stored in its Arrival and Departure Information System to further support DHS’s ability to identify international travelers who have remained in the United States beyond their periods of admission.
9. ICE receives or coordinates nonimmigrant overstay and status violation referrals from US-VISIT Mission Support Services from three unique sources, which include: the typical overstay violation; a biometric watch list notification; and a CTCEU Visa Waiver Enforcement Program (VWEP) nomination.

Equally stunning were the following stats from State:

1. State maintains derogatory information in 42.5 million records found in the Consular Lookout and Support System (CLASS), its online database of visa lookout records. CLASS has grown more than 400 percent since 2001.
2. Almost 70 percent of CLASS records come from other agencies, including DHS, the FBI, and the DEA. CLASS also includes unclassified records regarding known or suspected terrorists (KSTs) from the Terrorist Screening Database (TSDB), which is maintained by the FBI’s Terrorist Screening Center (TSC) and contains data on KSTs nominated by all U.S. government sources.
3. State also screens visa applicants’ names against the historical visa records in its Consular Consolidated Database (CCD). A system-specific version of the automated CLASS search algorithm runs the names of all visa applicants against the CCD to check for any prior visa applications, refusals, or issuances. DHS and other federal agencies have broad access to the CCD, which contains more than 151 million immigrant and nonimmigrant visa records covering the last 13 years.
4. In January 2012, more than 20,000 officers from DHS, the FBI, and the Departments of Defense, Justice, and Commerce submitted more than two million visa record queries in the course of conducting law enforcement and/or counterterrorism investigations.
5. Visa applicants’ fingerprints are screened against DHS and FBI systems, which between them contain the available fingerprint records of terrorists, wanted persons, immigration law violators and criminals. In 2011, consular posts transmitted more than 8.6 million fingerprint submissions to these systems, and received from them more than 221,000 derogatory and criminal history records.
6. State uses facial recognition technology to screen visa applicants against a watchlist of photos of known and suspected terrorists obtained from the TSC, as well as the entire gallery of visa applicant photos contained in State's CCD.
7. In April 2008, consular officers at posts abroad obtained access to arrival and departure data for non-U.S. citizen travelers contained in the DHS Arrival Departure Information System (ADIS).  State began running automated ADIS checks for every visa applicant in June 2011.
8. Consular officers submitted more than 366,000 Security Advisory Opinion (SAO) requests in FY 2011.
9. Since 2001, State has revoked approximately 60,000 visas for a variety of reasons, including nearly 5,000 for suspected links to terrorism.
10. As soon as information is established to support a revocation (i.e., information that could lead to an inadmissibility determination), a “VRVK” entry code showing the visa revocation is added to CLASS, as well as to biometric identity systems, and then shared in near-real time (within about 15 minutes) with the DHS lookout systems used for border screening.

With so much data floating in federal ether, an ancient Roman interrogatory naturally came to mind: Quis custodiet ipsos custodes? (Who will guard the guards themselves?) The question is not so far-fetched because we learned this week that although our system usually entails oversight by the judiciary of the other two branches of government, the incumbent Attorney General thinks otherwise. "Due process," he declaimed in justifying the targeted killing of a nasty American citizen, does not necessarily entail "judicial process." 

There are many other reasons why all of this free-floating federal data frightens me: 

1. Government officials sometimes break the law. Witness the killing last month of an ICE official by an ICE official. Consider the ICE travel-reimbursement kickback scheme revealed recently. Recall the DHS insider data-hacking scandal of last year. Remember the State Department employees' improper access to the U.S. passport applications of celebrities in the near-distant past.  Realize that even "Concerned Foreign Service Officers" feel victimized by the mis-use of investigative power: "A page of advice for [consular and other foreign service officers] who might lose their [security] clearances:  'Expect to be lied to.'" 
2. Foreign governments play one-up-manship, monkey-see-monkey-do and tit-for-tat. France's National Assembly on March 6 passed a law proposing the creation of a new biometric ID card for the country's 45 million French citizens. Brazil decides to fingerprint arriving U.S. citizens. Russia and the U.S. get into a retaliatory visa smackdown.
3. First they came for the foreigners, and then they came for me. E-Verify was supposed to prevent the employment in the U.S. of unauthorized non-citizens.  Then, U.S. citizen passport application data was fed into the system.  Customs and Border Protection was formed as a response to 9/11 and now U.S. citizens' laptops are searched at ports of entry without probable cause.  The REAL ID Act is passed to prevent unauthorized immigrants from gaining employment through forged driver licenses, and now several states have passed Voter ID laws that disenfranchise mostly the young and the poor and keep them from the polling booth. 
4. Innocent people are turned away at America's door or separated from their American Citizen family members. This happens all too often.  The most recent victim, Pitingo, a Spanish Flamenco-Soul singer who did not make his U.S. debut last Friday at the Manhattan Center as scheduled, reportedly because his name, Antonio Manuel Alvarez Velez, common in the Spanish-speaking world, "matches that of someone on the U.S. terrorism watch list".  Even more widespread is ICE's Secure Communities Program -- a home-wrecking initiative that to my astonishment Rep. Miller described at the hearing as "excellent, excellent" -- even though 21% of persons deported through S-Comm have never been convicted of a crime.

Ironically, in the same week as the subcommittee hearing, civil rights and immigrant rights marchers retraced the path of Rev. Martin Luther King from Selma to Montgomery 47 years ago.   Just as in 1965, no less than 2012, abuse of legal power against some threatens the liberty of all. Take a look at the video clip below if you need any reminding.

[Blogger's note: This article is reprinted with permission from the February 22, 2012 edition of The New York Law Journal.  ©2010 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. The authors thank the Journal for permission to reprint this article.]  

No More Waiting on Legal Immigration

By Angelo A. Paparelli and Ted J. Chiappari 

President Barack Obama has professed a new strategy of impatience. With the economy still in malaise, and the unemployment outlook only a tad improved, the White House has begun to implement a reelection gambit entitled, "We Can’t Wait." The waiting is not for Godot, but rather for a moribund Congress to pass his largely ignored proposal, the American Jobs Act:

Without a doubt, the most urgent challenge that we face right now is getting our economy to grow faster and to create more jobs…. we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.

—President Obama, October 24, 2011.

In an effort to jumpstart the economy, the approach taps his exclusive authority over federal departments to craft executive orders. Hoping to avoid the fate of Jimmy Carter, a one-term Democrat who also faced malaise, Mr. Obama’s first foray into economy-goosing executive orders has involved housing, education and veterans’ affairs. His more recent jobs-focused directives have begun (albeit too timidly and slowly in the authors’ view) to address administrative reforms to America’s system of legal immigration.

 As this article will show, an assertive President Obama, with his eyes transfixed on the reelection prize, can do much more to improve our immigration regulations and agency practices, which the President oversees through the Departments of Homeland Security, State, Justice and Labor. With presidential orders on legal immigration, he can recharge the economy in countless ways while protecting American jobs and creating hundreds of thousands of new ones.

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Who really wields power in Washington?  The December 3rd opening sketch of Saturday Night Live, featuring Fred Armisen as a chastened President Obama, offered an answer to the question. 

SNL's Obama shared his insight, gained over the last three years, that the presidency is not truly a powerful post, but merely a "ceremonial position . . . a majestic figurehead." Disabused of any pretensions of strength and influence, he groused that the President is not even among the top five power players, and well behind Grover Norquist, Oprah Winfrey and Tyler Perry.

Real-life House Republicans, however, see power inordinately vested in mostly anonymous bureaucrats. Last week, GOP stalwarts (along with a smattering of Democrats) approved two bills (whose enactment is improbable) that would drastically curtail the rulemaking authority of Executive-Branch agencies. 

Another Republican, perhaps America's highest paid historian, Newt Gingrich, suggested that immigration power -- the authority to pick the lucky individuals who can stay in the U.S. and identify the forlorn others who must leave -- should be vested in community boards, fashioned after the Selective-Service-System citizen boards of World War II vintage.  Given the difficulty of mustering jury panels, it's hard to see how Gingrich's boards might ever be staffed, unless the government were to hire the unemployed (something Newt would no doubt view as anathema).

Others, such as Yale law professor, Peter Schuck, have suggested that Adam Smith's invisible hand manipulate the levers of power, proposing that America "experiment with . . . new ways to improve visa allocation . . . [whereby the] government could auction some visas to the highest bidders."  Similar bunkum, which I have suggested would "amount . . . to a latter-day slave auction," has been proposed by Pia Orrenius, a research officer at the Federal Reserve Bank of Dallas, and Madeline Zavodny, a professor of economics at Agnes Scott College.

A more serious suggestion of how the federal government should exercise power appeared in this weekend's Wall St. Journal in an Op-Ed ("Starting Over with Regulation [-] Why are government rules so complex? A guide to a radically simpler system"). The editorial's author, attorney Philip Howard, chairs the nonpartisan government-reform group, Common Good, which has posted a longer version of his Op-Ed. Howard proposes that the arcane minutia of "bureaucratic detail could be scrapped, and law would become understandable again."  He suggests that the "focus would shift from complicated rules to desired results: clean air, safe food, honest business."

I'm not sure I agree with Howard's proposal, but one thing he says strikes me as having the accuracy of a drone missile: 

The standard objection to such a simplified system is that people would take advantage of the leeway: Companies would ignore their obligations, and bureaucrats would abuse their powers. The only answer to these fears is accountability. There's no need to trust business: Give inspectors presumptive authority to decide whether or not a business is meeting its regulatory obligations. Nor do we need to trust officials. The system would need to include ways to overrule regulators who are unreasonable and to fire them if they consistently show bad judgment. (Bolding added.)

Under today's immigration procedures, however, there is no way for the public to pressure the administrative agencies to fire immigration adjudicators (power-wielders) who "consistently show bad judgment."  Whether from within the USCIS Administrative Appeals Office, the Regional Service Centers, or U.S. consulates or embassies abroad, power is exercised anonymously.  In the case of USCIS, decisions denying benefits are putatively "issued" in the name of the boss of the particular unit.  The particular decision-maker is almost never identified.  While consular officers deny visas in face-to-face fashion (albeit with officer and visa applicant separated by bullet-proof glass), the refusing officers' names are not revealed. 

I recognize, to be sure, the dangers that some immigration adjudicators might face if their identities were known. But just as in the recent debate in the New York Times ("Anonymity and Incivility on the Internet"), some degree of transparency and accountability is necessary if bad behavior is to be prevented and rogue officers disciplined. 

Perhaps, an official governmentally-maintained but secret registry of immigration adjudicator noms de plume can be established. I think that if someone must put one's own name on the decisions he or she makes, then the legal scholarship, application of law to facts, reasoning and justice of each decision will inevitably improve.  At the very least, the public would be able to spot the bad apples (through the good offices of reporting agencies such as Transactional Records Access Clearinghouse -- a data-distribution service of Syracuse University -- which has long provided information on decisions of individual immigration judges).  With metrics on trends of mistaken adjudications, the public could pressure the immigration agencies to re-educate wayward power-wielders, or if unrepentant, demand their removal (from the job, not the country).   

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

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

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

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

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

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

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

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

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

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

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

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

No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India:

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

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

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

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

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

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

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

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

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

With the President's supporters pleading for action, Barack Obama at last has pivoted to jobs.  "Pass this bill [the American Jobs Act]" has become his oft-shouted mantra. Surprisingly, however, career bureaucrats within the Departments of State and Homeland Security apparently haven't read his September 8 speech to Congress and instead are taking affirmative steps to prevent job creation.  Examples of this misbehavior are abundant across all work visa categories, as this blog has shown. 

For the sake of illustration, however, let's get granular and consider the latest trends in visa refusals for a single category, the L-1B  "intracompany transferee" visa, available to workers within a global firm possessing "specialized knowledge."

The problem has become especially acute with the recent flood of L-1B petition and visa denials involving citizens of India, thus raising the concern that the Indian refusals may be founded on unlawful bias, such as citizenship status, national origin, or race discrimination, or, upon the counterintuitive Congressional and media claims that the inbound dispatch of L-1 workers contributes to the claimed offshoring of jobs. 

American businesses count on L-1B workers to design and develop innovative products, fulfill contracts and manage important projects on which U.S. jobs for American workers depend.  With global competition accelerating, a significant delay in granting L-1B visa benefits to a deserving candidate, such as by a consular officer's unexplained return of an approved petition to USCIS for readjudication, a burdensome, boilerplate USCIS request for additional evidence, or an outright denial by either agency -- any one or all of these actions can lead to the loss of American jobs to employees of our competitors abroad.   

For those unfamiliar with this nonimmigrant category, the L-1B intracompany transferee classification, together with the L-1A for executives and managers, has been around since 1970.  The L-1B allows a U.S.-based business to transfer workers from the employ of a foreign affiliate that is under at least 50% common ownership or control with the U.S. petitioner in the combined global enterprise.  The visa applicant must have been employed for at least one year abroad by a foreign affiliate out of the last three years, performing in a job involving specialized knowledge, and must seek to work for a related entity in the U.S. in a like capacity. Individual petitions for L-1B visa classification are submitted to U.S. Citizenship and Immigration Services (USCIS), Regional Service Centers (RSCs), which forwards their petition approvals to a U.S. consulate or embassy abroad where the consul interviews the L-1B visa applicant.  Consular officers also interview "blanket" L-1 visa applicants from larger companies to determine whether either of the alternative definitions of specialized knowledge apply and an L-1B visa should be issued.

A few years back, larger global enterprises could instruct their candidates (specialized-knowledge professionals with a relevant college degree) to apply directly at a U.S. consular post abroad under an approved blanket L-1 petition as long as he or she had gained only six months' worth of specialized knowledge, rather than the one year minimum required now, which in either case is still a comparatively brief period required by statute. 

The term "specialized knowledge" has had a tortuous and tortured history within the legacy immigration agencies.  The trend as late as 1988 had been to interpret the term very strictly, culminating in a case, Matter of Sandoz Crop Protection Corp., which equated specialized knowledge with a level significantly above even "proprietary" or "patented" knowledge:

The petitioner's proprietary interest must be such that the knowledge required is clearly different from that held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.

A petitioner's ownership of patented products and processes or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must be a key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the petitioner's proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.

Later that year, however, a policy memorandum from legacy Immigration and Naturalization Service (INS), clarified that this interpretation of specialized knowledge was “more restrictive than Congress or the [INS] intended" and instructed adjudicators to apply the new clarification so that the L-1B would be "more flexible and useful to international businesses": 

The problem stems from using a too literal definition of the term "proprietary knowledge" wherein the knowledge must relate exclusively to or be unique to the employer's business operation. Using this narrow interpretation of proprietary knowledge excludes numerous employees of international companies who were intended by Congress to be accommodated under the L classification.

Since the passage of the Immigration Act of 1990 (IMMACT 90), "specialized knowledge" has required (consistently with the 1988 INS clarification) either "special knowledge possessed by [the applicant] of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets," or "an advanced level of knowledge or expertise in the organization's processes and procedures."

In addition, in the preamble to the proposed regulations implementing IMMACT 90, the former INS acknowledged that “the intent of [IMMACT 90] as it relates to the L classification was to broaden its utility for international companies." Two INS Headquarters memos, in 1994 and 2003, and a 1994 State Department cable to the post in Madras (now Chennai), India reaffirmed the IMMACT 90 expansion of L-1B specialized knowledge. The 1994 State Department cable is significant because -- as shown below -- the very same Visa Office and consular post are at the epicenter of unlawful, revisionist and newly restrictive interpretations of specialized knowledge: 

Consuls should satisfy themselves that the applicant possesses knowledge that is not general knowledge held commonly throughout the industry but is truly specialized. The [Visa Office] notes this should not be construed to mean that an individual's expertise must be narrowly held within the company. The fact that the knowledge is held widely within the sending entity does not preclude it from being specialized.

With respect to the issues of remuneration of L-1 employees, there is no requirement (as for H-1Bs) that an individual be paid the prevailing wage. [Consular officers] must be satisfied that the applicant will not become a public charge. Beyond that, it does not appear to [the State Department's Visa Office] that the applicant's compensation may be addressed by [Consular officers].

Nothing of legal substance has changed since the IMMACT 90 Congress legislated an expansive interpretation of the specialized knowledge eligibility criteria, save for rogue (and now off-message) actions to restrict L-1B approvals, especially if the applicant is an Indian citizen. 

The trouble began in earnest with a 2004 Visa Office cable described as "clearly of greatest significance to the Indian Posts," and then with the USCIS Administrative Appeals Office (AAO), which published a 2008 non-precedent case involving an Indian software engineer, followed by USCIS adjudicators at the RSCs who have relied on that case to issue unwarranted L-1B RFEs and petition refusals, and by January, 2011 changes of heart by the State Department's Visa Office (relying on the same AAO case) and the consular posts in India.

More recently, however, the USCIS Office of Public Engagement (OPE), responding commendably to stakeholder concerns, held a May 12, 2011 Listening Session on the L-1B category.  The OPE's notes understate the intensity of complaints voiced during the call: 

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. . . .

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

If the USCIS has indeed offered "additional guidance and training to USCIS officers adjudicating L-1B petitions," the lessons have not been learned.  Job destruction by way of L-1B denials at the RSCs continues unabated, notwithstanding the President's jobs campaign.  The same can be said of the consular posts in India where, especially since March, employers and immigration lawyers have witnessed a steady increase in unwarranted L-1B refusals. 

Applicants have reported that interviews -- lasting but a few minutes -- are perfunctory, supporting documents are ignored.  Consular officers are prejudging the case (often filling in the L-1B visa refusal notice at the start of the interview), and concluding that any passing reference to a company other than the petitioner warrants the unjustified conclusion that the knowledge must not be specialized. Moreover, notwithstanding the 1994 State Department cable, consuls are asking irrelevant questions about wages paid, while disregarding the value of supplemental stipends for housing, food and travel in the U.S., and ignoring the instruction that specialized knowledge may be held widely within the foreign affiliate ("[the] fact that the knowledge is held widely within the sending entity does not preclude it from being specialized").

The State Department defends its high Indian refusal rate by suggesting that the posts in India receive more L-1B applications and approve more L-1B visas than any other U.S. consulates or embassies worldwide.  Neither State nor USCIS has explained, however, why "specialized knowledge" is simply far more difficult to establish for citizens of India than for nationals of any other country, and why an outdated set of L-1B eligibility standards applies much more to Indians than to other visa applicants.

In the absence of clear answers by State or USCIS to these apparently discriminatory and unlawful practices adversely affecting Indian applicants and their petitioning U.S. employers, the task of revealing the truth and redressing wrongs must turn to another government agency or the media.  Within the federal government, the Department of Homeland Security's Office of Civil Rights and Civil Liberties (OCRCL) is endowed with explicit legal authority to investigate.  All that is required to initiate an OCRCL investigation is for disadvantaged parties to file a well-documented complaint alleging that invidious discrimination has occurred or that the cherished, constitutionally-derived (5th Amendment) civil liberty -- due process of law -- has been violated. 

While some Indian L-1B aspirants may pray to the "Visa God," they and others can also seek and hopefully receive more immediate relief by pursuing the OCRCL's decidedly terrestrial solution. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The attention given the Obama Administration's expanded use of aerial drones (of late in Pakistan, Yemen and Libya, at the U.S. border, and perhaps over other points unknown) to bombard unsuspecting targets and predictably, if not wilfully, cause civilian casulaties, may have distracted from other important meanings of the word.  Webster's Dictionary defines "drone" in four distinct ways:

1 : a stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen

2 : one that lives on the labors of others : PARASITE

3 : an unmanned aircraft or ship guided by remote control

4 : DRUDGE . . .

Surprisingly, all four definitions, literally or figuratively, apply to recent action of the Department of State in unleashing a veritable arsenal of consular drones into the immigrationsphere on April 27. The DOS's surreptitious bomb droppings involve a far-reaching final rule issued without the usual forewarning of published notice and the opportunity for public comment as contemplated under the Administrative Procedures Act (APA).  Claiming that the rule is exempt from APA formalities, State (with signoff by Janice Jacobs, Assistant Secretary for Consular Affairs) proclaimed by ipse dixit a regulation expanding the authority of American consular officers to revoke U.S. visas previously issued to foreign citizens.

Typical Paparelli hyperbole, you might say, associating pilotless bombers that kill and maim with a dry rule published in the Federal Register.  Let's see.

Visa officers -- of both genders --- are mated to, and serve and service, the hive that is State (definition 1), although admittedly they are not "stingless," as I'll soon show. Their unwarranted visa refusals and revocations suck out the lifeblood of family unity and entrepreneurship that nourishes this Nation of Immigrants (definition 2). Too often thoughtlessly, they do the bidding of distant masters at State and Homeland Security, and are therefore reliably compliant in a Disney animatronic sense (definition 3).  And their work is unrlenting drudgery, given that State allows them just minutes to decide the destiny of visa applicants, no less decisively than a set of fast-closing subway doors determined the alternative fates of the characters in the 1998 film Sliding Doors (definition 4).

I've railed before, quite often and at length, about the harm to American families and firms caused by the unregulated power of U.S. consular officials to deny visa applications of deserving foreign citizens (to review my prior rants, the curious need only type the words "visa refusals" in the search box to the right). Still, this new drone attack is insidious in several ways:

1. Whimsy's Silent Death Knell. The final rule allows immigrant and nonimmigrant visa revocations in the consular officer's (potentially whimsical) discretion, whereas the prior regulations (see the IV rule and the NIV rule) made the decision purely one involving straightforward findings, of fact and and under law, that the applicant was not or is no longer eligible for the visa. Presumably, the new regulation supplants State's Foreign Affairs Manual (FAM) provision denying consular officers the "authority to revoke a visa based on a suspected ineligibility, or based on derogatory information that is insufficient to support an ineligibility finding."  Previously, consular officers had no power (only State had the authority) to decide so-called "prudential revocations" which according to the current version of the FAM, "simply reflect that, after visa issuance, information surfaced that has called into question the subject’s continued eligibility for a visa."
2. Shut My Mouth. The final rule removes any express opportunity for the applicant or his/her attorney to present evidence to confirm that the inividual is legally entitled to keep the visa under immigration law.  Instead, the new rule provides that consular officer "consider . . . information related to whether a visa holder is eligible for the visa." 
3. No Chance to Scream. Nothing in the final rule requires the consular officer to allow the applicant or counsel to inspect and rebut "derogatory information unknown to the applicant," unlike the USCIS regulation, 8 CFR § Sec. 103.2(b)(16), which grants this customary due process protection.
4. Shoot First, Ask Questions Later. The final rule creates an illusory "provisional revocation" process that is indistinguishable from an unconditional revocation, namely, the immediate nullification of the visa for use in traveling to the United States. The former regulations required the consular officer, if practicable, to issue a notice of proposed revocation and thereby allowed an opportunity for rebuttal or reconsideration before the actual revocation took place.
5. Queen Mother Bee, May I? The new rule relieves the consular officer of the duty in several types of cases to seek State's prior permission in the form of an Advisory Opinion.  Now a consular officer, without hesitation or consent, can uncap and click the visa revocation button and fire off a drone.  
6. 'Tain't Fair. Consular officers now have authority under the final rule to revoke a visa even if the visa holder is already in the United States -- an action that heretofore only State could do under the present version of the FAM. Under Immigration and Nationality Act § 221(i), a consular revocation cannot be reviewed by any court except in limited circumstances during a removal (deportation) hearing. Thus, a consular decision, perhap made on incorrect information and without notice to the visa holder or a rebuttal opportunity, transforms an otherwise law-abiding foreign citizen into a deportable alien whose only remedies are to be hauled before an immigration judge or hop on the first flight back home.

Even before State's fait accompli drone attack, the DOS recognized and forewarned consular officers to "be alert to the political [and] public relations . . . consequences that can follow a visa revocation," noting in the FAM that the "revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state." Apparently, visa revocations involving lesser known foreign figures are of inconsequential concern to the Department.

I'll end my droning with a suggestion to State: 

If you care about our nation's image in the world and the soft skills of diplomacy, as you oft proclaim, withdraw this silly and pernicious rule. Contrary to your bald assertions in the preface to the rule, your release of immigration drones will inevitably trigger "adverse effects on competition, employment, investment, productivity, innovation, [and] the ability of United States-based companies to compete with foreign based companies in domestic and import markets."  Your rule also raises the prospect that families of "little people" -- to snatch a phrase from the "Queen [Bee] of Mean," Leona Helmsley -- will be torn apart by your improvidently released drone attack on fair play and simple justice. 

With your actions as added martial fodder, is it any wonder that Superman is renouncing his U.S. citizenship because he cannot in good conscience continue to link truth and justice to the American way?