[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

By Keyrock

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.

USCIS weighs in by suspending action on H-2B petitions.  Adding to employer travails, U.S. Citizenship and Immigration Services (USCIS) -- in light of the Pennsylvania federal court injunction -- announced on April 2 that it will temporarily cease adjudication of all H-2B petitions, in part, because the "Department of Labor intends to promulgate a revised wage rule within 30 days of the date of the Court order." 

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.

"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.

In all, I offer "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services," and welcome reader commentary.  These suggestions, if adopted, would improve the system of immigration justice, but they only nip at solutions. 

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.

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." 

[Blogger's note:  Whether by dint of nature or nurture, lawyers love to argue; immigration lawyers perhaps more so. Unlike our colleagues (outside of immigration practice) for whom sources of law are better defined, immigration attorneys can access a wider array of law and non-law sources with which to fashion our pro and con arguments.  

As a change of pace from this blog's usual fare of criticizing immigration agencies and Congress, today we'll offer a PG-rated point/counterpoint with guest blogger, Karin Wolman, and me (Disclosure: Neither of us is depicted in the photo).  

We debate the oft-posed question whether a foreign citizen while living in the United States and holding one of any number of categories of U.S. nonimmigrant status who are not expressly authorized to work can nonetheless be employed by and serve a foreign employer.  This might, for example, include:

• a spouse on a dependent visa whose other half is lawfully employed on a work visa;
• a B-2 or WT (visa waiver) visitor for pleasure vacationing in the U.S. who must attend to emails sent by a customer of the visitor's foreign employer;
• a B-1 or WB (visa waiver) visitor for business who must assign or supervise work to be performed abroad;
• an F-1 student who is sent by her employer abroad to study for an MBA; or
• an H-1B work visa holder who (although authorized to work for a specific U.S. employer) is not expressly permitted to moonlight for an employer abroad.

The controversy arises because Congress has never bothered to define "employment" under the immigration laws, and the definitions of the term in immigration regulations, case law and non-binding policy guidance are incomplete or imprecise.  

So you be the judge.]

Can I Work from Home for a Foreign Employer? 

[Karin Wolman's answer] 

 May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad?  This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories. 

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens.  Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:

1. total annual earnings from such services is less than $3,000; 
2.  the nonresident alien is physically present in the United States for not more than 90 days in the year; 
3. the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather  than under 3 months. Their visa status does not permit them to earn any “US source income.”  If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here.  From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under Immigration and Nationality Act (INA) § 245(c).

There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so.

The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.

 *CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional. 

Can I Work from Home for a Foreign Employer?

[Angelo Paparelli's reply]

Can a nonimmigrant who lacks authorization by U.S. immigration authorities be employed in the U.S. to work from his or her home in the U.S. for a foreign employer abroad?  My lawyerly answer is: It depends.  The question is not one of tax law.  The tax laws and immigration statutes have each been enacted for distinct purposes, and one legal regimen does not necessarily inform the other. Rather than taxation, the laws of employment and of immigration apply, as well as a subject of law study known as "conflicts of law." 

Phrase the question thusly and the answer may well be different from the one Karin offers:  

Does U.S. immigration law prohibit a foreign citizen from fulfilling an employment agreement with a company incorporated and doing business abroad?

Before answering, assume the agreement specifies that the required activities will involve creating and saving work product, through the use of a web browser in "the cloud," with the cloud's servers located on foreign soil.

Assume further that the agreement allows the foreign citizen to work from anywhere in the world, is made before the individual enters the U.S., and provides that salary payment shall be in a foreign (non-U.S.) currency with direct deposit into a foreign bank account and provides that the law of the foreign state and the courts of that state where the employer has its headquarters shall govern any disputes that may arise between employer and employee.

On these assumed facts, does the foreign employer or employee violate American immigration law if the employee fulfills his or her part of the bargain from a residence in the United States? My answer is:  Probably not, because the mere fortuity that the work is performed from within the U.S. rather than in any other country is too slim a fact to give the U.S. under conflicts of law principles a legitimate interest in applying American law. After all, no American workers were harmed by the work performed under this contract.  

As I read the INA, Congress has never expressly said that U.S. immigration law should be given extraterritorial effect.  See EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 1230 (1991), in which the Supreme Court changed the longstanding presumption against the extraterritorial application of American law (unless a contrary intent appears) into a presumption against extraterritoriality (unless there is the affirmative intention of the Congress clearly expressed). To be sure, the U.S. immigration police would probably try to assert that a nonimmigrant who works from his U.S. home for a foreign employer on the facts I've posited has violated the immigration laws. But that doesn't mean the immigration cops would be right.  I believe, nonetheless, that the federal judiciary would follow EEOC v. Arabian American Oil Co. and say that U.S. immigration law cannot be applied extraterritorially to prohibit that which is lawful on foreign soil.

[Karin Wolman's retort] 

I fall unequivocally on the "unauthorized employment" side: The salary paid for the employment is active, earned income characterized by a combination of three factors -- provision of services for hire by the foreign national + physical presence in the US that is not brief nor intermittent + U.S. source income in exchange for provision of those services.

[Angelo Paparelli's rejoinder]

The real question then is not whether a foreign employer may employ a foreign citizen working in her American home without a work visa but WWTCD (What would the courts do)? 

The historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed. 

And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.

Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abattoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").

In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). 

In essence, the IG reports that:

• "Immigration law is complex, and USCIS administers benefits of great value."
• "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"
• Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.
• Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.
• USCIS guidance on when to request additional evidence is confusing.
• Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.
• There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. 
• The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."
• The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." 
• "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."
• The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "  

Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":  

• Wherever possible there must be independent confirmation of the facts
• Encourage substantive debate on the evidence by knowledgeable proponents of all points of view.
• Arguments from authority carry little weight.
• Spin more than one hypothesis - don't simply run with the first idea that caught your fancy.
• Try not to get overly attached to a hypothesis just because it's yours.
• Quantify, wherever possible.

The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":

The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)

Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.

The IG also erred when it extrapolated from a very small sample of USCIS employees, 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:

[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”

Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:

Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)

The IG readily acknowledged that inferences drawn from its findings may be unjustified:

[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.

Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).

Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")

In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. 

To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:

The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)

Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:

Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.

While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:

The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . 

Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in ruling on the proper standards of determining eligibility in a case involving the EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigration and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:

It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”

If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:

Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.

We are a Nation of Immigrators, not a nation of suckers.

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.)

What does the decision, U.S. Chamber of Commerce v. Whiting, mean for large and small employers?  Here are my predictions (I welcome any comments or critiques below or on my Twitter page): 

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. 

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. 

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws. 

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.