Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

One of the most durable historical myths, Potemkin's villages, involves the trompe-l'œil hamlets purportedly created at the direction of Grigory Potemkin to impress Catherine II during her 1787 trip to Crimea. If director James Cameron of Avatar fame were to reimagine and modernize the fable of Potemkin's villages, he might well place the story, in 3D no doubt, at the Frances Perkins Building on Constitution Avenue in Washington DC. 

There a unit of the Department of Labor (DOL), the Employment Training Administration (ETA), maintains its Office of Foreign Labor Certifications (OFLC) whose mission, in part, is the administration of the nation's permanent labor certification program.  This ETA program, bearing the acronym, PERM (Program Electronic Review Management), is a veritable Potemkin village of black-box bureaucracy featuring repeatedly non-functional technology, secret algorithms and surreptitious data mining. 

For the uninitiated, a labor certification, as DOL has structured it, is a recruitment exercise imposed on employers to see if there are any able, willing, qualified and available American workers in a particular U.S. metropolitan area.  If the recruitment is conducted under DOL-mandated steps, yet fails to find a suitable U.S. worker, the Secretary of Labor will certify the failure. Thus, the Secretary's certification acknowledges that the grant of permanent residence to a sponsored foreign citizen will not adversely affect the wages and working conditions of similarly employed workers in the United States.

DOL inaugurated PERM in 2005 for two stated reasons: (1) to use automation to winnow a backlog of paper-based applications for labor certification that went back five years in many cases, and (2) to address the concern of the DOL's Office of Inspector General (OIG), expressed in a 2004 report, about "the vulnerability of DOL's foreign labor certification programs to fraud by non-traditional, transnational organized crime groups."  Perhaps more than owing to worries over global crime syndicates, DOL seems to have devised PERM because it had been hoodwinked and humiliated by a Virginia lawyer, Samuel Kooritzky, into approving hundreds of bogus labor certifications, the same lawyer who had defeated the agency in federal court and thus secured an order that preserved the (now-extinct) practice of substituting one foreign national for another on an approved labor certification.  

DOL's worries about fraud in the PERM program persist. Listed among the "2011 Top Management Challenges Facing the Department of Labor" is the need to "maintain the integrity of the foreign labor certification programs":

ETA is challenged to ensure the integrity of the [Foreign Labor Certification] programs it administers. OIG investigations continue to uncover schemes carried out by immigration attorneys, labor brokers, and transnational organized crime groups. OIG investigations have repeatedly revealed that fraudulent applications filed with DOL on behalf of fictitious companies, as well as schemes wherein fraudulent applications were filed using the names of legitimate companies without the companies’ knowledge.

To address the apparently widespread incidence of labor certification fraud, DOL is piloting a "new risk management model [which] allows ETA to assign risk ratings to individuals applying to its PERM program and spend the appropriate amount of time reviewing the higher risk applications and reducing overall reviewing timeframes." (Source: DOL "Agency Financial Report for Fiscal Year 2011," p. 181.)

The evidence DOL cites, however, does not back up its exuberant claims of a PERM program rife with fraud.  The Highlights of the DOL OIG's Semiannual Report to Congress mention only two, admittedly egregious, cases: a family that used 11 staffing companies to import over 1,000 H-2B nonimmigrants; and an attorney employed by U.S. Immigration and Customs Enforcement convicted of a slew of federal crimes including labor certification fraud. Another report, the DOL's "Permanent Labor Certification Debarment List," names only nine entities and individuals who are prohibited, by virtue of serious regulatory violations, including fraud, under 20 CFR 656.31(f), from participating in the PERM program. To place these reported incidents of fraud in context, consider that, according to the notes of an October 5, 2011 OFLC Stakeholders Meeting  (AILA InfoNet Doc. No. 11102768), DOL has adjudicated year to date a total of 73,000 PERM applications.

Despite the absence of evidence from DOL showing that PERM fraud proliferates, ETA is developing a new and growing backlog.  The new queue is attributable to the increasing number of DOL audit requests (which extend the life of the average PERM case from three to eight months, according to DOL's published processing times) and orders for "supervised recruitment" -- the pre-2005 system of agency-micro-managed recruitment that PERM was devised to replace. This back-to-the-future backlog requires the hiring of third-party contractors and their newly recruited workers. It also creates lengthy processing timespans that DOL declines to publish.

No one suggests that fraud is non-existent or that ETA's Fraud Detection and Prevention unit (oh heavens, another FDNS!?) should not try to maintain PERM program integrity.  Rather, DOL should tone down its group defamation and burdening of law-abiding lawyers and businesses by lumping them in with unnamed "immigration attorneys, labor brokers, and transnational organized crime groups".  Instead, if DOL wants to make real strides at fraud prevention in 2011, it should finally do what lawyers proposed in 2005 and at last prohibit notarios and consultants from representing employers and foreign nationals in PERM applications: 

Despite two detailed comments suggesting that [non-lawyer] agents should no longer be allowed to represent the parties to a labor certification because their conduct constitutes the unauthorized practice of law and is prohibited in all 50 states, the DOL [has] allowed agents to continue practicing before the agency. The DOL reasoned that the agency has always allowed agents to file labor certification applications and to bar them now ''may have serious consequences'' for individuals serving as agents. 69 Fed. Reg. at 77,336 (supplementary information).

Source: Angelo A. Paparelli, "Policy Choices Driving the Labor Department's New PERM Rule," 10-5 Bender's Immigr. Bull. 1 (May 1, 2005).

The DOL's preoccupation with unsubstantiated fraud is not merely an academic concern.  As reported in a recent poll by the Society for Human Resource Management (SHRM), over 50% of organizations are finding it difficult to recruit "skilled workers for specific job openings, with engineering, medical, technical and executive positions especially hard to fill."

As Mark Schmit, SHRM's vice president for research, observed: 

American businesses are facing a paradox — high unemployment and the inability to fill key jobs in their organizations. Our research shows that gaps between unemployed American workers’ skills and those required for open jobs in the United States are a major reason for this seemingly unlikely contradiction. It follows logically that if key jobs cannot be filled in organizations, then other less critical jobs requiring less skill cannot be created either because the organizations’ growth potential is stunted. Thus, the cycle of low or no job growth continues.

The requirement to secure a DOL labor certification as a prerequisite to an employment-based green card was established by Congress to protect U.S. workers. Yet, ironically, the Department charged with the duty to protect U.S. workers and certify job shortages has erected a false front of supposedly virulent, but unproven fraud, an apparition worthy of Potemkin, to mask its maladministration of the DOL's dubiously conceived and backlog-regenerating PERM program.

The dog days of August are behind us, yet the economic doldrums persist.  Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecasts that it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012. 

Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech:  Will he go large to appease dispirited Progressives?  Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support. 

American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."

The descent, however, is not inevitable.  It can be reversed.  A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.

Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic. 

The White House already knows it possesses the authority through executive action in immigration matters.  The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry.  Disinformation, however, is spreading but failing to gain much traction.  The "Backdoor Amnesty" dog has no legs and won't hunt.

If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?  

The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures.  They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").

Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):

• Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
• Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
• Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:
  • Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
  • Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
  • Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.
• Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of “parole in place” and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
• Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
• Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
• Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
• Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define “retaliation” broadly and pursue violations aggressively.
• Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
• Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use. 
• Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
• Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
• Instruct and empower the Small Business Administration’s Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.

As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails.  Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure.  American citizens looking for jobs deserve nothing less. 

President Obama has put on a good show lately about the need for the populace to rise up and pressure the GOP to enact comprehensive immigration reform.  He urges citizens to begin "a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America’s 21st century economy."  With the White House claiming that "he can’t do it alone," he asks you and me to host  roundtables that will "help bring the debate to your community." 

Were it not for the Republicans who keep moving the goal posts on border security, he claimed on May 10 in El Paso, we'd be able, together, to devise the grand solution that fixes our nation's wholly dysfunctional immigration system: 

We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done. But even though we’ve answered these concerns, I’ve got to say I suspect there are still going to be some who are trying to move the goal posts on us one more time. . . . they said we needed to triple the Border Patrol. Or now they’re going to say we need to quadruple the Border Patrol. Or they’ll want a higher fence. Maybe they’ll need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics.

Some may be moved by his crocodile tears to swallow the notion that his hands are tied. I have a few words in response:  Balderdash. Bunkum. Hogwash. Fiddle-faddle.

Either this president is not the analytical, data-gathering, cooly-decisive and valiant leader portrayed by the media, particularly since the takedown of Osama Bid Laden, or, he is playing politics with people's lives and "America’s 21st century economy."  There's no need to repeat previous posts (here, here, here, here, here and there) on his broad executive authority to ameliorate the traumas endured by DREAMers and the other undocumented among us. 

The simple fact, known all too well by immigration insiders but rarely reported, is that President Obama could vastly improve America's competitiveness and stop the flight of foreign talent back to their homelands by reversing or recalibrating several administrative rules or rulings that have long thrown foreign entrepreneurs into the moat with the immigration alligators.  

Here are some things that President Obama could accomplish immediately, solely by executive action, to allow existing America's immigration laws to help create jobs:

• Restore Self-Sponsorship for Working Owners. Since 2010, U.S. Citizenship and Immigration Services (USCIS) has prevented foreign entrepreneurs from receiving an H-1B visa (for workers in specialty occupations).  The agency took this action notwithstanding four precedent decisions, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958), that allowed a foreign citizen to incorporate a business and use the entity to sponsor the individual's work visa or green card.  The President could easily order USCIS to withdraw the 2010 USCIS memorandum that abruptly strayed from precedent decisions, as the American Immigration Lawyers Association (AILA) has urged. 
• Restore L-1A Function-Manager Eligibility. The Immigration Act of 1990 (IMMACT) allows managers of essential corporate functions to qualify for an L-1A work visa (for intracompany transferees) and a first preference green card (for multinational managers).  Before IMMACT, only managers of personnel could be granted these benefits.  USCIS routinely denies function-manager requests by claiming that the person does not manage the particular function but primarily performs the function.  This interpretation has rendered the function-manager category a dead letter.  Congress had no need to create the function manager classification in IMMACT if subordinate personnel were to be required to perform the function (so that the function manager could manage it) since a people-manager category already existed. To offer a simple example, a corporate controller under the current USCIS interpretation cannot qualify as a function manager unless the person manages other people -- something that controllers rarely do. The President can easily remedy this mistaken interpretation by instructing USCIS that managers of key corporate components and functions are eligible for function-manager designation even if the individual also performs the function.  This would allow foreign entrepreneurs to create new U.S. businesses and start creating jobs for U.S. workers right away.
• Restore L-1B Specialized-Knowledge Eligibility. The USCIS Office of Public Outreach got an earful of criticism last week from stakeholders urging the agency to revert to longstanding interpretations of eligibility for an L-1B intracompany transferee visa under the specialized knowledge subcategory. In the teleconference, callers explained that the L-1B had been properly interpreted for decades until 2008 when a non-precedent decision of the USCIS Administrative Appeals Office without warning dramatically restricted its interpretation of L-1B specialized knowledge. Here too, the President could swiftly help foreign entrepreneurs create American jobs by restoring their longstanding ability to send key workers with specialized knowledge to the United States. 
• Expand Schedule A to include “special-merit” foreign citizens.  The Department of Labor (DOL) under its Schedule A regulation has long allowed persons whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. Schedule A now includes registered nurses, physical therapists and persons of exceptional ability. Back in 2002, AILA asked the DOL but the agency refused to expand Schedule A by allowing "special-merit" foreign citizens to immigrate. AILA made this request because the normal labor market rules deprive a wide array of worthy aliens of any opportunity for PERM labor certification.  Individuals in the unwelcome category include investors, entrepreneurs and working owners, and foreign-born employees who are “so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien”.  Under orders from the President, the expanded use of Schedule A for these special-merit foreign citizens would allow fair consideration of deserving cases that have had little or no access to labor certification under the current system.
• Allow the filing (but not the approval) of green card applications before the visa quota is open. Today, because of quota backlogs and an unfair allocation system, a person born in India holding a university degree, whose employer's immigrant visa petition has been approved, may have to wait as much as 20 years before being allowed just to file a green card (adjustment of status) application. The wait is only marginally less for those born in China.  During that time, the person's spouse and working-age children ordinarily cannot work, and the children are at risk of "aging-out" -- reaching age 21 and thus losing green-card eligibility. What's worse, if the foreign worker loses his job in the meantime, the whole immigration sponsorship process (if the family involved has the stomach to pursue it) must go back to square one. As much as America may otherwise be attractive to foreign entrepreneurs and key workers, no sane person would find the risk and limitations of these waiting periods enticing.  In a New York minute, if he were so inclined, President Obama could make the wait more tolerable.  All he'd need to do is instruct USCIS to accept for filing adjustment applications for the beneficiaries of approved immigrant visa petitions and issue a rule freezing the dependent children's age as of the date of filing the green card application.  This way, in the interim until the quota is current, the spouse and working-age children could work or study, and the foreign employee would not be tempted to give up on America, return home and compete against us.

President Obama is no fool.  He understands the link between immigration, innovation and job creation, as he explained to the crowd in El Paso:

[O]ur laws discourage [foreign students educated in the U.S.] from using those skills to start a business or a new industry here in the United States. Instead of training entrepreneurs to stay here, we train them to create jobs for our competition. That makes no sense. In a global marketplace, we need all the talent we can attract, all the talent we can get to stay here to start businesses -- not just to benefit those individuals, but because their contribution will benefit all Americans. 

Look at Intel, look at Google, look at Yahoo, look at eBay. All those great American companies, all the jobs they've created, everything that has helped us take leadership in the high-tech industry, every one of those was founded by, guess who, an immigrant. (Applause.) 

So we don’t want the next Intel or the next Google to be created in China or India. We want those companies and jobs to take root here. (Applause.) Bill Gates gets this. He knows a little something about the high-tech industry. He said, “The United States will find it far more difficult to maintain its competitive edge if it excludes those who are able and willing to help us compete.” 

So immigration is not just the right thing to do. It’s smart for our economy. It’s smart for our economy. (Applause.) And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.

Why does the President wait for Congress to act when he has his executive pen in his pocket?  Why should immediate job creation be held hostage to Washingtonian impasse, when the job-eating immigration alligators under his control can be easily restrained?  I'm no politico, but it's politics, I suppose.

On February 18 and 19, the University of California (Irvine) hosted a symposium where many of U.S. immigration's Rock-Star professors came together to try and solve "Persistent Puzzles in Immigration Law."  The topics covered a wide expanse. A subject discussed that particularly interested me is Congress's often inexplicable delegation of regulatory authority among a surfeit of federal agencies that administer and enforce the immigration laws, each with its area of real (or presumed) expertise and overlapping responsibilities. 

One speaker mentioned her concern about the possible mis-use of E-Verify by some employers to screen current or would-be workers for employment eligibility, even though that kind of screening violates the terms of use under the memorandum of understanding with Homeland Security (DHS).  She proposed that perhaps Congress should authorize the Department of Labor (DOL) to investigate and punish this type of violation.  During the Q & A, I suggested that, even if the problem is as widespread as the speaker feared, the Department of Justice (DOJ) should do the policing, because, based on my experience, DOL must first improve its abysmal record of administering the immigration laws before Congress grants it any more power.

Regular readers of this blog would be forgiven for assuming, given my recent rants on labor certification (here and here), that the DOL's PERM program had come to my mind.  No, actually I was thinking of the H-1B program and a January 2011 Government Accountability Office report (GAO-11-26). Although the report contains a wealth of data, and is written from a glass-half-empty perspective, it actually shows that access to cheap foreign labor -- the usual slam against the category -- is not the real motivation for its use.  Rather, as the National Foundation for American Policy notes in its analysis of the GAO data, "hiring the best candidate for the job, whether U.S.-born or foreign-born, is the primary consideration for employers" who sponsor H-1B workers.

I will offer many critiques of the economy-harming H-1B program in future blog postings, and assail the GAO's flawed analysis and implied bias reflected in the title of its report ("H-1B VISA PROGRAM - Reforms Are Needed to Minimize the Risks and Costs of Current Program").  For now, in the au courant Washington spirit of reducing government expenditures and eliminating unnecessary regulations that burden business, I propose that Congress take the DOL out of the H-1B application process altogether, and that USCIS serve solely to approve or deny H-1B visa petitions and grants of nonimmigrant status.  

To gain a visual understanding of my point, consider this GAO chart depicting the current H-1B process:

As the chart shows, the only role for the DOL at the outset of the H-1B process is to perform a ministerial task, i.e., to review an employer attestation form (known as the Labor Condition Application or LCA) to confirm that it is not "incomplete or obviously inaccurate."  The GAO agrees with me that Congress should consider eliminating this step, and instead requiring U.S. Citizenship and Immigration Services (USCIS) to receive and certify the LCA when adjudicating the H-1B visa petition:

To reduce duplication and fragmentation in the administration and oversight of the H-1B application process, consistent with past GAO matters for congressional consideration, [Congress should] consider eliminating the requirement that employers first submit a Labor Condition Application (LCA) to the Department of Labor for certification, and require instead that employers submit this application along with the I-129 application to the Department of Homeland Security’s U.S. Citizenship and Immigration Services for review.

Eliminating the LCA review by DOL would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to "certify" the LCA. This savings of time is especially important each year in March when every day counts as employers scramble to file their H-1B petitions by April Fools Day in order to fall within the woefully small H-1B annual quota. 

USCIS opposes the GAO's suggestion, however, offering the following rationale to the GAO:

Homeland Security officials believed that Labor would be better suited to review the LCA because Labor has specialized knowledge about the computation of prevailing wages.

USCIS's justification for shirking a task that would result in an obvious time- and cost-savings doesn't stand up to close scrutiny.  Most employers use the DOL's online O*Net database and Standard Occupational Classifications to obtain the prevailing wage, and USCIS could easily cross-check those sources (as it now does with its VIBE system) to make sure the correct wage figure is used.  Even in the comparatively rare situations where an employer submits an alternate wage source, USCIS could easily adopt and apply DOL's regulations on the requirements for use of a union contract, an "independent authoritative source" survey, or "[an]other legitimate source" of prevailing wage data, or consult with the DOL.

Avoiding front-end delay is just a first step in process improvement.  The more urgent challenge is how best to consolidate enforcement of the H-1 program in one agency.  The current enforcement hodgepodge is reflected in this GAO chart:   

There is no reason that H-1B employers, by regulation, must be prepared to face a triad of investigations by three federal agencies housed in three different departments.  H-1B enforcement responsibility should be consolidated into one agency, and the rules governing the procedures, scope and duration of an investigation, along with employer due process protections (such as the Good Faith Compliance defense added by the H-1B Visa Reform Act of 2004) should be promulgated under the customary requirements of public notice and opportunity for comment under the Administrative Procedures Act. 

As I suggested to the immigration law professors, my recommendation would be to place all immigration policing authority with the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) in the Justice Department under an expanded grant of authority.  The money we'd save and the burdens lifted by permitting USCIS to serve as sole H-1B adjudicator and pinning on OSC the lone sheriff's star would be substantial. An added benefit would be that a neutral actor, the Justice Department, would have no dog in the fight, unlike the DOL whose mission is "foster[ing] and promot[ing] the welfare of the job seekers, wage earners, and retirees of the United States," rather than according fair process to employers. 

So, Congress, in keeping with the zeitgeist, can you spell?:

I-M-M-I-G-R-A-T-I-O-N

D-E-F-I-C-I-T

R-E-D-U-C-T-I-O-N