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

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

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

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

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

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

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

The problems with the concept, however, are many.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).

The 2012 IMMI Awardees

Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:

Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.  

Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:

[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.

Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 31.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as "Deporter in Chief" and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 -- an all-time high -- the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year -- especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals").  Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency's contract on its Transformation program for the online submission of immigration forms, and the issuance of a "guidance memorandum" offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of "tenant occupancy" that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit's deportation for his post-Newtown critique of America's woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.

Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied":  The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.

However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions."  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona's nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law's provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year's IMMI goes to those feckless employers throughout America who fail to recognize that -- no matter what happens on comprehensive immigration reform -- the Feds are coming to check your business's immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.

* * *

Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.

At least by 1602 with the chartering of the Dutch East India Company, and perhaps as early as the 1300s with the formation of the first colleganza, a rudimentary joint-stock company set up in Venice to share the cost of a trade expedition, human beings and corporations have cohabited the earth.

Although the shared habitation of human and juridical beings has never been entirely peaceful, governments have recognized the countervailing benefits of authorizing associations of people to incorporate fictitious legal entities. When corporate rights are recognized and liabilities limited, governments perceive it more likely that profits will be generated and workers hired than through riskier sole proprietorships and partnerships. 

Governments can also control the behavior of companies, as Arizona has done in enacting a statute mandating enrollment in E-Verify, the Department of Homeland Security’s employment-eligibility verification database – a law the Supreme Court upheld in U.S. Chamber of Commerce v. Whiting. 

To be sure, the legislatively-recognized corporate form at times provides shelter from legal storms while leaving sentient members of the species, homo sapiens, unprotected. For example, the constitutional rights of free association and speech – when applied to corporations – spawn consequences that repulse most ordinary citizens, such as the harmful flood released by the Supreme Court of anonymous corporate donations that fund Super-PAC campaign ads through its ironically titled decision, Citizens United v. Federal Election Commission. 

Moreover, when corporations are formed abroad, and profits – though generated through domestic activities – are treated as having been earned outside the United States, federal tax coffers are less full than they otherwise might be.  This happens, for example, through the “age-old ruse” of a blind trust (another form of fictive legal entity) when money that might otherwise be subject to U.S. taxation is stashed in a Swiss or Cayman Islands entity, as a certain GOP Presidential candidate who believes that "[c]orporations are people, my friend," perhaps understands quite well. 

In the immigration sphere, bureaucrats in the Department of Labor (DOL)  and U.S. Citizenship and Immigration Services (USCIS) often refuse to accept the established rule-of-law principle that companies are to be treated as distinct from their individual owners. Although the Obama Administration claims as its official policy enthusiastic support for small-business entrepreneurship, these agencies have adopted regulations or policies at cross purposes that make it nearly impossible for the sole owner of a corporation to qualify through that entity for an employment-based work visa or green card.

The DOL’s Tomfoolery. The DOL has enshrined in its regulations requirements protecting the labor certification process from seemingly sinister “[a]lien influence and control over [a] job opportunity.” These regulations mandate the submission of evidence envisioned in an administrative law case, Matter of Modular Container Systems, Inc., 89-INA-288 (BALCA 1991).  A decision rendered by a panel of civil servants with law degrees known as the Board of Alien Labor Certification Appeals (BALCA), Modular Container Systems made it almost impossible for a corporate entity owned, say 10% or more, by a foreign citizen to sponsor that individual’s labor certification application:

We hold . . . that if the alien or close family members have a substantial ownership interest in the sponsoring employer, the burden is on the employer to establish that employment of the alien is not tantamount to self-employment, and therefore a per se bar to labor certification.

BALCA therefore clearly ignored the venerable Anglo-American legal principle that a corporation is distinct from its owners since the panel ruled that the employee of a corporation is not to be treated as such but rather as engaging in activity “tantamount to self-employment.” 

The DOL regulations, while claiming to accept Modular Container Systems, ignored the corporate form in a different way, namely, by establishing an irrefutable presumption of “bad faith.”   This proposition holds that no  job opportunity could be considered “bona fide” under the labor-certification recruitment process if a foreign citizen sponsored by a corporate employer for a green card (or a family member) holds a material percentage of stock in the corporate sponsor or otherwise could influence the company in determining the qualifications of U.S. citizen job applicants. While this principle may seem logical at first blush, it ignores the other-worldly fictions (as I’ve shown here, here, here, here, here and there) that are part-and-parcel of the DOL’s bass-ackward labor-market testing procedures. 

Inherent in the DOL’s rule precluding working-owner labor certification is the unproven assumption that an individual shareholder is more likely than a corporate entity to commit fraud. The lengthy list of prominent corporate frauds and other corporate scandals, however, belies the proposition. 

USCIS’s Three-Card Monty. USCIS, the component within the Department of Homeland Security charged with granting or refusing employment-based immigration benefits, likewise flouts the corporate form whenever it wishes.  Yet its misfeasance is worse than that of the DOL. 

Rather than publish a proposed regulation and allow an opportunity for public comment, USCIS simply announces novel interpretations of requirements to establish an employer-employee relationship as a prerequisite to approving a work-visa petition.  USCIS's out-of-nowhere interpretations flout binding and well-settled legal precedents, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958).  These decisions uniformly recognized the distinction between a corporation and its shareholders, thereby allowing a foreign citizen to incorporate a business and legitimately use the entity to sponsor the individual's work visa or green card, activities praised and coveted in the business world as “immigrant entrepreneurship.” 

USCIS, however, in ostensive deference to the Obama Administration’s entrepreneurship initiatives, has claimed to espouse the cause of entrepreneurial job-creation with élan. It has created a much-vaunted “Entrepreneurs in Residence” program, and issued and twice amended an FAQ ("Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the 'Employee-Employer Relationship' in H-1B Petitions") showing how the agency promotes immigrant entrepreneurship.  Retreating a tad from its interpretations limiting the recognition of an employer-employee relationship, the agency's FAQ offers an encouraging workaround:

Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship? 

A12.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary. (Emphasis added.)

Unfortunately, an off-message adjudicator at the USCIS California Service Center disputes the concept embraced by the agency's headquarters that the creation of a higher authority with the right of control over the H-1B worker will allow a petitioning corporation to demonstrate that a working owner is in a valid employer-employee relationship with the entity. In this decision, the CSC adjudicator ignored the evidence that a limited liability company (LLC), owned equally by the H-1B beneficiary and another member, was controlled by its managers rather than its members.  The adjudicator determined that the members' shared theoretical authority to remove the managers negated an employer-employee relationship.

Ironically, if the entity were a corporation with a board of directors and a sole shareholder as the working owner, USCIS headquarters appears ready, based on the FAQ, to find an employer-employee relationship and approve the H-1B petition, even though a 100% shareholder could fire the board just as easily as sole or joint members of an LLC could remove the managers.

* * *

This, sadly, is what happens when immigration bureaucrats create irrebuttable presumptions of bad faith by working owners or float new and unwarranted interpretations that disregard settled law dating back centuries.  Corporations – though they are not people – possess enforceable legal rights.  Ignoring the distinction between a corporate entity and its owners does nothing to promote the just administration of the immigration laws, hampers job creation and entrepreneurship, and persuades an increasingly cynical public that the agencies make up seat-of-the-pants "law" on the fly.

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