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

Last week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth -- Americans in all but the eyes of the law -- who support enactment of the DREAM Act. 

Publicly proclaiming one's unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its "Guide to ‘Coming Out’ for Undocumented Youth," revealing to others that you live in this country without legal status can range from "easy to very hard" depending on the way it's done. An act in defiance of governmental authority, "coming out" can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial.  Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows.  Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC). 

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3).  This is a risky proposition.  It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office -- a unit of U.S. Customs and Border Protection -- which must approve it.  If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.  

The guide, quite correctly however, cautions DREAMers: 

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

The E4FC, also laudably, provides links to a free, online service for DREAMers to obtain a preliminary assessment of whether legal remedies may exist in a particular individual's unique situation, while offering the admonition:

This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.  

I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice.  For legal advice in each individual's case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

1. Build Your Tribe.  No DREAMer should face the federal government alone.  Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though government officials may deny that publicity has any effect on their actions, publicity helps.  Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."
2. Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways.  It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues.  It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least at a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States.  As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled."  Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold.  If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission.  Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant.  See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
3. Seek Lawful Nonimmigrant Status without leaving the United States.  Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories.  As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established.  Extraordinary circumstances are decided on a case-by-case basis.  As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place.  INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum.  Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.   
4. Apply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low.  According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD.  If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program."   Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."  Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:

The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:

(A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

* * *

To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism.  So be it.  My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won. 

Rather, this is where your tribe and the tribes of all the DREAMers must spring into action.  Mount a campaign to persuade USCIS to embrace these approaches in individual cases.  Present the most worthy and compelling cases first.  Refrain from filing cases with little hope for success.  Publicize the outcomes of the successes and failures.  Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. 

The DREAMers, after all, are the innocents.  They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them.  Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.  

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek.  Instead, come out, come out, wherever you are.   

The recent CNN GOP debate on foreign policy surprised many for what it included and excluded.  Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America.  The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:

"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

This prompted an attractive or repellant response (depending on one's views) concerning magnets. Candidates Bachmann and Romney chided Gingrich on the magnet of amnesty and the magnet of taxpayer-subsidized college tuition for DREAMers -- although post-debate reporting and opposition research revealed that both Willard Mitt and Michele Marie have espoused positions on legalization similar to Newton Leroy McPherson (Newt's name at birth).

However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs.  It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America.  Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade.  Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad.  Or so the theory goes.

In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset.  Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work. 

Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge.  None of these choices attract, magnetically or otherwise.  An extended stay at Club Fed is not desirable.  Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.

As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:     

Some may think that the problem of job magnets will be solved once E-Verify, the federal employment verification database, becomes mandatory, as House Judiciary Committee Chairman, Lamar Smith (R. TX) has proposed.  It will not -- because E-Verify suffers from the law of GIGO.  The database is debased because it depends on the doubtful accuracy of Social Security Administration and Homeland Security Department records.  Moreover, although E-Verify has recently (and rather quietly) gained access to Department of State records on American citizens who've received a U.S. passport or passport card (I for one don't remember giving permission), and Mississippi DMV records, the e-system remains incomplete.  It still cannot catch identity theft and citizen impersonators.  It will not be foolproof until every American, not just every foreigner, is in the database.

That's not likely to happen anytime soon.  Witness the strange bedfellows of immigration who have opposed the REAL ID Act and encouraged states to drag their feet or demand waivers of the requirement that states satisfy federal standards for issuing new drivers licenses.  Opposition is also growing over a similar identification requirement, the Voter ID laws cropping up across the country. 

Politicians skirmishing for debating points will not solve our immigration dysfunctions.  The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn.  We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane.  Are we ready to be biometrically identified in a digital dossier to get a job?

A recent televised debate revealed an immigration fault line within the GOP. Texas Governor Rick Perry's many challengers for the Republican presidential nomination railed against his decision to extend in-state tuition rates to undocumented college students, brought to the U.S. as children, who graduate from the Lone Star State's high schools. His initial reply:

“If you say that we should not educate children who have come into our state for no other reason than they've been brought there by no fault of their own, I don't think you have a heart.”

The line stung many conservative "activists [who] hear ‘you have no heart’ as a dog whistle for ‘you people are racist,’ which obviously enrages them," according to Steven Duffield, a former staffer to Sen. John Kyl who oversaw the writing of the 2008 Republican platform.  Within days Perry, while still defending the Texas tuition law, apologized:  “I was probably a bit over-passionate by using that word and it was inappropriate.”

The relevant questions are not really whether conservatives lack the same missing anatomical feature as the Tin Man in the Wizard of Oz or whether racism drives opposition to college tuition support for children brought to America illegally by their parents.  Rather, the fundamental issue is whether a legitimate principle animates the opposition. 

One voice reliably opposed to immigration, Mark Krikorian of the Center for Immigration Studies (CIS), which claims to espouse "low-immigration, pro-immigrant policies," suggests that we need to get beyond "weepy sentimentality" and instead focus on hard-headed realism:  

The case of in-state tuition for illegal aliens who arrived here as children is a case in point. These are clearly the most sympathetic illegal immigrants, which is why advocates have been exploiting their stories in the quest for a general amnesty.

Our hearts tell us to make accommodation for children who were brought here illegally at a very young age and who know no other country (in-state tuition specifically is just a stalking horse for amnesty for these young people in the form of the so-called DREAM Act). That is a noble and proper sentiment.

But our heads tell us that all amnesties reward lawbreaking and serve to attract more illegal immigration. It is for this reason that amnesties must be avoided and why the push for "comprehensive immigration reform" has failed repeatedly, and will continue to fail.

Curiously, however, Krikorian and others of like mind did not repeat that "all amnesties reward lawbreaking," when the Internal Revenue Service decided this month to waive interest, penalties and audit exposure, and accept only one-tenth of the employment taxes otherwise owed by employers who participate in its "Voluntary Settlement Classification Program." Known as the VSCP, the program is an amnesty for businesses that may have wilfully treated employees as independent contractors, thereby avoiding Social Security contributions and taxes.  Nor did Krikorkian and his ilk object when the IRS twice granted wealthy tax cheats amnesty in the form of immunity from civil and criminal prosecution who voluntarily revealed the existence of untaxed off-shore bank accounts and paid back taxes.

When scofflaws flout their tax obligations yet are thrice forgiven by the IRS, Krikorian ought to be complaining to high heaven that federal coffers are unjustly deprived of needed revenue and that these tax amnesties "serve to attract more illegal" behavior.  His CIS colleague, Steven Camarota, has certainly shown no reluctance to allege (no matter how inaccurately) that undocumented immigrants hurt law-abiding taxpayers, but is likewise reticent when IRS announces serial amnesties that benefit businesses and the wealthy and make fools of law-abiding Americans who comply with the tax laws.

On a scale of culpability, tax cheats line up nearer to mobster Al Capone, convicted of federal tax evasion, whereas DREAMers, who want no more than to gain a college education, are truly innocent and should be shown "hospitality" because we may well thereby be entertaining "angels unawares."  Instead, the federal government repeatedly forgives tax violators with nary a peep heard from the anti-amnesty crowd.

Even more alarming, this week a federal judge, appointed by Republican President George H. W. Bush, upheld portions of a vile Alabama law that requires schools to investigate the immigration status of kindergarten through 12th grade students, notwithstanding the 1982 Plyler v. Doe decision which struck down a Texas statute barring undocumented immigrant children from primary and secondary school.  In recalling Plyler, a Washington Post editorial, "Targeting Schoolchildren," zeroed in on the damage that legislatively inscribed hatred of the other (and their children) will cause:  

In turning the schools into immigration registrars, Alabama’s new law flies in the face of good sense and settled law. The Supreme Court has specifically prohibited such registration schemes by the states aimed at immigrants, legal or illegal. And, in a ruling almost 20 years ago, it conferred on undocumented students an unfettered right to a public education through high school.

The court did so for sensible reasons. It noted that there is no legal precedent in America for punishing children for the actions of their parents. Writing for the court in a 1982 decision squashing Texas’s attempt to exclude illegal immigrants from public schools, Justice William Brennan said, “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”

Apparently, Alabama didn’t get the message. By forcing schools to collect and report data on the immigration status of students and their parents, the state will frighten kids away from attending school.

True to form, CIS heralded the Alabama ruling: 

This decision further helps the legal landscape, generally speaking, for states and localities beating open-borders and leftist warfare by litigation. It improves the prospects of other laws recently enacted in other states withstanding vicious legal attacks.

CIS is quick to bandy the "open borders" epithet (I've been falsely dubbed an "open borders type" in a CIS blog post last summer).  But this self-styled "non-partisan" screed-poster that accuses opponents of the anti-kids Alabama law as "leftist," and Republican presidential contenders who oppose DREAMers, ought to wake up and realize that the biblical remonstration to "suffer the children" did not mean to torment them.