Immigration Protectionism Costs America Billions

pensive youth.pngI worry a lot about the future facing America's young adults.  Saddled with Dickensian levels of college and grad-school debt, largely unable to find opportunities in their preferred careers, our young fear that they'll be relegated to work in low-paid, dead-end jobs. They and their parents are rightly concerned that the middle class is disappearing, the gulf between the ultra-rich and the poor is growing, and citizens coming of age today may never achieve the American Dream of economic progress.

The country's political, labor and business leaders seem to think the solution lies in restoring our nation's former prominence in manufacturing:

At the Second Annual Conference on the Renaissance of American Manufacturing held in Washington on March 27, speakers from the Obama administration, the Mitt Romney and Rick Santorum presidential campaigns, Republican and Democratic senators, CEOs, and representatives from labor, think tanks and trade associations all agreed: the renewal of American manufacturing should be a top economic priority.

Richard A. McCormack, "Is Momentum Building For Adopting A New Manufacturing Policy Agenda, Or Is The Interest Due Only To The Upcoming Election?" Manufacturing & Technology News, Mar. 30, 2012.

I'm not persuaded.  Don't get me wrong, this native Detroiter was glad when the Obama Administration stepped in to save the U.S. auto industry. Despite the protests of a certain "Son of Detroit," the de facto GOP nominee for president, who would have "Let Detroit Go Bankrupt," and now derides the auto bailout as "crony capitalism," maintaining a base level of domestic manufacturing is an important element of our national security.

But it's not the key to our economic salvation.  Slate's Matthew Yglesias makes the point well in "Forget the Factories [-] Obama’s foolish obsession with manufacturing jobs will make America poorer":

[If] you look at America’s metropolitan areas, it’s clear that manufacturing-oriented places are relatively poor. The wealthy clusters in the United States are built around things like software, biotechnology and medical devices, higher education, finance, and business services. Places like California, Minneapolis, Seattle, and the Northeast corridor are far richer than the factory-oriented Rust Belt and Southeast.

Rather than overemphasize the rebuilding of its industrial base, America should play to its true strengths. We are the "crazy ones" who "think different", the dreamers (and DREAMers), the visionaries and innovative problem-solvers. Although we've fallen behind in the STEM fields, and must therefore refocus our emphasis on math and the sciences, we are blessed as a nation with an abundance of creative savants who color outside the lines. Our technology dazzles and transforms the world as Hollywood entertains it.

These strengths illustrate the fundamental economic principle of comparative advantage -- do only what you do best and let others do their own best thing. It works domestically, for example, when companies make the "buy or build" decision and choose to focus on core competencies.  It would work as well in the global economy if trade were truly free and fair, protectionism were eliminated, and guarantees of minimum labor standards and trade dislocation payments were universally achieved.

If America played to its strengths, our leaders would promote basic research and development, and generally decline to let government pick winners and losers. They would recognize that service industries today account for almost three-fourths of all American jobs, and that the upside potential for better-paying jobs lies more in services than in manufacturing.

J. Bradford Jensen, professor of economics and international business at Georgetown University, makes the case for increased services trade convincingly in his 2011 book, Global Trade in Services: Fear, Facts, and Offshoring, and in the video below:

 

Similarly, The New York Times' Catherine Rampell reported last week:

In the United States, services increasingly dominate the economy. Employment in this sector has risen steadily since the 1960s, with 70 percent of Americans now working in service industries. And America already exports more services than any other country in the world, even more than the next two competitors combined. In 2011, that amounted to $612 billion exported in services, up 10.1 percent from 2009, and up 136 percent since 1991.

Still, there is great untapped potential for more, since all of these exports are being sold from a tiny share of all the American companies that could participate in the global marketplace.

"Some Urge U.S. to Focus on Selling Its Skills Overseas," April 10, 2012.

What's stopping us from exporting more services (a market likely to add another $800 billion to our GDP)?  

dollars.jpg

Agricultural subsidies are partly to blame. They are a significant obstacle that discourages developing countries from talking about eliminating trade-in-services barriers. Ag subsidies also create "push" factors, as when many Mexican corn farmers, unable to compete with U.S. agribusiness, abandoned their fields and entered America illegally after Mexico, the U.S. and Canada enacted the North American Free Trade Agreement. As Ron Nixon of The New York Times notes, were we at least to cap artificial farm price supports, we could save billions.

Steel protectionism is another culprit.  Our would-be trading partners have seen America (the leading proponent of free trade) as behaving hypocritically when President George W. Bush imposed tariffs on imported steel in 2002 and again when Congress enacted and President Obama signed the American Recovery and Relief Act in 2009 (with its "Buy American" requirements to purchase iron, steel, and manufactured goods for use in public construction and public works projects).

Global trade in steel and farm products are important to be sure.  Lowering these trade barriers globally or regionally (while providing trade adjustment assistance and retraining for displaced workers) would be beneficial.  It would allow American consumers to purchase more goods at lower cost. The real promise of American prosperity lies, however, not so much in eliminating barriers to trading tangible commodities, but rather in exploiting our lead in the international trade for services.

The primary impediments to the negotiation of liberalized trade-in-services treaties are found among the miserly visa quotas and contrived labor-market-testing provisions codified in the Immigration and Nationality Act, as even more strictly interpreted by anti-free-trade apparatchiks in the executive branch.  

Other pernicious immigration laws likewise limit American export of services. There are the U.S.-worker preferences of the 2009 Economic Recovery Act (which I assailed at the time as "Protectionist Turducken, Immigration Style").  There is also the 2010 law imposing extortionate and exorbitant filing fees, to be paid mostly by Indian companies, to fund the sovereign function of border security -- imposts that the Indian government is now challenging as illegal trade barriers in its complaint against the U.S. in the World Trade Organization.

The Times' Catherine Rampell in sleuthing out the cause for global restraints on trade in services concludes her article by identifying the prime culprit:

Perhaps the most basic constraint is not abroad but here in the United States, which has relatively tight immigration controls. Services often require workers to travel freely across borders. Asking India to allow American consultants to enter and leave Delhi at will is difficult if the United States cannot — or, more accurately, will not — reciprocate. Economists acknowledge concerns about freer trade displacing some American workers. But they say the United States would nonetheless have a net gain in jobs if borders everywhere were more open.

“We need to have a visa policy that allows businesses to operate efficiently at home and abroad, and that allows all professionals to be able to move back and forth between corporate offices,” said Jeffrey J. Schott, a former trade negotiator and now senior fellow at the Peterson Institute. “If we don’t, why would anyone else?”

Perversely, U.S. immigration policies are not just bars to global services trade.  They also impair our ability to compete successfully in the world's marketplace for services.  Peter Whoriskey of the Washington Post explains:

If demography is destiny, the U.S. economy may be in the midst of a decades-long slowdown. The U.S. labor force is growing at about half the rate it was 20 years ago; according to recent projections by the Bureau of Labor Statistics, it will continue to expand at a slightly lower pace through 2020. . . .

“In the end, what an economy is depends upon how many bodies you have,” said Anthony Carnevale, an economist and director of the Georgetown University Center on Education and the Workforce.

Carnevale added that if the diagnosis for what ails the economy is the size and quality of the workforce, that may be good news, at least compared to theory that the biggest problem is foreign competition. “To the extent this is a domestic demographic problem, it’s more in our control,” he said. “We can’t blame the Chinese for the quality and quantity of our domestic labor force.”

man and bar code.jpgIndeed, America's domestic demographic problem is in our control.

The remedy will not be found, however, by rebuilding our manufacturing base to its former glory, or, as some have recently done, by warring with women on family planning decisions.

The U.S. will only correct its trade imbalances, redouble the nation's sizable lead in the global trade for services, and create high-paying U.S. jobs for present and future generations, by modernizing our creaky, crotchety immigration laws.   

Pre-Election Bipartisanship -- Except on Immigration, Where Sen. Grassley Stubbornly Obstructs

At President Obama’s signing ceremony for the JOBS Act last week, White House guests slapped high fives with bipartisan glee. They came to the Rose Garden to help “Jumpstart Our Business Startups,” as the new law’s title optimistically promises to do. With pen in hand, the President joined in the merriment, observing that it’s not about blather but action:

One of the great things about America is that we are a nation of doers -- not just talkers, but doers. We think big. We take risks. And we believe that anyone with a solid plan and a willingness to work hard can turn even the most improbable idea into a successful business. So ours is a legacy of Edisons and Graham Bells, Fords and Boeings, of Googles and of Twitters. This is a country that’s always been on the cutting edge. And the reason is that America has always had the most daring entrepreneurs in the world. . . . [M]aybe one of them or one of the folks in the audience here today will be the next Bill Gates or Steve Jobs or Mark Zuckerberg. And one of them may be the next entrepreneur to turn a big idea into an entire new industry. That’s the promise of America. That’s what this country is all about.

With an eye to November and an 11% approval rating, members of the House and Senate are trying at last to rebrand themselves as a “done-something” Congress. Would it were so with the DREAM Act or with urgently needed reforms to our antiquated system of legal immigration whose last major enactment occurred in 1990. Regrettably, when it comes to immigration, the American people get claptrap not high fives.

Three years ago the Council on Foreign Relations (CFR) issued a bipartisan report and recommendations on U.S. immigration policy, the work of a task force study led by Florida Governor Jeb Bush and Thomas F. "Mack" McLarty III, former White House Chief of Staff to President Clinton. Last month, another bipartisan CFR task force, this one headed by Condoleezza Rice, former Secretary of State under the second President Bush, and Joel Klein, ex-Chancellor of the New York City education department and Counsel in the Clinton White House, issued its study and suggestions to improve U.S. national security by reforming education.

Taken together, these reports sound a clarion call for immediate legislative action on legal immigration.

As the Bush-McLarty report proposed:

The Task Force recommends that the United States tackle head-on the growing competition for skilled immigrants from other countries and make the goal of attracting such immigrants a central component of its immigration policy. For decades, the primary goal has been to ration admission; in the future, recruiting the immigrants it wants must be the highest priority.

The Rice-Klein study on education reform and national security concurs:

Too many schools have failed to provide young citizens with the tools they need to contribute to U.S. competitiveness. This, coupled with an immigration system in need of reform, poses real threats to the prospects of citizens, constrains the growth of the U.S. talent pool, and limits innovation and economic competitiveness.

The epicenter of the logjam on immigration bipartisanship – at least in the Senate – is Iowa Republican, Chuck Grassley.  Although he voted “Yea” on the bill that became the JOBS Act, Sen. Grassley is an immigration obstructionist, seemingly blind to the links between employment-based visas, U.S. prosperity and job creation for our citizens.

Despite passage in the house by a 389 to 15 vote margin, he has held up a vote on the Fairness for High-Skilled Immigrants Act — a bill that would eliminate the per-country caps on employment-based immigrants and thus allow foreign workers born in China, India and other quota-backlogged countries to obtain a green card more quickly. Sen. Grassley has also blockaded a proposal pushed by fellow Republican Senator, Scott Brown, which would give Irish citizens parity with Australians in receiving E-3 visas.

The Iowa senator worries that “flooding the employment market with foreign workers when high-skilled Americans are seeking jobs at unprecedented levels, just doesn't square with improving the home-team advantage, let alone fostering a level playing field.”

Even more worrisome to Sen. Grassley are immigration fraudsters who steal jobs from Americans. He sees them everywhere, much like the young boy, Cole Sear, in the 1999 film, The Sixth Sense, who sees dead people all around:

The Sixth Sense.jpegCole Sear (played by Haley Joel Osment): I see dead people.

Malcolm Crowe (played by Bruce Willis): In your dreams? [Cole shakes his head no]

Malcolm Crowe: While you're awake? [Cole nods]

Malcolm Crowe: Dead people like, in graves? In coffins?

Cole Sear: Walking around like regular people. They don't see each other. They only see what they want to see. They don't know they're dead.

Malcolm Crowe: How often do you see them?

Cole Sear: All the time. They're everywhere.

Sen. Grassley wants to place even more rigid controls on the H-1B visa (for Specialty Occupation Workers) and the L-1 visa (for Intracompany Transferees). The senator would inflate the wages that U.S. employers must pay skilled foreign workers (even though the law of supply and demand is producing that result already without an act of Congress), require feckless labor market testing of workers in occupations with low unemployment rates, and give even more authority to the Labor Department to send disruptive auditors to the worksites to investigate the supposedly ever-present fraud that he perceives.

And as Congress dawdles on legal immigration, Sen. Grassley has been a one-man lightning rod, jolting the immigration agencies under the W and Obama administrations and intimidating them so that they jump to his bidding.

Under pressure from Sen. Grassley, U.S. Citizenship and Immigration Services (USCIS) and the Department of State have denied and revoked visas and work petitions, while sending ever larger legions of immigration gumshoes from the USCIS Fraud Detection and National Security Directorate (FDNS) on unannounced and repeated visits to worksites around the country.

magnifying glass.jpgNot content to engage in officious intermeddling with an Executive Branch immigration agency, Sen. Grassley has also been busy tasering the Department of Homeland Security (DHS) Inspector General (IG) into issuing breathless reports based on unscientific measurements that unpersuasively document "evidence" of perceived fraud (links available herehere and here).  It's not as if the IG has nothing to do; rather, he should be spending more time investigating DHS's internal operations.

No knowledgeable observer would deny the existence of immigration fraud. I see its victims often among the immigrants who seek my counsel after having been bamboozled not just by a few unscrupulous lawyers but also by the larger ranks of incompetent and dangerous consultants and notarios – a population still coddled by the Labor Department even though USCIS, quite laudably, has mounted a campaign against them. And of course, some percentage of employers will bend or break or simply misunderstand the befuddling “rules” that the immigration agencies have written (or failed to write) in response to the existing crazy-quilt of laws passed by Congress since at least the 1950s. Despite the massive aggrandizement of law-enforcement resources to guard the immigration system since September 11, little evidence exists to show that visa fraud is widespread or that it occurs at any greater rate than in other federal programs.

We can electrify and fortify our borders, and send in the immigration drones and detectives, but we still need law-abiding sojourners and immigrants to reinvigorate our economy and uplift our people.

As much as NationOfImmigrators assails the wrongdoing of the immigration agencies, this blogger knows nonetheless that they are peopled mostly with patriots trying to do the right thing (as a USCIS Service Center Director correctly reminded me last week and as the USCIS’s Fiscal Year 2011 Highlights Report confirms).

They make mistakes, to be sure, and engage in insincere Washingtonian wordsmithing. Take for example the oft-repeated conceit that FDNS site visits are merely cleverly surprising methods to insure integrity in immigration petitions and are not law-enforcement actions subject to Fourth Amendment protections.

The veil’s been lifted on that falsehood, however, with the issuance of a March 30, 2012 federal court order in a Freedom of Information Act (FOIA) suit by the American Immigration Lawyers Association (AILA) against USCIS and DHS. AILA’s lawsuit seeks release of three USCIS documents, viz., its H-1B Benefits Fraud Compliance Assessment Report (BFCA), H-1B Petition Fraud Referral Sheet and H-1B Compliance Review Worksheet. Although the suit continues, the court generally affirmed for now USCIS’s assertion that its actions in refusing disclosure are justifiable under the FOIA exemption found at 5 U.S.C. § 552(b)(7)(E). This section protects records or information compiled for law enforcement purposes from disclosure “to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The agency relies on exemption 7E because the requested records, as USCIS’s own pleadings assert, have been “withheld to preserve the integrity and effectiveness of certain techniques and operations of current law enforcement significance.”

On what are these “techniques and operations of current law enforcement significance” based? The court’s order offer’s a tantalizing snippet:

The final page of the BFCA Report identifies several primary fraud or technical violation(s) indicators: (1) firms with 25 of fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies; (2) firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with annual gross income greater than $10 million; (3) firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years; (4) H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories; and (5) beneficiaries with only bachelor’s degrees had higher fraud or technical violation(s) rates than those with graduate degrees.

Sen. Charles Grassley.jpegIronically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree.

Clearly, USCIS and its FDNS unit are now running scared by Sen. Grassley’s gassy harrumphing, and see fraud where the President and most members of Congress, including the Senior Senator from Iowa, see opportunities for job creation.

The solution is to debunk the notion that American job losses are caused by increased legal immigration; rather, as the National Foundation for American Policy has shown, more employment-based immigration creates more jobs for U.S. workers.  

One true believer in the power of immigration, Steve Case (former AOL founder and now venture capitalist), who was instrumental in gaining the votes for the JOBS Act, says, "[m]omentum begets momentum."  Case now has set his sights on passing job-creating immigration laws before the November election (a controversial subject among some immigration proponents who believe that only a comprehensive solution, including remedies for the undocumented, will rectify America's immigration dysfunctions).

Perhaps with the help of Steve Case and other business leaders, Sen. Grassley may yet be persuaded to spend less time calling the President “stupid” and, instead let his love of job-creating startups push him to transform his antipathy into appreciation for employment-based, legal immigration reform.  

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No More Waiting on Legal Immigration

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

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No More Waiting on Legal Immigration

By Angelo A. Paparelli and Ted J. Chiappari 

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

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

—President Obama, October 24, 2011.

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

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

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The Immigration Appeaser-in-Chief Should Try Some New Ammunition

President Obama had a macho moment this week when he suggested, rhetorically, a poll of ghosts. "Ask Osama Bin Laden" and the "22 out of 30 top al-Qaeda leaders who've been taken off the field," he proposed, "whether I engage in appeasement."  The storied bugaboo of foreign-policy appeasement, best typified by the flaccidity of British Prime Minister Neville Chamberlain in the face of Nazi aggression, was the GOP charge that the President debunked so handily.

 

Would that he were so forceful against Republicans on the immigration front, where a foreign policy challenge morphs into a domestic concern, one that starts at both the water's edge and the nation's earthly boundary.  This time his use of drones and boots on the ground to fortify and defend America's borders successfully has produced nothing but a failed effort at GOP appeasement. 

The President probably won't ask the 80 or so U.S. citizens held illegally from a day to four years in just two immigration detention centers if he engages in appeasement.  He'd probably also decline to float a survey of the statisticians who count border crossings, for they would say that illegal inbound migration is at its lowest in over four decades. The rhetorical flourish this time won't work because he knows these responders would surely say "yes" to the appeasement charge. No poll is necessary because he already knows the answer. He told us so last summer: "Maybe [the Republicans will] need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics."

plastic straws.jpgThumbnail image for peas 4.pngPresidential swagger would be more impressive if he used his clout to circumvent GOP-erected gridlock in Congress.  Imagine if he decided to eschew drones and troops and went low tech.  Imagine if he looked back among the weapons of his and every American boy's childhood and pulled out his lowly pea shooter.  Rather than appease, he could shoot peas -- fresh green orbs of power in the form of executive orders that he alone propels from the White House. 

No more appeasement but fusillades of executive (made-to-) order peas that would sprout the jobs he so desperately needs created pronto to save his presidency. 

Some might argue that he's already begun the effort by authorizing ICE and USCIS to exercise prosecutorial discretion (PD) more frequently in favor of leniency for low level immigration violators. But that effort has yet to fire off enough salvos to hit the target. It would be better to accelerate PD reviews, expand them to include all the unauthorized among us rather than the current triage of only 300,000 deportation cases, begun as a timid six-week pilot project in Denver.  Moreover, he should order the agencies to grant the formal status of "deferred action" (which includes the right to a work permit) rather than just PD (which merely prolongs the individual's agony by preventing them from progressing in their lives and pursuits, but only allowing them to wait to the unknown day when the grim deporter returns for them).

He could also aim his shots at the legal immigration system.  Nothing but his own policy of GOP immigration-appeasement prevents him.  He seems to understand the concept, as his "We Can't Wait" campaign addresses housing, student loans, energy efficiency and health care. There are gobs of jobs he could create if he turned his sights to tweaking the employment-based immigration laws, as I suggest in this post, "Executive Craftsmanship: Job Creation through Existing Immigration Laws," and video:

Why is President Obama so un-macho on immigration?  Alas, maybe he's just too wim-pea.

Entrepreneurs in Immigration Residence Are Set to Occupy USCIS

Light at the end of the tunnel.jpgThe Occupy Wall Street movement began with a poster, a word cloud, a QR Code and three lines of text:

#OCCUPYWALLSTREET

September 17th. Bring tent.

www.occupywallst.org

Steve Jobs launched his massively successful "Think Different" rebranding campaign for Apple in 1997 with a TV commercial and this script:

Here's to the Crazy Ones. The misfits. The rebels. The trouble-makers. The round pegs in the square holes. The ones who see things differently. They're not fond of rules, and they have no respect for the status-quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world...are the ones who do!

Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Service (USCIS), recently announced with the flourish of a press release an ingenious "Think Different" initiative that may well transform this vexed and vexing immigration agency.  His announcement heralded the new Entrepreneurs in Residence Program (EIR), an experiment that will tap the wisdom and experience of seasoned startup veterans to inject fresh air and fresh insights into USCIS.

The EIR, as the press release explained, "will utilize industry expertise to strengthen USCIS policies and practices" affecting foreign "investors, entrepreneurs and workers with specialized skills, knowledge, or abilities." As Director Mayorkas explained, the "initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth . . .  [with the] introduction of expert views from the private and public sector [which] will help [USCIS] to ensure that our policies and processes fully realize the immigration law's potential to create and protect American jobs."  A two-stage effort, the EIR begins as a "series of informational summits with industry leaders to gather high-level strategic input" and then the heavy lifting follows with the assembly of a "tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions."

The EIR occupation of USCIS cannot come a millisecond too soon.  Just like a Dream Act kid who keeps getting blamed for the mistakes of her undocumented parents, USCIS, only nine years old, keeps receiving many of the same brickbats that bombarded its ancestor, the former Immigration and Naturalization Service (INS).  Unlike the DREAMers, however, USCIS has magnified INS's peccadilloes and committed new more egregious ones of its own.  Ted Chiappari and I describe the venial and mortal sins of USCIS at length in our article, published last week in the New York Law Journal, "Intubation and Incubation Two Remedies for an Ailing Immigration Agency" (link courtesy of ALM Enterprises).

Whether intended or inadvertent, EIR is a deft stratagem, even more artful than Clintonesque triangulating.  Cleverness taken to the fourth degree, EIR, captured in one word, is all about quadrangulation.  If it is to succeed, EIR must task its occupiers to infiltrate and attack from within the four-sided challenge that is USCIS today: (1) the immigration stakeholder community and the USCIS Ombudsman clamoring for more user-friendly enhancements to fusty USCIS interpretations of work-visa eligibility, (2) the ever-campaigning President saying "we can't wait" for the enactment of job-creating legislation, (3) Socialism-incliningRepublicans in Congress, led by GOP commissars Smith and Grassley, who seem, counter-intuitively, to embrace immigration regulation more than job creation, and (4) the agency's anti-business, unionized adjudicators who prefer chaos theory over customer service.

Who will Director Mayorkas tap as the EIR's movers and shakers to prod, awaken, reeducate and redirect USCIS? As noted in the NYLJ  "Intubation/Incubation" article, ideally they should be "industry leaders" with just the right background:

[Entrepreneurs who] harbor a strong interest in an expansive reading of the employment-based immigration laws. Their likely interpretation would view the immigration laws as offering many opportunities to grow startup and established businesses in the U.S. by harnessing the innovations and skills of bright, energized and talented non-citizens. Prospective EIR participants with such interests and perspectives probably will have already used and intend to use again the employment-based immigration laws to secure USCIS's permission to hire foreign workers.

As the EIR experiment in intramural administrative sport begins, an October 29-30 Wall Street Journal editorial ("The Other Jobs Crisis") captured spot-on the immigration dysfunctions that beset America today. Migrant farm workers flee Alabama and Georgia, two states with nativist laws that cause produce to rot in the field. With few Americans willing to descend to back-breaking stoop labor, "incarcerated criminals" are dragooned to "work the fields." Republicans in Congress, the supposed "champion[s of] deregulation and business-led growth" focus on "immigration control" as "one of their main passions," while continuing "to ignore the economic costs" and the need "to overhaul the guest worker program to widen avenues for legal immigration."  Meantime, ironically on www.WSJ.com, GOP Presidential front-runner and pizza-chain turnaround artist, Herman Cain, callously rebukes the Occupy Wall St. protestors: "If you don't have a job and you're not rich, blame yourself! ... It is not a person's fault if they succeeded, it is a person's fault if they failed."

Like his Chief of Staff, Herman Cain is just blowing smoke.  He should know that not everyone can find a job in a nation with a 9.1% unemployment rate (but if Cain is truly "counter-factual" on the cause of U.S. joblessness, he is manifestly unfit for the presidency).  America desperately needs more job creators, the salutary byproducts of a functioning, business-friendly immigration system.  Since Congress will not act, and the President can't wait, my hope is that Director Mayorkas will install "demented" entrepreneurial occupiers of USCIS, "Crazy Ones" who "are crazy enough to think they can change" America by occupying his benighted agency.  

Immigration's Defining Moment -- Do You Know Employment When You See it?

help wanted 2.jpgWith all the political hoo-ha about the need to prevent rascally businesses from employing unauthorized workers intentionally, the public ought not be faulted for assuming that the concept of "employment" under immigration law is clearly defined.  Sad to say, but the assumers give life to the maxim that when we consider facts not in evidence we make a derrière out of one another. I'm not suggesting that there is no definition of “employment”. Rather, the given definition -- despite the incorporation of a glossary of interwoven and related terms -- fails to offer enough nuance or clarity. 

[Stink alert!  We are about to venture into malodorous legalese. Hold your nose.  The journey will be worth it.] 

The relevant regulation, found at 8 CFR § Sec. 274a.1 (Definitions), provides:

(c) The term hire means the actual commencement of employment of an employee for wages or other remuneration . . . 

(f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors . . . 

(g) The term employer means a person or entity . . .who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor . . . 

(h) The term employment means any service or labor performed by an employee for an employer within the United States . . . 

(j) The term independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis. Factors to be considered in that determination include, but are not limited to, whether the individual or entity: supplies the tools or materials; makes services available to the general public; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done. . . (Bolding added.) 

These definitions raise more questions than they answer. In the hypotheticals below, assuming that the individual in question has no legal right to engage in the specific actions noted, is the particular action prohibited "employment"?: 

1.      Self-employment?

  • Is a busker in a New York subway who does not solicit but accepts voluntary donations from passersby employed?
  • Does it matter if the busker puts his hat, upside down in front of him, in case anyone wants to make a voluntary offering?
  • Would an independent photographer, artist, architect or writer who produces a finished work for personal enjoyment be engaged in employment?
  • What if the individual later decides to sell the work in the U.S. -- does the sale cause the individual to have engaged in employment?
  • What about a professional knife-thrower's human target -- is (s)he employed when standing still as the knife approaches?
  • What about an usher in the theatre who escorts patrons to their seats and is thus  allowed to view the performance for free?
  • Does it matter if the show is such a flop that the producers routinely give away free tickets?
  • Are the legions of voluntary interns who receive valuable experience and college credit but no monetary payment employed?

2.      The sale or rental of an asset?

  • Is a female employed if she sells one of her eggs in the U.S.?
  • How about a male who is paid for his sperm at a Los Angeles clinic -- is he employed?
  • If the female was born abroad possessing the usual full complement of eggs, is her acquiescence for a fee in the removal of one or more eggs an act of employment?
  • What about a male in the U.S. for several years, whose semen was presumably created while he lived here, engaging in employment when he is paid by the sperm bank?
  • Does it matter if the sperm bank offers him a cup, directs him to fill it, leaves a copy of Playboy in the private donation room and pays him an honorarium -- is this employment?

3.      U.S.-based "virtual" efforts (with servers located abroad and work saved "in the cloud")? 

  • What about a Silicon Valley blogger who accepts paid advertising -- employment, yes or no?
  • What about a math genius living in Connecticut who accepts a prize to solve a puzzling theorem with his laptop -- employment?

4.      The active management of an investment in the U.S.?

  • How about the owner/manager of a motel -- employed?
  • How about the owner of an optometry shop who gives eye exams and engages American optometrists to work with her -- employed?

5.      The present exchange of promises assuring action in the future?

  • What about the exchange of  mutual promises - is it employment today if an employer promises to hire a worker and the worker agrees to render services for wages, with the work to begin next week?
  • What if one of the parties reneges -- is it still employment as of the time when the promises were made?

6.      The operation of a U.S. business that creates jobs for Americans?  

  • What about a full-time student who invents the next Facebook-type free app in his Harvard dorm room and hires software developers, knowing that some day an IPO will make him a billionaire -- is the present intention to profit in the future enough to constitute employment?
  • What if other students, say, two twin brothers, gave the student inventor the idea for the app -- are they employed if they sue and recover damages or settlement proceeds for their idea -- is the payment for the idea employment?
  • What if the free app requires users to agree to Terms of Service that make any valuable user-produced data, photos or designs the property of the student app inventor -- does the retention of ownership rights constitute "other remuneration"?

7.      The payment for or receipt of valuable benefits?

  • Which of the forgoing individuals or entities that make payment of money "employers" in the United States?
  • Which of them must complete a Form I-9 (Employment Eligibility Verification) when they "hire" any of the foregoing "employee[s]" in the U.S.?
  • Which of them are committing  felonies for "harboring" an unauthorized worker (since the harboring statute includes employment as a prohibited act)?
  • Which of the foregoing recipients of the noted benefits have failed to maintain lawful immigration status and therefore are ineligible for prosecutorial discretion and deferred action or are removable (deportable)?
  • Which of these recipients of benefits are thereby ineligible to receive a green card through the adjustment of status process?
  • Are any of the reasons for adjustment ineligibility "technical" in nature or not the "fault" of the individual (no-fault and technical reasons are forgiveness provisions that allow the grant of a green card even if the person is otherwise ineligible)? 

My point is not to model a law school class by using the Socratic method and reductio ad absurdem arguments.  Instead, it is to illustrate that the immigration regulations in their present form do not offer the guidance needed to cover many everyday (and some unusual) situations. 

With so much riding on the correct interpretation, the government must take a hard look at the current, clearly inadequate regulations, and issue proposed rules that allow the public to comment on new, more transparent guidance.  In the absence of new regulations, the immigration agencies -- U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement -- should follow the lead of IRS and offer a voluntary settlement program to businesses and individuals who seek to come back to the sunny side of the immigration law. 

Off-Message Immigration Bureaucrats Undermine the President's Jobs Push by Refusing L-1 Specialist Visas to Indian Citizens

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next Steps

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

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

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

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

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

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

Executive Craftsmanship: Job Creation through Existing Immigration Laws

Thumbnail image for Thumbnail image for Thumbnail image for Tool Belt.jpgThe 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. 

End the Tyranny of Immigration Insubordination

Tendrils.jpgDespite persistent immigration deadlock in a Congress whose job approval has plummeted to its nadir, fresh tendrils of hope are sprouting: 

These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders. 

Slothful Adjudicator.jpgI've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference.  Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 and Tyranny of Sloth #3). 

The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth. 

  • It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
  • It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
  • Head Resting Adjudicator.jpgIt could be long institutional memories about a heads-will-roll "Zero Tolerance Policy," followed by the policy's revocation, then followed by a laudable effort to inventory and reconcile agency policies and survey the public
  • There is probably also a significant measure of union-management tension, reflected, for example, in the attack on the prosecutorial discretion memos and public vote of no-confidence in John Morton by the ICE agents union and the formal opposition to discipline by the USCIS officers union, and
  • Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies.  We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan and featuring a "cast of millions") and we know how it ends:
    • in cubicle with laptop and stacks of files.jpgScene 1:  Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
    • Scene 2:  INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
    • Scene 3: Years of expensive federal litigation ensues before final relief to denied "known to the government" beneficiaries is granted in 2008

Whatever the cause of bureaucratic intransigence, the President's laudable goal of creating jobs through more enlightened immigration policies and innumerable Conversations with the Director -- however commendable and well intentioned -- will not succeed unless "off-the-reservation" conduct by rogue underlings is sanctioned, not with ribbons and medals but with pink slips. 

Immigration Promises Made, Debts Unpaid

Man looking over wall.jpgAre we a trustworthy nation?  The world waits to see if the American government becomes a deadbeat on August 2, when the debt ceiling is hit.  Will the country break faith with its creditors?  Will it stiff Social Security recipients, the ill and disabled, fallen warriors and others whose lives or fortunes depend on Uncle Sam's unflagging reliability.

The New York Times reported recently on a set of already broken American oaths. Many would-be "Special Immigrants" in Iraq who've worked for the U.S., are stranded there, facing death threats, living in stairwells, checking for car bombs underneath their vehicles, losing hope that their oft-promised yet long-delayed U.S. visas will ever arrive -- green cards that Congress ordered to be fast-tracked -- all the time chastising themselves for their gullible belief in America's words.

A letter writer commenting on the Times story bewailed our "exceptional[ly]" roguish behavior: 

What have we become? Our word means nothing now. We break our word to Iraqi friends who helped us. Do we think that those whom we’ve left dangling in the wind will remain our friends? We want to break our word on debts we’ve already accrued.

Do we think that our creditors will continue to invest in us because we are “exceptional”? . . . I despair for a country that I see becoming . . . more removed from what I once thought were our high moral standards. And a country that does not keep its word.

As these despondent Iraqis have come to realize, institutional word-breaking is endemic within the U.S. immigration ecosystem. One small example tells a tale.

Consider the H-1B visa available to nonimmigrant workers in "specialty occupations" who possess at least a university sheepskin or its equivalent in the workaday world.  For those who prefer their learning via chart rather than text, click here; otherwise, read the following indented paragraphs:

This visa started life in 1952 as the H-1 for employees of "distinguished merit and ability" -- a term later interpreted to refer to degreed or degree-equivalent "professionals." In 1990, however, Congress rebranded the visa the H-1B and added an array of worker protections to be enforced by the Department of Labor (DOL), including a requirement that foreign citizens in H-1B status receive at least the going rate (the "prevailing wage") in the local area. The process was designed to be speedy.  It would be "attestation-driven" with penalties applied only later if DOL were to investigate a complaint and find that an employer had violated the worker-protection duties of the law.  The employer's attestation, in the form of promises that must be kept, is made under oath on a form known as a "Labor Condition Application," or LCA. 

The DOL is obliged to "certify" an LCA unless it is "incomplete" or "obviously inaccurate."  The employer then submits the certified LCA to an agency of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), together with a work-visa petition. USCIS then determines if the job and the worker qualify as "specialty occupations," meaning that the job requires and the individual possesses that combination of theoretical and practical knowledge typically gained in a baccalaureate program or through equivalent work experience. Thus, the DOL protects H-1B workers, while USCIS confirms visa eligibility.  All was well with the world, or so we thought . . .

Because the prevailing wage is defined by geography (usually the wage considered prevalent in a particular metropolitan area), the DOL maintains listings of prevailing wages for locales around the country.  If an employer learns of an unforeseen business need to dispatch an H-1B worker to a worksite not listed in the LCA, the DOL requires the employer to file a new LCA and obtain DOL's certification.

USCIS's H-1B regulations, however, do not expressly require employers to submit a new or amended visa petition when the change merely involves a job relocation.  After all, there'd be no reason, in principle, why such a filing would be necessary, since the employee and the job itself would not have changed.  Both would still be the very same specialty occupations that USCIS had already screened and approved. 

To be sure, at one point in 1998, USCIS's predecessor, the Immigration and Naturalization Service (INS), had proposed a rule that an amended petition be filed for such job changes, but never took final action.  Instead, INS twice issued policy guidance, the Hogan and Aleinikoff memos, that each confirmed there is no need to report such changes unless the change invalidated the LCA.  The problem for INS and now USCIS, however, is that the DOL regulations do not prescribe any situations which invalidate an LCA.  Under DOL rules, an LCA may only be withdrawn by the employer or allowed to expire.

The view that a "geographic move" by an H-1B worker is not a material change (presumably because such a move does not by itself invalidate the associated LCA) was then confirmed by a senior USCIS official, Efren Hernandez III, Director of the agency's Business and Trade Branch, in 2003 correspondence to the American Council for International Personnel.

Now comes the institutional word-breaking.  Recently, USCIS has begun to rule in numerous individual cases that the employer's failure to amend the H-1B petition (something only the employer can do) and secure the agency's okay for a worker's change of job location means that the H-1B worker -- merely by following her employer's instructions to appear at a new worksite -- has violated nonimmigrant status.  Failing to maintain status is no small matter.  It is a violation of law that can lead to the worker's and her family's removal from the United States and banishment for at least five years.  It can also cause the employer to be charged with continuing to employ the worker while knowing that the right to work has been terminated -- a felony  -- unless the employer immediately fires the worker. 

The bitter irony here is that by relying on the USCIS to keep its word the guileless, relocated worker (the supposed "beneficiary" of H-1B labor protections) and the trusting employer have been placed into a cauldron of hot immigration water. Also ironic is the notion that serious thought is given to "Rewarding Employers Who Play by the Rules," as the Migration Policy Institute recommends, when the agency conferring the reward has systematically failed to publish intelligible rules of play.

How could this happen?  Four plausible theories come to mind:

  1. Failure to publish a final rule.  Legacy INS and its successor, USCIS, must be greater believers in "The Secret" (visualize intention and it will manifest) than in the notice-and-comment prescripts of the Administrative Procedures Act.  Just because the agencies float an idea publicly does not make it binding law.
  2. Ignorance of DOL regulations.  When Messrs. Hogan and Aleinikoff issued policy guidance, it seems no one bothered to study the DOL regulations.  Had they done so, they would have understood that LCAs can never be "invalidated." Hence, they would not have referred to the "invalidation" of the LCA, but would have at least expressly stated in policy guidance (or better yet in a final regulation) that an H-1B worker's change in work site from one metropolitan area to another requires the filing of an amended H-1B petition.
  3. Writing a letter does not make the letter binding law. USCIS and INS know the rules of procedure and precedent.  They should not have allowed the release of informal, non-binding letters that can only serve to mislead stakeholders.
  4. USCIS's creeping mission.  As armies of USCIS Fraud Detection and National Security ("FDNS") investigators and contractors performing "site visits" have appeared at business doorsteps nationwide, some learned that the H-1B worker whose file was to be audited had moved to another job site.  To an unschooled investigator (see # 2 above), this "suspicious" conduct looks like either fraud or a technical violation of the H-1B rules (even if the employer proffers an LCA covering the new worksite). 

None of these reasons justify indifference to the unpaid debts of promises unkept.  The poet, Robert Service, whose surname is what USCIS should be all about, said: "A promise made is a debt unpaid." USCIS should heed the poet's wisdom and put "Services" rightly back into its own name by promptly paying its debts to the stranded Iraqis endangered by American loyalty and by repairing the damage it has caused to relocated H-1B workers and their employers falsely accused of violating U.S. immigration law.

Race to the EAD: Revitalizing Depressed American Cities through State Immigration Initiatives

Gratiot near Mack in Detroit.jpgAs economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration. 

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

First, Do No (Immigration) Harm (to Business Visitors)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time to Replace Put-up-and-Shut-up Immigration Policies with Real Customer Service

sample-visa-denial-letter.jpgI'm no fan of the U.S. Department of State's policies and actions in the immigration space.  State's approach, as manifested by the behavior of U.S. consular officers and the apparatchiks within the Visa Office at the Bureau of Consular Affairs, too often comes off as a mix of treacly haughtiness and callous indifference.

These Ugly American attributes are the foreseeable consequence of the grant of unbridled power. Straight-shooters call this power "consular absolutism" while the decorous dub it "consular nonreviewability." First established as a temporary, war-time measure in 1918 and then incorporated into current law by a McCarthy-era Congress that overrode President Truman's veto in 1952, the power of a single consular officer to determine the facts and refuse a U.S. visa cannot be overruled; not by the courts, the Attorney General, the Secretary of State or the President.

To be sure, sometimes State does the right thingKudos to Hillary Clinton for using the immigration law to promote U.S. foreign policy objectives, as she did recently in allowing consuls to grant Iranian students multiple-entry two year visas, thereby supporting the Iranian people over their goverment. At other times, however, State stumbles and the hopes of countless innocent folks crash. Consider, for example, State's recent flubbing of the visa lottery selection process. Other pratfalls happen all too often, none more noticeably than missteps advertised in a much-watched State online resource, the Visa Bulletin.  Obscure to most Americans, the Bulletin tells watchfully waiting immigrants and their sponsors (American families and firms) how much or little, if at all, the "cut-off date" on the immigrant visa (green card) quota will move forward in the next month. 

The movement of the immigrant visa quota is less a math formula than a guesstimate.  A well-intentioned and competent State Department official analyzes reports of immigrant visa usage by consular officers (this is the easy, mathematical part), then grapples with the hard part -- the unpredictable flows of green-card issuance data from U.S. Citizenship and Immigration Services (USCIS) -- and then tries to estimate the rate and volume of future USCIS grants of green cards (adjustments of status, or AOS).  The problem is that AOS grants are approved at several locations (the USCIS regional service centers and field offices and the courtrooms of the DOJ's Immigration Judges). 

Although Congress contemplates a FIFO (first-in, first-out) quota system under Immigration and Nationality Act §203(e), seasoned observers have reason to believe that what really happens behind the scenes at USCIS is much more of a catch-as-catch-can system. AOS files are housed and distributed helter-skelter in a USCIS salt-mine storage facility in the midwest, regional service centers, ICE attorney file cabinets or shopping carts wheeled between immigration courtrooms, and USCIS field offices.  Although a recent lawsuit and motion for preliminary injunction in Seattle federal court challenging the immigrant visa (IV) quota allocation system failed, apparently for reasons urged by the government, this has not stopped ever-louder public complaints.

In recent years, the quotas dramatically and unexpectedly moved backward (retrogressed) twice  -- in 2007 under the employment-based immigrant visa categories, and in January this year under the family categories -- thus adding years more to the wait.  Although this might please the anti-immigration crowd that crows about the supposed honor of doing things legally by "waiting in line" (while silently celebrating that law-abiding immigrants are kept out), it hurts American interests.  American families are needlessly separated and the ability of U.S.businesses to compete on the global stage is hamstrung, while immigrant innovations that might have been are needlessly delayed or never happen.

Much of this harm could be avoided or lessened by President Obama, and virtually all of it could be eliminated by a willing, America-first Congress.

The President could take a lesson from Disneyland and the airlines -- businesses that know something about people waiting in lines.  These businesses know that opportunities for profit and reduction of complaints can arise even while customers wait (see Disney's techniques here and here; see airlines' approaches here).

  • For intending immigrants waiting abroad, President Obama could remind State and its consular corps that wannabe green card holders, despite their desire to immigrate, are still eligible under law for all manner of nonimmigrant visas, and should be granted such status liberally in deserving cases.  I'm not talking about the misnomer that many immigration agencies and uninformed immigration lawyers call "dual intent" visas, as they refer to the H-1B and L-1 temporary categories (which are more accurately described as intent-irrelevant classifications).  No I'm referring to the true dual-intent categories, such as business visitors, tourists, students, exchange visitors and trainees).  The courts and immigration precedent decisions have long ago recognized that a visa applicant or nonimmigrant entrant can have a short-term intention to enter the U.S. presently, yet harbor the desire and intent to attain green card status when and if the law and the factual circumstances so permit, as long as the individual's overriding intention is to be law-abiding.  If the person, by prior conduct in compliance with immigration law and compelling ties abroad, has an intention to immigration in the future but no intention to break the law by overstaying the period of admission or violating immigration status, then s/he has legitimate dual intent (see cases cited, FN 51).
  • The President could also tighten the reigns on the State Department by instructing the Secretary of Homeland Security to exert the superior authority granted her over immigration matters abroad under the Homeland Security Act, thereby cabining any rogue behavior by State's consular officers. 
  • For law-abiding nonimmigrants in the U.S., he could -- as I noted in my last post -- take executive actions that would allow early filing (but not accelerated approval) of green card applications by persons with approved immigrant visa petitions (which would allow international travel and continuing employment permission) and administratively freeze the age of minor children as of the date AOS is filed. 

Our feckless Congress -- if they truly cared about American jobs, competitiveness and deficit reduction more than political posturing and electioneering -- could also make worthy changes in our national interests:

  • Congress could also accomplish legislatively all of the outcomes noted above that concurrently fall within the authority of the President.
  • Congress could set an example to other countries by putting reasonable procedural due process constraints on consular officers and allowing at least meaningful administrative review and a clear right to in-person legal counsel at visa interviews and administrative hearings.
  • Congress could reap significant revenue by allowing quota line-jumping for a hefty premium fee. You may say this would be unAmerican, but we already allow premium processing at USCIS and provide wealthy investors with faster access to green cards (EB-5 visas) and nonimmigrant visas (E-2 and L-1A) by tendering legal tender.  We live in a capitalist state where theatres, sports teams and concert venues sell premium seats, airlines have first class cabins, and as Ernest Hemingway astutely observed in a misquote of an F. Scott Fitzgerald line: (Fitzgerald: "The rich are different than you and me." Hemingway: "Yes, they have more money.")

If you doubt the wisdom of better customer service for immigrants, consider the following excerpt from an unsolicited email I received from a foreign citizen (whose identity will not be revealed) in response to a three-part teleconference series I'm moderating next week (Illuminating the Dark Ages: Disturbing Trends and Pleasing Solutions in Employment Based Immigration):

I tried to get some help from 11 lawyers. Not a single one accepted. One told me that being in the US was a "privilege" and not a "right". Another one warned me about any action that could irritate the immigration service. The others just answered - when they answered - by one sentence: you have no possibility because there is still two years before your priority date.

As of today, I am still struggling. Why? Because:

- I want to get back to my career

- I want to achieve a degree at the University

- I want to open a business

- I want to buy my apartment

- I have hired 15 American citizens since I am a manager in my company and I think I am not a charge for anybody in the U.S.

But as you guess, I am the only one to believe that I will succeed.

I will conclude my message here, I thought that this story could be an illustration of the precarity of people like me, and I want to mention than I had never felt such a climate of rejection, suspicion and even in some cases, hostility, until this past few months. I had always felt very happy to live in the U.S. Today, the situation has created a daily anxiety, fear for the future and feeling that I am not welcome anymore.

Thank you for your reading. 

Face-off: Foreign Entrepreneurs vs. the Immigration Alligators -- with Obama as Referee

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.

alligators.jpg

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, herehere, 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.

America's Creaking, Crotchety Immigration System -- Not Ready for the Globalized World

Few observers predicted the profundity of global political changes in the first quarter of 2011.  

The Middle East, still the source of most of the world's energy, has witnessed civilian protestors toppling despots and prompting autocrats to invite foreign-state and mercenary armies to quell peaceful demonstrations and slaughter citizens. Libya's never-predictable Muammar el-Qaddafi, having nearly routed indigenous rebels centered around Benghazi, faces a UN-authorized no-fly zone and aerial attacks mounted at the behest of the Arab League, an organization now critical of air assaults that may provoke a full-blown war.      

Japan, no longer the world's second largest economy, is shaken by a 9.0 earthquake and tsunami that caused the deaths of probably 10,000 or more citizens and devastated the northeastern countryside. The resulting radiation fallout from severely damaged nuclear plants now contaminates the food supply and threatens public health. The devastation has also rocked the nuclear energy industry and called into question whether fission power will replace fossil fuels anytime soon.

With these events capturing public attention, President Obama is in Brazil, the worlds seventh-largest economy, the global leader in sustainable bio-fuels and ninth-largest oil producer with huge off-shore reserves.  The President hopes to return home with business deals that produce American jobs and secure access to less volatile sources of energy.  Whether or not he succeeds on this trip, he could not have failed to hear the sharp criticism leveled against American policy by Brazil's President, Dilma Rousseff, who chided the U.S. for its past "empty rhetoric."  As The New York Times reported, a "deeper relationship [with Brazil]," she said, must "be a construct amongst equals."

The two presidents failed, however, to reach an agreement that would allow Brazilians to enter the U.S. as business visitors or tourists under the Visa Waiver Permanent Program. Nor did President Obama endorse Brazil's call for a permanent seat on the UN Security Council, although on his state visit to India -- according to the NYT -- he "lent support to that country’s hopes for a permanent seat."

In this world of ever-erupting turbulence, a functioning immigration system would serve to promote America's foreign policy and economic interests, while honoring its tradition as a nation hospitable to hard-working immigrants.  Beyond securing the border against terrorists, criminals and ne'er-do-wells, an efficient and effectual immigration system would encourage investment, innovation and job-creation.  It would provide orderly systems for family reunification and refuge for the persecuted.  It would also bear marks of humility and wisdom, recognizing that our diversity is our greatest strength and that our actions abroad often stoke the push factors propelling and compelling people to breach our borders.

The present immigration system in the U.S. merely pays lip service to these objectives while suffering from malign neglect and willful meanspiritedness. Despite a 1986 federal law prohibiting employers from hiring workers whom they know or should know lack the legal right to work, the agencies charged with enforcement have yet to agree on the definition of "employment." Notwithstanding a 1996 law punishing illegal overstays, these same agencies continue to split hairs over the distinction between violation of nonimmigrant "status" and "unlawful presence," have yet to publish a rule defining what it even means to "maintain [legal] status," and still assert that a foreign citizen can be work-authorized yet have no immigration status

Most of us in this nation of immigrators bewail the system but do little to insist on adult conversations among lawmakers that might lead to pragmatic and humane solutions. In a time of focus on deficit reduction, we want more border security but would never tolerate a tax increase to pay for it.

Yet the candle-lighters among us, who'd rather not just curse the darkness, see a few glimmers, of luminosity. 

Business leaders in Utah, Colorado, Nebraska, Florida, Kansas, Oklahoma and, yes, even Arizona, have beaten back efforts to make state immigration laws still more draconian.  A leading labor union blasts the Administration's senseless and expensive immigration enforcement policy, while the Organization of American States faults us for inhumane immigrant detention practices.  A Tea Party leader -- Dick Armey -- says that if necessary to care for his babies he would break the law, ironically, on essentially the same grounds that spur unauthorized migrants to cross the border looking for work.  Hispanic members of the GOP propose a comprehensive and largely workable 12-point plan for immigration reform. Mainstream reporters such as NBCs Tom Brokaw are beginning to focus attention on America's brain drain -- the loss of talented foreign workers who've become so fed up with the quota backlogs, visa-screening delays and hassles on reentry to the U.S. that they take the education we provided them and leave to compete with the U.S. from their native lands. A new Start-Up Visa bill has emerged (but not as user-friendly as the U.K.'s) to woo foreign investors.

Although movement on immigration reform in Utah is heartening, the country cannot have the states enacting 50 versions of foreign policy or an equal number of immigration codes.  Only the federal government is positioned to steer a unified course on immigration. We can start by asking why the prosperous and rapidly growing BRIC countries (Brazil, Russia, India and China) are shut out from the E-2 treaty-based nonimmigrant visa category.  This entrepreneurial visa allows foreign investors from select treaty countries to start U.S. businesses quickly with whatever minimum amount of capital would ordinarily be sufficient to begin operations and start hiring, rather than invest the minimum $500,000 and create the ten jobs needed for the investor green card, the EB-5, with its costly tax consequences as the added price for permanent residency.

America has waited too long to revamp its immigration laws.  The usual three pillars of comprehensive reform (border security, worksite enforcement and legalization for the unauthorized in our midst) are not enough to make America globally competitive and enticing.  How many more whirlwinds of global change must jostle and buffet us before our leaders in Washington realize that we are falling from our perch as top dog?  Economic prosperity and job creation must be our prime immigration policy, with pragmatism and humane treatment closely in tow.  The sane voices must grow louder and more insistent. Outspoken business and union leaders, and one Tea Party icon, coupled with contrary-to-type Hispanic conservatives, and constant prodding from new economic powerhouses abroad -- all are a promising start.

Granular and Possibly Grand Immigration Reform

Ever since studying Constitutional Law years ago, I've never really resolved in my mind the tension between federal supremacy and states rights. Most days, I see the need for national uniformity of law and lean toward federal power.   At other times, I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.

The issue arose again this week in an offhand reply I Tweeted to an anonymous, conservative-leaning polymath, who carries the Twitter name "euandus," in response to his blog post (with identity still masked) entitled, "Immigration and Federalism in the U.S.: Should States like Arisona (sic) Participate?"   

The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration."  Chazkazoid, an apparently precocious college student, wondered aloud why Georgia, in trying to outdo Arizona, proposed a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").

I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having "50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation." My hope has been that the U.S. Supreme Court in the already-argued case of U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to neuter the federal preemption doctrine by attempting to regulate immigration.  After reading the transcript of oral argument in Candaleria, however, I've become less hopeful that preemption will prevail.

The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle.  (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to state. And, yikes, how would I ever learn 50 state immigration codes?) 

Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration," that gave me cause for modest hope.  Utah state Senator Curtis Bramble, a Republican from Provo, has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress.  Sen. Bramble's bill would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the Utah Department of Workforce Services for a temporary work permit. The bill, assigned number 288 (as amended), is premised on the Utah Compact.  The Compact rests on five principles:

FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries. We urge Utah’s congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.

FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.

ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.

A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt Lake Chamber of Commerce, explained her support to Riley in his Wall Street Journal op-ed: 

Utah has a growing economy that's ready and able to put people to work. Our business leaders are saying, 'Let's not diminish our labor supply.  Let's not reduce our customer base.  Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'

Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria is decided in Arizona's favor). Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category.  (Utah, by the way, is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)

While Utah moves forward on a humane and pragmatic state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:

Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.

For my part, I see less reason for optimism.  I join in the "stinging rebuke" leveled in the March issue of Arizona Attorney by my former partner and recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership" of official Washington in the passage below (emphasis mine):

Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?

The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action.  Indifference, anyone?

. . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?

However, not everyone stood down.  CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history.  . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration.  The groups who hijacked the immigration conversation will never be appeased.  Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?

Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to] inventive lawyers representing them."

It's not too late for the Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing.  Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role in immigration policy, our pusillanimous "leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or at least grant Utah and other states the right to fix our dysfunctional system. 

* * *

POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level.  One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes.  The federalism/states-rights tension continues. 

Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take NOW

The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE).  These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.

In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm.  Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork.  Thus, large employers pursued a strategy of "just right":  Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid. 

All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.  

Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal.  Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage: 

1. Review  Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations. 

2. Decide How the Auditor Should Present the Report.  Consider the pros and cons of an oral versus a written audit report.  An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance. 

3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected.  Careless employers will fare worse.  Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once.  Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.

4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply.  Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.

5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria.  Protect against cronyism.  Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions.  Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.

6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.  Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants.  Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

7. Strengthen Global Mobility Management.  It's not just about complying with U.S. immigration laws.  Foreign countries' immigration statutes can be just as nasty when the rules are violated.  Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored.  Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.

In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers.  Beware the ICE Bears.

Time for Congress to Streamline the H-1B Visa Process

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:

How to get an H-1B Visa or H-1B Status.jpg

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:   

 Agency Roles.jpg

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

Immigration Service Hits Arts Presenters in the Purse

[Blogger's Note: This blog on dysfunctionality in the world of U.S. immigration law and policy welcomes principled and thoughtful commentary by guest writers. Today's guest post is by Karin Wolman, a highly regarded New York immigration lawyer with an expertise in immigration issues affecting artists, entertainers and the venues where they perform.]

U.S. Citizenship and Immigration Services (USCIS) has released an October 7, 2009 News Release that will shake up the world of arts and entertainment. The Release outlines new ground rules for O and P visa petitioners that will require every presenter on a single U.S. tour for a foreign performing artist to file separate visa petitions, with separate filing fees. (O-1 visas are for individual aliens of extraordinary ability, P-1 visas are for internationally-recognized entertainment groups, and P-3 visas are for artists coming to the U.S. to perform in a culturally unique art form.)

Traditionally, regional theaters and non-profit venues in the U.S. have pooled their limited resources, making it financially possible without breaking the season budget on one show to present important works by foreign artists to American audiences. The way this has worked until now is that one presenting theater or venue on the tour, sometimes a co-producer with the artist, would file a single visa petition for the foreign artist as the “employer” for the first stop on the tour, and as an “agent” for all the dates and venues with other U.S. employers. This one visa petition would cover every show on the U.S. tour, with evidence including the artist’s contracts with all the other U.S. presenters, and the other presenters would help defray other costs of the tour.

Except now, the USCIS is claiming the regulations never allowed that (but they have, and they do). The USCIS News Release claims that unless the initial presenting venue that would normally file one petition for a whole tour is “in business as an agent,” and has its own contracts with each of the other presenters as a “client,” every presenter must file its own petition.

That’s right, the immigration service has decided that now is the time to dig deeper into the pockets of arts organizations, already drained by the economic crisis, to demand duplicative filing fees, and illegally re-write the rules in an informal document that blatantly contradicts current regulations.

The unsigned agency Release, which does not have the force of regulation, vaporizes a part of the existing regulations without actually going through the publication, notice and comment procedures required to change the regulations. It ratchets up filing fees at a time when the arts community can least afford them, by requiring separate petitions in a common situation previously covered by a single petition.

The Release also adds a new evidentiary requirement, found nowhere in existing USCIS regulations:

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished by agent-Employer A submitting all of the [customarily] required evidence . . ., as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

Both this added evidentiary requirement, and the USCIS claim that any employer acting as an agent on behalf of other employers must also be “in business as an agent,” contradict the plain language and intent of the regulation at 8 CFR § 214.2(o)(2)(iv)(E), which states in part:

A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

Most tellingly, the regulation then divides into subsections - (E)(1) applies to ”An agent performing the function of an employer,” (E)(2) applies to, “A person or company in business as an agent, ” and (E)(3) applies to “A foreign employer, who through a U.S. agent, files a petition.” The plain language of the regulation belies the claim that an agent performing the function of an employer must also be “in business as an agent.”

To see the impact of the Release, let’s look at a not untypical fictional example:

Alba the Amazing is a Spanish aerialist/flamenco dancer/poet whose mixed-media performance art is the hottest show in Europe. Alba has earned rave reviews in 15 countries. An American theatre, the Cottage CoProducing Company, commissions a new original work and invites Alba to give the opening performances of their 2009-2010 season, for three shows in mid-November 2009. Alba books additional U.S. gigs following this premiere, for three shows each with Petite Presenter,The Tiny Theatre and the Avant-Garde Arena, running through January 2010. These three entities are small regional non-profit theatres, and are depending on Alba’s ticket sales to help maintain their subscriber base through this winter. All three were named as additional stops on Alba’s U.S. tour in the O-1 visa petition filed by the Cottage CoProducing Company, filed last week, with copies of Alba’s contracts with each presenter. The Cottage CoProducing Company is not in business as an agent, the other three presenters are not its clients, and they do not have separate contracts with Cottage CoProducing Company. The USCIS Release indicates that this petition will be approved only for the December shows at Cottage CoProducing Company, the subsequent dates will be refused, and the other three theatres will each be required to file a separate petition, incurring thousands of dollars in costs that exceed their budget.

The existing regulation explicitly permits the filing of “agent” petitions by one employer for other employers, so long as the contract between agent and foreign entertainer or artist is formalized. It does not state that one employer acting on behalf of itself and other employers must show that it is in business as an agent, nor does it require contracts between one employer and other employers. Through this informal, unsigned Release, USCIS is attempting to invalidate 8 CFR § 214.2(o)(2)(iv)(E)(1) and the second half of paragraph 8 CFR § 214.2(o)(2)(iv)(E), without amending the regulations or allowing any public comment.

Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast.

Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.

Immigration Blue Laws: Never on Sunday, Monday or Any Other Day for the Next Several Years.

In today’s 24/7, Twenty-First Century world, with on-demand services often only mouse clicks away, our nation’s employment-based immigration laws are reverting to Puritan times. How so? Remember the infamous Blue Laws of the colonial era, when government officials decreed that the economy must shut down every Sunday, the Sabbath, for a day of rest. Fast forward now to 2005, and let’s look at America’s modern-day immigration blue laws, which take the “business-must-rest” concept to an absurdly blue (melancholic) low point.

As the State Department has announced , the waiting time for virtually all categories of employment-based immigrant visas (the coveted “Green Card”) will “retrogress” (move back in time) on October 1. In practical effect, this means that individuals who have already patiently waited for years in the legal-immigration queue – especially those born in China, India, the Philippines and Mexico – must wait much, much longer still.

These patient foreign citizens (whose employers have already proven to the satisfaction of the U.S. Department of Labor that there are no American workers available to fill needed jobs) may be required to wait up to 15 years more before attaining U.S. green cards. The potential for a decade-plus Green Card blackout also means that the workers’ spouses and children must also wait just as long before they are eligible to receive employment permission and work-authorized social security numbers. As a result, the family must rely on a single income, and the career aspirations of family members must be put on (blue?) ice. Meantime, as well, the foreign workers and their family members better be prepared for multiple trips to the Department of Motor Vehicles, since driver’s licenses are usually limited in time to the period of nonimmigrant status (which often is only available in annual increments).

Not to single out foreign workers and their families, the immigration blue laws are just as unfriendly to American businesses. The greencard blackout requires U.S. employers of sponsored foreign workers to repeatedly extend their employees’ work visa status, and suffer interruptions of business projects and absenteeism on the job (since the workers must travel recurrently to a U.S. consular post overseas to obtain renewals of their visa stamps).

There are even more blue notes and perpetual blue days in the offing. The supply of H-1B visas for professional workers dropped from 195,000 this last fiscal year to a meager 58,000 visas in FY 2005 and will remain at this paltry level in future years. Not surprisingly, the entire national supply of H-1B visas for computer professionals, architects, scientists, researchers, consultants, fashion models and other workers in “specialty occupations” who hold a bachelor’s degree or a foreign graduate degree ran out on August 10 – two months before the start of the new fiscal year. As a result, the immigration blue days will continue for these H-1B workers and their U.S. employers for at least the next 14 months.

What should be done? We should all sing the blues to Congress and the White House, and even hop a ride on Jet Blue, and let them know that our country’s weakening position in the global economy cannot afford these costly immigration blue laws.

As the editorialists at the Miami Herald, have trumpeted, the situation is urgent. We must make sure that our government officials act in our nation’s economic self interest, and instead of blue laws, give the green light to enlightened, employment-based immigration reform.

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No Broom and Shovel Brigade: Cleaning Up Immigration Messes in M & A Transactions Before They Occur

Blog readers may not be aware of the challenges the key players involved in a merger, acquisition or other corporate restructuring encounter when they try to understand the secret immigration law affecting M & A deals. The law is secret because it exists primarily in old memoranda issued by the former Immigration and Naturalization Service – an agency abolished in February, 2003. The key foreign workers (whether they are the executives, managers, or critically important technical staff) must file one-at-a-time and in advance to transfer to the payroll of the successor company and continue to be lawfully employed. Often, the immigration requirements are considered as an afterthought. If the deal closes and the immigration niceties have not been followed, then the transferring employees must rely on the kindness of strangers, the folks at the successor agency, the unit within the Department of Homeland Security known as U.S. Citizenship and Immigration Services. To avoid the potential risks and miseries of relying on folks whose primary mission is homeland protection, readers of this blog may want to read No Broom and Shovel Brigade: Cleaning Up Immigration Messes in M & A Transactions Before They Occur by Teri A. Simmons, David Grunblatt and Angelo A. Paparelli

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The Effrontery of USCIS: “Don’t File for H-1B Visas until We Say We’re Ready, No Matter What Congress Says.”

I thought I learned about how a bill becomes law in high school Civics. It all seemed simple and straightforward then. A bill is passed by both houses of Congress, the President signs it, and that’s the end of the story: The law is the law. U.S. Citizenship and Immigration Services – the unit within the Department of Homeland Security charged with implementing the new H-1B visa law – has added a new page, however, to the standard high school Civics text. A law apparently is not a law if the administrative agency assigned by Congress to implement it refuses to do so.

What’s this all about? It’s about the H-1B Visa Reform Act, Pub. L. No. 108-447, passed late last year to help American employers in the global race to secure the top talent for 21st Century jobs. Congress said in essence that it makes no sense investing in the graduate education of foreign nationals if they have no opportunity to work for U.S. employers after they receive their degrees.

Under the new H-1B law, which takes effect this week (there is some dispute as to whether the law’s effective date is March 8 or 9), foreign students who graduate with a Master’s or higher degree conferred by a United States college or university are entitled to apply through a petitioning employer for an additional 20,000 H-1B visas that are now made available for the current fiscal year. This additional visa allotment is especially important since the regular quota of 65,000 visas ran out in one day (October 1, 2004), and employers have been waiting since then for a fresh supply.

In anticipation of the new quota opening up early this week, U.S. employers have taken a number of preliminary steps at significant expense by:

• recruiting foreign graduates with U.S.-conferred Master’s and Ph.D. degrees, • hiring an immigration lawyer or firm to advise them on the complex procedures, • researching prevailing wages for the jobs these graduates would fill, • posting notices to their employees that one or more H-1B workers are to be hired, • obtaining a certified Labor Condition Applications from the U.S. Department of Labor, • preparing a Public Access File that allows anyone to confirm that all the labor-protection rules of the H-1B program have been satisfied, • completing a petition for nonimmigrant worker, • obtaining proof of the worker’s graduation with a Master’s or higher degree from a U.S. university or college, and • cutting checks for the filing fees which can cost up to $2,685 if you have more than 25 employees and need to hire the worker in a hurry.

Like a prudish host who takes the punch bowl away just as the party is becoming convivial, USCIS issued a press release on March 4 warning employers that the agency is not ready for prime time. http://uscis.gov/graphics/publicaffairs/newsrels/H1BVisaReformAct03_04_05.pdf. The press release, misleadingly entitled “USCIS to Implement H-1B Visa Reform Act of 2004,” is brimming with chutzpah. In it, the agency tells employers to FUGGEDABOUDIT and boldly announces:

“USCIS will reject any new H-1B petition that is filed in advance of the effective filing date as established in the forthcoming Federal Register notice.”

If we strip this sentence of its bureaucratese, here is what the agency is really saying: “Although we’ve known since December 9, 2004 that the new law would take effect in March, we waited 85 days, that is, until a half-week before Congress said the additional visas would be available, to tell American employers that we are refusing to do our job until we’re darn well ready, and when we are, we’ll let you know with a publication in the Federal Register.”

So the next time you review your child’s Civics homework, make sure that you correct any misunderstandings (based on an apparently simplistic reading of the Constitution) and say that a law is not a law until the bureaucrats in Washington say they are ready to follow it.

One last Civics question: “Where are the Congressional oversight committees when we need them?”

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