While most of the nation fixated this week on black and brown American heroes in Cleveland, the attention of immigration advocates diverged.  They vacillated between delight with the imploding anti-immigration conservative movement and nail-biting over votes on a flood of amendments to the massive, bipartisan Gang of Eight bill in the Senate Judiciary Committee.

To be sure, there remain troubling questions about whether the current immigration system in America is inherently racist in its design, its effect or its enforcement, as this sometimes heated debate involving Unai Montes-Irueste, who writes for Politics 365, and immigration lawyers, Susan Pai and David Leopold, reveals:

Whatever the right answer (I could argue for all three positions), that debate will be left to historians if an enlightened form of comprehensive immigration reform (CIR) is enacted this year.  That won't happen, however, if the poison-pill pharmacists on the right are allowed to administer a deadly dose.  

Take for example, Sen. Ted Cruz (R. TX) who proposes a fatal amendment to bar any path to citizenship for the 11 million undocumented immigrants in the United States. Or consider the Downton Abbey amendment offered by Sen. Mike Lee (R. UT) which would allow Americans to hire the undocumented but only if they served (apparently only the 1%) as "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, care-takers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use."

It's not only about preventing bad amendments but also preserving and improving on good ones.  Take for example an amendment that markedly improved on the Gang of 8 version which would merely have expanded the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman to also cover U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).  Proposed by Sen. Mazie Hirono (D. HI) and passed by voice vote, Section 1114 of the CIR bill creates a new "Ombudsman for Immigration Related Concerns" with the power to:  

• receive and resolve complaints from individuals and employers and assist in resolving problems with the immigration components of the Department [of Homeland Security].
• conduct inspections of the facilities or contract facilities of the immigration components of the Department.  
• identify areas in which individuals and employers have problems in dealing with the immigration components of the Department.  
• determine whether an individual or employer is suffering or is about to suffer an immediate threat of adverse action as a result of the manner in which the immigration laws are being administered, and intervene as necessary.  
• propose changes in the administrative practices of the immigration components of the Department to mitigate [identified] problems . . .
• review, examine, and make recommendations regarding the immigration and enforcement policies, strategies, and programs of [CBP], [ICE], and [USCIS].
• monitor the [three agencies' compliance] with law, regulations, and policy. [and] 
• request the Inspector General of the Department of Homeland Security to conduct inspections, investigations, and audits.

Consider also various amendments not yet voted on which are proposed by Sen. Leahy (D. VT). One would modernize and make permanent the EB-5 regional center program for immigrant investors. Others would enact family-based immigration benefits for same-sex couples by way of the "Uniting American Families Act of 2013" and another measure would recognize for immigration purposes all marriages valid under the laws of any state or country, including same-sex nuptials.

Ponder as well the amendments long espoused by Sen. Chuck Grassley (R. IA) who would add the heavy hands of hamstringing regulations and enforcement to the H-1B and L-1 bill, in ways even worse than the bad ideas already in the G8 proposal.  These amendments (Grassley 57 to 67), along with the base bill, would stifle innovation not only in the tech industries but they would also essentially declare illegal the modern business practice of global sourcing of services on which so many American companies and customers rely.

The point of this post is not that revelry over the fall of xenophobes and eugenicists is wrong; rather, it is that celebrations of that sort are unaffordable luxuries. That wine is just too rich at this late hour.  

Advocates for enlightened CIR must instead keep eyes peeled on the Senate Judiciary Committee and its fast-and-furious consideration of amendments which will profoundly reshape in ways unforeseeable the rules for employment- and family-based immigration.  This week's action will focus on Title IV which would transform (in good and bad ways) many of the most heavily-used nonimmigrant visa categories and create new classifications whose contours will be decided in the coming weeks, perhaps as soon as Memorial Day. 

So save your gloating for another day.  Now, keep the Congressional feet to the fire. Let the word go out in Twitter feed and Facebook update, in radio/TV talk shows on cable, broadcast and satellite networks, in blog posts and letters to the editor.  Let calls overflow the capacity of the Capitol Switchboard.  We need a modernized immigration system that functions well; not one hampered by bureaucratic red tape and heavy-handed, guilty-until-proven-innocent enforcement. It must spur 21st Century innovation and job creation in the private sector. And it must be true to our bedrock values of family unity and refuge for the persecuted. From your mouths to the Senators' ears.

The New I-9:

Why Now When We Need Immigration Amnesty for Employers?

---

By Nicole Kersey and Angelo A. Paparelli

Irony was plentiful last week in Washington and around the country. 

One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul's filibustery droning against drones in protest of John Brennan's nomination as new CIA director. 

Also last week President Obama met with religious leaders to promote "Commonsense [sic] Immigration Reform" as the "leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations" -- especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).  

At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, "aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship," is accused of flip-flopping on immigration.

Last week also witnessed the release of two noteworthy publications on immigration.  

One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility: 

Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)

The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.

All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS).  The agency projects that the new I-9 -- consisting of seven pages of instructions to complete two pages of the form itself (up from the current one-page form) -- will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million. 

Why now?

With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?

CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary.   Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.

Why did the form change?

The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:

-          The old form “expired.”

-          The expiration gave USCIS an opportunity to implement improvements to the form.

-          Improvements (according to USCIS) include:

-          Adding “helpful” fields such as the employee e-mail address and telephone number

-          Revising Section 1 to make it “easier to read and understand”

-          Adding an area for a 3D barcode to “promote the modernization of USCIS forms”

-          Giving employers more space

-          Making the instructions clearer and easier to understand

Whether this was truly the most opportune time to make changes to the form is highly questionable.  Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now.  Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date?  USCIS doesn't say.

Did USCIS adequately respond to public comments?

Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments.  While this suggests that USCIS actually read the comments, the agency's response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form.  The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.) 

What changed?

The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions.  The List of Acceptable Documents still occupies a single page.   Aside from formatting and stylistic changes, there are also substantive changes:

• The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.  
  • Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
  • Confirmation that P.O. Boxes are not acceptable.
  • A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
  • Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
  • The addition of instructions for minors and disabled employees.
  • In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
  • More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
  • The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
  • New fields have been added for employees to record telephone numbers and e-mail addresses.  These fields are optional.  The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
  • Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name). 
  • Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form.  This relates to CBP’s plans for automation of the I-94 card.  Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data.  Others are instructed to write “N/A” in these fields.
  • The signature box for the employee has been improved to prevent employees from signing outside of the box.
  • In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.”  While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
  • “Alien #” has been changed to “Alien Registration Number/USCIS Number.”  For many, this causes confusion.  Let us make it clear:  the numbers are the same, but some government-issued documents use different terms to refer to the same number.
  • A 3D barcode box has been added to the form.  This is a mysterious box, as it is unclear what the government plans to do with it.  All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
  • A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
  • Additional dedicated fields for recording “extra” List A documents have been added.  These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards.  They may cause confusion, however, for others.  It is still not clear which document should be recorded first, second, or third.
  • The employer’s attestation statement has been changed somewhat.  It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
  • Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes.  Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
  • The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not  valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”

What should employers do?

USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.

With that somewhat clunky guidance, we suggest that employers do the following:

Consider waiting to use the new form until you take time to:

• Read and digest the revised M-274 Handbook for Employers, available here. 
• Update your company policies and protocols to reflect changes to the form.
• Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them. 
• Anticipate questions and issues that may arise.
• Be ready to fix the foreseeable mistakes that are likely to arise.
• Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.

* * *

Sen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.  

Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.

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

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

The 2012 IMMI Awardees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

As Republicans join Democrats in contemplating reform of the nation's dysfunctional immigration system, the final line of the Pledge of Allegiance ("with liberty and justice for all") is the best place to start. 

Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world. 

While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky.  We have posted a "road closed" sign when we should be cleaning off the welcome mat. 

Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who've too often espoused an inhospitable "culture of no."  

America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge's promise of justice and liberty for all.  Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:

Be more respectful and stop treating visa applicants like suspects and liars. Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants.  Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures.  In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers.  Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, "Ugly American" consular behaviors are a turn-off to those whom we would welcome.

Eliminate consular absolutism. No one -- not even someone as admired until recently as General David Petraeus -- is infallible.  Yet current law says that no government official, not the President or the Secretary of State or the Attorney General or any federal judge, can correct mistaken findings of fact made by a consular officer when deciding to refuse a visa application.  Justice for all means due process for all and it means that no one, not even consular officers, are above the law.  Congress should create a means of challenging consular visa refusals and visa revocations, especially where the rights of American companies and families are adversely affected.  The review process can begin with a pilot program covering all immigrant visas and nonimmigrant visas for investors and work-visa applicants, and then be expanded to cover additional categories.

Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation.  When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated "third-degree" style of border enforcement must give way to the rule of law and enhanced due process protections.

Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions.  Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-"tribunal" that has failed to fulfill its professed mission.  It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.  It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard. 

Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor's Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.

Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security's Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.

Reassign Agency Roles.  The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants.  FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor's Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as "labor certification."  Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists.  Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.

Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and -- through remittances sent back home -- in the exporting nation as well.  Why then should there be a quota on economic growth?  The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration.  Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics.  Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes.  The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low.  So, why have a quota on "smart people" (as business leader and philanthropist Bill Gates has asked)?

Establish uniform privileges across all work visa categories.  There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited.  If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories.  There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return.  Nor is it logical that H-1B visa holders have "portability" of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges.  And the mother of all illogical immigration notions -- the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven -- should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).

Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents.  Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system.  Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination.  Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators. 

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.

* * *

These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers. 

While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.

[Blogger's note:  Tomorrow, August 15, 2012, is perhaps as momentous to DREAMers as D-Day, June 6, 1944, was to The Greatest Generation.   The invasion of Normandy marked the end of World War II in Europe and the fall of a tyrannical Nazi regime that made mincemeat of the rule of law.

Though the comparison may seem hyperbolic to some, I remember well my first visit to the Holocaust Memorial Museum in Washington.  As a lawyer, I was stunned by Hitler's atrocious perversion of the legal system, the issuance within a half-year after the Nazis' 1933 ascendancy to power of what would become roughly 400 decrees and regulations that "restricted all aspects of the public and private lives" of Jewish citizens. 

Conversely, doors that have been legally shut to persons solely by virtue of their status are now to be opened a tad, as Julia Preston of The New York Times notes in today's edition.  She reports on the Obama Administration's temporary clemency program, Deferred Action for Childhood Arrivals (DACA), which may lead to the grant of employment authorization for youthful entrants to America found worthy of discretionary de-escalation of enforcement by U.S. Citizenship and Immigration Services (USCIS): 

The work permit young immigrants can receive with the deferral opens many doors that have been firmly shut. They can obtain valid Social Security numbers and apply for driver’s licenses, professional certificates and financial aid for college.

Thus, just like those for whom the Allied invasion of Normandy launched a new life, one transformed from the status of a nonperson to that of a free member of society, DACA stands as a tiny step in the direction of reversing the application of perverse laws.  In this case the perversion of laws are found in America's Immigration and Nationality Act, a statute chockablock with befuddling provisions that punish innocent children for the mistakes of their parents. 

USCIS has today issued DACA instructions and forms:  Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, a Form I-765WS, a worksheet to establish one's economic need for employment, and a Form G-1145, E-Notification of Application/Petition Acceptance, and has published a DACA web page with FAQ along with a warning about "Avoiding Scams and Preventing Fraud."  The agency also dove deep into the minutiae of the process in today's telephonic Public Engagement which answered many but by far not all questions.  The engagement followed an earlier internal tussle within DHS over the contours and devilish details of the program reflected in a 92-page draft as reported recently by FoxNews.com ("DHS document shows Obama administration wrestling with 'DREAM Act' policy").

When it takes the government almost 100 pages to tussle internally over the fine points of a discretionary policy, the question arises whether a DACA applicant should be represented by legal counsel.  Recently, in a YouTube video, two federal lawmakers, Senator Dick Durbin and Representative Luis Gutierrez, usually immigration-reform stalwarts, said a lawyer's help was unnecessary.  Curiously, the link now reflects that "[this] video has been removed by the user." 

Perhaps the takedown occurred because of a flood of postings that challenged the legislators' suggestion: See, Do DREAMers really need a lawyer? and Dreamers Do Need Lawyers and Obama's immigration changes cause confusion and Do You Need an Attorney to Apply for Deferred Action for Childhood Arrivals (DACA)? 

My guest columnist, Karin Wolman, agrees that a lawyer's counsel and representation is necessary in DACA cases (as do I).  I recall the mess created by the legacy immigration bureaucracy, Immigration and Naturalization Service, when it tried to interpret and implement a comparable change in policy, the 1986 legalization program, a misguided agency effort that spawned decades of litigation.  So, DREAMers, don't take a chance.  Even if you think your case is straightforward, get good referrals, and talk to a competent lawyer who regularly practices immigration law.  Your life as a nonperson will end and your civil rights will be recognized only if you do DACA right.]

Durbin & Gutierrez Put DREAMers at Risk

By Karin Wolman

Senator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhood Arrivals, "Do Not Hire a Lawyer." Yet Sen. Durbin said those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help.

These elected representatives perpetuate a dangerous source of confusion between unscrupulous "notarios" who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.

An experienced immigration lawyer who has carefully reviewed the applicant's background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin's patently false claim that "Virtually everyone will be able to go through this process without a lawyer," is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right on the first try, or else they face a discretionary denial that is final and cannot be reviewed.

Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable
immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.

[Blogger's postscript]

My post above, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman.  Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree: 

I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different.  The historian in me.

I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate  the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.

I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth. 

[Bloggers note:  Today's guest column is co-authored by two shining stars in the immigration firmament, Roxana Bacon and Esther Olavarria, who offer four innovative proposals for immigration reform conceived by their law students at the University of Miami Law School. The post is longer than usual but well worth your time.  

The melding of  insights from the immigration professors and the students brings to my mind the formula for  success highlighted in Brain Pickings, a marvelous site run by one of the web's best curator's, Maria Popova.  Quoting An Anatomy of Inspiration by Rosamund E. M. Harding, Popova -- a woman who gets immigration -- offers one fine formulation: 

Success depends on adequate knowledge: that is, it depends on sufficient knowledge of the special subject, and a variety of extraneous knowledge to produce new and original combinations of ideas.

Here, then, is a successful blending of insider knowledge and fresh perspectives "to produce new and original combinations of ideas" on immigration reform.]

Four Fresh and Seasoned Immigration Reform Proposals

By Roxana Bacon and Esther Olavarria

This spring, we co-taught an immigration class with a twist at the University of Miami Law School. Under the leadership of Dean Patricia White, UM has reinforced its commitment to human rights and migration law, with a deep bench of scholars--Becky Sharpless runs the clinic, David Abraham and Irwin Stotzky are tenured faculty, Ira Kurzban is an Adjunct, Professor Alejandro Portes, Visiting from Princeton, added his expertise in issues of assimilations and estrangement within the immigrant experience.

Dr. Joseph Chamie, the lead demographer for the United Nations for many years, introduced the course with a lively overview of the cool and irrefutable demographics that compel global immigration.   Professor Rafael Fernandez de Castro, chief of the International Studies Department of Mexico’s ITAM and advisor to President Calderon on immigration matters, joined a panel with Professor Abraham comparing German, Mexican and U.S. immigration laws and policy.

Dennis Burke, a former U.S. Attorney from Arizona, explained the real-time ins and outs of state and federal enforcement approaches, and we discussed the morality (or not) of immigration with the help of philosophy professor and ethicist, Dr. James Nickel.  As the cherry on top, the noted documentary filmmakers, Shari Robertson and Michael Camerini, (whose film “Well Founded Fear” has become the  bible for most immigration courses) showed 2 of their 12-part film  series, “How Democracy Works Now”.  By exploring the efforts to pass immigration reform between 2001 and 2008, the films take the viewer inside the legislative sausage factory, with its stew of conflicting ideologies, outsized egos, re-election fears, and occasional moments of idealism and caring.  The students learned more about partisan gridlock from them than a year in a graduate program could teach.  We used no textbooks, grounded the course in as much hard data as possible, and supplemented materials from daily headlines.  In short, the students were served a vibrant buffet of experts and information that we begged, borrowed or stole from our contacts and archives.

Our goal was to encourage a small group of 3Ls and LLMs who had already completed basic immigration course/clinic work to think outside the U.S. framework, studying natural and political influences on human migration globally before turning their analysis to U.S. immigration problems.  Their final required them to design a reform element within an identified larger area of U.S. immigration, explaining what they would reform, why, and how.  Each then presented their reform analysis and conclusions in a 90-minute class session, and then edited it based on class feedback as their final written paper.

We gave them ample latitude, assigning each team of 4 students one of 4 topics:

1. Southern Border Enforcement;

2. Labor-based Immigration;

3. Interior Enforcement;

4. Forced Migration.

We were worried that the class was too amorphous, that the 30,000’ level overview would be too lofty for presentations that had to work at the 3 foot level, that the panoply of experts and views and materials too diffuse for the students to manage in a 3 unit course.  Not to worry.  The students were spectacular.  Each Team presented a solid idea for reform that was innovative as well as doable.  Each team demonstrated a mature understanding of the gridlock plaguing Congress and the Administration on all matters dealing with immigration except enforcement, and each advanced novel strategies to pass their proposals.  Most important, each team walked away wiser, but not more cynical, about the possibility of reform, eager to take on the decades-long stalemate to achieve a fair and transparent system that works for the long term national good.  Their ideas are worth our attention.

Team 1 was assigned the general topic of Southern Border Enforcement.  Having heard the concerns of Dr. Fernandez de Castro that Mexico’s immigration law and policy are not in better shape than ours, albeit for different reasons, and recognizing the intense CBP and ICE emphasis on expedited return for those apprehended at the Border, the team made a strategic decision to focus on an issue that occurs solely within U.S. jurisdiction, but away from the immediacy of the Border.  The problem they chose is rape of undocumented migrants in U.S. drop houses. The magnitude of the problem is shocking; more than half of all women, including very young children, seeking to enter the U.S. without documents are raped. It is considered part of the price of migration, so prevalent that coyotes often require a contraception injection to avoid rape-based pregnancies.  The problem is growing; the NY Times article on May 28, 2012 documents the horror and the spread of these “houses of hell” as they move from the border to interior cities and subdivisions.

Team 1’s reform proposal is to establish a new protocol for rape victims or suspected rape victims when encountered in drop houses.  The team would require that drop house enforcement teams include a First Response Team, staffed by professionals, including therapists, who are experts in rape.  The FRT would follow the same protocol widely adopted by state and local police that treats rape victims as victims first, rather than participants in any wrongdoing, whether criminal or civil.   It is a brilliant reform idea.  No political party can disparage or dispute treating rape victims as violent crime victims without courting the wrath of women and men everywhere; indeed, being indifferent to these rapes is tantamount to being “for” drop house rape, and in turn that is tantamount to being “for” human trafficking, the genesis of the drop house problem in the first place. Further, rethinking and improving treatment of drop house rape victims conforms to the spirit of VAWA and T and U visas.  It also leverages existing state and local law enforcement experience and priorities so that little if any controversy or additional cost would be incurred.  Last, it complements existing social service resources and current thinking about the most effective treatment of domestic violence victims, i.e. rape of those in a dependent relationship.

The FRT would be required to handle all suspected rape victims in any drop house or other holding center for undocumented persons.  Currently there is no uniform protocol for treating such victims, and the outcome of any particular case is idiosyncratic, devoid of predictability or transparency.  Victims identified by medical and social service experts would be granted interim protection while their medical and emotional conditions stabilize.  That treatment would not be dependent upon their ability to identify their trafficker/smuggler, but rather on their physical and emotional conditions. They would not be incarcerated; if supervision were required, ATDs would be used.  Finally, the length and type of treatment would be set not by ICE but by the therapist who would be chosen from a rotating list.  Service on an FRT would be pro bono but would satisfy the mental/medical health professional’s continuing education requirements.  The team recommends using Arizona for beta testing, and having The O’Conner House, a centralized anti-trafficking initiative jointly established by the former Justice and Arizona State University, serve as coordinator.

Team 2 was assigned employment-based immigration issues as its general topic.  Again, the students demonstrated a deep understanding of the art of the possible; using Florida as the beta site, they crafted a new visa category, H-2C, geared to identifying undocumented persons in Florida who qualify to fill vacancies in the state’s hospitality industry.  The proposed H-2C category is unique in that it (a) targets the largest portion of Florida’s undocumented population to solve a chronic shortage of workers in the industry most vital to the state’s economy; (2) provides immediate benefit to Florida’s economy by bringing that group of undocumenteds into the state and federal tax system; and (3) allows Florida, a politically powerful state with a history of sympathy to some immigration issues, to assume a major positive role in advancing innovations in federal immigration law and policy.

Protection of U.S. workers is ensured not by the tedious labor certification process that has never been proven to be effective but by a payroll tax incentive for employers who hire a citizen or permanent resident rather than the H-2C migrant.  The incentive would also include a $1,000 annual tax credit for any U.S. worker who is retained for at least a year of uninterrupted employment.  These hard dollar incentives should be much more effective than the paper chase of labor certification, and the tax revenue “lost” would be recovered by the H-2C workers who join the tax system as regular tax-payers.  An eventual path to full resident status would be available to the H-2C workers through an expansion of the quotas for essential workers, a reform that could be expanded to include hospitality workers nationally if the Florida pilot program is successful.

The Team also outlined a strategy for passing the pilot program that is built on demonstrating the economic benefits of the H-2C category.  Each stake-holder—the industry’s employers, the unions, the associations that promote Florida’s tourism, the politicians in key “destination” cities, the immigrant communities’ advocates—would enjoy an immediate return on their H-2C investment.  More profit from more tourists is the obvious outcome of a reliable, legitimate work force in the hospitality industry, and more public tax income is the obvious by-product from booming tourism.

Team 3 chose a topic, interior enforcement, that is perhaps the most polarizing of the assignments.  It brings into clear focus the tensions created by a civil immigration law whose enforcement is modeled almost exclusively on criminal law—we arrest, we interrogate, we jail and we sentence, but we do so without any of the Constitutional protections applicable to the criminal counterparts.  We do “enforcement heavy” but “rights light”.   Team 3 did not seek to reverse any existing interior enforcement infrastructure or priorities, but rather to implement them as written.  Their program, SMART (“Securing Migrants & Americans Rights & Trust Act”) simply imposes the intent of Secure Communities, and of 287(g), by limiting local law enforcement participation in immigration to only those immigrants, whether documented or not, who have been convicted of the crimes that are the most dangerous to public safety.  The list is short, and does not turn on complex INA definitions (“agg felonies”, for instance), but rather on crimes that anyone would agree are egregious, and are the same priorities set by local law enforcement agencies for their populations generally.  But the biggest difference is that no local law enforcement would be involved in the immigration process until after a conviction.  The list of crimes that would invoke local law enforcement participation with ICE is:

a. National security crimes, including terrorism;

b. Homicide/Murder;

c. Aggravated sexual offenses;

d. Armed robbery/burglary;

e. Domestic violence that involves physical assault or battery or severe mental or emotional assault or battery, and both must result in injury.

Under 287 (g), or any state law authorizing non-federal participation in immigration enforcement, the state agencies’ role is restricted to enforcing only these serious crimes, and only post conviction.  The Team relied heavily on the fact that ICE’s fingerprint identification system (IDENT) is expanding at an annual rate of 20 million new prints, a growth that ICE has financed by increasing that part of its budget from $23.5M in 2003 to $690M in 2011.  Leveraging ICE’s own information is a smart use of SMART, and allows the local law enforcement agencies’ to concentrate on their own communities’ priorities while simultaneously supporting immigration enforcement.

Its creators repeatedly have informed Congress and the public that Secure Communities is intended to identify, apprehend and remove “the worst of the worst” immigrants.  SMART simply gives that goal more teeth, removes ambiguities that have proven difficult to surmount under the current SC memos, and allows local and federal law enforcement agencies to focus on their own lanes, with a defined area of immigration enforcement overlap.  Logically and structurally all the stakeholders should embrace it.  If not, it turns a spotlight on whatever reasons other than law enforcement or public fiscal efficiency are behind the continued use of local enforcement agencies to detain non-priority migrants.

Finally, under SMART, the default ICE position on detention would be electronic monitors or other ATDs.  Actual incarcerations would require ICE to “show cause” why physical detention is necessary for public safety or to avoid the migrant’s flight.  This hearing would be like a reverse bond hearing where the government would bear the burden of proving beyond a reasonable doubt that no ATD will suffice to protect the public.  It would not replace the actual bond hearing (although some issues and facts would resurface) in that even once incarceration is shown to be necessary, the migrant could advance mitigating factors to argue for release on bond or other ATD.

Team 4 was charged with advocating a reform in the area of forced migration that took into account the global scope of the course’s materials.  They stepped up to the challenge with a novel take on demographics, global climate change, the scarcity of potable water and the hunger in the U.S. for capital.

Recommending the creation of an EB-6(a) category for water scarcity entrepreneurs, and an EB-6(b) category for watery scarcity researchers, the Team adopted a practical approach to an inevitability: much of the globe’s midsection will be subject to increasing drought, causing the movement of hundreds of millions of people to countries unable, and in some cases unwilling, to absorb them.   

In the most obvious scenarios, political stability in nations that have nuclear capacity (Pakistan, China, India) is threatened by water scarcity.

The problem is not just migration across national borders; 1,100 counties in the U.S. are already identified as suffering from or at risk for water scarcity, many in the Midwestern states that have traditionally been the U.S.’ prime agricultural region.  Developing answers to drought-related food and water scarcities is a critical goal of the U.S. now ($9.2 billion spent on water sector and sanitation initiatives outside the U.S., and another $41.8 million to U.N. programs addressing the same issues), with the problem only growing to tsunami size in the future.

Team 4 found that the U.S. is woefully unprepared to wage war for water.  The expertise needed to develop new water sources, better distribution systems, drought-resistant crops, more efficient storage, consumer conservation techniques, etc. depend on two fundamentals: capital and expertise.  Capital is obvious; it costs big money to redirect cities, consumers, industry and agriculture away from water-intensive habits.  Expertise is also obvious; the U.S. produces far fewer engineers and scientists than we need to address the water issues.  As 80% of the professional workforce associated with public wastewater and water retire over the next 10 years, we do not have enough replacements just to stay even.  Since the number of environmental jobs is expected to increase by over 50% in the next 10 years, the talent deficit grows ever bigger.   China and India both produce over 9 times more engineers each year than the U.S. (over a million to our 10,000), and that disparity increases each year even as competition for that talent becomes fiercer.

The EB-6(a) category would grant permanent residence to a discrete category of entrepreneurs in the field of water scarcity (desalination, purification, distribution, etc.) and/or food-related research (drought-resistant crops, waste-water crops, consumer conservation, etc.).  The entrepreneurs would themselves have to have graduate degrees in a STEM field directly related to their business proposal, and, in a flip on the current EB-5 program, could only be employed in their own start-up.  Direct involvement in their investment is required.

The investment would be much more modest; $100K initially, but with 5 employees, not related to the investor, in new jobs within 2 years.  Further, the business must have raised $500K in investment or generated $500K in gross revenue within 2 years.   To avoid the EB-5 problems, the science part of the investment proposal would be reviewed by scientists in the field, selected by the NSF, and if approved, would be sent to the Treasury Department to review the applicant and the proposal’s financial fitness.  DHS’ role would be limited to a review of the Act’s excludability factors.

The EB6(b) category is reserved for persons currently in the U.S., or who come in the future, to undertake and complete a graduate level degree in a STEM discipline at an accredited U.S. school who:

a. commit to work in the field of water/food scarcity (defined generously) for 3 years;

b. receive a letter from their employer(s) verifying a 3 year commitment (not enforceable as a private contract, but a statement of intent that can be investigated without cause);

c. if they do not have a letter, demonstration that they have assets sufficient to maintain themselves in the U.S. for up to one year while they look for qualifying employment;

d. become eligible to apply for permanent residence if employment in the field continues for 5 years.

Team 4 included extensive research documenting the statistics on U.S. engineering numbers, the growing need for more engineers and related skills in the field of water resources that only deepen our engineering talent deficit, and the need for rapid and prolific innovation in this area of the type best done in small start-ups.

Conclusion

We were delighted with the results of the Teams’ work, and hope some of you will be, also.  Each Team demonstrated an understanding of the intense anti-immigrant sentiment that is currently stopping reform, and they were wise in their selection of pieces of U.S. policy and law that could yield big dividends.  Most important, they recognized the almost impenetrable maze of political barriers to change, and in each case sought to build on existing law and policy, moving it ahead without burning bridges, but by building new, and natural, ones with partners whose  histories suggest they should be willing to sign on.  All 16 students (all 3Ls or LLMs) were smart, diligent and engaged, all remain interested in immigration law as a career, and not all have employment.  Upon request, we are happy to pass their names on to anyone who might be interested in following up with them, or with us, for each Team’s full submission.

[Roxana and Esther can be reached at: roxie.bacon@gmail.com]

The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doe provided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.

It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:

• Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives. 
• Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here, here, here, here, here and there), provided the legal justification. 
• A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper. 
• Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:

Dismissing interruptions from an impudent, pull-up-the-gangplank journalist who immigrated from Ireland, and outcries from foes on the right (perhaps the most ironic from the author of the Bush torture memo assailing Obama's executive overreach), President Obama finally projected a modicum of courage. In a Rose Garden address, he announced that giving deferred action and work permits to DREAMers in the exercise of executive discretion is the "right thing to do."  

The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million.

Are they up to the job?  

The challenge will be daunting.  No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.

Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred?

Here's what should be done:

• ICE and USCIS should publish regulations and OMB should approve them on an expedited basis.  Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment.  As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement."  Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.  
• USCIS should use the EAD application process as the platform for deferred action requests.  USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history).  By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
• USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications.  USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification.  Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon.  Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators.  If needed, USCIS can also hire and train more adjudicators  -- assuming that $380 per EAD application is sufficient.  If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
• USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort).  Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here." 
• Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR.  Like a balloon held under water, CIR must eventually emerge.  Possibly ephemeral deferred action status and evanescent work permits are insufficient.  They are revocable, and offer no path to citizenship and no route to full integration into American society.  The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows.  We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide." 

As Martin Luther King, Jr., the quintessential Dreamer, reminds us, "the arc of the moral universe is long but it bends toward justice."  Let's make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.

Last week I ventured into an alternate reality. Like the child, Alice, descending through the rabbit hole, I engaged on immigration with Executive-Branch officials, immigration lawyers, members of Congress, including the indefatigable champion of immigration reform, Rep. Luis Gutierrez, their staffs, and a group of 7th and 8th graders advocating on the Hill for passage of the DREAM Act.

At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.

The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama's signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children. 

The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin.  Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of "all the hate" coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon's death. As the Washington Post reported, President Obama said:

I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.

Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America.  He recalled an indomitable father who lost his livelihood and property in Castro's Cuba and yet built a new business in faraway California.  He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.

Out on the campaign trail, concern for children was also the topic of the week. Rick Santorum -- ever solicitous of keeping children on the straight and hetero path -- warned a young boy not to use a pink bowling ball. Meantime, supporters of Mitt Romney, seeking to reveal his tender side, coaxed him into telling the moving story of how at Bain Capital he closed the shop one day and with his employees went searching for a 15-year-old girl who'd gone missing in Manhattan.

Love of children, however, only goes so far within the Beltway.  Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do."  These under-age advocates, however, didn't rely solely on the heart and soul.  Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America.

Their petitions, though politely received, seemed mostly to fall on deaf ears.  The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November's election. 

Even more dispiriting, the much-heralded Obama-Administration palliative of interim relief through the exercise of prosecutorial discretion (PD) is working, at best, in feeble fits and starts.  Judging from the comments I heard in DC, PD -- as implemented by ICE and apparently not at all by USCIS -- looks to be a disingenuous ploy to assuage the left and an administrative convenience to clear the backlog of cases pending in the immigration courts, including those with strong grounds for relief from removal.  

Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful.  I challenged him, noting that none of the members of ICE's union, constituting the bulk of ICE's 7000-person workforce -- have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, "I'm a deportation officer, not a discretion officer."  Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.

Worse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer's well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit -- the opportunity to vegetate in America, like a bromeliad, on thin air. 

Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director.  Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.

If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin.  He must also explain what "every parent in America should be able to understand" and show "why it is absolutely imperative" that we not waste our DREAMers' young lives. 

As I explained to CBS radio recently, he should make sure ICE focuses on removing really dangerous felons like the Vietnamese ex-con who'd been ordered removed in 2006 and now is alleged to have killed five people in San Francisco. 

The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum.  The point system should feature a two-way override.  ICE should have discretion where warranted to overturn a presumptive "yes," and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive "no."  This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience. 

The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action.  In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.

* * *

As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "life, liberty and the pursuit of happiness" as cited by the junior high students who last week urged passage of the DREAM Act.  America's seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week ("The Founders' Immigration Policy"), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had "appealed to [the British people's] native justice and magnanimity" to reverse the "usurpations" of King George III, but nonetheless they "have been deaf to the voice of justice."

Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice.  If you could adopt more children, they should look like our DREAMers.

From the first prehistoric evenings sitting around campfires, humans have been telling stories. Heroic myths, fairy-tale fables, oral histories -- all have been seared into heart and memory through the power of narrative. Civil and criminal trials are merely stylized forms of storytelling.  Journalism's hook, theatre's Sturm und Drang, reality television's sour and sweet confections -- all are bottomed on stories.

Although I've mentored dozens of able and bright immigration lawyers, some new, some not so, I continue to be amazed at how few appreciate the power of telling stories (double entendre intended).  Sadly, the unscrupulous -- the notarios, consultants and sleazebags with a law license -- know too well the power of storytelling -- but I'm talking about truthful, factual, accurate stories, not fabrications.

Some stories tell themselves, like the saga of my pro bono client, Shyima Hall.  Born in Alexandria, Egypt as Shyima Hassan, one of 11 children in a poor family, she is sold by her mother at age 9, and smuggled into America a year later to work for a wealthy Egyptian couple in my town, Irvine, California, a 'burb often rated, ironically, one of the most crime-free cities in America. After three years of captivity, working night and day for the couple and their five children, sleeping in their unheated, unlighted garage, washing her clothes in a bucket, she is spotted by a suspicious neighbor who tips off the police. The couple is convicted and Shyima is taken to Orangewood orphanage, then adopted by a foster couple, and along the way befriended by a compassionate agent of U.S. Immigration and Customs Enforcement (ICE).  

Shyima obtains a green card as a Special Immigrant Juvenile.  After high school, she travels around the country with ICE to speak about the dangers of human trafficking and urge trafficked victims to be brave and come forward. She volunteers with the Public Law Center, the Orange County Human Trafficking Task Force, and other anti-slavery groups such as the Coalition to Abolish Slavery and Trafficking. 

Years later, serendipity leads me to Shyima (who is now a young adult).  It prompted me on a whim to pop into the office of an ICE communications officer to say hello at the close of a USCIS California Service Center Stakeholders Meeting. The officer tells me about Shyima and her goal to become an ICE officer, but also of this amazing woman's preliminary need to find pro bono counsel who'll help her become a naturalized American. Asked to find Shyima pro bono counsel, I volunteer myself and my firm. The media have followed Shyima's story, since she was first released from captivity, and again just last week in this Los Angeles Times piece and this AP article as well as the following video, shot on the day of her oath-taking and embrace of American citizenship.

Not all immigration stories flow naturally with such a dramatic arc. Some are hidden and must be teased out and coaxed to appear. Immigration lawyers who can do this, in my view, "are worth their weight in gold," as another immigration-agency communications officer, Karen Kraushaar, once told the Washington Post (before she moved on to another federal job and later joined other women accusing Herman Cain of sexual misconduct  -- a totally different story in itself).

In truth, Ms. Kraushaar was referring to Immigration law's complexity ("[It's] a mystery and a mastery of obfuscation"). While surely the ability to traverse code sections, regulations, policy interpretations and institutional history matters (as the Supreme Court unanimously demonstrated this week in the Judulang case), that's not the whole story. 

Telling immigration stories matter(s) just as much, sometimes more. Good immigration stories entice.  Unlike the physical imprisonment of Shyima's Irvine garage, they create emotional captivity. They have the power, as in Shyima's case, to melt the (too-often) frozen heart of ICE. Take for instance the 50 real-life biographies depicted so well, with vivid photos and eloquent word pictures, in a new book, Green Card Stories. These stories, however, did not tell themselves.  They required worth-their-weight-in-gold immigration lawyers (mostly members of the Alliance of Business Immigration Lawyers) to bring them to life.

Immigration lawyers, paralegals, U.S. citizen spouses and families of the foreign born, employers of non-citizens, and would-be Green Card holders:  Read this book! It will inspire you to make your clients', families', employees' and your own Green Card stories a reality. These stories, like all well-told immigration biographies, humanize the demonized and prove that they are worthy of welcome. These dramatically revealed tales of truth and hardship, often extreme and exceptional, unmask the lies of the nativists and the naïve, who make or believe the make-believe memes about immigration, legal and illegal. They help us "Define American."

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

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

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

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

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

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

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

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

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

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

Today, the 10th anniversary of the terrorist savagery of September 11, 2001, the nation pauses to remember the fallen and reflect on how our country has changed in the decade past.  PBS and The New Yorker offer worthy contemplations on the changes since 9/11 and today, and two immigration lawyers, Cyrus Mehta and Jonathan Montag, on opposite coasts, ponder the immigration aftermath of the tragedy. (My own writings not long after the event are here, here, here and there.)

Amid the many reflections, Twitter has been even more abuzz than usual.  One exchange of tweets caught my eye. Michelle Malkin, anti-immigration commentator on Fox News, argued with a fellow who maintained that none of the 9/11 hijackers were undocumented immigrants. She posted a link and got him to admit that although all of them had entered legally, three had overstayed their visas. She ended the exchange with this coup de grâce: 

@michellemalkinMichelle Malkin 

Few objective observers would deny that immigration enforcement and homeland security are linked, or that too lax an enforcement regimen could well threaten our country's safety. But a fundamental question remains. Has the federal government properly achieved the right balance in the middle between the extremes of super-enforcement -- a hermetically sealed country that would atrophy without external refreshment -- and a breezily open-door approach that allows the bad to enter with the good?  Has it balanced immigration enforcement with immigration benefits?

My answer would be mostly "no." The problem originated with Congress's effort to try and fix things.  It placed the benefits-conferring function of the abolished Immigration and Naturalization Service within the Homeland Security Department when it should have remained under the Attorney General at Justice.  No adjudicator can focus on eligibility for benefits when the mission and message of homeland security is that if there is the slightest, even phantasmagorical, doubt, keep people out.

Thus, we see the penchant for adjudicator rejection by any means necessary at U.S. Citizenship and Immigration Services and at U.S. consular posts abroad of worthy immigration-benefits requests.  It matters not if the means are pretextual, circuitous, dilatory or disingenuous. Any boilerplate Request for Evidence, Denial, Refusal or Revocation based on spurious grounds will do.  The Congressionally-induced and media-generated perception of pervasive fraud as a straw-man for delay and refusal likewise will suffice.  Hypocrisy, thus, is salved by the false ointment of feigned patriotism. 

Real patriotism, in my view, would bear in mind these anti-Malkinesque messages, also found on Twitter:

@USConGenChennaiUSConsulate Chennai

#Obama: We remember that among the nearly 3,000 innocent people lost that day were hundreds of citizens from more than 90 nations. #911 

@USConGenChennaiUSConsulate Chennai

In other words, we as a nation must heed the "Call to Courage" and "Reclaim . . . Our Liberties," as the ACLU reports.  Yes, of course, we must perform all manner of security checks, fully and efficiently, thoughtfully scrutinize all immigration benefits requests for compliance with law in good faith, and keep out the dangerous and undeserving. 

But never tie the tourniquets so tightly that you cut off our limbs. The torch-bearing Lady Liberty, who lights the Golden Door, must never become an amputee.

I think that . . . there's no doubt about the seriousness of the problem . . . We have a cancer--within, close to the Presidency, that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself. 

[John] Dean [recapping] the history of the Watergate break-in and subsequent cover-up for . . . President [Nixon]. March 21, 1973

Perhaps only slightly less virulent than the Watergate variety, a cancer is spreading within U.S. Citizenship and Immigration Services (USCIS). The malignancy began with the persistent refusal of U.S. Immigration and Customs Enforcement (ICE) to fulfill its Congressionally appointed police mission under the Homeland Security Act (HSA). Beginning in 2003 ICE routinely turned a deaf ear to the pleas of USCIS adjudicators to pursue suspected immigration-benefits fraud. Frustrated that fraudsters were going unpunished, USCIS similarly ignored the HSA and created a unit, now elevated to a Directorate, known as Fraud Detection and National Security (FDNS). 

The HSA's walling off of immigration-benefits adjudication (a task Congress assigned to USCIS) from immigration enforcement (the shared province of ICE and U.S. Customs and Border Protection [CBP]) reflected a conscious legislative decision.  Hearings in the late 1990s laid bare the longstanding problems of the former Immigration and Naturalization Service (INS) whose conflicting missions of enforcement and benefits had generated decades of immigration dysfunction. 

Afflicted with selective amnesia, however, Congress failed to rebuke ICE or USCIS for crossing the prescribed lines.  Instead, federal lawmakers fueled the mission-creep by larding FDNS with anti-fraud fees paid by businesses seeking immigration benefits for H-1B and L-1 workers.  The result has been that FDNS, staffed with 700 officers and an untolled number of private investigators, has conducted tens of thousands of "site visits" at business organizations and religious institutions throughout the country. 

An August 24 New York Law Journal article, co-authored by Ted Chiappari and me, available here, describes what can go wrong when FDNS site visits (which really should be called what they are, governmental investigations) are structured in a way to create merely an impression that the integrity of the immigration-benefits adjudication process is safeguarded when, in reality, the requirements for a meaningful and fair investigation are ignored.  As one truth-telling FDNS officer explained to the DHS Office of Inspector General (p.15): 

Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. [Headquarters] HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNS’ frustration with the field because we aren’t finding it…. Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality.

So why, then, do I liken the activities of FDNS to a spreading cancer?  Here goes:

1. Free Radicals.  FDNS, like the free radicals that damage healthy organisms, takes aggressive actions without regard to the well-being of the functioning corpus politicus.  FDNS has not published a notice in the Federal Register allowing public comment on how it conducts investigations of the H-1B and L-1 visa categories and has never undertaken a Regulatory Flexibility Act analysis to determine the impact of these investigations on small businesses. 
2. Vulnerable Victims. FDNS through its unannounced site visits invades the premises of unsuspecting and unprepared petitioning organizations. These on-site interrogations, akin to fishing expeditions, are not based on probable cause that a violation of the immigration laws has occurred; nor are they supported by a judicial search warrant.  FDNS provides no prior notice of the investigation to attorneys whom the agency knows are representing the sponsor or the foreign beneficiary.  The records FDNS asks to inspect and the individuals it seeks to interrogate are often, quite legitimately, at other locations; yet the investigators do not allow an opportunity to summon the records or the persons or reconvene at a later date.  Instead, its officers merely write a report that outlines "suspicious" circumstances. 
3. Voracious Behavior. Like a spreading cancer, FDNS breaks down healthy structures. Its investigative techniques flout existing USCIS regulations which prescribe that if the agency desires additional information or testimony it must send a written request for evidence or schedule an interview at a USCIS office.
4. Toxic Effects. Like a cancer, the growing influence of FDNS is debilitating the adjudication process by impairing customer service, speed of adjudication, and predictability of outcome, as last year's internal revolt at the California Service Center and the ongoing opposition of USCIS adjudicators to headquarters policies reflect. FDNS has arrogated to itself a policing function, rightly the role of ICE under the HSA, that is at cross purposes, just like at the old bipolar INS, to the core function of USCIS -- the rendering of a decision, based on the evidence of record, to approve or deny a request for a particular immigration benefit.
5. Surgery and Radiation.  While cancer as yet has not been cured, medical science often succeeds in causing a state of remission.  Doctors typically do this by means of surgery and radiation. So too with FDNS.  Congress or the President should excise this alien growth from the benefits-adjudication process. It should also apply irradiation prophylactics to prevent a recurrence of anti-fraud tumors within USCIS.   To the degree that purgatives are required to remove harmful impurities and maintain the health and integrity of our U.S. immigration system, they should be exclusively of the ICE-y variety.

John Dean's words about Watergate and its cancerous effects could just as readily be applied to the pernicious behaviors of FDNS:  "We have a cancer . . . that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself."  Just as Watergate posed a threat to constitutional government, FDNS is dealing a body-blow to the Fourth Amendment's protection against "unreasonable searches and seizures."  Cut it out.

Credibility is the cornerstone of reputation.  That's why, despite the shock and awe that regular readers of NationOfImmigrators.com may experience, this blogger (who sees immigration dysfunction virtually everywhere, especially under the Obama Administration) now heartily applauds recent actions of two immigration agencies within the Department of Homeland Security (DHS) -- ICE (Immigration and Customs Enforcement) and USCIS (U.S. Citizenship and Immigration Services). 

As suggested below and in a Bender's Immigration Bulletin Podcast I recorded on June 18 at the 2011 American Immigration Lawyers Association (AILA) annual conference in San Diego, Directors, Alejandro Mayorkas of USCIS and John Morton of ICE, as well as the President and DHS Secretary Janet Napolitano, must be commended for taking significant steps to improve the administration of immigration justice (and along the way help the economy).

Mr. Mayorkas, to a far greater degree than any USCIS Director or legacy INS Commissioner in the last 30 years, expresses sincere respect for the rule of law.  He understands and requires compliance with the obligation of his agency's personnel to apply statutory immigration law in good faith as written and adhere to precedent decisions and national policies.   Mr. Mayorkas has brought the dispassion and intelligence of a lawyers' lawyer to USCIS, making changes based on reason and law, without favoring any person or interest, and committing to a policy of justice and equality of treatment and access.  (For any who may doubt or challenge my assertion, check out two sessions of the AILA conference in which Mr. Mayorkas offered his views [CD Nos. 17 & 86, purchase required]. If you think I routinely gush over the statements of USCIS officials at AILA conferences, disabuse yourself by checking out this prior rant.])

Mr. Morton -- despite a vote of no confidence by the ICE labor union -- has chosen to exercise leadership.  He has released two significant policy memos encouraging his officers to exercise  prosecutorial discretion, based on a 19-factor analysis, in favor of low-priority immigration violators and victims and witnesses of crime, and against perpetrators of violence and other serious felonies.

Most immigrants' rights groups chastised Mr. Morton, however, for not having gone far enough.  They attack ICE for not surrendering on the star-crossed program known as Secure Communities that has ensnared and deported far more petty immigration violators than hardened criminals. 

On the other hand, the nonpartisan Immigration Policy Center and AILA, the national immigration bar association, have lauded the new prosecutorial-discretion (PD) memos as positive moves.  They argue persuasively that in the absence of comprehensive immigration reforms which would align America's broken and wobbly immigration system with our national interests, and in an era of limited resources, the memos reflect a leadership decision to apply "smart enforcement" policies.  Smart enforcement, as the memos articulate, ensures that ICE's officers on the ground make individualized determinations of eligibility for prosecutorial discretion. 

Noncitizens whose personal circumstances, immigration history and foreseeable path to legal status cause them to rank low on the enforcement-priorities list -- the memos declare -- should be given deferred action.  Deferred action, in turn, makes them eligible for a work permit.  On the other side of the PD equation, individuals with particularly unsavory backgrounds or with rap sheets suggesting that they are dangerous to the communities should be fast-tracked on the due-process train headed for a removal hearing.  (One less understood but welcome aspect of the memos is that now an ICE attorney can set aside any Notice to Appear that he or she determines would involve an individual who is better suited for deferred action than a removal hearing, thereby freeing up precious judicial and executive resources to remove highly undesirable or dangerous noncitizens.)

Despite the deserving plaudits at the top of USCIS and ICE, it remains to be seen whether these interim, though important, initiatives will bear fruit.  Will the line officers and supervisors of each agency embrace their leaders' moves?  Or, as is perhaps more likely, will they engage in passive-aggressive behavior, palace intrigue and heel-dragging? 

Given the ICE union's condemnation of Mr. Morton and his policy memos (and their probable unwillingness to excersise conscientious compassion), as well as the resistance of some within USCIS to Mr. Mayorkas' commitment to the rule of law, the stakeholder community must apply its own leverage.  Here are a few things insiders and outsiders can and should do:

1. What Get's Measured and Rewarded Gets Done.  ICE must take steps to collect metrics on requests for prosecutorial discretion and individual ICE officer decisions.  The agency must make sure that it receives sufficient raw data to determine whether decisions on discretion align with ICE's national enforcement priorities.  For officers who persist in repeatedly routing objectively deserving cases to the immigration courts rather than to deferred action status, appropriate warnings and discipline should ensue.  Those, however, who instead apply the PD policy within its spirit and letter should receive ICE's approbation and career promotion. 
2. The Sunlight Brand of Disinfectant. DREAM Act supporters and others with favorable immigration equities should mount a grass-roots campaign to pressure ICE to publish meaningful data on the agency's actual exercise of prosecutorial discretion or enforcement.  To make this happen, community-based organizations (CBOs) should campaign to encourage individuals requesting prosecutorial discretion to waive personal privacy over key data fields that correspond with the worthy and adverse factors in their individual cases. If such waivers are coupled with the requesting parties' insistence that the decisions be released, then CBOs, the public and the media would know whether or not the PD policy is working. Congress can also make sure through its oversight function that reliable data is made available for all to see.
3. USCIS Must Issue Its Own PD memos. ICE holds no monopoly on discretion.  As legacy INS Commissioner, Doris Meissner, made clear in 2000, immigration adjudicators also have power to show leniency in deserving cases.  Mr. Mayorkas should formally instruct all USCIS officials that they too will be held accountable if they waste precious resources issuing burdensome requests for evidence and notices of intention to revoke or deny petitions or applications where a wise exercise of discretion under existing USCIS regulations would otherwise fairly resolve the case.  There should be no more spitting-on-the-sidewalk rulings placing otherwise law-abiding foreign citizens "out-of-status" who seek immigration benefits. A fairly administered PD policy could create immigration miracle cures that allow USCIS to forgive minor visa missteps.
4. You Get What You Pay For. Immigration notarios and unlicensed consultants (notwithstanding the commendable federal campaign to eradicate them) will no doubt continue to harm unrepresented immigrants by claiming that prosecutorial discretion is the new way to obtain work permission. Because there is no government form to request PD, however, the myriad immigration form-preparer outfits cannot legally represent persons seeking PD.  Only "accredited representatives" and lawyers in good standing may do so.  The business and nonprofit communities should therefore provide funding to lawyers (in compliance with ethics rules) so that well-documented and deserving PD requests with a good chance of success are submitted. Employers and labor unions who have tussled of late over the Obama Administration's "silent raid" policy should instead cooperate and identify/assist loyal and deserving workers with legal-fee-subsidized PD requests. 
5. Oppose Hypocrisy.  PD is not "back-door amnesty." No doubt House Judiciary Committee Chair Lamar Smith dislikes eating the words he wrote in 1999: "The principle of prosecutorial discretion is well established."  He also knows that the votes are not there to roll back smart enforcement or override an assured Presidential veto of any such measure.  Don't let Rep. Smith and his ilk get away with any false claims or ill-advised policy reversals.
6. Oppose Hate.  Immigration restrictionists are not pleased with the PD memos and will do whatever they can to attack any discernible trend to exercise discretion favorably.  The antidote to hate is the telling of truthful narratives by deserving persons who are allowed through PD to pursue, however tentatively, the American Dream. So, stakeholders, tell the truthful stories of honest people striving for a chance to make it in America and allow prosecutorial discretion to flourish. 

* * *

At least until our politicians begin to act like leaders who value country over power, let us hope that the new memos and the new direction signaled by DHS allow a meaningful chance for American justice to prevail against the insensate mob. 

The U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when five Justices used a four-word exception to the Immigration Reform and Control Act of 1986 (IRCA) -- an act which, among its extensive provisions, banned the employment of foreign citizens whom the employer knows lack work permission -- to trample the immigration landscape. The majority ruled, based on the exception, that IRCA is not the final or sole word on the extent of punishment for unauthorized employment. 

Relying on an IRCA exception for "licensing and similar laws," the 5-3 majority decided that Arizona may use the threat to revoke a business license as a means to punish AZ employers for the unauthorized hiring of foreigners and to require all the state's public and private employers to enroll in the Feds' E-Verify online work-clearance database. 

Among the dissenters, Justice Sonia Sotomayor challenged the use of this squib of an IRCA exception as a means for the majority to undermine the "carefully constructed [and] uniform federal scheme for determining [unauthorized employment]." She cited an earlier case which observed that Congress "does not . . . hide elephants in mouseholes." (Ironically and perhaps poetically just, all of the Justices in the majority had been appointed by presidents of the Republican party, whose avatar is the pachyderm.)

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

1.  Expect that mandatory E-Verify will spread to more states. As shown in this link, states are all over the map on their divergent requirements concerning E-Verify. Some -- like AZ, SC and MS -- require it of all employers.  Others limit it to public entities and state contractors.  The Supreme Court's decision essentially green lights the states to regulate facets of immigration compliance that fall within traditional state police powers. The only requirement is that the state law find a connection to the broad police power over licensing. In essence, what was largely an exclusively federal domain, will now expand -- with the Court's blessing -- into the inner workings of most businesses. Expect state and city micro-management of immigration to the Nth degree. 

2.  Expect some states to require E-Verify use as to current workers. As many states rush to enact laws mandating E-Verify, it would not be surprising if one or more extend its scope.  Except for certain federal contractors and subs, E-Verify may not now be used to verify the work eligibility of current employees.  While the extension of E-Verify at the state level to current workers would technically violate the terms of the E-Verify Memorandum of Understanding that employers must sign, such a stretch would not be a surprise.  Consider Utah's recent legislation which adopted a guest worker program notwithstanding that -- at least until the Whiting decision -- the authorization to grant work permission had been seen as exclusively a federal power. Note as well that Florida's governor has issued an executive order expressly encouraging the state's employers to use E-Verify to check the work status of current employees.

3.  Expect higher rates of discrimination claims.  The dissenters in Whiting predict that employers will follow the path of seemingly least resistance by becoming hyper-vigilant in inspecting job applicants' documents of identity and work eligibility while finding subtle or overt ways to resist hiring persons who look or sound foreign or demanding to see specific documents or more documents than legally required.  Although the majority noted that such discriminatory acts are already prohibited at the federal level, the likelihood is that the immigration agency charged with antidiscrimination prosecution and enforcement will be understaffed and short on resources to deal with the anticipated flood of complaints of unfair or illegal practices.    

4.  Expect more court battles over the extraterritorial reach of state immigration laws.  What happens when poorly phrased state immigration laws come into contact with multi-state employers? Must a multi-state employer use E-Verify only as to its AZ new hires, or does AZ's E-Verify law require that company to use the online system as to new employees nationwide? What will courts decide if a company chartered in AZ loses its license to do business in that state, and as a result, is disqualified to maintain its licenses to engage in business in other states?  These are but a few of the foreseeable claims likely to congest the state and federal courts as state immigration laws proliferate after Whiting.

5.  Expect a public backlash over state enforcement of the immigration laws.  The devastating tornadoes in Missouri and Alabama likely caused the loss or destruction of many U.S. citizens' documents of identity and work permission. When such citizens try to pick up their lives by moving to other states (where mandatory E-verify is in force), how will they prove their right to work?  Such citizens are not likely to go gently or quietly into the good night. They will scream to high heaven, and the media will listen and publicize their complaints.  Other citizens, though not facing the effects of natural calamities, will likewise be erroneously rejected by E-Verify, as the National Immigration Law Center predicted last April in testimony before Congress. They too will rise in protest if denied employment to which they are entitled with jobs already hard enough to find in the current economy.  

6.  Expect some states to back away from immigration enforcement and instead seek federal waivers for immigration benefits. Just yesterday, Republican Gov. Rick Snyder of Michigan, perhaps signalling a trend in the opposite direction, expressed his opposition to an AZ-style immigration enforcement bill, noting that it would be "divisive" and bad for business.  As noted above and at length in this blog before, Utah has passed legislation creating a guest worker visa program (that will require a Federal waiver).   

7.  Expect that states will seek more snitch visas or favorable discretion for stool pigeons from the federal government.  The "S" visa category (what we in the trade call the Snitch Visa) allows any state or local law enforcement official to seek special immigration benefits, including a work permit, to allow a foreign citizen to participate as a witness in a criminal prosecution.  Federal immigration authorities can also exercise prosecutorial discretion and grant work permission at the request of a state or local police agency or prosecutor.  In states where immigration policing is a high priority, just as with the justly maligned Secure Communities program, criminal prosecutions under state immigration laws will likely generate requests for special privileges and leniency to foreign workers who agree to rat out alleged immigration violations of their employers.

8. Expect a battle royal in Congress over mandatory federal E-Verify. The business and pro-immigrant communities will not take lying down the likely GOP push to make E-Verify mandatory for all employers nationally.  While this push, if enacted, would take the wind out of the states' sails, opposition to the move would point to the persistently high rates of false positives and negatives in E-Verify and the budget busting consequences of a national mandate.  

9. Expect busier days ahead for immigration lawyers.  Notwithstanding that the demand for H-1B visas this year has been underwhelming, lawyers practicing immigration law have reason to be hopeful that business will pick up.  The already mind-boggling complexity of federal immigration law will become more complicated, perhaps by a factor of 50, as the states get into the act. This quantum leap doesn't take into account the cities and regional governments that may have politicians, even now, planning a Barletta-like push for fame and higher office by espousing "mouse-that-roared" immigration ordinances.

10.  Expect that Congress or the President will act. Before we reach the point of proliferating and conflicting 50-state and countless-municipal "solutions" to America's dysfunctional immigration laws, this blogger -- always a glass-half-full type -- envisions that statesman-like behavior or public outcries will cause action at the federal level to end the nonsense. Businesses cannot function, and lawfully-authorized American citizens and residents cannot find jobs, if we balkanize our immigration polcies. I say, fingers crossed, that cooler heads will prevail. 

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote: 

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation. 

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.) 

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots. 

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer. 

Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits. 

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]). 

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies. 

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

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed: 

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them. 

We have work to do at home, on our culture and in our country. 

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.

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.

An October 14 New York Times article by Nina Bernstein “A Contest of Suffering, With the U.S. as a Prize” sheds light on humanitarian parole, the authority vested in the Secretary of Homeland Security, to grant foreign citizens entry to the United States for “urgent humanitarian reasons.” The article reports that since January, 2000 only about 20% of the 6,718 requests received for humanitarian parole were approved. According to Michael W. Gilhooley, a spokesperson for the Bureau of Immigration and Customs Enforcement (ICE), the agency deciding requests for humanitarian parole, each request is considered independently by two ICE officers and then their (presumably collective) decision is reviewed by an ICE supervisor. The Times article, though helpful in shedding light on the parole authority, does not address an important legal question. Why, after all, does ICE – an immigration enforcement agency – exercise the Secretary’s authority within the Department of Homeland Security (DHS) to adjudicate requests for the immigration benefit of humanitarian parole? By law – § 452(b)(5) of the Homeland Security Act of 2002 – all decisions on immigration-benefits requests previously adjudicated by the now-abolished Immigration and Naturalization Service (INS) must be decided by another DHS unit, U.S. Citizenship and Immigration Services (USCIS).

The USCIS website describes the procedure for requesting humanitarian parole, and provides a USCIS form (Form I-131) whose instructions direct the applicant to send the request to:

USCIS Office of International Affairs Parole and Humanitarian Assistance Branch 425 "I" Street, N.W. Attn.: ULLICO Building, 3rd Floor Washington, DC 20536

So why does DHS give the public the impression that USCIS will adjudicate the application when ICE’s Office of International Affairs, a police agency, in fact makes the decision? The delegation of humanitarian parole decision-making power is particularly strange in light of the legislative history of the HSA. In enacting the HSA, Congress intentionally divided the former INS into separate enforcement and benefits branches in order to avoid the inherent conflict of interest that would otherwise arise when cops must choose between border protection and applications for immigration benefits. The conflict involved in the enforcement-minded ICE being tasked with exercising humanitarian compassion is readily seen in the mission statement for ICE’s Office of International Affairs (OIA):

Mission The Office of International Affairs (OIA) is the overseas investigative arm of the Department of Homeland Security's Immigration and Customs Enforcement (ICE). OIA works closely with all elements of ICE, and serves as a key component in the President’s international crime control strategy.

Roles and Responsibilities ICE's Office of International Affairs provides operational and programmatic management of ICE attachés at foreign embassies and consulates worldwide;

OIA also coordinates and supports all foreign investigative activities of ICE. OIA works with foreign counterparts in combating transnational crimes involving national security, financial, smuggling, illegal arms exports, forced child labor, child pornography, human trafficking, intellectual property rights, commercial and immigration fraud violations.

OIA assists host-country counterparts in the development and implementation of legislation and regulations; provides training to foreign officials; responds to government and public requests for trade, travel and business information; supports the implementation of treaties, agreements and international cooperative programs.

Acquiring and developing intelligence related to cross-border criminal activity is also important to OIA's mission. [Bolding in original.]

This fox-in-the-henhouse conflict of interest is also apparent from a look at OIA’s positioning on ICE’s organizational chart as a unit of the Office of Investigations. Yet elsewhere on the pages of the ICE site, OIA meekly acknowledges its humanitarian parole authority in text nestled within its power to issue entry documents to snitches and criminals:

The [unit known as] PHAB [the Parole and Humanitarian Assistance Bureau] supports [ICE’s] Border Security Mission by bringing to the United States criminal informants, wanted criminals and other inadmissible aliens in an organized and carefully monitored manner using the Secretary’s parole authority. They are responsible for authorizing significant public benefit paroles in accordance with the Significant Public Benefit (SPBP) Protocol, an interagency clearing process.

Is this blogger’s concern about the power to decide humanitarian parole applications just a bureaucratic tempest in a teapot? No. When a dying U.S. citizen wants to have a final few days with a foreign relative from abroad, and the U.S. Consular Officer in the relative’s home country has denied a visitor’s visa, humanitarian parole is the only avenue. The Times article offers other heart-rending examples of initially denied applications for humanitarian parole:

Some involved pleas for temporary admission for medical reasons, like the Ecuadorean mother of a 6-year-old Bronx boy hit by a car and in a coma, who was at first refused a visa to come to her son's bedside, or the case of Federico Rodriguez, dying of kidney-related complications in New York, whose sister in El Salvador was at first denied a visa to come donate her kidney.

Other applicants, like Raisa, who has been formally adopted by her grandmother, were eligible to join close relatives in the United States for good. But because of backlogs, they were living out a damaging childhood.

In such a case last spring, a 5-year-old boy stuck since birth in an African refugee camp won humanitarian parole to join his family in Minnesota after a senator learned that his father, a Liberian refugee in the National Guard, faced deployment to Iraq.

Why should it take Congressional intervention to grant humanitarian parole? Why should the requests of deserving citizens for governmental compassion be denied by police officials when the legislature, in enacting the HSA, clearly intended that USCIS, the agency with benefits-adjudication expertise, make the call? On October 18, Michael Chertoff, the Secretary of DHS is slated to testify before the Senate Judiciary Committee on immigration reform. Before focusing on immigration reforms, perhaps the senators can ask Mr. Chertoff why his agency flouts the law as written and tasks police officers to exercise humanitarian compassion. Or perhaps the better question is whether ICEd compassion can ever be truly humanitarian.