The usual xenophobic suspects made the usual noises after the tragic events in Boston last week.  Perhaps the most premature outcry came from electrified-border-fence proponent, Rep. Steve King, Republican from Iowa, who a day after the marathon explosions linked a report (ultimately untrue) that a Saudi national had planted the bombs with King's mission to stop comprehensive immigration reform (CIR):

We need to be ever vigilant. We need to go far deeper into our border crossings. . . . We need to take a look at the visa-waiver program and wonder what we’re doing. If we can’t background-check people that are coming from Saudi Arabia, how do we think we are going to background check the 11 to 20 million people that are here from who knows where?

Another occurred on Reddit, where an amateur sleuth named Pizzaman along with multiple Reddit contributors noted the similarity to the photos of Suspect #2 (Dzhokhar Tsarnaev) and a missing Brown University student of Indian descent, Sunil Tripathi, whose whereabouts, sadly, remain unknown. (Reddit's moderator has since apologized for this misinformation disaster to the Tripathi family (who are as American as you and I.) 

Still another erupted, quite expectedly, from one of Ann Coulter's Twitter posts after the death of Suspect #1 (Tamerlan Tsarnaev) in which she mocked G8 member, Sen. Marco Rubio: "It's too bad Suspect # 1 won't be able to be legalized by Marco Rubio, now."

Similarly, long-time jingoist, Pat Buchanan suggested three days after the bombing that the focus should only be on border security.  Apparently forgetting that the Brothers Tsarnaev entered the U.S. legally, with the older having become a permanent resident and the younger a citizen, Buchanan slammed undocumented immigrants who aspire to become Americans:

Why do you have to do anything? What is this nonsense that ‘they’re in the shadows’? With due respect, they ought to be in the shadows! They’ve broken the law to get into the country…. Do nothing!… You [the Republican party] don’t have [to] bribe, you don’t have to give up your principled positions… in order to get Barack Obama to do his duty and defend the border!

Fortunately, CIR proponents on the right and left in Congress and elsewhere gave forth with rapid responses:

• Republican point man on immigration in the House, Rep. Mario Diaz-Balart, disagreed with Sen. Grassley: "[E]very crime that is committed right now is under the current immigration system. So what does that lead me to believe? We need to fix the current immigration system, if in fact there is any connection between immigration at all."
• A spokesman for Sen. Marco Rubio (R. FL) issued this statement:  “There are legitimate policy questions to ask and answer about what role our immigration system played, if any, in what happened . . . Regardless of the circumstances in Boston, immigration reform that strengthens our borders and gives us a better accounting of who is in our country and why will improve our national security. Americans will reject any attempt to tie the losers responsible for the attacks in Boston with the millions of law-abiding immigrants currently living in the US and those hoping to immigrate here in the future.”
• Republican Senators John McCain and Lindsey Graham released a joint statement: “Some have already suggested that the circumstances of this terrible tragedy are justification for delaying or stopping entirely the effort. . . In fact, the opposite is true: Immigration reform will strengthen our nation’s security by helping us identify exactly who has entered our country and who has left.”
• Democrats, Chuck Schumer and Dick Durbin, also rejected the flawed reasoning which would link CIR to the bombings.  Sen. Schumer warned against the temptation to "“jump to conclusions” and “conflate” the Boston tragedy with immigration reform. Sen. Durbin noted that CIR would enhance our security: "[E]veryone, the 11 million people who were basically living in the shadows in America, [has] to come forward, register with the government, go through a criminal background check. That will make us safer.”  I made the same point when the Christmas-time underwear bomber succeeded in nothing more than scorching his private parts. See "Using Immigration to Stem the Terror Threat," (Dec. 30, 2009).
• The New York Times Editorial Board observed that CIR's opponents are desperate and that CIR would make finding wrongdoers easier: "Until the bombing came along, the antis were running out of arguments. They cannot rail against 'illegals,' since the bill is all about making things legal and upright, with registration, fines and fees. They cannot argue seriously that reform is bad for business: turning a shadow population of anonymous, underpaid laborers into on-the-books employees and taxpayers, with papers and workplace protections, will only help the economy grow. About all they have left is scary aliens. . . .There is a better way to be safer: pass an immigration bill. If terrorists, drug traffickers and gangbangers are sharp needles in the immigrant haystack, then shrink the haystack. Get 11 million people on the books. Find out who they are."
• Matthew Iglesias of Slate suggested seemingly counterintuitive but spot-on points that doing nothing will only encourage illegal immigration and let more terrorists and killers in and that the proposed 20,000-to-200,000 W visas for lesser-skilled workers likewise may be insufficient to stem illegal border crossings -- the precise point I made on April 18 to Abigail Rubenstein of Law360 Employment ("[That] the U.S. Chamber and the AFL-CIO reached a consensus on a lesser-skilled worker visa is wonderful, but the numbers make the program illusory").
• The General Counsel of the American Immigration Lawyers Association, David Leopold, persuasively explained, in essence, that immigration adjudicators are not soothsayers and that no one can foresee how an immigrant's life will turn, as reported in The Atlantic: "At the time that the Tsarnaevs applied for asylum, Tamerlan and Dzhokhar were very young. There was almost certainly nothing in their background that would have raised any red flags; apparently, there was nothing in the father's either. Here, Leopold made a key point: 'You can't predict future behavior.' For any democratic country that wants to participate in international society, Leopold pointed out, you have to assume some level of risk. Despite that, 'the systems they have in place,' meaning those security screenings, are 'doing the job.'"

Despite CIR proponents' quick retorts, the Boston bombings will likely make enactment all the more difficult.  Unlike an esteemed colleague who predicts a less than 50% chance, I'm still optimistic that CIR will be enacted.  If anything, Boston made the price of doing nothing simply too high.  Still, with background checks on gun sales a non-starter in the Senate despite 90% support among the American people, nothing can be taken for granted.

Here's what CIR's proponents must do now:

•  Urge the Senate to adjust the balance of funding in the Senate proposal, the "Border Security, Economic Opportunity, and Immigration Modernization Act’’ (or, "BESSIE MAE," as a prominent immigration editor has dubbed it) between border security (proposed at an overly generous and likely somewhat wasteful $6.5 billion) and the measly, wholly inadequate amount ($10 million) authorized for the integration of immigrants into American society. Whenever a refugee or any other immigrant comes to America, we want to provide the environment to prosper like Google founder Sergey Brin, a refugee from the Soviet Union, and not turn sociopathic as apparently happened with bombing suspect Dzhokhar Tsarnaev.  Meantime, until CIR is passed, kudos to U.S. Citizenship and Immigration Services for its recently announced Citizenship and Integration Grant Program, which will offer almost $10 million in funding during the grant period.
• Remind Republicans that the November 2012 election was a watershed. Republicans will continue to be the party of old white men, unless they take the politically smart and courageous act to pass CIR. Doing nothing is not an option if the GOP is to survive.
• Humanize the immigration debate. Point out that among those killed in the bombings was Lu Lingzi, an only child and Boston University graduate student majoring in Mathematics and Statistics -- precisely the type of STEM student we want here -- whose death her father described as like a "dagger in our hearts."
• Point to history.  We didn't stop immigration after the Puritans (themselves religious refugees) conducted their deadly Salem Witch Trials. Indeed, had America closed the door to English refugees, there'd be far fewer Anglos who oppose CIR.
• Make the point that Bostonians and the police got it right. Show that the post-bombing resilient spirit of Boston, and the close collaboration of federal and state law enforcement personnel (who cooperated superbly in speedily identifying and neutralizing the suspects), demonstrate that we've grown up as a country and a government since 9/11.  No virulent backlash against foreigners has sprung up since Monday's bombing, save for the vicious hate spewing from a few, notably, Fox News contributor Erik Rush, who tweeted "Let's kill all of them (Muslims)" and then backed down quickly after he was confronted, claiming that he was merely engaging in sarcasm.  Here, unlike 9/11 there was no inter-agency withholding of information and no governmental failure to connect the dots.  Indeed, the immigration system, insofar as it was involved, worked, given that USCIS held off on the naturalization application of Tamerlan Tsarnaev based on information derived from the FBI's investigation into his background.
• Make sure that CIR clearly puts the burden on the immigration agencies to publish implementing regulations on strict deadlines or face a loss of funding, and that Congress conducts regular public oversight hearings after enactment during the implementation phase.  If the events of last week proved anything -- no, not the bombing, but rather the Texas fertilizer plant explosion that killed at least 14 people -- it is that government agencies must be held accountable and be funded properly (see my first bullet above about rational allocation of immigration budgets). User fee funding as the primary financial source for CIR implementation, which the G8s' proposal envisions, simply won't do.

The last time America was hit on its soil -- September 11, 2001 -- a different, far more modest immigration reform, known as Section 245(i), fell victim to the understandable Congressional blowback, even though that provision would have helped numerous undocumented immigrants who had nothing to do with terrorism.  Well that was then.  This time it's different.  America has matured.  CIR will pass, unless its supporters fail at the ground game of persuasively mobilizing public opinion and holding our legislators' feet to the fire.  Let's not get all weak-kneed and wobbly when vigilance and community organizing like never before is what's required.  And we should recognize that eight-year-old bombing victim, Martin Richards, could just as well have been describing why we need immigration reform when he wrote these words on his poster:  "Let's stop hurting people. Peace."

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.

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.  

TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:

• 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
• Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
• The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
• Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
• R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
• Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.

Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

[Blogger's note:  Whether by dint of nature or nurture, lawyers love to argue; immigration lawyers perhaps more so. Unlike our colleagues (outside of immigration practice) for whom sources of law are better defined, immigration attorneys can access a wider array of law and non-law sources with which to fashion our pro and con arguments.  

As a change of pace from this blog's usual fare of criticizing immigration agencies and Congress, today we'll offer a PG-rated point/counterpoint with guest blogger, Karin Wolman, and me (Disclosure: Neither of us is depicted in the photo).  

We debate the oft-posed question whether a foreign citizen while living in the United States and holding one of any number of categories of U.S. nonimmigrant status who are not expressly authorized to work can nonetheless be employed by and serve a foreign employer.  This might, for example, include:

• a spouse on a dependent visa whose other half is lawfully employed on a work visa;
• a B-2 or WT (visa waiver) visitor for pleasure vacationing in the U.S. who must attend to emails sent by a customer of the visitor's foreign employer;
• a B-1 or WB (visa waiver) visitor for business who must assign or supervise work to be performed abroad;
• an F-1 student who is sent by her employer abroad to study for an MBA; or
• an H-1B work visa holder who (although authorized to work for a specific U.S. employer) is not expressly permitted to moonlight for an employer abroad.

The controversy arises because Congress has never bothered to define "employment" under the immigration laws, and the definitions of the term in immigration regulations, case law and non-binding policy guidance are incomplete or imprecise.  

So you be the judge.]

Can I Work from Home for a Foreign Employer? 

[Karin Wolman's answer] 

 May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad?  This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories. 

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens.  Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:

1. total annual earnings from such services is less than $3,000; 
2.  the nonresident alien is physically present in the United States for not more than 90 days in the year; 
3. the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather  than under 3 months. Their visa status does not permit them to earn any “US source income.”  If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here.  From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under Immigration and Nationality Act (INA) § 245(c).

There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so.

The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.

 *CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional. 

Can I Work from Home for a Foreign Employer?

[Angelo Paparelli's reply]

Can a nonimmigrant who lacks authorization by U.S. immigration authorities be employed in the U.S. to work from his or her home in the U.S. for a foreign employer abroad?  My lawyerly answer is: It depends.  The question is not one of tax law.  The tax laws and immigration statutes have each been enacted for distinct purposes, and one legal regimen does not necessarily inform the other. Rather than taxation, the laws of employment and of immigration apply, as well as a subject of law study known as "conflicts of law." 

Phrase the question thusly and the answer may well be different from the one Karin offers:  

Does U.S. immigration law prohibit a foreign citizen from fulfilling an employment agreement with a company incorporated and doing business abroad?

Before answering, assume the agreement specifies that the required activities will involve creating and saving work product, through the use of a web browser in "the cloud," with the cloud's servers located on foreign soil.

Assume further that the agreement allows the foreign citizen to work from anywhere in the world, is made before the individual enters the U.S., and provides that salary payment shall be in a foreign (non-U.S.) currency with direct deposit into a foreign bank account and provides that the law of the foreign state and the courts of that state where the employer has its headquarters shall govern any disputes that may arise between employer and employee.

On these assumed facts, does the foreign employer or employee violate American immigration law if the employee fulfills his or her part of the bargain from a residence in the United States? My answer is:  Probably not, because the mere fortuity that the work is performed from within the U.S. rather than in any other country is too slim a fact to give the U.S. under conflicts of law principles a legitimate interest in applying American law. After all, no American workers were harmed by the work performed under this contract.  

As I read the INA, Congress has never expressly said that U.S. immigration law should be given extraterritorial effect.  See EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 1230 (1991), in which the Supreme Court changed the longstanding presumption against the extraterritorial application of American law (unless a contrary intent appears) into a presumption against extraterritoriality (unless there is the affirmative intention of the Congress clearly expressed). To be sure, the U.S. immigration police would probably try to assert that a nonimmigrant who works from his U.S. home for a foreign employer on the facts I've posited has violated the immigration laws. But that doesn't mean the immigration cops would be right.  I believe, nonetheless, that the federal judiciary would follow EEOC v. Arabian American Oil Co. and say that U.S. immigration law cannot be applied extraterritorially to prohibit that which is lawful on foreign soil.

[Karin Wolman's retort] 

I fall unequivocally on the "unauthorized employment" side: The salary paid for the employment is active, earned income characterized by a combination of three factors -- provision of services for hire by the foreign national + physical presence in the US that is not brief nor intermittent + U.S. source income in exchange for provision of those services.

[Angelo Paparelli's rejoinder]

The real question then is not whether a foreign employer may employ a foreign citizen working in her American home without a work visa but WWTCD (What would the courts do)? 

Surprising as it may be to Italian-American youth of today, with a Cuomo as governor of New York and a Scalia and an Alito as Supreme Court justices, this kid of 1950s' Detroit hated his Italian name and resented his father for having conferred it.  "Angelo Alfredo Paparelli" was too much ethnicity to bear. 

I'm not named "Angelo" because of my father's fondness for heavenly creatures, nor was I given the middle moniker "Alfredo" for his love of a certain pasta sauce.  Under the Italian naming tradition of primogenitore, my name was predestined.  The first-born male would take the first name of the paternal grandfather as the newborn's first name, and the first name of the father as his middle name; and that was that.

I hated my name, not for any dislike of Italy, but because I yearned to be accepted as an American, just like the Nelsons and Cleavers on TV. My supposed TV role model, alas, was Private Dino Paparelli of the depressingly-titled You'll Never Get Rich series (later known as The Phil Silvers Show), with the dim-witted Dino as one member of a crew of conniving Army motor-pool conscripts who regularly hoodwinked their WASPish officers.

I remember precisely when my name went from personal abhorrence to appreciation. The scene:  Cass Tech High School, near Downtown Detroit, during auditions for The Solid Gold Cadillac.  When the director called my name to audition, a beautiful blonde senior named Barbara exclaimed: "Angelo Paparelli! What a wonderful name!"   

I didn't get the part, but I had a more valuable epiphany.  My name could be Ishkabibble or Geronimo -- it didn't matter.  I was just as American as former Michigan Governor G. Mennen Williams, who had a house in Grosse Pointe, and the Boyd and Williams families of Black Americans in my neighborhood; no more or less American than the Poles of Hamtramck, the Mexicans who lived near Briggs (now Tiger) Stadium, the Jews of Oak Park, the Arabs of Dearborn, or the lesbians who frequented the bar around the corner. This epiphany probably had something, at least subliminally, to do with my becoming an immigration lawyer. 

Once ensconced in my chosen vocation, I learned, however, that immigration law is not ecumenical. I discovered that until 1952, non-whites could never become citizens (although native-born Blacks were Americans from day one under the 14th Amendment's birthright citizenship clause). As my colleague Prof. Kevin R. Johnson notes in "THE 'NEW' CIVIL RIGHTS: IS THE 'NEW' BIRMINGHAM THE SAME AS THE 'OLD' BIRMINGHAM?," a paper he'll discuss with me at a Chapman University Sociology conference next week:

During the post-Civil War period, the largest groups of immigrants affected by the whiteness prerequisite for citizenship came from Asia. Asian immigrants perpetually were denied the opportunity to naturalize and become U.S. citizens (and thus were perpetually disenfranchised from the political process). [FN]

[FN] See, e.g., Ozawa v. United States, 260 U.S. 178, 190 (1922) (finding that Japanese immigrant was not eligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (same for immigrant from India).

Indeed, it was not until 1965 that the National Origins Formula, which effectively barred Asians from immigrating, was abolished with the passage of the Hart-Celler Act. 

Over the years, I've seen the immigration color and national-origin barriers resurface repeatedly.  If you're a Cuban and arrive at Florida's shores, we release you to family, let you stay and give you a green card under the Cuban Adjustment Act; not so, if you're a Haitian. 

In the late 1980s, if you sought an L-1B work visa from the UK or France to work for a car company, you were in like a swoosh; but if you hailed from Japan and were destined for a job in the auto industry, the U.S. Consulate in Osaka persuaded INS that an extralegal moratorium on L-1B issuance was necessary.

Today, if you were born in Mexico, China or India, you face decades of waiting for your date with immigration destiny -- your green card priority date.  Although this may change with enactment of a bill enjoying bipartisan support -- The Fairness for High Skilled Immigrants Act -- nothing will happen to eliminate this disparate treatment by place of birth until a certain senator from the Cornhusker State lifts his hold on the legislation. And Osaka Redux: The U.S. consular posts in India and the latter-day INS, USCIS, now have been unmasked as inexplicably denying a much larger percentage of L-1B visas and petitions for Indian citizens, while those from Europe sail through.

Even though Congress remains in suspended animation until November's elections, immediate corrections are nevertheless possible. The Obama Administration can help eliminate these unlawful barriers.  A simple but emphatic executive order would do the trick. 

The President should declare that -- unless affirmatively mandated by law -- the federal immigration agencies shall:

• Judge people seeking immigration benefits or relief from removal as individuals, based on the merit or demerit of their factual and legal circumstances.
• Refrain from profiling people by color or national origin.
• Apply neutrally phrased legislation even-handedly, without regard to any personal agenda of the adjudicator to serve as an unappointed line of defense against an influx of applicants from a particular country or with a certain complexion.

The President's order should require the Secretaries of State, Labor, Justice and DHS to produce a formal plan in 90 days to investigate and eliminate racial and national-origin profiling, discipline or dismiss any immigration officials who are found to have engaged in prohibited profiling, and publish periodic progress reports.  Under the order, claims of racial or national-origin profiling should be jointly investigated and violations enforced by the DHS Office of Civil Rights and Civil Liberties and the Justice department's Civil Rights Division. 

As I write this blog, urging one more measure to make America a truly welcoming country, I sense my father is smiling from the grave.  He (very likely) and I (absolutely) are chuckling as we recall Mark Twain's wisdom:

When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years.

By the way, for those of you who've met me and are wondering why I have Americanized the pronunciation of my name, sounding out the letter "a" like the "BAA" of bleating sheep, just ask Antonio Mendoza in this classic Saturday Night Live sketch:

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

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

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

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

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

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

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

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

At least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again. 

Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”

My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software.  The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration."  Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures. 

In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition.  Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.

Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants.  More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan. 

Oh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years.  Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers. 

Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States: 

• They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals.  (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
• They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past. 
• They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance. 
• They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers. 
• They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
• They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
• They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
• They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.

Indian angst over discriminatory U.S. immigration policies is neither apocryphal nor paranoid. As Stuart Anderson of the National Foundation for American Policy recently reported.  Citing State Department data, his research reveals that "[t]he number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011 while L-1s "issued in the rest of the world rose by 15 percent." I share the inference that Mr. Anderson, former INS Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner, drew from this wide divergence in L-1 approval rates:

This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.

My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:

India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.

No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India:

India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .

Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.

The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":

On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].

The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August.  As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:

The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].

While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai.  India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States.  The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants.  The official explanation for this change is phrased in a way that would make George Orwell smirk: 

This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]

I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way.  Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next Steps

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

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

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

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

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

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

Writing for The Hill, pundit Kathy Kemper just published a thoughtful piece on "Debt and immigration."  In it she contrasts American policy-makers' obsession with the financial Sword of Damocles, set to behead us on August 2, with Norway's all-consuming focus on the aftermath of a xenophobic madman's gutless acts of murder and mayhem. 

Americans, it seems, can think only of financial insecurity (apparently because Casey Anthony remains in hiding), while Norwegians grapple with societal insecurities and aspirations, and ultimately, the proper response to racial and religious hatred.

Kemper reasons that security is about more than fiscal rectitude and the age-old debate over spending on guns versus butter:   

In reality, defending the homeland requires a continuous flow of the world’s best: individuals who understand the changing constellation of threats to our nation; discern which among those will grow more important in the years to come; and design “hard” systems and “soft” policies to respond to them dynamically.

There are at least two other reasons why immigration is so crucial:

(1) ‪It keeps our nation young. Indeed, if — and it’s a big if — we’re able to sustain our immigrant inflow, we should be able to avoid the demographic challenges that beset the EU and ‬Japan (and which, within another decade or two, will begin to take a toll on China).

(2) America, above all, is an idea, perhaps the most important component of which is openness: openness to people, to ideas, to risk taking. An America that closes itself off will guarantee its decline. Harvard University’s Joe Nye has argued that “the greatest danger to America is not debt, political paralysis or China; it is parochialism, turning away from the openness that is the source of its strength and resting on its laurels.”

If, as Kemper rightly posits, America is an idea, then to keep our mental synapses firing, we as a nation need many more immigration thought leaders. 

In the immigration sphere, thought leaders are not likely or often found in the halls of Congress.  Rather, they are all around us -- in our schools, coffee shops, law offices, think tanks and foundations.  They are Tweeters, bloggers, artists, activists, journalists and especially, DREAMers.  While they can be sighted in many places across the country, their numbers are insufficient to turn the tide of anti-immigrant hate speech, jingoism and Fortress-America messaging that passes as the "fair and balanced" offering of competing ideas. 

Immigration thought leadership is about speaking truth to power, about setting aside any pretense of faux objectivity, as Paul Krugman opined today in "The Centrist Cop-Out":

Some of us have long complained about the cult of “balance,” the insistence on portraying both parties as equally wrong and equally at fault on any issue, never mind the facts.

I've thought quite a bit about the scarcity of immigration thought leadership (especially when my muse escapes me on any given Saturday as I scrounge for a fresh topic to post on dysfunctionality in our visa and entry policies).  Recently, Martindale-Connected, the social media site for lawyers, offered me the chance to ruminate on thought leadership via podcast (available here) and in writing here: "5 Steps to Go From Thoughtful Lawyer to Thought Leader on Social Media Sites (and Other Places)."

The five steps I described apply to any form of thought leadership, but especially to immigration and to budding thought leaders with no "Esq." after their names:

1. Thought Leadership Requires a Provocative and Enduring Topic. Blogging and article writing often serve as the centerpiece of many a thought-leadership strategy. More than a few lawyers who blog or write law-related articles, however, make the mistake of using the medium as merely a way of reporting on key cases and new statutes in order to demonstrate expertise in the subject. Thought leadership demands more. Thought leaders do not merely report new legal developments; they shed light on fundamental problems, offer critical analysis, discuss practical implications in the real world, and suggest solutions. Thought leaders are never boring. They take adverse possession from other lawyers over a particular area of law and own it by developing a voice and overcoming the fear of being too controversial. They select a topic that interests them (so that their passion remains on display), and a subject with legs that will generate eyeballs. One way to do this is by focusing on the actions of the government, federal or state, executive, legislative or judicial. As my blog www.NationOfImmigrators.com, illustrates, government officials are always doing something controversial that upsets someone. A controversial topic is one that readers naturally want to understand. The thought leader’s writings help them, over time, to understand the controversy and make up their own minds. Thought leaders are not afraid of controversy, but they always remember that they need not become the controversy.
2. Thought Leaders Are Remarkable and Grow a Tribe. Seth Godin is a maven of thought leadership. Among many of Seth’s suggestions, two stand out: A) Be remarkable; and B) Build a tribe. Thought leaders generate conversations. They are worthy of discussion among existing and prospective clients, colleagues, government officials and adversaries. They are remarkable. They are never boring or lackluster, and are not afraid of tooting their individual horns tastefully, for unless they do, they know that there might not be any music. Given these characteristics, thought leaders necessarily draw people to them. They form a tribe around their chosen topic, a community of interest, not necessarily all of like mind, that wants to know and learn more. Ask yourself, Attorney: Is your writing dull and soporific? Do you reflect your passion in your posts? Do you offer a point of view? Do you go outside your comfort zone in expressing yourself in visible ways? Are you operating from a Rolodex of disconnected people or have you built a network of thoughtful and interested members who see you as a thought leader? Do you share with your tribe the interesting thoughts of others? Do you connect tribe members with each other?
3. Thought Leaders Understand and Use Leverage. Thought leaders do not write single articles. They mount visibility campaigns around each and every article they author. Thought leaders know (no matter what a publisher says) to keep the copyright on their writings so that they can be repurposed in other publications, perhaps with an updated or tailored introduction to suit the new audience, or perhaps not. They Tweet and post status updates in Facebook and LinkedIn about every one of their articles, speeches, case victories (with client consent) or significant activities, offering link-backs to their analytical writings and their online profiles. They also regularly post links to new government announcements, new cases and statutes and the writings of others, usually also with a link to their own analysis of the latest development and its impact, and suggested strategies. They join and actively participate in Martindale Connected. They post articles on Google Knol and search for article directories to find additional opportunities and venues through which to post.
4. Thought Leaders are Disciplined and Reliable. No flash in the pan, thought leaders understand that consistent messaging, over time, with predictable regularity, is the only way to gain visibility and mindshare. Rain or shine, they write, post, update, Tweet and repeat the cycle, over and over. Too many lawyers think that one article every six months is enough to produce results. It is not. Thought leaders recognize that building a tribe means being responsible to your community. It is less a job than a calling. Nothing is worse for one’s reputation as a thought leader than a blog with a stale posting, months old, or the occasional posting, months apart.
5. Thought Leaders are Ethical and Responsible. Publicity without propriety does not a thought leader make. Thought leaders respect the rules of professional responsibility, refrain from misrepresenting the truth or engaging in personal attacks, label their writings as “attorney advertising” where required by state ethics rules, and do not take public positions that conflict with the interests of their clients. Thought leaders are not empty suits. They provide excellent client service and zealous advocacy, for these attributes are not only inherently important but also create the environment from which new insights and thoughts with which to exhibit leadership sprout.

If we Americans are to maintain our unhaughty claim of Exceptionalism, that is, our heritage as a perpetually vibrant and constantly replenished nation of immigrants, then we must produce many more thought leaders who can win what Kemper describes as the "debate over immigration [which] gets to who we are and, more importantly, who we will be." The growing ranks of immigration thought leaders, however, must not, as Krugman warns, make "nebulous calls for centrism, [the] big cop-out. . . that only encourages more bad behavior."  Rather, in my view, they must call out extremism wherever it surfaces and help direct our people to embrace the nation's true saving grace -- more enlightened and just immigration policies.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- I want to get back to my career

- I want to achieve a degree at the University

- I want to open a business

- I want to buy my apartment

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

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

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

Thank you for your reading. 

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.