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.