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.

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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.

It's been a momentous, startling and exasperating two weeks.  The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.  

• In Arizona v. United States, the Court -- notwithstanding the ludicrous claims of victory from AZ Gov. Jan Brewer -- voided most of SB1070 on federal preemption grounds, while all but inviting suits on the lone-surviving section, the vile "show-me-your-papers" provision that many fear will release a Pandora's opened box of racial and ethnic profiling.
• In National Federation of Independent Business v. Sebelius, a SCOTUS majority in an opinion by Chief Justice John Roberts, calling balls and strikes, upheld most of the Affordable Care Act. 
• In American Tradition Partnership v. Bullock, a five-Justice majority threw out a century-old Montana law banning corporate campaign contributions in light of Citizens United v. Federal Election Commission.
• In an Engagement with Director Alejandro Mayorkas and USCIS Economists, USCIS allowed practitioners of the dismal science to heap more mud into the already opaque pool of confusion that sits atop the EB-5 employment-creation immigrant-investor green card category.

Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come.  Here, then, are what pleases and what remains lodged in my craw.

The Arizona Ruling

The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families.

Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):   

The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

And paraphrasing the words (bolded below) of Voltaire, Spiderman and others before them, the majority homed in on the nub of the problem, a failure of people and polity to push for comprehensive immigration reform:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Still, the Court's majority should never have promoted the urban legend that immigrants are more prone to criminal conduct than the population at large.  Citing a much-criticized study from a partisanly wolfish think tank wearing nonpartisan sheep's garb, the majority decision observed:

[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

The Health-Care Decision

The word "immigration" came up but once in the opinion -- a discussion of Congress's relative authority under its constitutional powers to tax and to regulate commerce: 

[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)

National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration -- the scope of comparative rights to health care afforded to legal and undocumented immigrants.

Concerning health coverage for the latter group, the subject is rife with obvious controversy, typified famously by Rep. Joe Wilson's impudent "you-lie!" charge to President Obama during the 2009 State of the Union address to Congress. The President was right then when he explained that the Affordable Care Act excludes coverage for unauthorized immigrants.

In truth, however, the legislation will probably have a mixed, uncertain impact on the undocumented:

At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.

The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.

The Montana Slap Down

This decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United.  Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.

The EB-5 Engagement with Economists   

Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.

Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.  

Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.

Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.")  

Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.

Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists' rabbit-from-the-hat proclamations have been "startling," are affected by fear and nervousness, and made it "riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements."

My view, which I shared with USCIS leadership, is this:

With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States.

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As you can see, it's been a long and exhausting two weeks.  I need a vacation! Guest posts (well-written and edgy) are welcome.

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

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

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

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

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

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

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

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

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

[Bloggers Note:  Today's offering is a Guest Post by Nici Kersey, who recounts memories as a child and their lasting impact, even on her practice of immigration law.  For a similar recollection of government handouts from my childhood, click here.]

Government Cheese

by Nici Kersey

My first memory of "the government" involves government cheese.  My great-grandmother always had the stuff in her refrigerator, and I thought that it was (after White Castles) the best food ever invented.  At four years old, I had likely only been exposed to a few types of cheese:  cheddar, mozzarella, Velveeta(if that counts), and government.  I had a clear favorite.  When I requested it at the grocery store, my mom told me that it wasn’t something you could just buy, and I became convinced that it was a rare and very special thing, right up there with love and happiness.

Of course, as I grew up (or at least got older), I learned more about the government, and it is now my job to “deal” with the government on a daily basis.  Most of these dealings are via  paper filings only.  Speaking with government representatives over the phone is not a daily occurence, and it is rarer still to have in-person interactions.  (Unless you count my daily interactions with my husband, who serves in the U.S. Army.)  I have attended a handful of interviews and appointments at the USCIS office on the north side of Atlanta.  While most of these experiences have been palatable, none have left me as satisfied as I was as a four-year old after eating that government cheese.

Just as the government “cheese” wasn’t real cheese – but instead a highly processed “cheese product” -- the immigration “service” isn’t renowned for its service.  Instead, it provides customers with lengthy processing times, delays, non-answers, and, often, disappointing decisions.

Because I had come to expect disappointment, I was pleasantly surprised during a recent series of interactions with the government.  (I had become so accustomed to eating the government cheese that I had all but forgotten the many other cheese options that the cows, goats, sheep, and apparently even cats of the world have made possible.)

My (pro bono) client was another Army wife.  She had entered this country as a fiancée years ago, married the guy who had filed the petition on her behalf, and later divorced.  They did not file a green card application.  She then married the U.S. citizen/soldier, and they worked to immediately file the requisite green card paperwork.  It was denied because the only way for someone who entered in K-1 (fiancée) status to obtain a green card is through marriage to (and, according to the USCIS examiner, petition by) the K-1 petitioner.  ICE initiated removal proceedings against her, and then I got involved. 

In large part because of my client’s status as an Army wife, the government treated her with fairness, respect, and (compared to other similar cases) a good deal of speed.  ICE agreed to place her under an order of supervision rather than in a detention facility, so she was able to go home and resume her normal life.  (She had to be home for a designated window of time each Sunday for a phone call from an automated ICE system, and she was not able to drive without a license because I forbade her from doing so, fearing an arrest.)  I have not asked her how much cheese she ate during her period of supervision.

We went to court twice.  The first was for a Master Calendar Hearing, and the judge agreed to fast-track the case, assigning us an individual hearing about a month later (whereas others were being assigned almost a year in advance).  At the individual hearing, the government attorney did not argue against my client’s adjustment of status, and the judge granted it.  We were lucky to have a new case on our side (Matter of Sesay) that more-or-less mirrored my client’s situation; it held that, so long as the foreign national who entered in K-1 status married the petitioner (and the marriage was bona fide – real cheese rather than “cheese food,” if you will), she was eligible to adjust status, regardless of whether the marriage was in tact at the time of adjustment.  She is now awaiting her green card, which should arrive in the next week or so. 

My description of the case may make it sound simple; it wasn’t.  But at all points during the process, our interactions with the government went smoothly and ended well.  And it all happened fast!  We did not have to wait for the government cheese to age, and it turns out that it is best eaten young.

A recent announcement by ICE to exercise discretion in removal cases has about half of the country in uproar.  But it makes sense to focus on the situations in which the foreign national is more deserving of removal (where serious crimes are involved, for instance) instead of spending valuable court and preparation time on Army wives.  There are downsides to the discretion:  it is not likely to occur quickly, and it does not offer much in the way of a resolution/peace of mind for those who are on the favorable side of the discretion.  But it marks a step toward functionality.  And I’ll take that kind of processed “cheese food” over the likely alternative (deport everyone/no cheese at all) any day. 

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

• We hear from reported remarks of Senator Richard Durbin that the Department of Homeland Security (DHS) will soon announce administrative action to give much-needed relief to individuals who would benefit from the DREAM Act, a bill still in its tenth year of infancy in the "world's greatest deliberative body." 
• Other welcome news came this week from the White House and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), announcing new immigration avenues for foreign entrepreneurs and releasing a related FAQ.
• These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion  for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

The attention given the Obama Administration's expanded use of aerial drones (of late in Pakistan, Yemen and Libya, at the U.S. border, and perhaps over other points unknown) to bombard unsuspecting targets and predictably, if not wilfully, cause civilian casulaties, may have distracted from other important meanings of the word.  Webster's Dictionary defines "drone" in four distinct ways:

1 : a stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen

2 : one that lives on the labors of others : PARASITE

3 : an unmanned aircraft or ship guided by remote control

4 : DRUDGE . . .

Surprisingly, all four definitions, literally or figuratively, apply to recent action of the Department of State in unleashing a veritable arsenal of consular drones into the immigrationsphere on April 27. The DOS's surreptitious bomb droppings involve a far-reaching final rule issued without the usual forewarning of published notice and the opportunity for public comment as contemplated under the Administrative Procedures Act (APA).  Claiming that the rule is exempt from APA formalities, State (with signoff by Janice Jacobs, Assistant Secretary for Consular Affairs) proclaimed by ipse dixit a regulation expanding the authority of American consular officers to revoke U.S. visas previously issued to foreign citizens.

Typical Paparelli hyperbole, you might say, associating pilotless bombers that kill and maim with a dry rule published in the Federal Register.  Let's see.

Visa officers -- of both genders --- are mated to, and serve and service, the hive that is State (definition 1), although admittedly they are not "stingless," as I'll soon show. Their unwarranted visa refusals and revocations suck out the lifeblood of family unity and entrepreneurship that nourishes this Nation of Immigrants (definition 2). Too often thoughtlessly, they do the bidding of distant masters at State and Homeland Security, and are therefore reliably compliant in a Disney animatronic sense (definition 3).  And their work is unrlenting drudgery, given that State allows them just minutes to decide the destiny of visa applicants, no less decisively than a set of fast-closing subway doors determined the alternative fates of the characters in the 1998 film Sliding Doors (definition 4).

I've railed before, quite often and at length, about the harm to American families and firms caused by the unregulated power of U.S. consular officials to deny visa applications of deserving foreign citizens (to review my prior rants, the curious need only type the words "visa refusals" in the search box to the right). Still, this new drone attack is insidious in several ways:

1. Whimsy's Silent Death Knell. The final rule allows immigrant and nonimmigrant visa revocations in the consular officer's (potentially whimsical) discretion, whereas the prior regulations (see the IV rule and the NIV rule) made the decision purely one involving straightforward findings, of fact and and under law, that the applicant was not or is no longer eligible for the visa. Presumably, the new regulation supplants State's Foreign Affairs Manual (FAM) provision denying consular officers the "authority to revoke a visa based on a suspected ineligibility, or based on derogatory information that is insufficient to support an ineligibility finding."  Previously, consular officers had no power (only State had the authority) to decide so-called "prudential revocations" which according to the current version of the FAM, "simply reflect that, after visa issuance, information surfaced that has called into question the subject’s continued eligibility for a visa."
2. Shut My Mouth. The final rule removes any express opportunity for the applicant or his/her attorney to present evidence to confirm that the inividual is legally entitled to keep the visa under immigration law.  Instead, the new rule provides that consular officer "consider . . . information related to whether a visa holder is eligible for the visa." 
3. No Chance to Scream. Nothing in the final rule requires the consular officer to allow the applicant or counsel to inspect and rebut "derogatory information unknown to the applicant," unlike the USCIS regulation, 8 CFR § Sec. 103.2(b)(16), which grants this customary due process protection.
4. Shoot First, Ask Questions Later. The final rule creates an illusory "provisional revocation" process that is indistinguishable from an unconditional revocation, namely, the immediate nullification of the visa for use in traveling to the United States. The former regulations required the consular officer, if practicable, to issue a notice of proposed revocation and thereby allowed an opportunity for rebuttal or reconsideration before the actual revocation took place.
5. Queen Mother Bee, May I? The new rule relieves the consular officer of the duty in several types of cases to seek State's prior permission in the form of an Advisory Opinion.  Now a consular officer, without hesitation or consent, can uncap and click the visa revocation button and fire off a drone.  
6. 'Tain't Fair. Consular officers now have authority under the final rule to revoke a visa even if the visa holder is already in the United States -- an action that heretofore only State could do under the present version of the FAM. Under Immigration and Nationality Act § 221(i), a consular revocation cannot be reviewed by any court except in limited circumstances during a removal (deportation) hearing. Thus, a consular decision, perhap made on incorrect information and without notice to the visa holder or a rebuttal opportunity, transforms an otherwise law-abiding foreign citizen into a deportable alien whose only remedies are to be hauled before an immigration judge or hop on the first flight back home.

Even before State's fait accompli drone attack, the DOS recognized and forewarned consular officers to "be alert to the political [and] public relations . . . consequences that can follow a visa revocation," noting in the FAM that the "revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state." Apparently, visa revocations involving lesser known foreign figures are of inconsequential concern to the Department.

I'll end my droning with a suggestion to State: 

If you care about our nation's image in the world and the soft skills of diplomacy, as you oft proclaim, withdraw this silly and pernicious rule. Contrary to your bald assertions in the preface to the rule, your release of immigration drones will inevitably trigger "adverse effects on competition, employment, investment, productivity, innovation, [and] the ability of United States-based companies to compete with foreign based companies in domestic and import markets."  Your rule also raises the prospect that families of "little people" -- to snatch a phrase from the "Queen [Bee] of Mean," Leona Helmsley -- will be torn apart by your improvidently released drone attack on fair play and simple justice. 

With your actions as added martial fodder, is it any wonder that Superman is renouncing his U.S. citizenship because he cannot in good conscience continue to link truth and justice to the American way?     

On the first day of the second quarter of 2011, I fell for a joke.  As the Urban Dictionary (definition #2) would word it, I was "punk'd"!  I didn't merely fall for just any immigration-related ersatz news item (like the passage of the CIRAF bill reported by my colleagues in ABIL), I breathlessly embraced as the truth an emailed report I quote below and forwarded it to an immigration reporter for a prominent newspaper, asking if the reporter would like a quote from me on this "big news."

Written by an author who knows immigration parlance and the real names and titles of immigration agency officials, the disinformation that gulled me was this:

April 1, 2011

Washington, DC - U.S. Citizenship and Immigration Services (USCIS) announced today relief for tens of thousands of people caught in long waits for immigrant visa availability. USCIS Director Alejandro Mayorkas said in a statement "These people have been living in a state of limbo in the United States for too long."

This program is initially going to be targeted at immigrants who have an approved "I-140 Immigrant Petition for Alien Worker" filed on their behalf, but cannot receive permanent residence because of backlogs in immigrant visa availability.  The new "Conditional Resident" status will be extended to such individuals who have had approved petitions filed on their behalf, and who have waited at least one year for availability of an immigrant visa. The Conditional Resident status will extend the same rights as Lawful Permanent Residence with two conditions: 1) Status will be extended for periods of 3 years, renewable indefinitely, and 2) Status will conditional on an immigrant visa not being available to the holder. Once an immigrant visa is available, the Conditional Residence will automatically be converted to Lawful Permanent Residence without further application being required by the immigrant.

James McCament, Chief of the Office of Legislative Affairs indicated that this change will take place by an administrative rule change, and that a Notice of Proposed Rulemaking (NPRM) should be published with the details of the proposed new status within the next 30 days. After a comment period, the new rule will take effect 60 days after publication in the Federal Register.

For more information, please contact the USCIS Office of April Fools at aprilfool@mailinator.com.

Similarly, recent immigration news -- regrettably, 100% reality-based -- suggested an April Foolsy, all-too-incredible quality.

On the enforcement front, a former Assistant Chief Counsel of U.S. Immigration and Customs Enforcement (ICE), Constantine Peter Kallas, perhaps wishing that he were merely a fictional character in an April Fool's prank, received a 17-year sentence and a $297,000 fine following his conviction "for taking bribes to help immigrants fill out false paperwork to remain legally in the country."

In the Executive Branch, both President Obama and his Homeland Security Secretary, Janet Napolitano, despite chants both minstrel and a cappella, threw ICE water on the notion that executive authority and administrative remedies might be used instead of police powers to provide even a fitful respite from the Administration's precedent-setting record of deporting foreign citizens largely without criminal records.  Unwilling to use the executive authority and discretion he clearly possesses, the President perhaps should consider adopting the robotic approach to immigration and border security now in a testing phase abroad.

Although Secretary Napolitano maintained that DREAM-Act-eligible students are not a priority enforcement target, neither explained why the extraordinary executive remedy of "parole in place" was used on a blanket basis as recently as in the last 12 months (with nary a peep from Congress) to help foreign citizens of the Commonwealth of the Northern Mariana Islands who just as innocently as the DREAMers violated the immigration laws. Nor did the President explain (despite his claim of thinking about jobs upon rising in the morning and retiring in the evening) why he has not endorsed the Startup Visa Act, a bill that a knowledgeable staffer for Republican Senator Richard Lugar predicted has "almost no chance of passage" unless the White House supports it.

In Congress, another form of unreality was on display at a hearing Thursday of the House Judiciary Committee's Immigration Policy subcommittee. The hearing considered whether the H-1B visa category was (select one:) too generous/too restrictive and whether we should (select one:) grant/not grant more green cards for tech workers.  Trying to achieve synthesis among competing views, House Judiciary Committee Chair, Lamar Smith (R. TX), offered prepared remarks in which he noted: 

Foreign workers are receiving H-1B visas to work as fashion models, dancers and as chefs, photographers and social workers . . . There is nothing wrong with those occupations, but I’m not sure that foreign fashion models and pastry chefs are as crucial to our success in the global economy as are computer scientists . . .

Tell that to viewers, judges, creative crew and participants in the popular, economically-vibrant TV shows, America's Next Top Model, Top Chef, So You Think You Can Dance, and Dancing with the Stars, and the less familiar but promising, Talk Therapy Television. Moreover, these are strange words indeed from a Republican about the H-1B visa (a $3 billion government-revenue generator) since the GOP claims to want to minimize regulation and refrain from trying to direct the economy.

On the hustings, at "a conservative conference last week organized by immigration hardliner Rep. Steve King . . . several possible GOP candidates present (Mississippi Gov. Haley Barbour, former House Speaker Newt Gingrich, even Rep. Michele Bachmann (R-Minn.)) didn't want to talk about immigration. Perhaps, the GOP is at last smelling the Hispanic java, demographically speaking.

Given these verisimilitudinous developments, I hope readers will forgive me for my (hopefully fleeting) naïveté.  After all, if Rip Van Winkle had not fallen asleep and then awakened during the Revolutionary War era, but had instead slumbered at about the middle of the last century and awakened today, he too would have concluded that nothing whatsoever changes about the U.S. immigration system, a broken process that perpetually "draw[s] . . . borders with pens that split lives like an ax."

In my last post, I quoted Roxana Bacon, the former Chief Counsel of U.S. Citizenship and Immigration Services (USCIS), our nation's premier agency charged with determining eligibility for immigration benefits, who chided her erstwhile employer for "timidity" in failing to take legitimate administrative steps to reform America's broken immigration system.  While her point is correct, I am furious at USCIS, not just for timidity on immigration reform but also and especially for yellowed boldness and bureaucratic chutzpah.

Don't get me wrong, the agency occasionally makes the right call, like its prompt assistance in offering extraordinary relief at times of natural disasters such as earthquakes in Japan and Haiti.  Another correct move is the announcement that USCIS will focus more resources on targeting "fake immigration attorneys."  In particular, the attack on individuals without law licenses who harm the vulnerable public and abuse trust by failing to understand or misusing the immigration laws is worthy and urgently needed. (Indeed, the Department of Labor should mount the same attack by eliminating from its PERM labor certification regulations the authority of unlicensed "agents" to represent employers and foreign citizens.) 

What enrages me with the USCIS, however, is its toleration, coddling and empowerment of adjudicative officers in its own agency who likewise (in most instances) lack admission to any state bar and are beholden to no canons of legal ethics.  These officers, in my experience and that of many lawyers, regularly abuse the vunerable public by failing to understand and -- whether wittingly or unschooledly -- misapplying one of the most complex bodies of federal law, the immigration laws. Needless to say, much of what makes life worth living is riding on a proper interpretation and application of these befuddling laws:    

Knowledge of [immigration] statutes, cases and agency regulations are required . . . to evaluate both the nature and the quantum of proof required in each type of case. The legal rights and privileges involved are some of the most basic to the individual: the right to travel, the right to obtain or retain residence in this country, the right to citizenship, and liability to criminal prosecution. [Source: Unauthorized Practice Of Law In Immigration Matters]

I am not as incensed by garden-variety sloth and ineptitude, like the ever-proliferating boilerplate Request for Additional Evidence, asking for the sun, the moon and the kitchen sink, released without customization to the facts of the case, but with inadvertent inclusion of the phrase: "[Insert name of petitioner here]."  No, I am enraged that a body within USCIS that purports to be a legal tribunal, the Administrative Appeals Office (AAO), would allow non-lawyers to render legal opinions that "draw . . . borders with pens that split lives like an ax." 

This license to opine and thereby destroy lives is no less outrageous than the Empire State's archaic Justice of the Peace system exposed by The New York Times, where roughly three-quarters of the "jurists" were found to have no bar association membersip.  The AAO reportedly employs lawyers and non-lawyers, according to comprehensive and worthy notes by Carlos Holguín of the Center for Human Rights & Constitutional Law (with [his bracketing]):

Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers. [While, as was claimed during the [AAO] Listening Session, non-lawyer decision-makers can issue opinions as solidly as their attorney counterparts, persons not licensed as lawyers are not subject to discipline under the rules governing judges and lawyers.]

The other leading administrative tribunals that research and opine on the immigration laws, render decisions and designate some as binding precedents are the Immigration Judges and the Board of Immigration Appeals whose members must hold an LLB or JD degree and be duly licensed to practice law, as must all Administrative Law Judges according to the Office of Personnel Management.  The USCIS, however, apparently views itself immune from these requirements, since the posted job openings for positions requiring research into the immigration laws and the application of law to facts, such as Service Center Director, Overseas Adjudications Officer and Asylum Officer, do not require bar admission or legal education.  Indeed, USCIS gives legal education a comparatively low value, that of a GS-9, equivalent to one year of federal service.

What prompted this tirade against the USCIS and the AAO? I won't say. The rules of professional responsibility and my duty of confidence and trust owed to specific clients prevent me from outlining the particulars.  Suffice it to note that I am a jaundiced observer of AAO machinations (if you're curious, that's why I'm yellow).  Notwithstanding my canary complexion, and general desensitization to specious reasoning, I just received an AAO decision that -- were it placed in Olympic competition -- would win multiple gold medals for intellectual dishonesty, disregard of precedent decisions, "refudiation" of agency guidance and overall callousness of heart, while purporting to be sensitive and heartfelt.

My fury arises not only from this mean-spirited and legally ignorant decision (which if written by a lawyer would be an embarrassment to the profession) but from the legal structure which allows it to remain protected and virtually above reproach (save for a blogger's rant), namely, legislative restraints that have placed on courts a duty of fawning deference to agency rulings of law and discretionary decisions. 

As I seethe, I recall what the public has been told last year: USCIS is conducting a top to bottom review; a remarkable Transformation is imminent; and the agency will issue a proposed regulation to clarify the rules of practice before the AAO and lead to the designation of significantly more binding precedent decisions.  More recently, the Inspector General of Homeland Security has warned of threats from potentially rogue employees within USCIS, and suggested numerous fixes, including a proposal that adjudicators' approved decisions be reviewed by supervisory officers before formal release.  Whether or not the IG's proposal is adopted, I urge the Director of USCIS to arrange for internal attorney review of every draft decision, interpreting or applying law, written by any immigration officer not admitted to any established licensing bar.

Until then, I rage with an elevated (yellow) level of anger against the immigration machine and its (Un)Adjustment Bureau where non-lawyer "mystery men [and women] running an exceedingly specialized enterprise" participate in a sad governmental parody of yellow journalism that publishes "little or no legitimate well-researched" rulings.

[Photo Credit]    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In its latest newsletter , the Bureau of Customs and Border Protection (CBP) – a unit of the U.S. Department of Homeland Security – suggests that migrants crossing the border illegally from Mexico into the scorching Arizona deserts are driven to do so by “emotions” and “machismo”:

“Intellectually, those considering jumping the U.S.-Mexican border realize how hot it is in the southwest during mid-summer. But somehow their emotions, their machismo, win out and they make a run for it, only to be faced with the desperate realization of just how hot the desert summer is: Deathly hot.

“When much of the U.S. was under heat advisories this summer for temperatures in the high 90s, the southwestern deserts were baking under temperatures consistently reaching 120 degrees. No shade, no pools, no air conditioning, just 120 life-sapping degrees. “

[Translation: Crossing the desert isn’t as dangerous as they say. It’s worse! Before crossing over to the other side, remember: The mausoleums are filled with the brave and the macho. STOP CROSSING THE BORDER]

As a driver of illegal immigration, Machismo – an overwrought form of male chest-thumping, often manifested as excessive aggressiveness and physicality, and topped off with chauvinistic domination of women – seems an unlikely culprit. Even ignoring the sad reality that many border-crossers are women and children, this blogger would challenge the CBP assertion that studliness plays the primary role in pushing hordes of desperate people into the summer inferno of America’s southwestern deserts.

Machismo – no; but emotions – probably. Fear, desperation, depression – yes, these emotions likely play a big part in desert-traversing illegal migration. Fear of starvation, desperation that one’s children will live the same miserable, impoverished existence as their parents, depression (both emotional and economic) – these are the emotional drivers that compel people to take such life-threatening risks.

With deaths near the border at an all-time high, it’s time to find a better way to manage the centuries-old reality of border crossings at our southern border. Douglas S. Massey, a Professor of Sociology and Public Affairs at Princeton, suggests a more humane and enlightened approach to this reality on the ground. Massey suggests that the U.S. will not stem undocumented migration by walling off the country or extending the welcome mat to all comers; instead he maintains that our borders must be reasonably regulated on a binational basis. It makes no sense, Massey notes, in pushing U.S. green card holders to naturalize as soon as possible because predictably that will only increase the already several-years-long waiting time to reach the head of the queue in the immigrant visa quota. He also notes that it makes no sense for Canada and Mexico, the two nations that share the North American continent with us, to receive the same annual allotment of immigrant visa numbers as such less strategically important countries as Botswana, Nepal, and Paraguay.

Just as DHS failed to protect our water border at New Orleans, the agency has been unable to prevent or minimize the tragic loss of lives in our desert southwest. Our country can do better than offering flip labels. We need less psycho-babble and more economically enlightened and humane immigration laws. Then, the emotions we’d all likely see manifesting would be hope and optimism rather than fear, desperation and depression.

On January 10, 2005, the US Department of Homeland Security announced temporary relief measure for nationals of countries affected by the Asian tsunami, including:

• Burma (Myanmar)
• India
• Indonesia
• Malaysia
• Maldives
• Somalia
• Sri Lanka
• Thailand

DHS has announced "temporary relief measures" that are now available to those individuals who (as a result of the destruction and humanitarian crisis in Southeast Asia):

1. Are unable to return to their home country or
2. Are currently traveling in the United States.

USCIS will expedite the processing of certain immigration applications, including:

• requests for advance parole, and
• relative I-130 petitions for minor children from the affected areas.

USCIS may also extend the period of parole for individuals who have already been paroled into the United States. USCIS will also "more readily approve" applications from visitors from the tsunami-affected countries who are requesting a change or extension of their nonimmigrant status. However, standard security checks will remain in place under expedited procedures.

Beginning January 7, 2005, individuals from either Sri Lanka or Maldives who are under a final order of removal will be granted a stay of removal for 90 days. This temporary suspension is specific to these two countries due to the massive infrastructure damage. The stay is automatic. No request or petition is necessary, according to Immigration and Customs Enforcement (ICE). ICE will also consider stay of removal requests from "non-criminal aliens" from countries other than Sri Lanka and Maldives who were adversely affected by the earthquake and tsunami, and temporarily suspend the deportation of any individual presently in the U.S. who would be returned to an area severely affected by the tsunami. U.S. Citizenship and Immigration Services and ICE caution, however, that decisions will be made on a "case-by-case basis and based on specific circumstances."

Where appropriate and authorized by law, nonimmigrant visitors and aliens who are granted a stay of removal may be eligible to apply for or receive employment authorization so that they may financially support themselves, or potentially help the rebuilding effort by sending remittances to their home country. DHS will liaise with other branches of the federal government to monitor developments and conditions closely in the Tsunami-affected region to "determine the need for additional action."

10 Practice Pointers To Prepare An Effective Petition

1. Use your immigration case-management software to do search queries on country of citizenship and country of residence to see who will most likely be helped.
2. Consider requesting relief for aliens hailing from or living elsewhere outside the United States whose families may have been traveling in the Tsunami-affected countries and can show Tsunami-induced hardship.
3. Consider whether you can establish not only direct suffering to the client, client's family or area of client's residence but adverse consequences that are indirect.
4. Consider whether you can establish that, even if client does not reside in the Tsunami-affected areas, the added infrastructure demand placed on the ravaged country would only add to the country's burden, and that the client should therefore be allowed to remain in the United States.
5. Consider whether you can establish that an approval of your immigration benefits request can enhance the ability of the client to remit funding to the Tsunami-affected countries (if alien is in a work-authorized status)
6. Flag your cases (Forms, Letters and Envelopes) and emblazon them with: "EXPEDITE REQUEST - TSUNAMI-RELATED HUMANITARIAN RELIEF REQUESTED PER 1/10/05 USCIS HEADQUARTERS POLICY STATEMENT"
7. Download the USCIS press release, print it in color and attach it as a cover sheet or an early page in your packet. If available, print pictures (in color) of the damage to the individual's area of residence.
8. If your alien client has overstayed, reference the regulations granting authority for forgiveness for untimely filing: 8 CFR § 214.1(c)(4) (extension of status), and § 248.1(b) (change of status), and emphasize the hardship to the individual or the Tsunami-affected country of nationality or residence if the USCIS were to refuse to approve the application.
9. Cite Legacy INS Commissioner Meissner's Nov. 17, 2000 Policy Statement on prosecutorial discretion - which remains in effect - and argue the positive factors in your case warranting the exercise of compassionate and favorable discretion.
10. Act like a lawyer and submit detailed supporting evidence, e.g., affidavits, letters, medical reports, statements from mental health professionals, sociologists, academics with specific country expertise, U.S. Department of State on Country-Conditions Reports on Human Rights Practices, e.g., Burma, website reports from humanitarian relief organizations, etc., to bolster your request

.

As if people of the world today don’t have enough concerns to keep them from smiling, the U.S. State Department has issued new guidelines (www.travel.state.gov/passport/pptphotos/composition_checklist.html) discouraging smiling in photographs for American travel documents. United States Citizenship and Immigration Services (“USCIS”), a unit of the Department of Homeland Security, has also adopted the new requirements for U.S. green cards and work permits. The dour new rules specify that when being photographed, people are to have a “natural expression.” In sample “acceptable” photos depicting “natural” expressions, a man and woman exhibit serious, Stepford-like stares, with mouths closed. For those so bold as to risk rejection of their photos, a wan smile with closed jaw (no teeth showing) may be allowed but not preferred.

This new requirement is no laughing matter. USCIS has been enforcing the photo-specs rule and rejecting pictures in which individuals are smiling and showing their apparently well-flossed teeth. Reports indicate that the Cleveland USCIS office is a non-smiling jurisdiction. Therefore, if you’re in Cleveland, definitely avoid smiling. Perhaps, Cleveland-area dentists may wish to protest this stealth attack on their profession.

The no-smiling policy seems to make holistic sense, however, in that few can smile at our dysfunctional immigration system. So all you photographers, rather than asking your subjects to say “cheese,” suggest instead that they think “immigration”.