Over more than the last 30 years, I’ve advised countless foreign businesses and investors seeking to establish operations in the United States. Many thrived, but some, regrettably, failed to survive. Often, the founders’ inattentiveness to the requirements of U.S. immigration law has been a primary cause of rough beginnings or failures to launch. This blog post will offer best immigration practices and identify traps to avoid when a foreign firm or individual plans to start a business in America.

1.  Respect the Law – It’s Not a Game. The U.S. is no doubt the world leader when it comes to the complexity of immigration laws. Too often, foreign owners and corporate executives assume that just getting past the consular officer and the border inspector are the only hurdles in the path of pursuing their U.S. business objectives. Many entrepreneurs and company founders have yielded to the temptation of claiming to be a visitor seeking entry for business reasons when in fact their purpose is to start an enterprise and begin working in the U.S. These “stealth visitors” also tend to jump the gun by issuing a press release announcing their appointment to head the U.S. subsidiary before they even have a proper work visa in hand. Cutting corners on immigration compliance is no way to launch a U.S. business but an excellent way to face stiff fines and penalties, be deported or end up in jail. The Obama Administration, with enthusiastic goading by Congress, has dramatically ramped up immigration enforcement at all levels. Lesson 1: Understand that playing by the immigration rules is the only prudent way to start and operate a new business in the U.S.

2.  Develop a Viable Short- and Long-Term Immigration Strategy from the Outset. At the start of every new business, passions and enthusiasm are high. Foreign executives and entrepreneurs often want to obtain the quickest and most easily attained work visa possible. They shop for an immigration lawyer with a low fee who will provide the minimum service need to obtain that visa. Little thought is given to the statements made to the government in the process. Descriptions of the applicant’s prior career often are sketchy. Regrettably, in too many cases, long term strategies and initial statements presented to the government in supporting documents provided in order to get the “easy/quick” first visa may be given short shrift. These types of short-sighted thinking often will narrow future options available to obtain a long term visa or a green card (permanent residence). Lesson 2: Take the time to find an experienced immigration lawyer who will outline all options over time and guide the enterprise strategically for the long haul.

3.  Consider Tax and Employment Law Consequences. No worthwhile immigration strategy is devised in isolation. Other U.S. laws, especially those relating to taxation and employment, must be considered and harmonized with the long-term immigration plan. After considering all applicable laws, a wealthy foreign citizen may decide that obtaining a green card, and thereby becoming subject to U.S. taxation on worldwide income, is not quite so desirable as first perceived. An E-2 investor visa, allowing easy entry and exit as well as a long-term, perpetually renewable U.S. visa and the right to work (including work permission for the spouse) may be just as functional as a green card and still offer the possibility of less costly non-resident tax status in the U.S. Similarly, employment laws, especially in heavily regulated and litigious states such as California, may warrant the use of professional employer organizations (“PEOs”), temporary employment agencies or vendors rather than direct hiring – strategies that may affect the immigration plan. Lesson 3: Choose a solid, inter-disciplinary team of tax advisors and immigration and employment lawyers, preferably – for the sake of efficiency and convenience – in a single firm.

4.  Prepare a Solid Business Plan. Increasingly, U.S. consular officers and immigration agencies are demanding a sophisticated set of supporting documents to assure the government that the proposed business will be viable and likely to result in the hiring of U.S. workers and/or the generation of healthy profits. U.S. immigration officials want to be confident that every work or investor visa issued is in full compliance with law. Officials are alert to a variety of frauds perpetrated by visa applicants who may merely wish to frolic in the U.S. or engage in subversive or criminal activities rather than work. The centerpiece to any employment-based visa application and work-visa petition is a detailed business plan. Here is what the immigration authorities want to see in a “credible” business plan:

• A description of the U.S. business, as well as its products or services, and the firm’s business objectives, strategies and goals.
• A market analysis identifying the target market, prospective customer demographics, and the relative strengths and weaknesses of competing businesses.
• A side-by-side comparison of competitors’ products or services and pricing.
• A listing of required permits and licenses obtained.
• A process map depicting in words or images the enterprise’s manufacturing, production or service-delivery processes, required materials, and suppliers.
• The particulars of any executed contracts for supplies, vendor services and distribution channels. The firm’s intended business-development, marketing and sales strategies, including pricing, advertising, customer service and quality assurance.
• A description of the business’s organizational and ownership structure and the relevant education and experience of its board of directors and key officers and management.
• An explanation of anticipated staffing levels, a timetable for hiring, and job descriptions for all significant positions.
• Financial projections outlining anticipated sales, costs, income projections and underlying economic assumptions.
• A description of the source of funds used for capital investment, together with proof that the funds were lawfully obtained, deposited with the U.S. business and properly applied for legitimate start-up purposes (e.g., acquisition of premises, equipment, insurance, staff, professional services, etc.)

An immigration-related business plan is not necessarily drafted in the same way as a plan intended for submission to angel investors, hedge funds, venture capital firms or financial institutions. The plan is not “pitching” for financing or investment funding; rather, an immigration-related business plan seeks to persuade the government official reading it that the visa applicant and petitioning entity are serious and bona fide. Lesson 4: Make sure to submit a credible, fully-documented business plan.

5.  Gather Foreign-Source Documents and Information Ahead of Time. At the outset of every work-visa application, immigration counsel should provide a detailed list requesting all documents and information needed. The business entities and individuals receiving the list should take pains, before departing for the U.S., to obtain all items and arrange for full word-for-word translations. (The translations need not be officially certified by a government or formal translation bureau, but may be supported by the translator’s certificate attesting that the translator is fluent in the particular foreign language and English and that the translation is an accurate word-for-word rendering from the foreign to the English language.) Lesson 5: Think ahead and gather all required papers and data when readily accessible in the home country.

6.  Be Prepared for the U.S. Visa Interview and Border Inspection. The first step in preparation is making sure that all information entered into the very difficult online nonimmigrant visa application form, the DS-160, is complete and accurate, and that a digital copy is preserved before uploading (electronically submitting) the form to the consular post or embassy. The visa applicant should review with immigration counsel the likely questions to be posed by the consular official at the visa interview or border inspector at the port of entry as well as the applicant’s proposed answers. The applicant should be rested, well dressed and groomed, in business attire, with a minimum of jewelry, makeup or cologne. Any papers carried to the interview or border inspection should be well organized and easily accessed for presentation to the officer. Particulars of the proposed business and job duties, salary, investment amount, etc., should be accurately described, if questions are posed. Applicants should maintain a confident and relaxed attitude but remember at all times that he or she is speaking to a government official with police powers. All statements made must be truthful and complete. Information not asked should not be volunteered. Lesson 6: Treat the consular interview and border interrogation as oral examinations for which preparation is essential and the passing grade is the grant of the requested visa and work-authorized status in the U.S.

7.  Pay Heed to Expiration Dates. At the U.S. port of entry, the inspecting officer will confer on firm deputees allowed admission to the U.S. a nonimmigrant work-visa “status” on an entry card known as a Form I-94 (arrival/departure record). The I-94 “departure” portion of the card will note the visa category and the period of authorized status, either a date certain or for some visa categories, a notation (“D/S”), meaning the entrant may remain in the U.S. for the “duration of [lawfully maintained] status.” Make sure at the airport or land border that the proper period of authorized admission for the particular visa category is granted and that an improperly shorter period is not noted. Request a correction at that point. One should never allow a passport, visa stamp or I-94 form to expire without first having obtained a renewal or extension. Otherwise, the individual may face serious, adverse consequences such as removal (deportation), detention, and a bar to reentry for up to ten years. Lesson 7: Obtain the right length of status authorization at the port of entry and develop a calendaring/tickler system to renew or extend status long before it expires.

8.  Maintain Required Immigration Paperwork and Be Ready for a Government Audit. Employers are required to complete and maintain a variety of immigration paperwork and to present it upon request to the government, and if employing H-1B specialty occupation workers, to any member of the public who asks to see the documentation. The papers (or electronic records) required to be maintained will include the Form I-9 (Employment Eligibility Verification) confirming that each and every U.S. and foreign worker hired has confirmed eligibility to work under an authorized status and has presented documents of identity and work permission for inspection to the employer. The employer in turn must certify on Form I-9 that the documents chosen for presentation by the employee appear genuine and relate to the individual. In the case of an H-1B employer, the business must also maintain a public access folder and relevant payroll and tax records. Lesson 8: Be ready for an immigration-related government audit by preparing and retaining the required business records, and periodically engaging a competent immigration lawyer to audit the firm’s immigration compliance practices.

9.  Achieve Your Vision of the American Dream but Stay Vigilant about Immigration Compliance. Every new business has big dreams. America encourages entrepreneurial dreamers to pursue their goals within the bounds of the law. Initial business plans, however, may change over time. Companies reorganize, merge, are spun off, sold or dissolved. Job duties may “morph” into new assignments and materially different responsibilities. Foreign employees of the initially sponsoring U.S. firm may desire or need to be transferred to the payroll of an affiliated or wholly unrelated business. Foreign owners, investors and officials of new U.S.-based businesses should realize that employment-based work visas are tethered to the original visa petitioner or sponsor and that material changes in employing entity, job duties, job location and other eligibility criteria may require prior notice and approval of the federal government before the chance is allowed to occur. Lesson 9: Stay in touch with your immigration lawyer and let the lawyer know in advance when changes to the terms and conditions of the initial visa petition and application are likely to arise. Your lawyer can then guide you on required immigration-compliance action items.

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With the U.S. still the largest economy in the world, foreign businesses and individuals still yearn to get a “piece of the pie.” As this post has shown, close attention to U.S. immigration laws will make it more likely that the pie will be tasty and satisfying. Welcome to America!

Dear Mr. President:

With all respect, and lingering if flagging admiration, I write to help you tackle a problem -- America's broken immigration system. If you do the right, bold thing on immigration, it could well determine the success of your presidency and facilitate your reelection in 2012.

You've already admitted that the voters gave you a "shellacking" in the mid-term elections. You've also heard Mitch McConnell, Senate Minority Leader, announce that the overarching goal of Republicans in the next two years is to make sure that you turn out to be a one-term president. Despite your having cozied up to Sen. McConnell to cut a deal on prolonging the Bush tax cuts, he continues to give you the back of his hand by announcing today that he is opposed to the START treaty that you negotiated with the Russians.

By fixing our immigration system comprehensively, however, you'll win back the hearts and minds of your Democratic base and the independents who elected you, while exploiting an issue on which Republicans are clearly vulnerable.

Yesterday, as you know, a minority in the Senate (comprised mostly of Republicans and a few from your own party) prevented an up-or-down vote on the Dream Act. The result -- occuring ironically on International Migrants Day -- has caused the pundits and your supporters to say that your immigration policy is in "disarray," and that you broke a campaign promise to move forward on immigration during the first year of your presidency. Many believe that you squandered the best opportunity for comprehensive immigration reform (CIR) in years by taking too long to address health care with your "let-Congress-go-first" approach.

The DREAM-dashers have given you a foretaste of the difficulties you'll face with the coming Congress. They flouted the will of a majority of Americans and ignored the endorsement of the Defense Department. Republican anti-DREAMers justified their vote by falsely claiming that the GOP had no opportunity to offer amendments, even though, as Sen. Dick Durbin said at a post-vote press conference, the legislation had been approved by the Senate Judiciary Committee three times with the support of Republicans over its 10-year life.

The naysayers also ignored economic evidence cited by Sen. Majority Leader Harry Reid: (1) a UCLA study projecting up to a $3.6 trillion boost to the economy from the lifetime earnings of Dream-Act youth, and (2) a report by the Congressional Budget Office and the Joint Committee on Taxation that, if the now-defeated bill had been enacted, it would have reduced federal "deficits by about $1.4 billion over the 2011-2020 period." They also pooh-poohed the warnings of 381 university scholars about the dire consequences for America if the Dream Act did not become law.

Sen. Chuck Schumer, however, expressed optimism at the same press conference that comprehensive immigration reform is not dead in the near term. He predicted that Republicans would eventually support CIR once they take a closer look at the consequences of opposing it and at the surge of Hispanic voters who helped to elect Democrats in California, Nevada and Colorado. Reporting the more pessimistic view, The New York Times, Reuters, the Los Angeles Times and the Washington Post, in unison, quoted credible sources that announced autopsy results not only on the Dream Act but also on your overall CIR strategy.

The underpinning of your strategy was the belief that Republicans would ultimately support CIR if you demonstrated your toughness on border security and interior enforcement. And, you implemented your part of the strategy with a gusto unseen in decades. Deportations are at an all-time high, employer-sanctions enforcement has revved up following a six-year Bush Administration hiatus, and the border is more impregnable than ever, especially given the $600 million in funding for border security you signed into law last summer.

In reacting to the adverse vote, you sounded as if you're girding your loins to fight the good fight:

[My] administration will not give up on the DREAM Act, or on the important business of fixing our broken immigration system. The American people deserve a serious debate on immigration, and it’s time to take the polarizing rhetoric off our national stage. . . . Moving forward, my administration will continue to do everything we can to fix our nation’s broken immigration system so that we can provide lasting and dedicated resources for our border security while at the same time restoring responsibility and accountability to the system at every level.

With all respect Mr. President, my response to you is to quote President Reagan, a leader whom you professed to admire during the 2008 campaign. At his debate with the last one-term Democratic President (Jimmy Carter), candidate Reagan said: "There you go again."

The American people deserve more than a "serious debate on immigration." Because some in the anti-immigration camp are nativists, impure and simple, there is no way that you should even try in a vain attempt to remove "polarizing rhetoric off our national stage." You've had no success in eliminating the "birthers" from challenging your presidential legitimacy; rather, they've accused you of being an illegal immigrant from Kenya who should be deported rather than ensconced in the Oval Office. Despite the many tangible yet underappreciated accomplishments in your first two years, you've met with disprectful taunts like, "How's that hopey-changey thing workin' out for ya?"

I suggest you take a page instead from your own writing. No, I'm not referring to your evocative and inspirational first book (Dreams from My Father), or your inside-the-beltway narrative on life in the Senate (The Audacity of Hope). I'm talking about your latest book, Of Thee I Sing -- a children's book addressed to your daughters, Sasha and Malia -- a "Profiles in Courage" for the younger set. You offer vignettes on brave Americans who faced adversity with courage: Martin Luther King, Jr., Sitting Bull, George Washington and Jackie Robinson.

Each of these heroes took on the Establishment. They did not shrink in the face of opposition. They did not try to message their way to victory. They acted with bravery and a momentum born of the righteousness of their cause.

You need to dust off an approach that you summarily rejected, apparently before it was even formally presented to you. You have the power to issue executive orders that direct the behavior of your cabinet and the departments of government. We have an immigration emergency in this country. Huge numbers of children and young adults, on behalf of whom this country has expended vast sums for their education, are consigned to become fodder for gangs or to forage for a living in the underground economy because they have no way under color of law to come out of the shadows.

Grant these in-all-but-name-only "Americans" the chance to contribute to this country. Give them the benefit of "deferred action" -- a time-honored act of "administrative grace" that has been exercised for decades (witness the grant of that privilege to John Lennon, despite a marijuana conviction, as a stepping stone to his green card). Give them also permission to work in one- or two-year increments. Do these things by issuing an executive order, followed by formal rulemaking under the Administrative Procedures Act.

Of course the Republicans will shriek that this is a "backdoor amnesty" -- as they did a few months ago when a draft internal USCIS memo was leaked. They will of course summon Obama Administration officials for hearings to answer for your actions. But the Republicans plan to do that anyway. So what. With the Senate in Democratic control, they have no way of passing legislation to tie your hands, and even if laws somehow were passed, you could use your unused veto pen.

You should also step up to your bully pulpit to explain to the American people why executive action under law is necessary. Republicans have been moving the goal posts on DREAM and CIR for ten years. They would rather do nothing and say "no" with filibustering bluster than solve this most pressing human and national problem. You should also defend the good people in your administration who've come up with positive if piecemeal administrative fixes for the broken immigration system rather than letting them hang in the wind.

The American people will then see that you no longer shoot with blanks. They will see you standing up for the principle that children are not to be punished for their parents' sins, that (as the famous PSA reminds us) "a mind is a terrible thing to waste." The tide will then turn, wobbly Republicans will put their fingers to the wind and see that bipartisan CIR will make them more electable. The impasse will be resolved. If you don't act with the courage of a Jackie Robinson and the others whom you praise in Of Thee I Sing be prepared to have your presidency compared to another Of Thee I Sing -- the Gershwin brothers' 1932 musical that satirized the political folly that passes for governance in Washington.

It's your choice, Mr. President. As the Lion of Immigration, Ted Kennedy, famously said, "the DREAM will never die." Or, as Sen. Bob Menedez said at yesterday's press conference:

What happens to a dream deferred? Does it dry up like a raisin in the sun or does it explode? This dream is going to explode.

Mr. President, please do the right thing.

A fellow American,

Angelo Paparelli

Hilda Solis -- the Secretary of Labor -- hails proudly from immigrant stock. She understands the suffering immigrants endure for a chance at the American Dream. She also knows the importance of ensuring that U.S. workers are protected and treated fairly. I wonder how she continues to tolerate the abuse of American and immigrant workers, and of U.S. employers, perpetrated in her name under the Labor Department’s PERM program.

An acronym whose official name sounds at once Orwellian, shocking and bureaucratic, PERM stands for Program Electronic Review Management. It is the exclusive method that the Department of Labor (DOL) devised to eliminate a backlog of several years in a longstanding program of labor-market testing (known as a “labor certification”). With a labor certification in hand, a foreign citizen officially completes the first step in an elaborate and lengthy process culminating, if successful, in the grant of an employment-based green card.

The Immigration and Nationality Act (INA) -- at § 212(a)(5) -- says in bass-ackward and double-negative fashion that no foreign worker is admissible to the U.S. as a permanent resident unless the Secretary of Labor determines that no U.S. worker is willing, able, available and qualified to fill a job that a U.S.-based employer wants the foreigner to fill. Thus, § 212(a)(5) says that the hopeful foreign worker is inadmissible to the U.S. unless Secretary Solis is satisfied that at least one statutorily suitable worker in all of America cannot be found.

This law, as written, puts the duty of action and decision squarely on Ms. Solis’s shoulder. It imposes no burden on the foreign worker, on any U.S. worker willing to apply for the sponsored job, or on the employer. The perverse ingenuity of DOL bureaucrats, however, led the agency long ago to craft a method (now embodied in the PERM program) that unjustly transfers most of the onus of action under § 212(a)(5) from the DOL to the employer, to the foreign national and -- most cruelly -- to hapless U.S. workers who are duped into applying for a job that in most instances is already filled.

Under PERM and its predecessors, the DOL has illegally foisted on each of these parties various duties that fall squarely within its area of agency expertise, duties that it could do better and more quickly itself:

• The employer is commanded to prove a negative, i.e., that no statutorily suitable worker is available. The employer must also show that the particular job is open in good faith to any U.S. worker who meets the employer’s minimum requirements. (The good faith requirement in practice eliminates virtually all foreign entrepreneurs who set up their own U.S. companies since the DOL presumes that every entrepreneur will act in bad faith to secure a labor certification.)
• The foreign worker is ordered to prove by prior education, training or experience, that she satisfies the employer’s minimum job requirements. (The DOL’s minimum-job-requirements rule effectively bans merit-based hiring since any lesser-skilled U.S. worker who surfaces will cause a more-qualified foreign candidate to be denied a green card.)
• The U.S. worker -- treated the most shabbily by DOL of all -- is induced to act, unknowingly, as a naïve stooge. Under the PERM (DOL-work-avoidance) scheme, U.S. workers are “punk’d” into applying for jobs that in most cases they have no chance of filling. They are used -- at DOL insistence -- as guinea pigs merely as a means for the employer to prove to Secretary Solis’s satisfaction that a good faith test of the labor market has been conducted. The DOL does not require (indeed, it lacks legal authority to demand) that the employer hire any minimally qualified U.S. worker who applies for the job. All that happens if the employer “fails” the labor market “test” (meaning that a suitable worker applied who met minimum requirements of the job) is that the foreign worker will not be allowed to move to the next stage of the employment-based green card process under sponsorship of this employer at this time.

The bureaucratic charade known as PERM would be unnecessary if Secretary Solis were to instruct her minions to perform their statutory duties. If DOL were to identify more jobs for which the agency believes there are insufficient numbers of U.S. workers -- so-called “shortage occupations” that satisfy § 212(a)(5) -- the agency’s illegal burden-shifting to private parties would no longer be necessary. DOL defenders have claimed, however, that identifying shortage occupations is impossible. If that is so, then how did the agency determine under its Schedule A authority that jobs for physical therapists and registered nurses go begging for applicants and thus are exempt from the labor-market testing requirements? Congress certainly believes that DOL can and should identify additional shortage occupations since it gave DOL authority in 1990 (which the agency has not used) to expand the shortage list under the Labor Market Information Pilot program.

I suspect the reason for the Labor Department’s labor-avoidant reluctance to ferret out and declare shortage occupations is that announcing such shortages inevitably produces political heat. At a time of historically high unemployment, DOL likely finds unwelcome the prospect of being in the middle of a Dodge Ball game where U.S. worker advocates, labor unions, employers, business organizations, proponents of immigration and the media -- each disagreeing with some of the Labor Department’s worker-shortage declarations -- pitch painful spheres at the agency. Fear of a shellacking, however, is no excuse. Secretary Solis, together with the DOL technocrats who devised PERM, cannot continue to shirk the legal duties they voluntarily accepted when taking their oaths of office.

DOL cannot morph statutory duties that the agency finds distasteful into extra-legal mandates on employers and aspiring green-card holders while perpetuating a con-game that gulls employed and unemployed U.S. workers into applying for jobs which they have little hope of getting.

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Readers of this already too-lengthy post, just like silent film audiences viewing The Perils of Pauline, must wait till next time for our cliffhanger to end and find out what happens in the final episode of this electrifying and shocking bureaucratic drama, The Perils of Hilda and Her PERM.

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John Tyner, a San Diego software engineer and newly minted American folk hero, faces an $11,000 civil-disobedience fine for refusing an intimate groping, dubbed by Orwellian bureaucrats as an "enhanced patdown," that Hillary Clinton would herself refuse. The man who threatened a citizen's arrest if his "junk" were touched epitomizes an aroused populace, even including flaccid Baby Boomers, who will no longer tolerate TSA inanity passing off as security at the nation's airports.

Time was when Boomers, my generation, risked arrest in the face of unacceptable official conduct. Draft cards and bras burned. Marches and sit-ins dotted the nationscape. From the hottest campuses -- Berkeley, Michigan, Columbia and Kent State -- outbreaks of youthful protests erupted and spread furiously. But that was a galaxy far, far away.

Today, as Pogo predicted, we have met the enemy and he is us. My father, a principled rebel himself, envisioned this outcome. He would enrage me by repeatedly noting that these protests were nothing more than youthful exuberance, a "phase" that would peter out. If (as I hope) he's moved on by now from Purgatory to a more hospitable celestial level, Dad's no doubt looking down and smiling wryly.

A generation that screamed "Power to the People" and urged peace and love in place of war has become a cantankerous cohort of whiners and WIIFM ("What's in it for me?") turncoats. Sure, most of us today face hard and scary times -- but times then seemed plenty fearsome and arduous too, with Tricky Dick's finger hovering over the nuclear button, rioters burning our cities, and assassins downing our beloved leaders in rat-a-tat sequence. We still want devolution, but we've devolved to this: Keep your damned government hands off my Medicare and Social Security!

The time sure seems right for the Boomers to engage in adult conversations. No, not the type that Republicans chant and Jon Stewart unmasks. I speak instead of soul-searching colloquys on our bedrock values -- the kind of debates we used to have in college dorms late at night.

One good place to start is the Dream Act -- the previously bipartisan proposal that the GOP abandoned a few months ago in a defense authorization bill despite strong support from the military. The bill, which would legalize blameless out-of-status immigrant youth brought here by their parents, is a litmus test on our morality and our hope for the future. On one side, we pit an Arpaio posse of past-their-prime celebrities and their odious ilk. On the other, about a million young people tied to this country by lives lived nowhere else and legions of close American friends and family. The DREAMers are among the ones expected to fund the Boomers' Social Security and Medicare payments. These innocents are certainly no less oppressed than the people for whom the Boomers marched in the Sixties.

The DREAM Act will come up for a lame duck vote right after Thanksgiving. I support the bill because "small ball" is better than a rained-out game, but share the concerns of a letter writer commenting on a DREAM Act article in the New York Times Magazine who fears "that it will become a military-recruiting tool for young people of color who can’t afford college." (At least the California Supreme Court unanimously affirmed their right to in-state tuition.)

Even if proponents of functional immigration policies cannot now have the big enchilada (comprehensive immigration reform), in large part, because many of the Boomers abandoned their youthful values, we can at least pass the DREAM Act and follow a new POGO (the Project on Government Oversight). POGO is "a nonpartisan independent watchdog that champions good government reforms" and investigates "corruption, misconduct, and conflicts of interest [in order to] achieve a more effective, accountable, open, and ethical federal government."

Think about that the next time your package is handled by a government official who may find the screening as distasteful as you do. Maybe then we can have an adult conversation on balancing security and enlightened self-interest in all matters involving Homeland Security, including immigration.

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After witnessing an election that may shift most of the country and the federal government sharply to the right on immigration reform, I desperately needed a diversion. Preparing for two upcoming speaking gigs filled the bill. On Monday, I will speak on immigration to the Roman Catholic clergy of Orange County, California, and a week later, on the same topic at an "Intensive Institute for Journalists" -- "The Changing Face of America: Going Beyond the Rhetoric on Immigration," hosted by the UC Berkeley Institute of Journalism.

As I began to consider how to offer insights of value to these very different groups, an unexpected letter arrived from New York. Federal Judge Kimba Wood, a onetime Clinton nominee for Attorney General who voluntarily withdrew from Senate consideration, had read my recent post and wrote to chide me. (It's not every day that I receive a dressing-down from a federal judge.)

Judge Wood disabused me of the view that she should be lumped with other famous folks who "tripped on illegal immigration" and whose "hiring of an unauthorized foreign housekeeper, nanny or landscaper . . . [toppled or shook their] grand career plans." Citing a contemporaneous New York Times article, Judge Wood noted that she complied with all reporting requirements, including disclosures to the Immigration and Naturalization Service, and that as a result, "there was nothing 'unauthorized' about [the judge's] hiring of [her] son's nanny" who "still works for [her] and has become a U.S. citizen." Thus, she asked that before I ever include her among those who hired an unauthorized alien, I review her files.

While her nanny was indeed unauthorized for employment, the judge's hiring of the woman was not unlawful. This is because it would be yet another eight months (with President Reagan's signing of the Immigration Reform and Control Act of 1986) before Congress made it illegal for U.S. employers to hire workers while knowing that the individuals lacked work permission. Rather than quibble, and try to defend my technically accurate post, I now apologize to Judge Wood for casually lumping her into a category in which she did not squarely fit.

I also thank this jurist for helping me to put the current contretemps over immigration in historical perspective and to visualize a better denouement. Once before, as now, this nation was divided over immigration, yet a determined president (from California!), with help from humane pragmatists in Congress, passed a grand bargain that allowed for "legalization" of undocumented foreign citizens (it was never called "amnesty") and sanctions for employers with guilty knowledge who hire them.

Thus, the post-election analyses this week on the fate of immigration reform in the Republican-bolstered 112th Congress seemed altogether too Washington-centric and myopic for my taste. Insiders from business groups and community-based, grass-roots organizations both offered uniformly glum predictions:

• Expect nothing on immigration from the lame duck Congress.
• With two unsympathetic Republicans leading on immigration issues (Lamar Smith likely heading the House Judiciary Committee and Steve King the probable heir to Zoe Lofgren in the Immigration Subcommittee), anticipate a unilateral focus on border enforcement and a near-total disregard for comprehensive immigration reform or improvements to the legal immigration system.
• Do not be surprised if anti-immigration laws are tacked on like stealth earmarks to omnibus or appropriations bills, or if immigration bills with no chance of passage are put up for votes merely to score partisan points in future attack ads.
• Plan to spend time educating new senators and representatives on the importance of immigrants and temporary workers to job creation and economic stimulus.
• Anticipate a paucity of hope on immigration reform until after the presidential elections.

My view from California, however, which (like other western states) bucked the red tide, is more optimistic. Hispanics resurrected Senate Majority Leader Harry Reid from virtually certain retirement, and balked at electing Meg Whitman whose seeming heartlessness on the fate of her undocumented housekeeper repulsed many Latinos. Moreover, Coloradans put to pasture Tom Tancredo, the poster-child of venomous xenophobia and anti-immigrant hate speech.

Thus, the Latino-offending vitriol never paid off (Reid's opponent, Sharron Angle, told Hispanic students that "you look a little Asian to me;" Tancredo accused his opponent of supporting "sanctuary cities;" Whitman, speaking of her housekeeper, said, "she should be deported").

While Republican senators on the Judiciary Committee recently asked the Obama administration to estimate the cost of deporting all unauthorized immigrants in this country -- approximately $80 billion, according to a Los Angeles Times source from within the administration, this simply won't happen. Currently, with a budget of $5.7 billion per annum (the most ever), Immigration and Customs Enforcement (ICE) can only remove each year about 4% of the 11 million undocumented (390,000 people yearly). Given that Republicans are all about deficit reduction, it would take over 14 years under current funding to deport them all.

The problem of fixing the immigration system will not go away. The voices of the growing Hispanic demographic will only grow louder (witness the confrontation between a DREAM Act supporter and Russell Pearce, proponent of Arizona's SB1070, now newly elected President of that state's senate).

The competitive position of the U.S. will continue to slide until improvements to the legal immigration system are made that enable innovators, entrepreneurs and strivers to grow the economy. As both parties endeavor to create jobs (and, with luck and effort, to restore a good measure of prosperity), the fear level of the American people will likely subside, and be replaced by our historic hospitality to immigrants in better economic times. The election, in my view, revealed how little patience the voters have with diddling, dawdling and dithering incumbents. The same electoral outcome will likely be repeated next time, unless politicians perk up and produce positive results.

Persistence and patience will both be necessary. The civil rights movement did not succeed in one fell swoop; neither will the effort to craft humane, pragmatic and economy-growing immigration laws.

I know now what I'll say to the journalists. I'll explain in detail the many ways that immigration in this country is in such an advanced state of decrepitude that it is not only eating at our soul, but also preventing us from achieving economic prosperity and social rapprochement -- both of which are readily within our grasp. And I'll urge them to shine the bright light of truth on our dsyfunctional system, while outing immigration hypocrites along the way.

I know now what I'll tell the clergy. I will describe the challenges obstructing enactment of immigration reform laws, urge them to join the struggle, and pray with them the encouraging words of a Franciscan Benediction:

May God bless you with discomfort

At easy answers, half-truths, and superficial relationships,

So that you may live deep within your heart.

May God bless you with anger

At injustice, oppression and exploitation of people,

So that you may work for justice, freedom and peace.

May God bless you with tears

To shed for those who suffer pain, rejection, hunger, and war,

So that you may reach out your hand to comfort them

And turn their pain into joy.

And may God bless you with enough foolishness

To believe that you can make a difference in the world,

So that you can do what others claim cannot be done

To bring justice and kindness to all our children and the poor.

Trouble, we got trouble, right here in Immigration Country (apologies to Meredith Wilson, lyricist for The Music Man). As the song goes, "either you're closing your eyes to a situation you do not wish to acknowledge or you are not aware of the caliber of disaster indicated." I refer not to the ersatz "professor" Harold Hill's remonstration against the game of pool but rather to the mock justice that masquerades as an adjudication system at U.S. Citizenship and Immigration Services (USCIS).

As this is written, Sen. Chuck Grassley has called on the carpet Department of Homeland Security Secretary, Janet Napolitano, and asked the DHS inspector general to investigate pressures by the leadership at the USCIS's DC headquarters (USCIS HQ) allegedly exerted against adjudicators at the agency's California Service Center (CSC). The pressures reputedly imposed, the senator asserts, have attempted to foster a "culture of yes" and to require approval of requests for immigration benefits submitted by or for fraudulently conniving or legally undeserving parties.

The senator's ire had already been raised by a draft USCIS HQ memorandum leaked last July. The memo offered what appeared as a brainstorming session to outline ways to address dysfunctional elements of the immigration system (including temporary status for unauthorized migrants) if -- as appears likely -- Congress were to fail to enact comprehensive immigration reform legislation. After President Obama confirmed that there would be no back-door legalization plan, the noise generally subsided, except for the outraged grumblings of Sen. Grassley.

Over the summer two senior CSC officials were reassigned and a new CSC director appointed following recurrent stakeholder complaints that the CSC repeatedly and improperly had issued numerous, highly burdensome requests for evidence and flouted USCIS HQ policies in denying approvable cases, particularly in employment-based immigration cases. Sen. Grassley's staff has interviewed seven CSC adjudicators who regaled the staff with horror stories of allegedly improper actions by USCIS Director, Alejandro Majorkas. In the view of many lawyers, however, the charges against Mr. Mayorkas are a sham perpetrated by the inmates running the lower depths of the agency asylum who don't want their unaccountable antics, their "culture of no," to end. Early reports of stakeholders give Director Mayorkas high marks.

The problem with the Grassley charges, as AILA President David Leopold correctly observes, is that the senator is listening to a narrow group of complainers, in my view, an amen-chorus of wolves howling in the henhouse. The CSC grousers are no doubt the same ones who have stymied justice for years by writing outrageous kitchen-sink demands for documents (RFEs or Requests for Evidence), and issuing denial notices, notices of intent to deny petitions and revocations of prior petition approvals founded on specious and illegal grounds. If the DHS Inspector General, and better yet, Congressional oversight committees and the USCIS Office of the Ombudsman, are to investigate the adjudication system, then let's open the inquiry and solicit the views of knowledgeable stakeholders -- the individuals, businesses, community-based organizations and immigration lawyers with in-depth experience of USCIS and CSC abuse.

The situation, alas, is likely to get much worse before any improvement can be expected. This week USCIS convened an Administrative Appeals Office (AAO) "Listening Session" which offered the following highlights [with my response in brackets]:

• The practice of filing one or more petitions after the initial request is denied constitutes an "abuse" of process, according to USCIS. [If the AAO did not take years to decide petitions, and the economy could be held in suspended animation while an appeal wends its way to its dilatory conclusion, there would be little need to pursue a legitimate practice, not prohibited by current regulations, to file a second or subsequent petition seeking to resolve perceived deficiencies cited by the adjudicator.]
• The AAO engages in de novo review of facts and law and will deny petitions on grounds never asserted by the initial USCIS adjudicator. [The Board of Immigration Appeals, unlike the AAO, has issued detailed regulations to govern its proceedings, including a regulation, 8 C.F.R. § 1003.1(d)(3), that eschews fact finding and only considers de novo "questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges." Although the AAO conceivably could give appealing parties a chance to argue issues not raised in the first instance below, it rarely does.]
• The AAO intends to issue many more precedent decisions but will not make USCIS policy, although it does claim the authority to follow the reasoning of non-precedent decisions. [The problem with this approach is that development of the law is not advanced through notice-and-comment rulemaking as the Administrative Procedures Act contemplates, but by the advocacy skills of the single lawyer raising the appeal for the single party who appeals. Increasingly, however, multiple parties have tangible legal interests that are adversely affected even though USCIS regulations provides no right to appeal and requires the loss of interim legal rights as the cost of an appeal.]
• The AAO regularly consults with the Office of the Chief Legal Counsel on issues raised in appellate cases. [In tribunals that follow the rule of law, canons of legal and judicial ethics bar such unilateral contacts without notice and an opportunity for a hearing in which all parties and the court participate and the proceedings are transcribed for the sake of further legal proceedings.]
• The AAO adheres to USCIS policy but could not precisely define the sources of authority that constitute agency policy. [When a caller asked during the Listening Session to clarify, e.g., whether any of the many Neufeld Memorandums stand as USCIS policy, she was given no clear answer. Instead, she was asked to send in samples of agency documents to determine if the documents constituted policy, to which she replied that she would send in the documents once the agency defined what constitutes agency "policy."]
• Although the AAO considers itself a tribunal, not all of its "jurists" are lawyers. [While, as was claimed during the 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.]

With its current configuration and mode of operation, the AAO, not unfairly, could be likened to the Star Chamber, but on closer observation, that would be improper and defamatory because the Star Chamber, as the U.S. Supreme Court has noted, at least offered swift and efficient, if unfair, rulings:

'The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it - a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .' L. Friedman, A History of American Law 23 (1973). See generally 5 W. Holdsworth, A History of English Law 155-214 (1927). [Footnote 17 in Faretta v. California.].].]

The many-faceted flaws of the AAO, like the comparable deficiencies of the USCIS as an agency, and its predecessor, the Immigration and Naturalization Service, if not as longstanding as the Star Chamber, nonetheless bear some similarity to that ancient British court. As the conjoined history of INS and USCIS teaches us, "high state policy [cannot] be entrusted to a system so chancy as [the immigration law]."

The fundamental problems that plagued INS have persisted in the first seven years of USCIS, namely, the irreconcilable tensions between the enforcement mentality of so many in the agency and the customer-service mindset that would willingly grant immigration-related legal benefits to those supplicants who demonstrate -- based on a fair and reasonable review of the evidence and of existing eligibility criteria -- that they deserve to have their petitions granted. This problem was supposed to go away with the passage of the Homeland Security Act, which separated the benefits function from enforcement. Regrettably, the first major directive of the DHS Secretary, Delegation No. 0150, delegating duties to USCIS included police functions that predictably served to perpetuate the historic tensions, namely:

Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable.

Like I said, "we've got trouble in Immigration Country." Let the investigations begin. Let's become fully "aware of the caliber of disaster indicated." Let's fix this dysfunctional system once and for all.

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Prognosticators, pontificators and pundits across the political spectrum predict that, no matter the outcome of the November elections, grinding out any new laws in the next Congress will be especially difficult. The 24/7 news cycle, the "gotcha" politics of personal destruction, and the collective eyes on the big prize in 2012 will all make bipartisan lawmaking as likely as a natural reversal of global warming. With a subject as contentious as immigration, the prospect of comprehensive or piecemeal legislative reform is even more improbable.

What else can politicians do when lawmaking is nigh impossible? They can issue subpoenas, convene hearings, take testimony and investigate real or perceived wrongdoing, while calling malfeasants discovered in the process to account.

The universe of potential subjects of investigation is immense. The Senate Committee on Homeland Security and Governmental Affairs has the "duty" (among others) to study "the efficiency, economy, and effectiveness of all agencies and departments of the [Federal] Government" and evaluate "the effects of laws enacted to reorganize the legislative and executive branches." The House Committee on Oversight and Government Reform is that chamber's principal investigative arm. It is authorized to investigate "any federal program and any matter with federal policy implications."

As fingernails are chewed to the quick while awaiting the citizenry's November 2 decision, those who would lead the Senate and House government oversight committees should pass the time pondering the following non-exhaustive list of suggested immigration-related questions for their respective committees to investigate. (Please tweet me any questions that I may have omitted at @angelopaparelli, and I'll post a supplemental list.)

Department of Justice

• What tangible progress has been made in improving due process and the just and efficient administration of the Immigration Courts?
• Why has the inventory of cases awaiting resolution by the Immigration Courts reached a record high of 247,922 in June 2010?
• What steps have the Executive Office for Immigration Review (EOIR) and Homeland Security's police agency, Immigration and Customs Enforcement (ICE), taken to resolve these problems?
• Have conditions of foreign citizens in immigration detention improved or worsened since the New York Times and various advocacy groups reported on the deplorable treatment of detainees earlier this year?
• What steps are the EOIR and the DOJ taking to address the special needs of the more than 8,000 unaccompanied foreign children per year who are placed into immigration custody?
• How much does immigration detention and removal cost American taxpayers, and has the money been well spent?
• Why has the Attorney General not taken a more active role in exercising the power given under the Immigration and Nationality Act to resolve immigration-related legal issues, and why has he routinely deferred instead to the Departments of Homeland Security, State and Labor.

Department of Labor

• Why does the Department of Labor (DOL) -- as a prerequisite to issuing a labor certification -- require employers to prove a negative (the absence of available U.S. workers) when the Bureau of Labor Statistics is far better qualified to determine labor market unavailability?
• Why has the DOL failed to implement a Labor Market information Pilot Program to define up to 10 occupational classifications in which there are labor shortage, a program authorized by the Immigration Act of 1990 as an alternative to the labor-market test under the agency's PERM program?
• How does DOL justify the cruel hoax that the labor certification process (a theoretical labor market "test") perpetrates on U.S. workers who desperately seek employment?
• To what extent has DOL's elimination of the role of the 50 State Workforce Agencies in determining the local prevailing wage improved the accuracy and speed of wage determinations, lowered the cost or enhanced the operations of the H-1B, H-2A, H-2B and permanent labor certification programs?
• What is DOL doing to reduce the processing backlogs and delays associated with its PERM labor certification audits and its supervised recruitment programs, that now take years to complete?
• How much do the foreign worker labor certification and labor attestation programs cost American taxpayers, and has DOL spent the money wisely?

Department of State

 

• In what measurable ways, has the implementation of the Memorandum of Understanding between the State Department and the Department of Homeland Security made America more safe from security and terrorist threats?
• Does the State Department's reliance on its historic extraordinary powers over the issuance or refusal of visas (e.g., subjectively-applied and arbitrary grounds of visa refusal, lack of transparency, nonreviewability of visa refusals by the courts, authority to refuse or revoke visas without explanation of the reasons why, protection from disclosure of records, lack of attorney representation at consular posts) materially hurt America's reputation as a country committed to the rule of law, substantially hinder the entry of law-abiding foreign citizens to the U.S. or create ill will toward America among the citizens of foreign nations?
• What has State done to improve the operation of the online visa application system that has been plagued by software glitches(Form DS-160)?
• Why aren't Visa Office Advisory Opinions published so that the public can gain insight into the requirements of the immigration laws as interpreted by State?
• Why has State not implemented better, more efficient and less expensive ways to reduce the cost to American taxpayers and improve the operation of the visa system than those now in place (e.g., video-recording of consular interviews rather than the building of expensive consular posts)?
• Why hasn't State more frequently exercised its discretionary power to waive a visa applicant's physical presence in the consular district and instead resume the former practice of visa reissuance in the U.S. (this would cause suspected terrorists and criminals who apply for visas to be immediately arrested and prosecuted by the Justice Department rather than be allowed to escape apprehension or oppose extradition in a foreign country)?

 

Department of Homeland Security

• Why has ICE declined to investigate and prosecute most cases of immigration-benefits fraud even though the Homeland Security Act (HSA) tasks it with this responsibility?
• What steps has ICE taken to improve the accuracy of E-Verify and make it less prone to evasion by identity thieves and fraudsters?
• What steps has ICE taken to reduce the number of E-Verify "Tentative" and "Final" Non-Confirmations that improperly inconvenience lawfully authorized workers or deprive them of the right to work?
• What metrics can ICE produce to show the effectiveness of its current I-9 enforcement strategies?
• What studies has ICE conducted to determine the feasibility of alternative measures to enforce the immigration laws against persons or entities who employ workers while knowing of their unauthorized status?
• What specific progress has U.S. Customs and Border Protection (CBP) made to enhance border security and prevent illegal entries, and how much has it cost and will it cost American taxpayers?
• Has CBP responsibly exercised its authority to order expedited removal without judicial review or has the agency unjustly deported significant numbers foreign citizens for reasons not grounded in law?
• Has CBP engaged in illegal profiling by country of nationality when seeking to identify immigration-related violators, as suggested by incidents this year at the Newark airport port of entry involving Indian foreign workers (AILA document 10020237)?
• What protections has CBP put into place to assure that constitutional rights are not violated when searching laptops, cell phones and thumb drives at ports of entry and border posts?
• What is U.S. Citizenship and Immigration Services (USCIS) doing to eliminate or minimize the inherent tension and conflicting missions that originated with the legacy agency (Immigration and Naturalization Service [INS]) and still persists between benefits adjudication (the work of district and regional offices) and law enforcement (the activities of its Fraud Detection and National Security Directorate [FDNS])?
• By what legal authority does FDNS investigate civil and criminal violations of the immigration laws in the guise of performing "administrative inquiries" even though the HSA places this responsibility exclusively on ICE and CBP?
• To what extent does FDNS deprive petitioners and applicants for immigration benefits of the right to counsel by conducting surprise site visits of parties represented by counsel?
• Have lawyers in the USCIS Office of Chief Counsel expressly approved FDNS's administrative inquiries, notwithstanding the ethics rule in all 50 states that prohibits an attorney from engaging in direct or indirect communications with a represented party?
• Why has the Administrative Appeals Office (AAO) failed to reduce its longstanding backlogs that now exceed one year in temporary worker cases and two years in green card cases?
• Does the AAO, an administrative tribunal, merely interpret and apply the law or also formulate immigration policies?
• Does the AAO engage in any ex parte communications with other units of USCIS in reaching its decisions or does it abide by the usual prohibitions against unilateral tribunal contact with only one party to a proceeding?
• What were the root causes of the adjustment of status (AOS) "surge" in the summer of 2007 that required an unprecedented 30-day extension to file for AOS despite an unavailable immigrant visa quota and what has been done to prevent a recurrence?
• Why has USCIS repeatedly failed to fully utilize the annual allotment of immigrant visas, thereby causing hundreds of thousands of green card opportunities to be lost due to bureacratic delays at the close of successive fiscal years?
• Why has USCIS failed to regularly engage in notice and comment rulemaking and publish proposed new rules on statutes that have existed for several years, e.g., the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)?
• What measures has USCIS adopted to sanction Immigration Officers who flout agency policy?
• Has the USCIS considered the adverse effect of its use of Requests for Additional Evidence and its soon-to-be adopted VIBE program on business petitioners, especially on small businesses and startup entities?
• Why has USCIS not developed and published a comprehensive policy and procedure for determining the continuity of employment authorization, the preservation of pending immigrant visa eligibility across all immigrant and nonimmigrant employment-based visa categories, and eligibility for successorship in interests in situations involving mergers, acquisitions, spinoffs and other forms of corporate restructuring?
• Has the immigration user-fee system of funding USCIS operations proven sufficient to maintain homeland security and a functioning benefits-adjudication system during times of low demand, or, must governmental appropriations be increased to provide a consistent base level of funding?
• Why has the USCIS Office of the Ombudsman not established representative offices in each of the 50 states as authorized by law?
• Why has the USCIS Office of Transformation shown so little visible progress even though "Transformation" has been an initiative of legacy INS and USCIS for decades (e.g., why can't supporting evidence be submitted electronically with e-filed applications and why must foreign citizens repeatedly submit to the retaking of unchanging fingerprints when port-of-entry fingerprint scanning has been in place for years)?

* * *

The foregoing are but a few questions that our congressional Oversight Committees should ask. American taxpayers have for too long been the unfortunate "beneficiaries" of our dysfunctional immigration system. If laws cannot be passed to improve the system, then Congress and the Executive Branch must work together to identify and eliminate the waste, inefficiencies, blunders, and law violations that plague the existing immigration system. A Nation of Immigrants must demand nothing less.

 

Dear Stephen,

I've been letter-writing lately on immigration -- to Glenn Beck and to the Editor of The New York Times. As a loyal American and a citizen of ColbertNation, it's high time I correspond with you.

I'm writing to applaud your appearance before the House Judiciary Committee during "Protect Our Harvest," the Immigration Subcommittee hearing on Sept. 24. I leave it to others to decide if your first formal appearance in Congress outdid your hosting of the 2006 White House Correspondents Dinner, but -- in my view -- you definitely gave farm-worker immigration the Colbert Bump. Your prepared remarks for the record were very good, but your live testimony was outstanding. You certainly know how to fill a hearing room (one representative noted that the House hadn't seen such a crowd since the impeachment hearings).

Predictably, narrow-minded observers in the media and the world of politics have criticized your testimony as a comedic stunt and waste of taxpayer dollars, even going so far as to demand that you apologize to the American people! How little do these critics understand history.

You showed your cred as a master historian, reminding the legislators that "it was the ancient Israelites who built the first food pyramids." Beyond your knowledge of American history, you also know well the wisdom of the ancient Romans, including the poet and writer, Decimus Iunius Iuvenalis, known by more juvenile students as Juvenal. As you know, he coined the term, panem et circenses (bread and circuses), the time-tested, if cynical, observation that the best way to govern is to appease people with food and entertainment.

You did both:

1. You gave us entertainment (asking why scientists can't grow vegetables that pick themselves since the "genetic engineers over at Fruit of the Loom have made great strides in human-fruit hybrids").
2. You also offered sustenance. In the run-up to your testimony, as one of 16 fearless Americans, you accepted the "Take Our Jobs" challenge of the United Farm Workers. You worked for an entire back-breaking day on an American farm, picking beans (something you noted that even the "invisible hand" doesn't want to do) and packing ears of corn -- to be turned into high-fructose corn syrup, an ingredient in virtually all the pablum that most Americans eat.

Describing the experience, tears came to your eyes, as you said:

I started my workday with preconceived notions of migrant labor, but after working with these men and women picking beans, packing corn for hours on end side by side in the unforgiving sun, I have to say -- and I do mean this sincerely -- please don't make me do this again. It is really, really hard work.

You also offered a way out of the controversy:

Maybe we could offer more visas to the immigrants who, let's face it, would probably be doing these jobs anyway. And this improved legal status might allow immigrants recourse if they're abused. . . . [It] just stands to reason to me that if your co-worker can't be exploited, then you're less likely to be exploited yourself. . . . [That] itself might improve pay and working conditions on these farms, and eventually Americans may consider taking these jobs again.

In reply to a question, you explained your underlying motivation for offering testimony:

I like talking about people who don't have any power and it just seems like one of the least powerful people in the United States are migrant workers who come and do our work but don't have any rights as a result. And yet we still invite them to come here, and at the same time ask them to leave. . . .

'Whatsoever you do for the least of my brothers [quoting Jesus]', and these seem like the least of our brothers right now. . . A lot of people are least brothers right now because the economy's so hard and I don't want to take anyone's hardship away from them or diminish anything like that, but migrant workers suffer and have no rights.

I agreed with you when you also testified that "Americans are tough." But toughness alone won't put food on our tables or keep fruit and vegetables from rotting unpicked.

AgJOBS, the Agricultural Job Opportunities, Benefits and Security Act, will get our produce to market and to table. Although you didn't read it, AgJOBS, a bill pending over several sessions of Congress, is now languishing as S. 1038 and H. 2414. Tamar Jacoby of ImmigrationWorksUSA has explained the need for AgJOBS in a letter to its lead sponsor in the Senate, Diane Feinstein:

Fewer and fewer Americans are interested in farm jobs. The vast majority of farm workers are foreign-born. And by helping to keep American agriculture afloat, this foreign labor force sustains literally millions of farm-dependent jobs in other sectors of the U.S economy. The problem is that the existing channel for seasonal farm workers to enter the country legally is far from adequate – it supplies workers to fill only two to four percent of available job opportunities. And as a result, the vast majority of foreign farm workers in the U.S. are believed to be unauthorized.

The beauty of AgJOBS is that it addresses this problem both retroactively and by looking forward. It alleviates the risk and instability that growers and farm workers face now – and promises an adequate future flow of needed farm labor by reforming the dysfunctional H-2A [temporary agricultural worker] program.

All of us know the sad legacy of the Bracero Program. The ending of that effort in 1964, however, did not solve the migrant labor shortage. While you continue offering us your evening circuses, please continue helping to make sure that the politicians finally deliver the bread.

Your fan,

 

Angelo A. Paparelli

Blogger, www.NationOfImmigrators.com

p.s. If you want to know more about our dysfunctional immigration system, invite me on your show.

 

James Carville's famous snowclone on how to win an election -- "It's the economy, stupid!"-- has new, very buff legs. With the traditional Labor Day launch of campaign season just six days ago, the American people have already witnessed the fur of political charges and countercharges flying. The 24/7 news cycle and the ocean of tweets, blogs and YouTube videos reveal a viral debate over which of the two parties is most responsible for the lingering frailty of the economy and the blight of persistent joblessness.

Ruling out a fight for another massive stimulus bill, President Obama has opted for small-scale measures to help businesses gain the temerity to hire again. The GOP –- confident of an election landslide ahead -– espouses a permanent extension of the Bush tax cuts (subliminally if not overtly concluding that “deficits don’t matter”).

Meantime, America continues its slide from the economic pinnacle. The World Economic Forum reports that the U.S. is now ranked behind the three S’s (Switzerland, Sweden and Singapore) in the WEF’s "Global Competitiveness Report 2010-2011." And unlike past recessions, IT jobs will not lead the way because these jobs increasingly are moving offshore, as the New York Times reported in a Sept. 6 front-page story:

“There’s been this assumption that there’s a global hierarchy of work, that all the high-end service work, knowledge work, R.&D. work would stay in U.S., and that all the lower-end work would be transferred to emerging markets,” said Hal Salzman, a public policy professor at Rutgers and a senior faculty fellow at Heldrich Center for Workforce Development. “That hierarchy has been upset, to say the least,” he said. “More and more of the innovation is coming out of the emerging markets, as part of this bottom-up push.”

While politicians debate such vacuous notions as excising birthright citizenship from the 14th Amendment, a few followers of the dismal science are pointing to legal immigration (including a penalty-laden legalization of unauthorized migrants) as the way forward. So writes Slate's James Ledbetter in "Give Us Your Tired, Your Poor. Really. We Mean It. Economists are making the case politicians are afraid to: Immigration is great for the U.S":

Pro-immigration arguments are booming, and reached a zenith this week with the publication of a paper by the San Francisco Federal Reserve Bank, arguing among other things that immigrants, despite popular misconception, do not displace American workers. This has led a number of economic bloggers to make the very rational argument that one of the best things America could do now to fix our sagging economy is to encourage more people to come here and work. According to the econo-blogosphere lately, immigration is a cure-all for America's economic ills.

Ledbetter offers three reasons why immigration promotes prosperity: (1) Immigrants create demand for housing ("[e]xpand the number of [H-1B] visas granted, make them contingent on buying a house, and the newcomers will make a fast and substantial dent in the glutted market"); (2) they can be the necessary replacement workers as Boomers retire (as they contribute vastly more to Social Security than they receive); and (3) they pump the economy.

Our history teaches that immigration brings new ideas and energies and drive. A new book by Richard Herman and Robert L. Smith, Immigrant, Inc.: Why Immigrant Entrepreneurs Are Driving the New Economy, explains why it's important for Americans to "Think Like an Immigrant." Immigrants, Herman and Smith note, bring a "culture of entrepreneurship that stems from education, thrift, family loyalty and ambition."

Even the field of psychology, with research derived from Cradles of Eminence, a study of the childhoods of 700 prominent high-achievers, is offering its own take on why immigrants help our economy:

Creative people are complex, meaning that they see the world from multiple perspectives. This is an adaptive response to complex inputs during childhood. We are all constantly trying to make sense of the world we live in and the more complex our experiences, the more challenging this proves to be. This challenge is the key to creativity

Biographically speaking, creative people have a foot in two camps. In the U.S., for example, immigrants are seven times more likely to excel in creative fields compared to individuals whose families have lived here for generations

So as Congress reconvenes this week and prioritizes its short-term, pre-election "To-Do" list, here's hoping it will take another look at immigration, not as every pol's favorite whipping boy, but as the engine of job-creation and renewed economic vitality that it truly is.

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"I'm having to deal with the reality of what is. You can't wish it away. What is, is." So says a glum Ohio Democrat, Governor Ted Strickland, according to reporter Laura Meckler in this weekend's edition of The Wall St. Journal ("Democrats Face Economic Facts: Updraft Unlikely"). Meckler's article reports on the prospect that Democrats "will lose their majority in the House," citing two nonpartisan election handicappers, the Rothenberg Political Report and the Cook Political Report.

What would shared power portend for immigration reform if the GOP took control of one or both houses of Congress? Before that question can be answered, Republicans must first resolve conflicting policy arguments among themselves.

Last night, conservative talk show host Laura Ingraham (and Kerry-like flip-flopper, "I was for the Ground Zero Mosque before I was against it") subbing for the eponymous host of the O'Reilly Factor, highlighted the tensions on immigration within the Party of Lincoln. In in a segment entitled "Is the Tea Party Toxic for the GOP", Ingraham confessed that she found it hard to distinguish immigration policy sentiments of "influential conservative" Michael Gerson, a former Bush speechwriter, from those of former Democratic Party Chairman, Howard Dean, and über-liberal, MoveOn.org.

Gerson's jousting with Ingraham was prompted by his recent Op-Ed piece in the Washington Post, in which he worried aloud about the Tea-Party leanings of the GOP on immigration:

A . . . question of Tea Party candidates: Do you believe that American identity is undermined by immigration? An internal debate has broken out on this issue among Tea Party favorites. Tom Tancredo, running for Colorado governor, raises the prospect of bombing Mecca, urges the president to return to his Kenyan "homeland" and calls Miami a "Third World country" -- managing to offend people on four continents. Dick Armey of FreedomWorks appropriately criticizes Tancredo's "harsh and uncharitable and mean-spirited attitude on the immigration issue." But the extremes of the movement, during recent debates on birthright citizenship and the Manhattan mosque, seem intent on depicting Hispanics and Muslims as a fifth column.

There is no method more likely to create ethnic resentment and separatism than unfair suspicion. The nativist impulse is the enemy of assimilation. In a nation where minorities now comprise two-fifths of children under 18, Republicans should also understand that tolerating nativism would bring slow political asphyxiation.

Tolerating or opposing nativism is not the only irreconcilable immigration difference within the GOP. In the immigration sphere, Republicans must decide if they are for or against: (1) protectionism, (2) small-business entrepreneurship, (3) intrusive government regulation, and (4) higher taxes. The posts linked in the preceding sentence suggest that these seemingly easy questions are surprisingly difficult to answer for a party that loudly proclaims its allegiance to free-market capitalism.

Setting aside their policy differences over how best to tackle the problem of illegal immigration, Republicans must decide whether they will push for reforms of the system of legal immigration that foster rather than impede economic prosperity. They must decide whether (a) Sen. Chuck Grassley (R. IA), who sides with Sen. Dick Durbin (D. IL), in opposition to the H-1B and L-1 work visa categories, will be their standard-bearer on employment-based immigration, or (b) the GOP will at last heed the long-repeated warnings of business leaders who foretell a deepening slide in our global competitiveness unless more innovation-friendly immigration policies are quickly enacted.

Republicans cannot have it both ways on immigration. They cannot remain silent when American Apparel, a company that has insisted on producing goods within the U.S. using domestic workers, reportedly suffers a sharp decline in stock price by the loss of a huge chunk of its workers because the federally-imposed system of employment-eligibility verification is broken, as Fast Company and the L.A. Weekly report. (WARNING: Those with Victorian sensibilities should NOT click on the Fast Company link and instead check out L.A. Weekly, while more worldly readers who'd like a new answer to the perennial presidential campaign question, "Boxers or briefs?, may run with Fast Company.)

Republicans will not win over many Mama and Papa Grizzlies, or their voting-age cubs -- especially those working in the Human Resources departments of companies owned by members of any political party -- if the immigration laws now in force treat them like (gender-irrelevant) "fall guys." As Ted Chiappari and I note in this week's New York Law Journal ("Lawbreaker, Naïf or Stooge? – The HR Representative and I-9 Crimes"):

While large-scale foreign-national employee prosecutions and removals in connection with worksite raids under the Bush administration attracted more publicity, the number of criminal prosecutions of business owners and managers also increased. The Obama administration has moved away from high-profile worksite raids, favoring instead “audits” (called “silent raids” by some) that in effect force employers to terminate the employment of unauthorized workers. Even so, Homeland Security Secretary Janet Napolitano in her Senate confirmation hearings also pledged “appropriate criminal punishment” for “unscrupulous employers.” So, regardless of which party is in office, employers and their human resources representatives have to be aware of potential criminal liability. (Footnotes omitted.)

The GOP would be wiser to consider another alternative than criminalization of employers under the immigration laws, perhaps something like the New Employee Verification Act (NEVA), a bill sponsored and defended by Rep. Sam Johnson (R. TX) that has been languishing since first introduced in April 2009. NEVA would take the onus of employment-eligibility verification off the backs of business and place it rightfully on the government (or authorized third-parties).

However the Republicans resolve their multiple-personality disorder on immigration, if they succeed in taking the House, they should use their newfound authority wisely and in the best interests of the nation. Rep. Darrell Issa (R. CA) would chair the House Oversight Committee, and wield the power to convene hearings, including sessions on the administration of our immigration laws. Rather than Obama-Administration witch hunts, as many fear, perhaps Rep. Issa will use his hoped-for new authority to ask what Republicans and surviving Democrats can do -- in legion with the Obama Administration -- to make the system of legal immigration a jump-starter for America's economy.

For a supposedly-sleepy dog day of summer, last Thursday produced a disturbing clash of views on employment-based immigration in the two Washingtons -- DC and WA.

Seattle, about as far from the Beltway as one can go in the lower 48, hosted the Northwest Summit of ImmigrationWorks -- a coalition of large and small businesses bent on reforming the immigration laws in ways that will enable the economy to grow. At the same time, the Senate reconvened from its recess for about a half hour to pass H.R. 6080, a $600 million border enforcement law whose protectionist elements triggered an immediate complaint from the Government of India to the U.S. Trade Representative.

The Northwest Summit offered speaker after speaker from far-flung industries describing a set of immigration rules and restrictions that prevents the economy from growing. Throughout the day, farmers, seafood harvesters, restaurant owners, executives in the service industries, and entrepreneurs in technology companies decried a broken system that demonizes law abiding businesses for the failings of federal officials. Even more compelling were the corridor conversations where individual business owners -- grizzled veterans of their industries -- spoke privately of the fear of criminal prosecution and loss of livelihood despite scrupulous efforts to obey the immigration laws and the daunting challenge of running legitimate businesses plagued by domestic labor shortages.

A continent's width away, Senator Charles Schumer, lead Democrat on immigration policy, defended the financing mechanism for the border bill -- the doubling of H-1B and L-1 visa filing fees -- as a poetically just surcharge on companies whose very "business model" contravenes Congressional intent and "[is] ruining the reputation of the H-1B program." He blamed these firms (which he had earlier called "chop shops" but corrected himself and then termed them "body shops" that engage in "labor arbitrage") for a host of ills:

According to the Economic Policy Institute, [misuse of H-1B visas by these companies is] lowering the wages of American tech workers already in the marketplace [and] . . . discouraging many of our smartest students from entering the technology industry in the first place [because they balk at paying tuition for advanced degrees] when the market is being flooded with foreign temporary workers willing to do tech-work for far less pay. . . .

Congress does not want the H-1B program to be a vehicle for creating multinational temp agencies where workers do not know what projects they will be working on or what cities they will be working in when they enter the country. The fee is solely based on the business model of the company, not the location of the company.

If you’re using the H-1B to innovate new products and technologies, that’s a good thing regardless of whether the company was originally founded in India, Ireland or Indiana. But If you're using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of this program, I and my colleagues believe you should have to pay a higher fee to ensure that American workers are not losing their jobs because of the unintended uses of the visa program, and this belief is consistent whether the company that uses these practices is founded in Bangalore, Beijing or Boston. . . .

[Based on press reports, the] leaders of this business model are agreeing that our bill will make it more expensive to bring in foreign tech workers to compete with American tech workers for jobs here in America. That means these companies are going to have to start to hire U.S. tech workers again. . . . This bill [thus] has the . . . advantage of creating more high paying American jobs.

Sen. Schumer's rationale for sticking foreign companies who sponsor H-1B and L-1 workers in volume with the cost of protecting the U.S. border is flawed on several counts:

The Senator cites no evidence that American students are refraining from the study of STEM (science, technology, engineering and math) subjects because of a flood of lowly paid tech workers. As the White House attests, good STEM teachers make for dedicated STEM students. Rather, a report prepared by Public Agenda for The National Center for Public Policy and Higher Education confirms that, as a general matter, "many Americans are becoming more skeptical about whether colleges and universities are doing all that they can to control costs and keep tuition affordable." Thus, the skyrocketing of tuition costs, not a deluge of poorly compensated foreign workers, is the primary reason that some students refrain from pursuing higher education.

The meme that the H-1B visa program allows access to underpaid foreign workers ignores the law's requirements. As the American Immigration Lawyers Association made clear in challenging the findings of an Economic Policy Institute report (a study prepared in partnership with the AFL-CIO, and the same report cited by Sen. Schumer):

The H-1B program carefully protects wages by requiring that companies pay the higher of the wage paid by their competitors for comparable positions or the wage the company itself pays to other comparable workers. These protections are enforced by the Department of Labor and non-compliance already includes heavy penalties, including complete bars from petitioning for any foreign worker. Furthermore, H-1B employers are required to pay a $500 fraud prevention and detection fee for the initial H-1B petition which funds the government's ability to investigate potential fraud in the H-1B program, not to mention the fee of up to $1500 filed with each petition to help train U.S. workers. If employers are deliberately violating the program requirements, the DOL can and should levy penalties. But the characterization of these programs as a means of obtaining cheap, indentured labor is false and irresponsible.

Temporary staffing agencies are not the same as global sourcing companies that provide IT and business-process solutions and other innovative services. Temp agencies, whether domestic or foreign, supply temporary workers to fill short-term needs, sometimes at lower costs. Global sourcing enterprises use a legitimate business model that significantly benefits governments, businesses, citizens and customers by offering better quality, 24/7 service across time zones, and speedier start-up and delivery, while allowing customers to focus on core competencies. Global service providers are not "glorified international temp agenc[ies]." They are no less vital to American businesses than are the hundreds of private contractors who serve the federal government, including the Departments of Justice and Homeland Security. Regrettably, the border-law's definition of businesses that must pay the ramped-up H-1B and L-1 filing fees is not carefully tailored to reach only temp agencies engaged in body-shop activities. It unjustly imposes a protectionist tax on legitimate multinationals in the global sourcing industry.

The fees generated by the new border law won't "ensure that American workers are not losing their jobs because of unintended uses of the visa program." None of the money raised will be provided to the two government units with primary authority to investigate and enforce H-1B and L-1 visa requirements -- the Department of Labor (Wage & Hour Division) and the Fraud Detection and National Security division of U.S. Citizenship and Immigration Services. Rather, as the last sentence of the border bill provides, "all amounts collected pursuant to the fee increases authorized . . . [must] be deposited in the General Fund of the Treasury."

The border law is not a carefully crafted statute intended to pay for border security by making it more costly for a narrow band of perps to engage in a specific type of visa abuse. It is blatant protectionism, something that hurts all of us in the long run, as Milton Friedman reminded us soon before his death. President Obama and a number of world leaders were right last March when they said:

The G20 [nations] must go beyond merely advocating for trade and against protectionism. . . We must continue to resist protectionist pressures, and to promote liberalization of trade and investment through the national reduction of barriers . . .

Notwithstanding these anti-protectionist sentiments, each time the President has had the chance to sign a new bill containing immigration provisions, protectionist elements crept in. It happened with the Employ American Workers Act and now again with the border law. It's clear that NYU Law Professor, Samuel Estreicher, could have been speaking of the border law when he said:

Over the last several decades, trade unions in the United States increasingly have been unable to realize their objectives at the bargaining table and have turned more and more to politics.

It's little comfort to multinational businesses that they dodged a bullet this time. Free-trade opponents and their Congressional enablers have even more changes planned -- enfeebling amendments to the H-1B and L-1 visa categories that "carry a significant likelihood of being ruled inconsistent with U.S. commitments under the GATS [the General Agreement on Trade in Services]." Still, the H-1B category is not without its supporters. Even the vehemently anti-immigration organ, the Center for Immigration Studies, has found a reason to support the beleaguered visa category: The Center proposes H-1B visas for foreign judges who can be imported to the U.S. to help in ordering the deportation of removable aliens.

As Yakov Smirnoff, the Russian émigré, sardonically observed:

"What a country!"

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Amid all the pre-election hurling of vituperative, partisan accusations this week over a Federal Court's partial injunction against AZ SB 1070 (Arizona's foray into federal immigration enforcement), you would be forgiven if you overlooked two small but significant creatures in the immigration ecosystem.

A pair of remedial immigration bills, passed by the Senate Judiciary Committee, awaits a vote in the Senate. Their significance is not merely because they are examples of a rara avis -- that nearly extinct form of billmaking distinctive for its bipartisan features. Nor are they significant for the hopeful promise suggested by their titles -- The Refugee Opportunity Act, S. 2960, and the Return of Talent Act, S. 2974. Rather, theirs is a semiotic significance in that they symbolize, in microcosm, many things wrong with the federal immigration system.

The purpose and scope of the measures are described in www.micevhill.com (a wonderful compendium of all things immigration):

Return of Talent Act.The Senate Committee on the Judiciary has approved S. 2974, the "Return of Talent Act," which was introduced in the Senate by Senate Foreign Relations Committee Ranking Republican Richard Lugar (R-IN) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT). As approved by the Committee, S. 2974 would establish a new program, called the "Return of Talent Program." The new program would allow up to 1,000 aliens per year who are legally present in the United States to return temporarily to the country of their citizenship or nationality and have the time spent outside of the United States count toward towards the naturalization physical presence requirement. In order to be eligible for the program, an alien would have to be returning to a country that is engaged in post-conflict or natural disaster reconstruction, and the alien would have to be "making a material contribution to reconstruction efforts" in his or her country of citizenship or nationality. . . .

Refugee Opportunity Act.The Senate Committee on the Judiciary has approved S. 2960, the Refugee Opportunity Act, which was introduced in the Senate by Senate Judiciary Commitee Chairman Patrick Leahy (D-VT) and Senate Foreign Relations Committee Ranking Republican Richard Lugar R-IN). As approved by the Committee, S. 2960 would exempt aliens who have been admitted as refugees or granted asylum and are employed overseas by the Federal Government from the one-year-long physical presence requirement for adjustment of status to that of aliens lawfully admitted for permanent residence. . . .

If the[se] measure[s] [are] taken up by the Senate, [they] likely would be taken up by unanimous consent. That cannot happen until the measure[s] [have] been cleared by the Senate Democratic and Republican Cloakrooms.

So what's wrong with two benign measures that allow law-abiding foreign citizens to be absent from the United States for worthy reasons? The fault lies not in the good intentions of their sponsors but in the havoc they would unwittingly wreak on the administration of the immigration laws and the disrespect for the rule of law the measures would engender:

• Both bills contribute to the public's frustration over immigration in that they make small-bore corrections of comparatively minor problems when comprehensive solutions to much larger societal ills cry out for redress.
• Both bills are unfunded mandates, unlikely to be paid by the government (despite the foreign policy interests that inspire them) but by the already rickety user-fee apparatus that leaves USCIS without a reliable and consistent revenue stream.
• Both bills will likely require the revision and approval of new immigration forms and the writing of regulations in compliance with the Administrative Procedures Act -- a time-consuming duty honored by agencies more in the breach than the observance -- or by policy memoranda, agency documents of uncertain legal authority.
• Both bills add to the towering babble of complexity that is the Immigration and Nationality Act (INA).
• Both bills undermine existing legal principles and policy choices embodied in existing law (eligibility criteria for asylees to become permanent residents and for permanent residents to naturalize).
• Both bills raise the question: If this measure is a good idea to solve an existing problem, then why does it stop short of a complete remedy?
• Both bills create significant problems of proving eligibility in that they require the applicant for the statutory benefit to establish conditions that occurred abroad, often in countries facing significant turmoil and disorder.

Take The Return of Talent Act. The bill begins by making an absurd statement. A person shall be considered physically present in the U.S. even though the individual is in a foreign country. Why not just say that the physical presence requirement will not be imposed on persons who fit within the conditions stated in the new law. Mush that defies facts already exists in abundance in the INA. Congress should not add to the pile.

Furthermore, the bill allows doctors and health care professionals to be away from the U.S. and still qualify for naturalization if they provide services in a country "engaged in post-conflict or natural disaster reconstruction." What about ecologists, builders, architects and scientists who want to help in natural-disaster reconstruction? What about lawyers and judges who want to help draft new constitutions and set up new court systems and democratic governments in countries that have achieved a fragile peace after prolonged conflicts ended? The Return of Talent Act does nothing for these worthy volunteers or for the U.S. national interests that they would serve. Worse yet, even if the bill takes only a first step in addressing a problem, and if it's a good first step, why limit the law to only 1,000 persons per year? Why create a new and costly bureaucratic structure and an obligation to report results to Congress periodically for such a pittance of an improvement over the status quo?

The Refugee Opportunity Act is also flawed. It provides, among other things, that a person already granted refugee or asylum status can qualify for a green card even if the individual returns to the country of feared persecution. All that is minimally necessary under the bill is for the person to be employed by a U.S. contractor in the "alien's country of nationality or last habitual residence [for up to one year] . . . under the protection of . . . a [U.S. government] contractor while performing work on behalf of the U.S. Government during the entire period of employment." What does this provision say about asylum law? It suggests that the proven fear of persecution disappears if the person goes back to the country of persecution under the protection of a U.S. government contractor. How would the person prove that they were under the protection of the contractor? Would coming back alive be enough? Would the contractor's word be sufficient, or, would USCIS require photos of armed security guards hovering around the asylee to protect her while she works for the contractor?

My point is that current immigration laws -- as admittedly atrocious as they are in many aspects -- should not be made more complicated, costly, illogical and unfair by small-scope measures that sound patriotic in theory but are woefully deficient and misguided when the laws of unintended consequences that they would unleash are considered. Congress must work together -- Republicans and Democrats -- to fix the broken system in a comprehensive way that fully achieves the important national interests that an enlightened immigration policy could serve. Don't just put a bandage -- even if it's a pretty one -- on a patient in extremis.

[Y]ou have to be prepared at any moment to face difficulties and even dangers by knowing what to do and how to do it.

Agnes and Robert Baden-Powell, How Girls Can Help to Build Up the Empire

Be Prepared in [m]ind . . . by having thought out beforehand any . . . situation that might occur, so that you know the right thing to do at the right moment, and are willing to do it.

Robert Baden-Powell, Scouting for Boys - Campfire Yarn No. 3 - Becoming a Scout

Excerpts from the Scout Motto: "Be Prepared."

When immigration-beat writers for the Sentinels of the Left and Right, the New York Times and the Wall St. Journal, report on a new trend in government enforcement actions against employers, prudent businesses must take note.

The NYT's Julia Preston reports: "The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies' records for illegal immigrant workers." In a similar vein, Miriam Jordan of the WSJ writes: "Even as the Obama administration cracks down on companies that hire illegal immigrants, it is simultaneously going after employers that it says go too far in vetting job applicants to ensure they are entitled to work in the U.S."

The truth is many U.S. employers are as eager to think about immigration audits as are politicians thrilled to be You Tubed during a lurid escapade in the Red Light District. When it comes to U.S. immigration enforcement trends, however, "struthiousness" is downright reckless. (No, that's not a word coined by Stephen Colbert, but rather an obscure noun meaning ostrich-like behavior -- averting one's eyes from a clear and present danger and pretending it's not there.)

As my colleague, Nici Kersey, and I note in our recent AILA Annual Conference article ("No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters"), readiness for the immigration agents' knocks on the door is essential. The threat stems not merely from ICE (Immigration and Customs Enforcement), but also from an array of ALL-CAPS federal agencies that enforce immigration regulations governing the worksite: The OSC (the DOJ's Office of Special Counsel for Unfair Immigration-Related Employment Practices), FDNS (the USCIS's Fraud Detection and National Security division within DHS), and the DOL's OFCCP (Office of Federal Contracts Compliance Programs) and WHD (not to be confused with WMD or WD-40 -- it's the Wage and Hour Division).

As the article explains, immigration-enforcement preparedness must involve not just HR and the office of general counsel. Rather, it requires a host of additional corporate players: Occupants of the "C" Suite (the CEO, COO, CFO, CIO and others), the messengers (corporate communications), the internal enforcers and protectors (corporate compliance and corporate security), the greeters (the receptionists), and of course, foreign workers (whether employed by the corporation or by its vendors) and your immigration counsel, to name a few.

Readiness is also about checklists, protocols, data collection (the required immigration paperwork and related personnel, payroll and tax information), internal compliance audits and practice drills. Immigration preparedness involves strategic choices and business judgments that must mesh with the company's corporate ethos and culture. All of this preparation takes time.

Forewarned is forearmed. Be good Scouts!

I don't live in Washington, but almost every time I travel there, as I've done this week, something comes over me. Inside the Beltway, talk can give off the illusion of action. The mouthing of words, however powerful on the printed page or eloquent when spoken, is seen here as equivalent to progress.

President Obama's July 1 speech on immigration has been described as "a very clear call for action" that places pressure on Capitol Hill -- a euphemism for Republicans and wobbly-kneed Democrats -- "to answer." This time, however, the phantasmagoric politics of the city didn't sway me, and the President's speech fell flat. Words, though artfully phrased, can come too late, or be delivered with too little energy, to reach (let alone pass) the tipping point.

As I told the Orange County Register:

He said all the right things [but] I didn’t see the passion in the delivery I would have liked. . . . it was ultimately unsatisfying. It’s always puzzled me, frankly, because I had . . . naively assumed that the son of a Kenyan immigrant would care more, [b]ut I just don’t see the fire in the belly.

One passage that employed a classic straw man argument -- an oft-utilized Obamian rhetorical flourish -- really troubled me:

There are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws. And often this argument is framed in moral terms: Why should we punish people who are just trying to earn a living?

I recognize the sense of compassion that drives this argument, but I believe such an indiscriminate approach would be both unwise and unfair. It would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration. And it would also ignore the millions of people around the world who are waiting in line to come here legally.

Who is suggesting that we simply provide people who are here illegally with legal status? Who is arguing that we ignore the laws on the books and cease deportations until we have better laws? Knocking down these straw men won't change the truth.

The President can use executive authority to register and screen people who lack the right to be here and give them, not legal status, but a Notice to Appear for removal proceedings, i.e., a presence under color of law, and a work permit, until we as a nation figure out how to deal with a problem requiring a pragmatic solution that is respectful of the rule of law. On his own, he can also use the power vested in him as President of the United States to provide substantial improvements to what he correctly described as "our creaky system of legal immigration."

While some make the moral argument about the need to earn a living, most fair-minded immigration advocates espouse a different moral argument (that all citizens benefit from the sweat of unauthorized workers and thus all must accept part of the blame and the responsibility to fix the problem without sanctimony).

Taking a page from Jorge Ramos' new book, A Country for All: An Immigrant Manifesto, the President makes a compelling argument that clearly proves too much:

[Americans know it is not] possible to round up and deport 11 million people. . . . Such an effort would be logistically impossible and wildly expensive. Moreover, it would tear at the very fabric of this nation -– because immigrants who are here illegally are now intricately woven into that fabric. Many have children who are American citizens. Some are children themselves, brought here by their parents at a very young age, growing up as American kids, only to discover their illegal status when they apply for college or a job. Migrant workers -– mostly here illegally -– have been the labor force of our farmers and agricultural producers for generations. So even if it was possible, a program of mass deportations would disrupt our economy and communities in ways that most Americans would find intolerable.

Despite the President's critique of recalcitrant Republicans, of "political posturing and special-interest wrangling" -– and his recognition "that tackling such a thorny and emotional issue is inherently bad politics," he can curl his pointing fingers around his presidential signing pen and -- quite sensibly -- fix big parts of the "broken" and "creaky" immigration system on his own.

It seems like ages since the federal government transformed the rules on when and how foreign citizens apply for visas to enter the United States. Actually, the most dramatic changes occurred in the summers of 2003 and 2004. In 2003, the government dramatically restricted the authority of American consular officers to waive the appearance of visa applicants for an in-person interview. In 2004, the U.S. State Department stopped "revalidating" (renewing previously issued but expired) nonimmigrant visas from a central processing facility in the United States. More changes have followed. Now all applicants must submit the visa application on-line (all the better to store and mine data and facilitate internal record-keeping) using a woefully designed and often nonfunctioning software program, the Form DS-160. The requirement to interview all but a few visa applicants and the elimination of domestic revaidations have caused substantial disruptions to U.S. businesses, universities, families and globetrotting individuals. Quite predictably as well, understaffed U.S. consular posts have developed waiting times until visa interviews can be scheduled. The personal interview requirement has also persuaded many would-be travelers from countries not allowed in the visa-waiver program to forgo trips to the United States (because they are unwilling or unable to travel up to a thousand miles to a U.S. consular post in their home country to appear for a personal interview). This has resulted in the loss of the substantial dollars these people would otherwise spend. The elimination of revalidations has visited hardships on foreign students, foreign workers and U.S. businesses who cannot afford to risk the possibility of visa refusal overseas or prolonged delays caused by "security advisory opinions" and clearances. No doubt the changes were made to enhance U.S. national security and improve governmental efficiency. But are they the best ways to achieve these goals? Can technology be used more intelligently to preserve our safety while also encouraging other national interests in creating jobs, promoting exports, achieving foreign policy goals and encouraging tourism? Can we apply fresh thinking to our foreign-policy and national-interest concerns to improve our visa procedures so that they foster these goals? I've long advocated that visa interviews be videorecorded in order to preserve data and images that would be useful to enhance homeland security and also make sure that consular officers conducting interviews (whose images would not be recorded under my proposal) might be induced by the sentinel effect to be more courteous and fair. An even better idea would be to employ secure videoconferencing technology. Fortunately, the House of Representatives has included in the Foreign Relations Authorization Act (H.R. 2410) -- now awaiting Senate action -- a pilot program of videoconferenced interviews:

SEC. 236. VIDEOCONFERENCE INTERVIEWS.

(a) Pilot Program- The Secretary of State may develop and conduct a 2-year pilot program for the processing of tourist visas using secure remote videoconferencing technology as a method for conducting visa interviews of applicants.

(b) Report- Not later than 1 year after initiating the pilot program under subsection (a) and again not later than 3 months after the conclusion of the 2-year period referred to in such subsection, the Secretary of State shall submit to the appropriate congressional committees a report on such pilot program. Each such report shall assess the efficacy of using secure remote videoconferencing technology as a method for conducting visa interviews of applicants, including any effect such method may have on an interviewer's ability to determine an applicant's credibility and uncover fraud, and shall include recommendations on whether or not the pilot program should be continued, broadened, or modified.

When the idea was first broached in 2006 (but ultimately not pursued), one Bush Administration official reportedly said that the use of digital videoconferencing technology “could be the biggest qualitative change in the way we handle visas in 150 years – it’s a generational shift.” For its part, the Senate is encouraging new thinking on visa application procedures (ironically, as part of an effort to facilitate change within the Islamic Republic of Iran). S. 3454 (the National Defense Authorization Act for Fiscal Year 2011) contains Section 1234. If enacted, Section 1234 would perhaps address the "single-entry" visa policy that dissuades Iranian students in the United States from returning home (because a new student visa is required before they can return and resume studies). Section 1234 provides:

(8) STUDENT VISAS- With respect to student visa policy, an assessment of opportunities for the United States and Iran to engage in educational exchanges, including-- (A) opportunities for expanding educational exchanges for Iranian students to study in the United States; and (B) the feasibility and advisability of expanding the number and types of visas issued to Iranians for educational exchanges.

These changes, if adopted, would be transformative. The visa application process should facilitate rather than impede our national interests and foreign policy objectives. We deserve better. The current system must be improved. --------

[Blogger's Note: It's often beneficial to get a fresh perspective on a topic from someone with a special insight born of long experience. Here then is a thought-provoking take on what real reform of the immigration laws would require. Reader beware, however, that the following views may be considered controversial and are solely those of my anonymous friend, colleague and long-time observer of U.S. immigration law and policy in the real world. The views in the guest post below do not necessarily reflect the views of www.nationofimmigrators.com or your faithful blogger. Your comments are welcome and encouraged.]

Possibly the most popular topic for television’s talking heads in recent months is immigration. The popular catch phrase is “Comprehensive Immigration Reform.” But the most vocal proponents of such reform seem to hold views that comprehend only one extreme or the other: a 3000 mile long wall (whether real or virtual) euphemistically called a “secure border,” or a massive amnesty coupled with increases in the level of immigrants to satisfy the apparent demand for visas, euphemistically called “a path to earned citizenship.”

As someone who has been directly engaged in the field for nearly 40 years, I often bristle when listening to simplistic dialog on the subject. Sadly, the prevailing views expressed on the cable talk shows are those of legislators and others who have staked out positions on the fringes. They cater to constituencies that are not reflective of mainstream America. In my own view, neither of these extreme positions is workable or desirable. Neither serves the national interests of the United States which, after all, should be the driving force behind any immigration (or any other) legislative effort. Either approach would result in little more than further growth in the already burgeoning bureaucracies at CIS, ICE and CBP.

Everyone’s opinion is valuable when it comes to immigration. But everyone doesn’t get to write their own section (which is what appears to have been the origin of nearly all immigration legislation enacted over the last 50 years). Anyone responsible for drafting a new immigration law should be selected based on his or her neutrality on immigration issues. He or she should be tasked with drafting a thorough, balanced bill based on a set of pre-established principles. Although I hesitate to suggest it, a bipartisan commission (not unlike the ill-fated Jordan Commission) could provide these principles. When complete, the bill should not be subject to countless toxic amendments advocated by the usual special interests. It should be managed more like the contentious Defense Base Closure and Realignment Commission legislation: straight up or down, to minimize the influence of special interests.

The current INA must be discarded. It can’t be patched any more. A new law could include everything necessary to administer a complete, well-reasoned national immigration policy while at the same time reducing the number of words in the law by 2/3. This is not an impossible goal. Most of the INA today consists of special interest provisions and gross micro-management of the bureaucracy. As an occasional student of immigration legislation in at least a dozen other countries, I can attest to the fact that bigger is not better. And legislating immigration the way the U.S. has done for the last hundred years is a recipe for the same miserable results.

For whatever it is worth, I offer these random notions for anyone tasked with writing fair, workable, immigration legislation. It’s time for a very different approach.

1. Immigration quotas serve a valid purpose. But the numbers should be based on the needs of the nation and its ability to absorb newcomers, not on an arbitrary number revised about as often as the arrival of Halley’s Comet. Quotas should apply to every class of immigrant and to nonimmigrants who are working in the United States. Just because someone is married to a citizen doesn’t mean he or she has no effect on the culture and economy of the nation. Congress should be required to assess needs and set quotas annually for all classes of immigrants and working nonimmigrants. Quotas should be easy to administer. INS and now CIS have amply demonstrated they can’t count. Why rub their noses in it?

2. All aliens may have been created equal, but they don’t stay that way. Some absorb into the fabric of the country and contribute. Some don’t. There is nothing wrong with a well-reasoned, transparent, mechanical “point” system for selecting immigrants. This would ensure that migrants with best chance of success in the United States will be able to expeditiously obtain residence. It should be applied to all would-be migrants.

3. Bureaucrats are not capable of administering discretionary provisions. For this reason, no provision should include words like “extreme and unusual hardship,” “extraordinary ability,” and the like. Waivers should be based on objective, measurable criteria rather than a creative fiction writing competition. Rather than a myriad of discretionary waivers, various grounds of inadmissibility should simply not be applicable in certain situations (e.g. when a certain family relationship exists, after a specific period of time has elapsed, etc.) Similarly, the notion that an adjudicator ensconced in a cubicle somewhere can equitably determine whether someone is of extraordinary ability in a field of endeavor and is coming to perform services requiring such ability is equally ludicrous.

4. The immigration courts are broken. The answer isn’t more judges. In my view, an immigration court should be in place solely for the purpose of providing an impartial review of the decisions of the administrative agency. The IJ and BIA are not there as a convenient way of indefinitely protracting the stay of an obviously deportable alien. There should be a price to pay for losing in court. This can be accomplished simply by taking away the option of voluntary departure from the IJ and Board: The immigration court system should either grant actual relief (asylum, residence, admission as a nonimmigrant, or citizenship) or give an order of removal with the consequences of deportation attaching immediately. How well would our criminal court system work if the defendant could wait for the jury’s verdict and imposition of a sentence before negotiating a plea bargain?

5. The diversity visa program is a lousy concept and should be dumped. There are sending countries for a reason. Migrants come to the United States for the same economic and social reasons they have always come. The DV program does nothing to promote the interests of our nation.

6. The nonimmigrant alphabet should be pared down to no more than 10 letters. Many of the current distinctions among classifications are pointless and confusing.

7. The labor certification process is hopeless. The notion that it somehow provides protections for U.S. workers is patently false: only a fraction of immigrants and nonimmigrants entering the labor market are subject to labor certification. Some other countries have adopted a more pragmatic approach to importation of labor. Rather than vainly attempting to examine wages, working conditions, skill sets and availability of workers, these countries simply apply a serious monthly visa surcharge fee, based on the category of labor, for visas issued to non-citizen workers. If employers need to import workers badly enough to pay such a surcharge, then in all likelihood they really need the particular skills of those workers and training U.S. workers isn’t a viable option. The scale could be periodically adjusted based on shortages in particular occupations, etc. The surcharge fee should apply even to students on practical training and to dependents of workers who engage in employment.

8. In connection with the previous recommendation, all work-authorized visas (including students on practical training and dependents of workers) should be considered indefinite (quasi-immigrant) for as long as the visa holder is engaged in the occupation and the employer continues to remit the monthly fee. The notion that an arbitrary limit of 5, 6 or 7 years has anything to do with business needs or labor markets has no basis in reality. The current limits for nonimmigrants have no effect other than to force companies and aliens (and their lawyers) to scramble for available loopholes in the INA. After a prescribed period in status as a worker, such long-term residents should have the opportunity to apply for naturalization, just as any other legal resident. This process would eliminate the need for all work-related immigrant classifications.

9. Forget about “knowingly.” If an employer hires an illegal alien and gets caught, there should be a hefty fine per violation. No excuses, no mitigation. The fine should far exceed the cost of hiring a worker the right way, as prescribed in recommendation 7. But the law also needs to be a bit more reasonable on the anti-discrimination stuff. Employers should be given a clear set of procedures which, if followed, would shield them from unreasonable anti-discrimination lawsuits.

10. Curtail chain migration. Preferences for siblings, adult and married sons and daughters and parents need to go. Let’s face it; migration to the U.S. isn’t migration to another galaxy. Despite the eruption of an occasional volcano in Iceland, world travel is cheap and available. If you want to see the extended family now and then, hop on the plane or send them an e-ticket. And bringing mom and dad here so they can apply for SSI and go back home isn’t such a good thing for the U.S.

11. There should be no nationality-specific provisions. Immigration to the United States should not be based on national origins or the special affinities of lobbyists and legislators.

12. Finally, I have one administrative recommendation. I strongly support the “user fee” concept for immigration benefits. But I do not think it is reasonable to charge today’s immigrant benefit applicants for things which have nothing to do with processing the benefit they seek. Presently, applicants support, in whole or in part: refugee and asylum processing; all immigration benefits provided to residents of Puerto Rico, Guam and the U.S. Virgin islands; persons granted fee waivers; diplomatic and official benefit application fees; and EAJA fee awards. In addition, the full cost of infrastructure improvements is absorbed in current year budgets, effectively making today’s applicants fund improvements that may only benefit future applicants. These costs should be paid from appropriated funds, not the fee account. Infrastructure costs should be funded more like a bond issue. If CIS is expected to operate like a business, then all the rules of business should be applicable. The first customers to a new store should not have to pay the entire cost of the building. The present fee account structure is little more than a thinly disguised Ponzi scheme with the current fees used to defray the cost of processing last year’s benefit requests.

There are other ideas where these came from, but you get the point. “Comprehensive” doesn’t mean an amnesty, more fences and finishing off the nonimmigrant alphabet. I personally believe the immigration issue could be settled in a fair, rational manner without imposing a huge burden on the taxpayers. But I have no illusions that it will be.

Immigration lawmakers try to pick winners and losers. The problem is that just like a broken analog clock with its hands frozen in place, the timing is mostly wrong.

This brings me to one of my pet peeves. It bothers me that the immigration laws and agency regulations favor some fields of study and disfavor others. Why for example are students in the STEM subjects (Science, Technology, Engineering and Math) given 27 months of "optional practical training" -- a euphemism for work permission --- while liberal arts students get only 12 months? Do Congress and the immigration agencies think we have too many poets, philosophers, filmmakers, painters and writers? Has the Department of Labor's Bureau of Labor Statistics (BLS)sifted the data and concluded that there is a surfeit of linguists, social workers and ethicists? You wouldn't think so from BLS publications.

For that matter, how do politicians and bureaucrats know whether a bachelor's degree is the right level of education for new labor-market entrants to serve America's present and future needs? The short answer is they don't.

Thirty-one days ago, before the massive spill in the Gulf of Mexico, few would have predicted that oil-spill clean-up workers would be in high demand. Fewer still could have predicted that a silver-tongued college graduate who majored in poli-sci, the son of a Kenyan immigrant, would become the leader of the free world. American lawmakers and agency officials are simply no better than the Soviet commissars who thought, wrongly it turned out, that they could direct a planned national economy.

Two recent articles, "Why Liberal Education Matters," by Peter Berkowitz, and "Plan B: Skip College," by Jacques Steinberg, illustrate my points.

Berkowitz, a senior fellow at Stanford's Hoover Institution and co-chair of a task force on the virtues of a free society, extols the societal contributions of liberal-arts students:

How can one think independently about what kind of life to live without acquiring familiarity with the ideas about happiness and misery, exaltation and despair, nobility and baseness that study of literature, philosophy and religion bring to life? How can one pass reasoned judgment on public policy if one is ignorant of the principles of constitutional government, the operation of the market, the impact of society on perception and belief and, not least, the competing opinions about justice to which democracy in America is heir?

How can one properly evaluate America's place in the international order without an appreciation of the history of the rise and fall of nations, and that familiarity with allies and adversaries that comes from serious study of their languages, cultures and beliefs?

Steinberg -- a New York Times education writer -- takes a different tack, suggesting that we short-change our youth, while saddling them with long-term debt, by failing to recognize that for many of them specialized training and vocational apprenticeship may be far more valuable:

The idea that four years of higher education will translate into a better job, higher earnings and a happier life — a refrain sure to be repeated this month at graduation ceremonies across the country — has been pounded into the heads of schoolchildren, parents and educators. But there’s an underside to that conventional wisdom. . . .

“It is true that we need more nanosurgeons than we did 10 to 15 years ago,” said [Economics] Professor [Richard K.] Vedder, founder of the Center for College Affordability and Productivity, a research nonprofit in Washington. “But the numbers are still relatively small compared to the numbers of nurses’ aides we’re going to need. We will need hundreds of thousands of them over the next decade.”. . .

College degrees are simply not necessary for many jobs. Of the 30 jobs projected to grow at the fastest rate over the next decade in the United States, only seven typically require a bachelor’s degree, according to the Bureau of Labor Statistics. Among the top 10 growing job categories, two require college degrees: accounting (a bachelor’s) and postsecondary teachers (a doctorate). But this growth is expected to be dwarfed by the need for registered nurses, home health aides, customer service representatives and store clerks. None of those jobs require a bachelor’s degree.

My point is not to jettison thoughtfulness when trying to fashion new immigration laws that will best suit our 21st Century needs. Rather, what a wonderful world it would be, I believe, if our lawmakers and immigration bureaucrats adopted a bit of Sam Cooke humility:

Don't know much about history

Don't know much biology

Don't know much about a science book

Don't know much about the French [we] took . . .

Don't know much about geography

Don't know much trigonometry

Don't know much about algebra

If not a wonderful world, then certainly a better nation America would be if it provided the flex in our legal system to make room in this country for bright, hard-working, well-educated or suitably-trained immigrants to serve our economic, political, cultural and societal needs in future decades.

Ever the optimist and trying her best to think happy thoughts, Tinker Bell, the world's most famous faerie, has been flying over Washington this week. She soared into town, lifted up by throngs of May Day marchers who believed popular revulsion to Arizona's "Papers, please" law would finally jolt politicians into enacting comprehensive immigration reform.

Hailing from the country of Neverland, Tinker flew in solidarity with the marchers, alarmed that she had entered the country without inspection and without papers, and that all she had in her pocket was faerie dust. Then she plummeted, almost to the ground, as she saw Capitol Police arrest Rep. Luis Gutierrez and several others, each wearing T-shirts bearing the plea: "Arrest me, not my family." She rose to a bit higher altitude on Sunday, watching the brave Luis G. on Face the Nation debate that Hookish Hayworth fellow:

My arrest was part of a response to what I consider the immorality of our broken immigration system. We were protesting the fact that hundreds of thousands of immigrant families have been destroyed, husbands losing their wives. There are 4 million American citizen children whose parents have either been deported or under threat of deportation. It's time to make family sacrosanct once again and to fix our immigration system. So I was arrested yesterday because it was time, I thought, to escalate and to elevate the level of awareness and consciousness for all those who try to reach our shores and can't because our system is broken.

The work week began, and again Tinker hovered low to the ground, as one politician after another threw cold water on what seemed the hottest recent prospects for reform, creating only steam. In need of a break, she repaired to the White house grounds and slept deeply -- just above Michele Obama's luscious vegetables -- only to be awakened by festive music. A crowd of Cinco de Mayo celebrants had come to hear President Obama, with Michele at his side, speak again about the need for comprehensive immigration reform:

I want to say it again, just in case anybody is confused. The way to fix our broken immigration system is through common-sense, comprehensive immigration reform. That means responsibility from government to secure our borders, something we have done and will continue to do. It means responsibility from businesses that break the law by undermining American workers and exploiting undocumented workers -— they’ve got to be held accountable. It means responsibility from people who are living here illegally. They’ve got to admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship.

Comprehensive reform —- that’s how we’re going to solve this problem. And I know there’s been some commentary over the last week since I talked about this difficult issue: Well, is this politically smart to do? Can you get Republican votes? Look, of course, it’s going to be tough. That’s the truth. Anybody who tells you it’s going to be easy or I can wave a magic wand and make it happen hasn’t been paying attention how this town works. We need bipartisan support. But it can be done. And it needs to be done. So I was pleased to see a strong proposal for comprehensive reform presented in the Senate last week —- and I was pleased that it was based on a bipartisan framework. I want to begin work this year, and I want Democrats and Republicans to work with me -- because we’ve got to stay true to who we are, a nation of laws and a nation of immigrants.

Tinker Belle's wings stopped fluttering. She fell to the ground, angrily muttering to herself:

What's this about "begin work this year" coming from the candidate who promised to tackle the immigration challenge in his first year as President? This from the same man who just last week told University of Michigan graduates that "The point is, politics has never been for the thin-skinned or the faint-of-heart, and if you enter the arena, you should expect to get roughed up." I can't take it anymore!

Mustering all her strength, Tinker flew past the Secret Service with even more stealth than party crashers at a White House dinner. She didn't stop flying until arriving like a hummingbird just at the President's left ear. As he walked into the West Wing, she shouted to get his attention, but he could hardly hear her because his left side had become benumbed. She shouted even louder "YES WE CAN!" At last the young boy from Hawaii who grew up to wear ties in July heard and recognized her. The President told his retinue that he needed to be alone. Tinker faced Barack and said:

What's this about not having a "magic wand" to wave around? You're the President of the United States! You have more than just a bully pulpit. Have you forgotten the Constitutional Law you taught students at the University of Chicago? You don't need Ben Nelson. You don't need Lindsey Graham. You can sign an Executive Order and fix a large part of the country's immigration problems, and neither Republicans, Democrats, Tea Partiers nor pundits can do anything about it.

Tinker threw pixie dust in the air and a scroll appeared. She unfurled it and began to read aloud:

Executive Order

-- Providing for a System of Registration of Undocumented Immigrants to Protect National Security and for the Early Acceptance of Applications for Adjustment of Status to Permanent Resident Status by Individuals with Long-Backlogged Priority Dates.

Section 1. By the authority vested in me as President by the Constitution and the laws of the United States of America, I declare an Immigration Emergency.

The said Immigration Emergency has arisen because:

1. Over 10 million individuals of foreign origin are living illegally in the United States, many with American citizen children, but nevertheless generally contributing to the economic prosperity of the country and otherwise abiding our laws;
2. The Federal Government lacks the economic resources and practical ability to remove these individuals from this country consistent with due process of law and has not ascertained the identities of most of these individuals, thereby undermining the safety and security of the nation from external and internal threats;
3. The Congress and prior administrations have tried repeatedly but failed to enact comprehensive immigration reforms that would protect national security or honor our traditions as a nation of immigrants;
4. Frustrated at the inaction of Congress and unwilling to pay for the unfunded burdens of a dysfunctional federal immigration policy, several states have enacted laws that interfere with, contradict and attempt to supplant the Federal Government's preeminent authority over immigration law and policy;
5. The most recent state legislation, enacted by the Arizona legislature and signed by its Governor, has raised serious civil rights and Constitutional concerns and poses risks to public safety since otherwise law-abiding persons illegally present in the country are unwilling to cooperate with the police in helping to stop crime and identify terrorist threats to public safety;
6. Children and young adults who lack legal immigration status have been educated by our schools and colleges but are unable to begin careers or enroll in our military because of the lack of legal status and a work permit;
7. Foreign students who have graduated from U.S. educational institutions and other lawfully present nonimmigrants who have obtained a labor certification or are otherwise eligible for sponsorship and approval of an employment-based or family-based immigrant visa are pressured to leave the U.S. and offer their energy and talents to our country's competitor nations because of outdated agency interpretations, needlessly inflexible regulations and backlogged immigrant visa quotas that have been exacerbated by the failure of administrative agencies over several years to administer the immigrant visa quota system properly and avoid the loss and waste of such visas in each year's allotments;
8. Federal agencies charged with enforcement of the immigration laws have poorly prioritized their responsibilities by focusing to a greater extent than prudent on the arrest and deportation of persons whose only legal violations are entry without inspection or overstaying of one's visas, thereby depleting enforcement resources that are better dedicated to anti-terrorism and serious criminal law violations;
9. Federal enforcement agencies have largely failed to exercise the prosecutorial discretion to grant deferred action to foreign citizens who have strong ties in the U.S. and no serious criminal law history.

Section 2. The Secretary of Homeland Security and the Attorney General shall -- on an expedited basis -- promulgate regulations and use their discretionary authority under law in order to:

1. Establish a system of registration and national-security screening of illegally present foreign citizens who are to be encouraged to enroll in the registration system by the grant of deferred action and employment authorization to all registrants who pass security screening, prove that they have paid or otherwise arranged for payment of all federal income taxes owed, acknowledge their violations of immigration laws under oath, pay a civil fine of not more than $2,500, and pay user fees to cover the full cost of the registration system; and
2. Allow the immediate submission of applications for adjustment of status under Section 245 of the Immigration and Nationality Act by persons who have obtained an immigrant visa priority date based on a non-frivolous filing with the Department of Labor of an application for Alien Labor Certification, or on an immigrant visa petition with the U.S. Citizenship and Immigration Services, that has a reasonable basis in law and fact.

BARACK OBAMA

THE WHITE HOUSE, May __, 2010

Tinker Bell picked up a pen from the Oval Office desk and handed it to the President, waiting hopefully that he would display courage and exercise leadership by signing the Executive Order.

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I've attended hundreds of meetings of immigration lawyers in my career. Many of them have exhibited characteristics of 12-step groups in which we formed circles of victimhood, and "admitted that we were powerless over [INS, USCIS, DOL, State, etc.]and that our lives had become unmanageable." Many of these sessions disgusted me because of the excess of whining complaints over action. Too often immigration lawyers are wont to complain and play victim, but rarely do they model the fictional TV executive, Howard Beale in the movie, Network ("I'M AS MAD AS HELL, AND I'M NOT GOING TO TAKE THIS ANYMORE!").

I also believe in the proverb I first encountered, if memory serves, in The Autobiography of Malcolm X: It's the squeaky wheel that gets the grease.

Well now is our chance to stop whimpering in darkness and light a few candles (I can't seem to avoid proverbs today). USCIS has asked for stakeholder input on its priorities. A "policy review" survey, approved by the Office of Management & Budget (OMB), is open for response until April 29. As food for thought on what policies make the most sense, consider the USCIS-related testimony given on March 23 before the House Judiciary's Immigration Subcommittee.

I took the survey today and here are excerpts from my comments:

USCIS's # 1 priority should be statutory compliance with the APA and other laws administered by OMB.The agency should comply with the APA rulemaking requirements for public notice and comment, and issue regulations in a variety of areas where regulations do not exist. The agency should refrain from issuing press releases, posting web site announcements, making significant substantive law changes on immigration forms or issuing policy memoranda that are not in compliance with the APA, the PRA, the RFA and other laws administered by OMB.

# 2 USCIS should make every effort to persuade Congress that a primarily user-fee system of financing its operations will not protect homeland security or allow achievement of the agency's mission and that substantially larger appropriations are required to perform the critical federal mission of USCIS.

# 3 priority should be revamping the Administrative Appeals Office by requiring adjudicators to be lawyers, publishing rules of procedure, speeding cycle time on appeals, allowing for continuation of employment authorization and tolling of unlawful presence during appeals and establishing precedent decisions.

#4 The USCIS should adopt an on-line case problem application for lawyers and accredited representatives. There is no need to clog the 1-800 # with lawyer and representative calls when problems can be more easily solved through an on-line tool.

I also added commentary, in line with many of my posts, that USCIS should work with ICE to expand the grant of deferred action and employment authorization to favored categories of unauthorized persons, e.g., beneficiaries of the DREAM Act and AgJobs bills (as Senators Lugar and Durbin now propose), as a precursor and (changer of facts on the ground) in anticipation of comprehensive immigration reform.

Immigration lawyers may quibble with me over my prioritization of USCIS policies, of course. But unless you take the survey, be sure that the next time I see you at a bar function (YOU know who YOU are), I will have no sympathy if you answer "no" to my question: "Did you take the survey?"

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The eyes of many Americans have focused of late upon the absurdly harsh consequences that immigration law inflicts on people after they have satisfied comparatively modest penalties imposed under the criminal laws.

The New York Times' Linda Greenhouse (who has followed the Supreme Court for many years) notes correctly in a recent blog posting that "today’s harshly anti-immigrant legal regime applies not only to the undocumented, but to permanent legal residents as well." While recognizing that immigration law is largely a creature of statute, Greenhouse worries that in "this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity."

This same "harshly anti-immigrant legal regime" also applies, as another Times columnist, Tom Friedman, has noted with passion and panache, to individuals and businesses seeking to invent, innovate and produce high-value jobs:

I am a pro-immigration fanatic. I think keeping a constant flow of legal immigrants into our country — whether they wear blue collars or lab coats — is the key to keeping us ahead of China. Because when you mix all of these energetic, high-aspiring people with a democratic system and free markets, magic happens. If we hope to keep that magic, we need immigration reform that guarantees that we will always attract and retain, in an orderly fashion, the world’s first-round aspirational and intellectual draft choices.

Sadly, however, no authority within the federal government has as its primary mission to promote, facilitate, encourage, and remove obstacles in the path of, business- and employment-related immigration. To be sure, there are many federal agencies who peripherally exercise authority over the subject. Yet, the promotion of immigration as an engine of prosperity all too often yields to other competing missions:

The Department of Homeland Security: "We will lead the unified national effort to secure America. We will prevent and deter terrorist attacks and protect against and respond to threats and hazards to the Nation. We will secure our national borders while welcoming lawful immigrants, visitors, and trade."

U.S. Citizenship and Immigration Services: "USCIS will secure America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system."

The Department of Labor: "[DOL] fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements."

The Department of State: "[State will create] a more secure, democratic, and prosperous world for the benefit of the American people and the international community."

You might reasonably surmise that the Department of Commerce, given its mission, would play a leading role in standing up for legal, business-based immigration policies:

The historic mission of the Department is "to foster, promote, and develop the foreign and domestic commerce" of the United States. This has evolved, as a result of legislative and administrative additions, to encompass broadly the responsibility to foster, serve, and promote the Nation's economic development and technological advancement.

But your surmise would be wrong, if the experience of immigration bar associations is any guide. Take the leading national immigration bar, AILA. Mistake or oversight are not the reasons that AILA's "Agencies and Liaison" page on its website does not list the Commerce Department. Truth be told, Commerce has not been a player in the immigration policy debate and has not stepped in to object when anti-business bills and regulations are proposed by Congress and by its sister Departments.

As Cyrus Mehta, Laura Danielson, Steve Clark and yours truly have urged on behalf of the Alliance of Business Immigration Lawyers in an ABIL white paper on comprehensive immigration reform (CIR) to the leadership of USCIS, America needs a federal agency whose focus is on the job-creation and export-promotion capability of legal, business-related immigration:

An Agency to Support and Protect the Economic Benefits of Immigration Should be Created within the Department of Commerce or Another Suitable Department.

Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.

Mission statements are made for good reasons:

A mission statement defines in a paragraph or so any entity's reason for existence. It embodies its philosophies, goals, ambitions and mores. Any entity that attempts to operate without a mission statement runs the risk of wandering through the world without having the ability to verify that it is on its intended course.

Worse than operating without a clear mission, pursuing mixed missions, as immigration history has shown, creates huge problems. The time has come for one agency to speak forcefully, consistently and solely on behalf of legal, business- and job-generating immigration policies.

In the act of passing massive and historic health care legislation (America's Affordable Health Choices Act of 2009, as reconciled by the Health Care and Education Reconciliation Act of 2010), U.S. senators, in Congress assembled, took time, appropriately, to honor in silence one of universal health care's fallen champions, Ted Kennedy.

The prior weekend, while the House voted on health care, outside the Capitol tens of thousands of marchers urged Congress to honor Sen. Kennedy's memory by passing his other passion, comprehensive reform of our immigration laws.

The effort to reach consensus on how to fix immigration will be a tortuous slog. A new HBO film -- The Senators' Bargain -- tells the inside story of the last unsuccessful immigration reform effort by Sen. Kennedy. Three reviews (by New York Times movie reviewer Allesandra Stanley, NYT immigration reporter, Julia Preston, and Christine Kearney of Reuters) and the film's trailer are all worth partaking, but nothing can replace a viewing of this TV movie with its moment-by-moment depiction of sausage-making gone rancid.

The Senators' Bargain reveals the faustian pact supporters of reform reluctantly made to gain legal status for the millions of undocumented in America by swallowing hard on a point system that tilted in favor of high-skilled workers over family-unity immigrants. Ultimately, the "grand bargain" of Sen. Kennedy and his Republican co-sponsor, Sen. Kyl, failed. Senators who were not party to the bargain proposed a slew of amendments to defeat or dilute the bill, and the grand bargainers could not tease out the support of enough senators to bring the bill to final vote.

The film also shows Sen. Kennedy personally addressing far more numerous marchers on Washington seeking immigration reform. Tellingly, this time, however, the latest marchers viewed Pres. Obama on video screens. This time as well erstwhile immigration supporters such as Sen. John McCain -- who previously paired with Sen. Kennedy on yet another failed immigration reform effort -- have already predicted that the Democrats' use of reconciliation and other parliamentary maneuvers have poisoned the well for future bipartisanship. For his part, President Obama proclaims his unwavering commitment to keep his campaign promise to pass immigration reforms, but says the effort will not move forward without Republicans pushing together with Democrats. No Republicans to date have stepped forward, other than Sen. Lindsey Graham, who likewise predicted that use of reconciliation to pass health care would scotch any chance for bipartisan immigration reform.

With reform at a standstill for now, administrative fixes and Presidential executive orders are the sole game in town, but only if the President and his Homeland Security Secretary, Janet Napolitano, are willing to play. Gary Endelman and Cyrus Mehta point the way to a partial fix in their virtuoso article, "The Tyranny of Priority Dates." In the present era of post-post-partisanship, President Obama should recognize that more can be done with immigration reform and it won't take 22 pens, just one.

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As spring approaches, Washington DC's Kabuki Theatre plans a new production. A mash-up of Kafka and Beckett, "Waiting for Barack" will begin with a casting call on March 21 as thousands of would-be thespians, consisting mainly of immigration reform activists, are expected to descend on Capitol Hill, harboring dreams of a lead role in what they hope will be an epic immigration performance. Not since 1986 have the wonkish theatregoers of Washington been so excited. Then, "IRCA's Morning in America" was the talk of the town and the nation.

The new show's producers, three well-known impressarios (optimistic, Chuck Schumer, fretful and tentative, Lindsey Graham, and indefatigable, Luis Guitierrez), have yet to announce when the long-anticipated play (originally slated to premiere in 2009) will open. Marketing for the production is modeled after the recent trend in Indie films, with bilingual buzz building in ethnic and social media and the blogosphere.

The producers, including the show's backers from the Hispanic Caucus, as well as prospective cast members, all met recently with the man they hope will play the lead, a charismatic figure who in his early career carried the stage name, Barry, but now goes by "Mr. President." The show's supporters left the meetings heartened that their long-sought protagonist, who expressed "unwavering" commitment will soon conclude his latest engagement, "The Health Care Follies," and be ready, after a now-delayed working vacation in Asia, to ascend the immigration stage. Early reports suggested that rehearsals would begin in April, but then Roll Call, Washington's punningly-titled version of Playbill, published a clarification:

Correction: March 11, 2010

An earlier version of this story indicated that President Barack Obama told immigration reform advocates that he would push for a bill to pass in April. He never gave a specific timeline.

Some dramaturgs, however, are not disspirited. They are heartened by the prospect of modest but meaningful immigration performances on the administrative stage, and point to a poignant Chilean laboratory theatre script reading by the protagonist's troupe, that expresses the range of power and influence that this star can readily command when he is so inclined.

Will "Waiting for Barack" ever be staged? Interested theatregoers desperately want to attend the premiere.

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When the snowpocalypse ends in Washington, and political hot air thaws the frozen streets, expect to see mules and elephants parade in bipartisan togetherness -- at least in one area. The party of Lincoln and the party of tea could well agree with the following words of President Obama on the urgency of fiscal responsibility (even as they disagree on whether the trimming of deficits has begun in earnest):

[A]t a time when we face not only a fiscal crisis, but also a host of difficult challenges as a nation, business as usual in Washington just won’t do. . . . After years of irresponsibility, we are once again taking responsibility for every dollar we spend, the same way families do.

Why then are partisans on both sides of the aisle not roundly applauding the recent dollar-pinching actions of a U.S. District Court judge in Texas? Last week in U.S. v. Ordones-Soto, et al., the judge ordered the United States Attorney and the Assistant United States Attorney when prosecuting cases pursuant to 8 U.S.C. § 1326 to be prepared "in all future sentencings to state the substantive reason(s) for the prosecution of each individual case." 8 U.S.C. § 1326 punishes the illegal entry to the U.S. of a person previously deported.

Citing three illegal-reentry cases before the court, the judge noted that county jail payments for six months of incarcerating the convicted defendants ("with no significant criminal history") cost taxpayers over $13,500. This sum pales in comparison to the costs in time and money of court personnel salaries and operating expenses, and those of the U.S. Attorneys Office, the U.S. Marshal's Service, the U.S. Probation Office, payments to appointed defense counsel and Federal Public Defenders, interpreters, medical and dental care providers, and drivers transporting defendants to and from the jail.

With "every judge in the Western District of Texas . . . sentencing a substantial number of illegal [entrants and reentrants] every month," the judge berated the government for its spendthrift ways:

The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling. The U.S. Attorney's policy of prosecuting all aliens presents a cost to the American taxpayer at this time that is neither meritorious nor reasonable.

The cost to taxpayers of the removal machinery (and I'm not talking snow here but people) will only grow if, as described in a report this month by the American Bar Association (ABA) Commission on Immigration and Arnold & Porter, the Executive Office for Immigration Review is to be given the authority, resources and judges sufficient to match the number of cases in immigration court with the expensive demands of due process as the ABA House of Delegates proposes.

My point is not that we emulate Scrooge McDuck to hoard the few remaining dollars in the public coffers, thereby giving up on enforcement of the immigration laws. Rather, we need due process in removal proceedings and in federal court, but also a wise and fiscally sound exercise of prosecutorial and presidential discretion. It's time to stanch the unending flow of "aliens without any significant criminal record" into over-crowded county jails, immigration detention facilities and immigration courts. Federal Courts should be the place where U.S. Attorneys bring to justice very bad people: Ponzi-scheme perpetrators; Medicare and mortgage fraudsters; drug traffickers; cybercriminals, RICO conspirators, insider traders and givers and takers of bribes.

In other words, it's way past time for the Obama Administration and Congress to push really hard on bipartisan and comprehensive immigration reform or or for the President to exercise his discretionary power proactively to address this immigration fiscal fiasco, while striking a blow against terrorism, with user-fee-financed grants of deferred action and employment authorization.

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I've not always seen eye to eye with AILA -- the American Immigration Lawyers Association -- although I've been a supportive member and active participant in its programs and initiatives for decades, and served on its Board of Governors from 1987 to 1994. At times I grow increasingly dispirited as the interests of its many members too often seemed at cross purposes, and its understandable dependence on revenue from publications and educational programs made me fear that it had lost some of the fire in its belly and some of its soul.

I often wax nostalgic about the early days of AILA. I miss the days when one could leave an AILA conference inspired by its grizzled fighters for immigration justice, with none more inspiring than the late Sam Williamson of Texas. I search the AILA website and, sadly, find little residue of Sam's influence, other than a "Mentor Award" in his name, given since 1992 for "outstanding efforts and excellent counsel to immigration attorneys by providing mentoring assistance." I'm happy that AILA honors Sam's memory but don't remember him so much as a mentor than an inspiring firebrand who would stand up, point a curled, arthritic finger in the air and shout in reference to the immigration authorities: "Sue the [illegitimate offspring]!"

Sam inspired me because his views, reflected in a 1989 article, were much the same as my own:

. . .if you have a sense of injustice, you will feel anger and outrage, and you, too, will come to look upon the law as a weapon, which it is, and with which you can venture to assuage such injustice and lift these people [immigrants to America] from their degradation. I find such efforts to be worthy. What appears anomalous to me is to find that others do not feel as I do.

I always left every AILA conference where Sam cried out in righteous indignation freshly energized to pursue my clients' interest as zealously as possible within the all too draconian constraints of America's immigration laws. Recent AILA conferences have never been the same without Sam (although many new and old members, to be sure, have achieved marvelous outcomes in their immigration cases, while generously mentoring lawyers and modeling best practices in the quest for immigration justice).

Something happened this week, however, to remind me that the spirit of Sam still exists and shines brightly in AILA. In an eloquent, persuasive and lawyerly 24 pages, AILA's USCIS Headquarters Liaison Committee unmasked as exercises in vacuous reasoning a January 8, 2010 USCIS policy memorandum (and kindred non-precedent decisions of the USCIS Administrative Appeals Office) that deny employment-based immigration benefits to working owners of companies. Although the Obama Administration has proclaimed that the United States government does not engage in torture, the AILA Liaison Committee's letter to the USCIS Chief Counsel, in a calm and dispassionate way (certainly not in Sam's style), demonstrates that USCIS tortures logic and smites reason:

[Our correspondence] relates to recent USCIS Administrative Appeals Office decisions and USCIS Service Center adjudications, as well as the [January 8] Neufeld Memorandum, that misapply the reasoning of Supreme Court cases . . . to reach the conclusion that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot -- in most cases -- be a beneficiary of a nonimmigrant (e.g., L-1, H-1B and O-1) or immigrant employment-based petition. We strongly believe that this USCIS position departs from longstanding binding precedent, ignores the plain language of the Immigration and Nationality Act (INA) and its implementing regulations, thwarts Congressional intent respecting the purpose of the INA, and leads to absurd results.

My point here is not to repeat AILA's arguments for the absurdity and illegality of USCIS's reconstruction of immigration jurisprudence and history to ban a class of otherwise deserving entrepreneurs (I've already offered my views on the subject). Rather, I applaud the AILA Liaison Committee's letter because it reminds me that, despite my occasional misgivings about organizational drift and the challenges of speaking in a unified voice, AILA retains the depth of soul and conflagration of belly that makes me (and I hope Sam as well) very proud to stand within its ranks.

For those of us in advanced stages of decrepitude who still remember what it was like to practice immigration law before the advent of broadband and universal Web access, the immigration process was much simpler then. Unlike today (with the e-publication of new nonbinding "policies" posted on www.uscis.gov as press releases, FAQs and agency memoranda), immigration rulemaking in the pre-Internet era followed a predictable pattern.

The old INS (the Immigration and Naturalization Service) took a a well-worn path when proposing a new regulation. First the agency would draft a suggested rule and seek approval from the Office of Management and Budget (OMB). Sometimes, OMB would approve the rule without change, and at other times, it would send INS back to the drawing board to retool the rule. Next, after OMB green-lighting, INS would arrange for the proposal's publication in the Federal Register. Then, the public, especially stakeholders with an interest in immigration, would have 30 or 60 days to comment on the suggested change. Finally, the INS reviewed the comments and published a final rule with the announcement of an immediate or future effective date.

Accompanying both the proposed and the final rule would be a section entitled, "Supplementary Information." This is the section, I'll call it the preface, that explained the INS's thinking. The preface to a proposed rule would tell why the INS thought the change in regulations was necessary, the circumstances in which the rule would and would not apply, and the legal consequences in terms of eligibility for a particular immigration benefit. The preface to the final rule would offer INS's response to the public's comments, make some changes after the public had road-tested the concept, while rejecting others, and offer additional, more definitive legal analysis and agency interpretations.

Immigration lawyers loved these prefaces, even though they never made it into the Code of Federal Regulations, because a preface could be cited in future situations whenever a new adjudicator tried to claim that the text of a regulation meant something other than that which the old INS had explained in the Supplementary Information. The prefaces therefore kept everyone honest. Moreover, pre-screening by OMB meant that an independent set of eyes within the White House took pains to be sure that the proposal made sense and followed statutes and executive orders on proper rulemaking procedures. The system worked.

In the 21st Century, however, everything (including the release of new immigration "rules") happens at Internet speed. While we all love our "app for this" and "app for that," too much digitial sharing, as Jaron Lanier (the early online evangelist who coined the term "virtual reality") warns in his new "manifesto" (You Are Not a Gadget), can create a "global mush."

The global mush is extra thick when U.S. Citizenship and Immigration Services (USCIS) pours out new changes on its home page. Case in point: USCIS Headquarters January 8, 2010 memorandum, a porridge of new and indigestible pronouncements entitled "Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements." In true shrink-wrap-software style, the memo comes complete with its own FAQ.

The memo and FAQ spell out how USCIS immigration officers at the Regional Service Centers, from this day forward, are permitted to decide, in a variety of fact patterns, whether a prospective H-1B worker will be considered legitimately "employed" by the enterprise petitioning for his or her services. To its credit, USCIS acknowledges that the touchstone for approval is that the petitioner will have the "right to control" over "when, where, and how" the H-1B nonimmigrant performs the work, even if there is no proof that actual control of the person's work will occur. This right to control, USCIS notes, is often difficult to recognize in the modern world of work, where vendor personnel and consultants, who are paid by a contractor, render services that look like "work" at various customer worksites. That's why the memo authorizes adjudicators to ask for an array of contractual paperwork.

The enterprise must also establish that the "right to control," according to USCIS, "will continue to exist throughout the duration of the [H-1B worker's] employment term with the petitioner." The "throughout the duration" requirement will be shown by the existence of a contract with a specified term. Thus, if the contract runs for merely a year, USCIS reasons, the agency will approve the H-1B petition only for one year (ironically, all the better for cash-strapped USCIS to collect more user fees when the time for H-1B petition extension arrives). After all, USCIS explains, its H-1B regulations require submission of an itinerary if the H-1B nonimmigrant will work at more than one job site, especially at a site neither owned nor controlled by the H-1B petitioner.

USCIS's allegiance to the "right to control" versus "actual control" distinction lasts no longer, however, than the twinkle in a digital avatar's eye. By Page 6, Footnote 9, of its memo, USCIS announces that "an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him [sic] or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite 'control.'" What kind of control? The right to control? Or, the actual exercise of control? USCIS fudges and doesn't say. Even more confusingly, USCIS admits in the same footnote that "a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner."

Wait a minute. If a sole owner of a company can be "employed" by that company and if the company is a separate legal entity from its sole owner, then how is it that the "beneficiary [the H-1B worker, a natural person] . . . is also the petitioner [the company, a legal entity that is distinct from its living owner]"? Apparently, to USCIS, the sole owner of a company is also the company, and the company is also the sole owner, even though they are "separate," and the stock-owning human can be "employed" by the legal entity, but not for H-1B purposes, even if s/he has the bylaw-given "right to control" the way the H-1B human does his job. In short, Footnote 9 is unadulterated gobbledygook.

Harkening back to immigration's bygone era, this blogging geezer asserts that the OMB of old would never have allowed such mush to splatter the pages of the Federal Register. Perhaps even the current OMB, notwithstanding the celebrated meanderings of its current director, would likewise reject the turgid spillage of the USCIS's January 8 memo. Why am I so sure? Because INS -- in 1998 -- published a proposed rule covering the very same subject. As the late William F. Buckley, in one of his less articulate moments, might have said: "You Could Look It Up." Check out the INS preface at 63 Federal Register 30419 (June 4, 1998):

Since promulgation of [the H-1B] regulation [requiring submission of an itinerary if the H-1B worker will perform services in more than one location] . . . many industries in the United States, such as the health care and computer consulting industries, have begun to rely more frequently on the use of contract workers. It has been the experience of the Service that many bona fide businesses which provide contract workers to certain industries under the H–1B classification have experienced difficulty in providing complete and detailed itineraries due to the unique employment practices of such industries. For example, companies which are in the business of contracting out physical therapists or computer professionals often get requests from customers to fill a position with as little as 1 day advance notice. Clearly an H–1B petitioner in this situation could not know of all particular contract jobs at the time that it first files the H–1B petition with the Service. As a result, many such bona fide employment contractors do not know all of the locations where a contract worker will be employed at the time the Form I–129, Petition for a Nonimmigrant Worker, is initially filed.

Moreover, some employers who use the H–1B classification may have a legitimate, but unforeseeable, need to transfer their employees on short notice from one work site to another within the organization, such as from the employer’s Los Angeles office to its New York office. Under the current regulation, however, such an employer is required to submit with its petition a complete itinerary listing all of the locations where the contract workers will be employed. The regulation as now written, therefore, does not fully reflect current legitimate business practices.

In response to these problems, the Service now proposes to amend its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR 214.2(h)(2)(i)(F) to allow certain petitioners to submit a general statement describing the locations where the alien is to be employed, thereby eliminating the necessity of submitting a complete itinerary. A complete itinerary must be submitted only in those instances where the employer is aware of the actual itinerary or where the petitioner is an agent that does not actually employ the beneficiary but merely represents the alien and the alien’s employer. In those instances where the employer does not yet know the alien’s complete itinerary at the time the petition is filed, the employer must submit, in lieu of a complete itinerary, a list of the places where it knows the beneficiary will definitely be employed, together with a description of the alien’s job duties at those locations. In addition, the employer must submit, to the extent possible, a list describing the alien’s possible places of employment and the duties which the alien would perform at such locations. The employer may also be asked to submit a letter with the petition describing its past hiring practices, including a list of past places where it has employed similarly situated persons. The letter must describe the employer’s tentative plans to use the beneficiary in an H–1B capacity in the future. However, the absence of a past hiring practice is not a bar to the approval of the petition.

So in the good old days, INS didn't require a contract that would run for as long as the maximum period of H-1B petition validity (then as now, for three years). It didn't make an elaborate fuss over the employer-employee relationship. It honored Matter of Aphrodite's holding that a corporation is distinct from its sole shareholder and that the former could receive approval of an H-1B petition on behalf of the latter. Curiously, however, for reasons never explained, INS never promulgated a final rule on the subject, even though its well-reasoned views on the sufficiency of evidence in H-1B cases are forthrightly and clearly stated in the 1998 proposed rule.

USCIS apparently didn't want to follow the prescribed path by picking up where the 1998 proposal left off, explaining what had changed in business practices or immigration laws, and then proceeding with the OMB-proposed-rule/final-rule approach. Instead, we get tainted mush, delivered electronically, with no chance for stakeholder or stockholder comment.

Why have the "legitimate business practices" of 1998 become illegitimate, or at least highly suspect and requiring reams of long-term contractual proof, in 2010. USCIS's January 8 memo and companion FAQ never say. We at least can hope that the agency will tweet us its answer on Twitter.

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When respected, albeit left-leaning, members of the punditocracy, like Chris Matthews and Maureen Dowd, begin to make hard right turns, it's time to pay close attention.

Yesterday, in reaction to the Christmas Day suicide bomb attempt on Northwest Flight 253 as it approached Detroit, Matthews, the host of MSNBC's Hardball, came closer than ever before to embracing what sounded like race- and faith-based profiling of air travelers and the willing surrender of large chunks of our civil rights if those measures would make us safer.

Today, Dowd, a New York Times Op-Ed columnist, likened President Obama to Spock (not Benjamin, the anti-war baby doctor, but the famous Vulcan on Star Trek). She assailed the Commander in Chief's belated acknowledgment of “a systemic failure” and a “catastrophic breach of security.” Dowd then railed on in caustic terms no less withering than those she used against the Bush administration:

If we can’t catch a Nigerian with a powerful explosive powder in his oddly feminine-looking underpants and a syringe full of acid, a man whose own father had alerted the U.S. Embassy in Nigeria, a traveler whose ticket was paid for in cash and who didn’t check bags, whose visa renewal had been denied by the British, who had studied Arabic in Al Qaeda sanctuary Yemen, whose name was on a counterterrorism watch list, who can we catch?

We are headed toward the moment when screeners will watch watch-listers sashay through while we have to come to the airport in hospital gowns, flapping open in the back. . . .

In his detached way, Spock was letting us know that our besieged starship was not speeding into a safer new future, and that we still have to be scared. Heck of a job, Barry.

Add the Yule-Day terror attack to other recent problems (the blowback on a jobless economy, health care, Afghanistan and Iran, plummeting poll numbers, etc.), and it's clear the President needs to change the dynamic with a bold and clever move. Surprisingly and counterintuitively, executive action on immigration could be like a knight moved to the middle of the chess board that changes entirely the terms of engagement.

On Patt Morrison's Southern California Public Radio show yesterday, I debated Mark Krikorian, Executive Director of the Center for Immigration Studies, a group that opposes a path to legal status for the undocumented and supports "attrition through enforcement". As the debate on immigration enforcement versus legalization came to a close, I suggested, as I've blogged on the point before and others have proposed, that President Obama use his executive authority to grant the undocumented work permits. To my surprise, Krikorian agreed that the President has the authority to issue work permits (but that if he did so, Krikorian predicted that it would increase the pressure to impeach him).

With clear democratic majorities in both houses, a Presidential grant of work permits to the undocumented for a principled reason would not likely be found to satisfy the "High Crimes and Misdemeanors" standard for impeachment. That principled reason would be to require the 12 million undocumented among us to come forward, and submit to comprehensive security screenings in return for deferred action on deportation and the right to work. Couple the directive with a Presidential finding that, to protect the homeland, our nation must identify and screen as many of the undocumented as possible.

The screening would produce several immediate benefits:

1. It would generate a wealth of information for the law enforcement and intelligence communities to use to connect more of the dots;
2. It would make it easier and more cost-effective to identify and remove registrants and non-registrants who pose serious threats to the common weal;
3. It would temporarily take the heat off immigration supporters in Congress who fear the repercussions of a "yes" vote as 2010 mid-term elections draw near;
4. It would (partially) make good on pre-election pledges to the Hispanic community to support immigration reform despite a tough-sell in a bad economy;
5. It would cause us to stop spending unaffordable sums that add to the bankrupting of future generations for enforcement measures directed against hard-working, taxpaying and contributing members of our communities (as the Migration Policy Institute reported this month); and
6. It would change the facts on the ground by bringing millions of good people out of the shadows, put a human face on people heretofore demonized as faceless law violators and thus make it easier to pass comprehensive immigration reform after the November elections.

Yes, a presidential grant of the right to work and deferred action on deportation, in return for registration and full security screening, would be an audacious game-changer for the harbinger of hope. It would also make us more secure at a time when our jittery nerves could use a large dose of safety and the balm of reassurance that we are at last headed in the right direction.

The Congressional starter pistol on comprehensive immigration reform (CIR) has been fired skyward with the release of a 644-page mish-mash of proposed changes to the Immigration and Nationality Act that will both please and infuriate pro- and anti-immigration combatants in the Capitol and throughout the land. Introduced by Rep. Luis V. Gutierrez (D-IL), the bill with three names (the ‘‘Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009,’’ the ‘‘Comprehensive Immigration Reform ASAP Act of 2009,’’and the ‘‘CIR ASAP Act of 2009’’) is the first sortie in the coming Congressional ground war over immigration policy.

With the release of CIR ASAP, the early furor and focus will likely be on the big issues of border security, a path to citizenship for the undocumented and stiffer penalties for unscrupulous employers of unauthorized workers. Law-abiding employers who rely on foreign citizens with brainpower, talent and rare skillsets should fly over these skirmishes and instead parachute directly into Title V and its thicket of 68 dense, befuddling and mostly anti-business provisions.

Title V (described perversely as "Strengthening the U.S. Economy and Workforce") would transmogrify three key nonimmigrant visa categories -- the H-1B (specialty occupation workers), H-2B (non-ag skilled workers) and L-1 (intracompany transferees who are executives or managers or personnel with "specialized knowledge"). If Title V is enacted, employers petitioning for these work visas would soon be buffeted by a small army of newly added bureaucratic enforcers wielding an arsenal of expanded anti-employer powers conferred on the Departments of Labor and Homeland Security. Comparably draconian is Title V's new array of foreign-worker labor protections.

If CIR ASAP's Title V or similar anti-business fusillades become law, the only clearly foreseeable economic prosperity will accrue to immigration attorneys and employment lawyers who no doubt will be beseeched by an army of employers to explain the new burdens and liabilities and prepare the business community for the mountain ranges of added red tape and the expensive litigation to follow.

Before anything like Title V or its ilk is allowed to pass, employers (as Cher said in Moonstruck with two hard slaps to the face of Nicholas Cage) must "snap out of it." Forewarned is forearmed: Read Title V.

Just when U.S. employers thought the bad vibes emanating from U.S. Citizenship and Immigration Services (USCIS) could get no worse, the agency tasked with deciding whether to approve or reject requests for immigration benefits has come up with VIBE -- its new Verification Initiative for Business Enterprises which costs a whopping $35,506,760.43.

Just imagine . . .

. . . a program in which USCIS, by using VIBE, "will acquire information from an [Independent Information Provider (IIP)] . . ., which can be used to verify the eligibility of a company while detecting multiple types of misrepresentations."

. . . a program that will run checks on the "finacial viability" of the existing population of 137,000 companies that have registered with E-Verify, Homeland Security's online employment-verification database, as well as the roughly 52,000 new E-Verify registrants each year.

. . . a program where a "Privacy Impact Assessment (PIA) [mandated by the E-Government Act of 2002] and a System of Records Notice (SORN) [mandated by the Privacy Act] will not be required."

. . . a program where USCIS flouts the spirit if not the letter of its own regulation, 8 CFR § 103.2(b)(16)(i), which requires its officers to advise a petitioner or applicant of derogatory evidence and provide an opportunity to rebut the information.

. . . a world where information collected on companies' financial viability and business operations may be inaccurate, incomplete or outdated, and yet is relied upon by USCIS to issue requests for additional evidence (RFEs) that are even more burdensome than the type we see today and that unfairly delay the grant of work permits, visa petitions and green cards to deserving companies and their employees.

. . . a world in which a cash-strapped immigration agency, whose "financial viability" is endangered because its business model relies on the uncertain ebb and flow of user fees rather than government appropriations, would probably fail IIP testing if subjected to the same sort of third-party scrutiny as it plans to inflict on the very payors of its user fees.

Well, there's no need to imagine such a program because, according to a recent letter from USCIS Director Alejandro Mayorkas to Senator Chuck Grassley, VIBE will likely be implemented in the "spring of 2010." Director Mayorkas promises to provide Senator Grassley with "regular updates as to the progress of the [VIBE] program's rollout."

Perhaps the good Director can also provide the public, through the USCIS Office of Public Engagement, and the Senate and House Immigration Subcommittees, with an explanation of why VIBE requires no Privacy Impact Assessment or Privacy Act SORN notice, or why the financial viability of E-Verify registrants must be tested, or what safeguards have been incorporated or reparations set aside for payment if an IIP provides inaccurate data or an immigration examiner misinterprets data and a petitioning company -- perhaps a startup of which the IIP is unaware -- thereby loses a major contract, or if an unjustified delay in adjudication or denial of benefits results in the loss of a key foreign worker.

Clearly, stakeholders, take note and be wary, for the Immigration Singularity is upon us.

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[Blogger's Note: With the surrender by Lou Dobbs last Wednesday of his role at CNN as an anti-immigrant advocacy journalist, and his refusal to rule out a run for political office, It's time to reprise my reasons for blogging about our nation's dysfunctional immigration policies, first published on October 24, 2004. Despite the passing years, the message has muscular legs.]

This is the first posting to a new public-policy blog with a name that must be a typo: www.nationofimmigrators.com. Surely this blogger means to write “Nation of Immigrants,” not “Immigrators”. No; there’s no mistake. We are all Immigrators. We, the inhabitants of America, whether citizen or foreigner, are all Immigrators.

In the post-9/11 America of 2004, Immigrators include:

The politicians who make hissing sounds about supporting or opposing legal and illegal immigration but just never get around to passing laws that reflect our fundamental values and – once and for all – fix our country’s dysfunctional immigration system;

The demagogic media celebrity and modern-day Father Coughlin who each week night on cable TV frightens the public and derides American employers and the federal government for causing or failing to fix our country’s “Broken Borders”;

The immigration restrictionists who, like the Know Nothing Party of old, foment fear and hatred of foreigners and espouse a closed-border policy;

The owners and executives of virtually every U.S.-based business who reap the economic benefits of immigration;

The bureaucrats who administer our immigration laws, denying or granting citizenship and other immigration benefits, while dispensing fairness to some and injustice to many;

The immigration agents, some Dr. Jekylls and others Mr. Hydes, who sometimes succeed but often fail to protect our borders and remove deportable aliens; The law-abiding foreign citizens who enter the U.S. with proper visas or Green Cards and contribute mightily to our national economy and our cultural heritage;

The immigration lawyers who despite the scorn of an angry public help immigrants and temporary entrants achieve the American Dream;

The public officials, government appointees, and one- and two-career families, who knowingly hire housekeepers, nannies, handymen and gardeners (all without work permits);

The amnesiac, hypocritical, outraged or just plain apathetic American people who:

• forget that they enjoy the blessings of America only because their ancestors came here as immigrants,
• refuse to admit that immigrants are not “illegal” people but mostly honest and hard-working human beings, some of whom may have broken a largely unenforced and very confusing law,
• will not acknowledge that they enjoy low prices and low inflation because of immigrant labor, earn lower or higher wages because some immigrants are exploited and others create new and better jobs for American workers, or
• are indifferent and therefore fail to hold federal government leaders accountable for an incompetently administered, outdated and dysfunctional immigration policy; and

Lest we forget, the 8 to 12 million people from foreign lands who are here without benefit of legal status, and are no more or less “illegal” than the wealthy criminals who are granted amnesty even after evading their fair share of taxes through abusive shelters and avoiding jail by ‘fessing-up in so-called “voluntary compliance” programs.

Yes, indeed, America is an ever-squabbling and conflicted Nation of Immigrators. We all benefit and we all suffer (more or less) in this land of immigrant opportunity.

Well Immigrators of this country, unite! You have nothing to lose but your misunderstandings. Heed the postings of this blog. Take a close look at America’s immigration system. Learn where it works and where it needs fixing.

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Reports on immigration lawyer listserves are mounting. Shocked and frightened lawful permanent residents (LPRS) are reporting similar incidents in calls to immigration lawyers. The Department of Homeland Security (DHS), apparently in cooperation with state and federal police agencies, has at last merged many of the country's previously siloed law enforcement databases and, as a result, is receiving increasing numbers of hits on decades-old criminal incidents when LPRs return from travel abroad.

The real-life scenario often plays out like this. U.S. Customs and Border Protection (CBP) officers take the arriving LPR from the point of first contact (primary inspection) to a back room (secondary inspection) as startled American-citizen family members look on. Questions are asked about what may be a long-forgotten event, one or more arrests or convictions, perhaps decades old, even though fines have been paid and time served. The LPR (whose green card and passport are confiscated) is either held in custody or given an appointment for a deferred inspection at a CBP district office and told to bring criminal court records to try and clear the matter. Often, the LPR finds that all or the bulk of the court records no longer exist. At the deferred inspection, the CBP inspector -- unable to sort out the prior incident(s) -- has little choice but to refer the matter to the immigration court for a removal (deportation) hearing. Issued a Notice to Appear for removal hearing, the LPR joins a cast the size of a Cecil B. DeMille epic as one more Respondent among thousands.

This is when immigration administrative proceedings reminiscent of Kafka's The Trial begin. Immigration judges (IJs) with overflowing dockets face emotional stress from the unrelenting and growing tide of new and old cases. Government attorneys, many new admittees, others grizzled lifers waiting longingly for retirement, wheel shopping carts of case folders into the courtrooms but frequently cannot locate the files for many a Respondent in court that day. Immigration lawyers, some able and diligent, others barely (or perhaps not) competent, try to demonstrate that the incidents in question do not warrant deportation or that the law allows "relief from removal." All this happens while growing throngs of immigrant detainees languish in federal, state and contractor-run immigration prisons, and DHS bids out contracts to build more and more detention space, like the pending bid for a 2,200-bed facility in or near Los Angeles. "Master Calendar" hearings -- where many in the crowded court rooms lack legal representation -- are held and concluded in rapid sequence. IJs order removal, grant voluntary departure in lieu of deportation, and schedule merits hearings on the "Individual Calendar" to try cases in which legal defenses are raised or relief from removal is sought.

LPRs -- especially those in the U.S. for many years -- when contemplating the prospect of appearing in immigration court, usually move through the classic Kübler-Ross phases of grief: Denial, Anger, Bargaining, Depression and Acceptance. Hiring a lawyer during the Denial phase often occurs. The sense of disbelief leads to the insouciant selection of immigration legal counsel. The Denial phase may also be prolonged by a mistaken belief that the conviction is a small matter -- too often attributable to the errant assurances of criminal defense counsel that no adverse immigration consequences would arise or that an expungement would erase all traces from the LPR's record.

LPRs are best advised to take IJ proceedings seriously. The pursuit of happiness, liberty, proximity to family and friends, and financial assets -- all are at risk in the immigration court, and in the appellate proceedings that follow with the similarly strapped Board of Immigration Appeals and the Federal Court of Appeal. Whether retaining pro bono representation or private counsel, LPRs -- much like the sick or diseased facing long-term disability or death -- must not wholly relinquish control of their circumstances to professionals. They must "own" their case, participate in strategic decisions, help provide witnesses and supporting evidence, and be prepared to fight hard to retain the right of lifelong permanent residence and eligibility for citizenship in the United States.

The international travel industry will hate me for saying so, but LPRs with a blemished past probably should consider staycations rather than foreign vacations if the return trip requires running through the harrowing gauntlet of immigration court proceedings.

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Last Tuesday, Chuck Kuck, immediate Past-Prez of AILA, and I covered the landscape of current developments in U.S. immigration law and policy on "The Immigration Hour," Chuck's weekly program on America's Web Radio. If you've grown weary of the health-care debate and are hankering for the next large public controversy, give a listen.

We covered the origin and current exploits of the USCIS Fraud Detection and National Security (FDNS) unit, the latest meanderings of their outsourced compatriots who are paying visits to American employers from sea to shining sea, and the prodding of Sen. Grassley to find more and more perceived and real immigration fraud.

Next, we offered predictions on the prospects for passage of comprehensive immigration reform (CIR) before the Congressional mid-term elections. We asked aloud whether the pro-immigration coalition will splinter if legalization's proponents push so hard for the unauthorized 12 million that the employer community is left empty-handed in its quest for increased H-1B and green-card quota numbers. This would be a painful role reversal for the "split the bill" voices of the business community that abandoned the pro-immigrant community in 1996's enactment of the draconian Illegal Immigration Reform and Immigrant Responsibility Act.

We also asked whether the birthers and tea-baggers will morph into xenophobes and whether the anti-immigrant lawmakers in Congress will at last wake up and smell the strong Hispanic coffee, as the debate moves from health care to immigration. Were our ruminations mere phrenological head-scratchings? Or, did we make a valid point or two? You decide, and then kindly comment on this blog. All views are welcome.

Much like the drunk who looks near the street lamp for a lost key because that's the only place where there's light, House and Senate conferees have granted a three-year extension of life support to the still-tottering E-Verify system -- the only legit e-game in town for confirming employment eligibility. Congressional gamblers also double-downed on their E-Verify bet by approving an additional $137 million in the Homeland Security funding bill for the beleaguered program.

Immediately the decision provoked controversy. Republican Senator Jeff Sessions has said that three years is not enough. The bill, according to Sessions, should have made E-Verify a permanent weapon in the government's employer-sanctions arsenal and should have placed into law the Obama-approved, Bush-era regulation -- effective since September 8 -- that requires inclusion of mandatory E-Verify workforce testing in new federal procurement contracts.

Others upset by the Congressional action include E-Verify opponents who would scotch the system because it has not yet proven itself ready for prime time. E-Verify does not detect borrowed or stolen identities. It still flags about 4% of all queries as tentative non-confirmations (TNCs) of employment eligibility, adversely affecting a worker population of some nine million. As the General Accountability Office (GAO) has reported, E-verify has caused the Social Security Administration electronic database to fail twice last summer for "extended" periods, causing GAO to worry about proposals that would make E-Verify mandatory for all employers:

[F]ederal legislation has been proposed to, among other things, require the use of the E-Verify program by employers across the nation. If such legislation is enacted, agency officials estimate that the number of queries to E-Verify could quickly surpass 60 million per year—nearly 10 times the number of requests in fiscal year 2008.

Even more troubling, as reported in the Harvard Law & Policy Review, is the risk of an increase in unlawful employment discrimination and worker firings. Already wrongful termination lawsuits are blaming E-Verify as the trigger for job losses. Courts may therefore soon determine whether the DHS-endowed employer immunity from civil liability in its Memorandum of Understanding for good-faith reliance on the E-Verify database will survive close scrutiny.

One federal court has issued a temporary restraining order (at p. 16) in a comparable employer-sanctions enforcement setting (involving the now repudiated Social-Security No-Match regulation) where the Homeland Security Department purported to grant immunity against civil liability for an employer’s good-faith reliance on a government-prescribed immigration-enforcement regimen.

President Obama is expected to sign the Homeland Security authorization, including the revivification of E-Verify. Time will tell whether the expected increase in litigation and adverse impacts on employers and lawfully authorized workers will have been worth Congress' expensive bet on the problem-plagued E-Verify program.

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[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.

History teaches us a tried-and-true, gumshoe-inquisitor's method of uncovering scandal. As memorialized in the 1976 film, All the President's Men, former FBI agent, Mark Felt, unmasked as Deep Throat of Watergate fame, explained the approach to Washington Post reporter Bob Woodward:

Deep Throat: Follow the money.

Bob Woodward: What do you mean? Where?

Deep Throat: Oh, I can't tell you that.

Bob Woodward: But you could tell me that.

Deep Throat: No, I have to do this my way. You tell me what you know, and I'll confirm. I'll keep you in the right direction if I can, but that's all. Just ... follow the money.

Congress, or better yet, investigative journalists and documentary filmmakers, should take a cue from Deep Throat when it comes to pulling the covers off the scandal of immigration user fees. Two years ago U.S. Citizenship and Immigration Services (USCIS) raised filing fees on average 66%. Yesterday, the new USCIS Director, Alejandro Mayorkas, told reporters that the agency is considering another round of fee increases as well as budget cuts, although the 2007 increase was supposed to improve service on a consistent basis -- and that hasn't happened. The USCIS Ombudsman, quoting the General Accounting Office (GAO), at page 19 in the Ombuds' 2009 annual report, recognized the pickle the agency is in when a plummeting economy put USCIS filing-fee revenue into freefall:

Challenges with USCIS Fee Funding Structure

USCIS, which is dependent on fees to finance its operations, is impacted by decreases in application/petition receipts, as during the reporting period. In discussing revenue stability, the GAO notes that “a decrease in application volume could significantly affect operations when an agency receives nearly all of its funding from application fees.” [Footnotes omitted.]

But to swallow the "bad-economy" explanation is to take a sucker punch. There are many reasons why USCIS can't balance its budget, aside from the structural infeasibility of relying almost completely on user fees. To name but a few:

• The USCIS unit, Fraud Detection and National Security (FDNS), has taken over the investigations functions of another bureau of Homeland Security, Immigration and Customs Enforcement (ICE). FDNS has outsourced ICE's investigations functions to private detective agencies whose investigators are roaming the country to investigate nonimmigrant worker petitions. According to a January 2009 GAO report (p. 19), FDNS ran up a $99,000,000 tab in FY-2008 and FY-2009. Why should law-abiding people and businesses who sponsor foreign citizens pay for the costs of agency mission creep when another agency (ICE) is charged with interior immigration enforcement? What benefit (the putative reason for user fees) do they get over and above the benefit to all Americans of interior immigration law enforcement?
• The Adjudicators at USCIS ignore legal requirements, fail to consider the evidence submitted, apply a higher-than-permitted burden of proof, and routinely insist on reams of burdensome and unnecessary documents in requests for evidence(RFEs). How much of the $1,134,000,000 spent in making decisions on immigration-benefits requests in FY-2008 and FY-2009 (ibid) went to illegal RFEs?
• USCIS "Modernization" and "Transformation" initiatives have been inching forward and backward for several years with little to show for the effort beyond a spiffy new USCIS website. Where did that money go?

So unless a gullible public and stakeholder community want to swallow hard the agency's crocodile tears, perhaps some patriot out there should embrace Deep Throat's timeless advice: "Follow the money."

I've railed repeatedly in this blog about the abhorrent tendency of federal immigration agencies to make sweeping changes in law and procedure merely by issuing easily-repudiated press releases and policy memoranda. A recent policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) illustrates just how much damage can ensue when bureaucrats pass rules without the beneficial vetting required by statute and presidential orders.

The Administrative Procedure Act mandates that the public be given notice of proposed rulemaking and an opportunity to comment. Presidential Executive Order 12291 requires formal agency rulemaking in order "to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations." EO 12291 also defines "[r]egulation" or "rule" to mean "an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the procedure or practice requirements of an agency."

Exhibit A in opposition to rulemaking by unexamined bureaucratic missive is an August 6, 2009 Policy Memorandum by Donald Neufeld, Acting Associate Director, Operations for USCIS. Mr. Neufeld's memorandum carries an unassuming, if soporific, title: "Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions." Its purpose is benign and commendable -- to modernize the interpretation of continuing green-card eligibility for employees of businesses involved in corporate reorganizations so that surviving entities need not re-start the years-long immigrant visa process from scratch. Yet by failing to give the public and the stakeholder community an opportunity to enlighten the agency on the legal and real-world implications of its contemplated change, USCIS creates mischief and mishigas for itself and for the highest of high-achievers in the immigration pantheon.

By way of explanation, the high achievers to which I refer are outstanding researchers and professors and executives and managers of multinational businesses. These two "Priority Worker" green-card categories are considered by Congress as so important to the nation that the usual protections of the U.S. labor force, the labor market test for worker availability known as PERM labor certification, do not apply to them.

So how does Mr. Neufeld's memorandum hurt these high achievers? It says that unlike the employers of foreign citizens who have been granted labor certifications, the employers of high achievers (colleges, universities and large and small companies with American and foreign operations) are not allowed to benefit from the successorship-in-interest principle. This means that they must go back to the end of the quota queue and apply all over again. The result: The high achievers will likely be required to wait several years longer to get their permanent resident status, and some may be disqualified by virtue of the passage of time and the changed circumstances involved in the employing organization's restructuring.

The Neufeld memorandum is not only arbitrary and unfair in granting special benefits when "stuff happens" to one group and denying them to similarly situated others. The memorandum flies in the face of 25 years of settled agency practice which (numerous immigration-lawyer colleagues can attest), has allowed successorship-in-interest to benefit these high-achieving denizens of academia and Wall Street. Be assured, however, that the talented Masters of the Universe and the Professors Kingsfield seeking permanent residence in this country (and their American employers and lawyers) will not go quietly into the night of quota hell.

The USCIS must stop embarrassing itself by perpetuating this seemingly expedient but ultimately foolish and illegal behavior. It must create rules the old fashioned way that Congress and the President require, and let the public be heard.

My last blog post triggered a florid response. An unknown commenter with the handle "Federale" described the post, "Immigration Indifference - The Adjudicator's Curse," as "nothing more than immigration bar propoganda (sic)." Federale's comment disputed my claim that fear of fraud influences the actions of Center Adjudications Officers (CAOs), asserting that the trepidation in question is rather of fearsome supervisors who impose burdensome quotas on CAOs. Evoking images of the unstoppable assembly lines in Charlie Chaplin's Modern Times, Federale bemoans the plight of the CAO:

This post just shows your ignorance of reality. USCIS Immigration Services Officers (ISO) and Center Adjudication Officers do not work in fear of fraud, but in fear of their managers who have imposed a strict set of quotas on them. For ISOs in the field offices, they must adjudicate 10 cases a day. In reality this means approving 10 cases a day, because if they deny a case, they must justify that denial in writing. They need to do nothing if the application is approved. And they are not authorized overtime to write denials. So, to meet the USCIS management's quota, they cannot deny cases. It is a wonder that any cases are denied at all, unless they are referred to the National Security and Fraud Detection unit. Even then, an ISO must write a referral through a supervisor to refer a case to NSFD. So your claim that ISOs and CAOs act out of fear of fraud is not true. In fact, ISOs and CAOs live in fear of a bad evaluation if they spend time writing a denial or a referal (sic) to NSFD.

Federale claims it's "a wonder that any cases are denied at all, unless they are referred to the National Security and Fraud Detection unit." How then would Federale explain the case of woebegotten Pastor Ben Neufeld, his wife and children? They now must live apart for ten years because their request to extend the family's nonimmigrant status was timely submitted, but, alas, on the wrong form. As Ted Chiappari and I noted in last Monday's New York Law Journal (available here with permission of Incisive Media, the copyright holder):

Even the most zealous supporters of a restrictive immigration policy should be asking themselves whether the administration of our immigration laws ought to be entrusted to an agency so heartless or brainless as to separate a pastor from his family over a minor technicality that immigration officers, by statute and regulation, are allowed to forgive. . .

An innocent and trivial mistake by law-abiding people who are otherwise eligible to be here and who have been trying to comply with the law should not produce the draconian consequence of a ten-year bar to reentry to the United States. This kind of nonsense undermines the rule of law, and makes it hard to take seriously an agency that issues these kinds of asinine decisions. It apparently is too tall an order (although it really should not be) for USCIS to translate a large and admittedly complex body of statutes into forms and instructions understandable to a lay person. Indeed, . . . USCIS cannot even promulgate regulations to interpret new immigration laws in a timely fashion. If [the USCIS] . . . cannot publish clear instructions, forms and regulations, at least its adjudicators deciding requests for immigration benefits must be instructed on how to exercise wisely the discretionary authority they possess to forgive the mistakes that inevitably happen.

One thing on which Federale and I agree is that there's something dramatically amiss when a business model rewards the wrong outcomes. As the Wall St. Journal reported on August 24 ("'Billable Hour' Under Attack - In Recession, Companies Push Law Firms for Flat-Fee Contracts"), chief legal officers of many corporations are fed up with the billable hour, an outmoded business model rewarding delay and inefficiency, still utilized by a supermajority of attorneys in virtually all full-service law firms (with the notable exception of a few enlightened law firms and of immigration lawyers, who typically bill by the project).

Service organizations that "get it" realize the need to align their interests with those of customers and other stakeholders. These providers increasingly use approaches that promote quality, efficiency, integrity and customer service. They have learned that operational excellence is attainable in virtually every organization. It takes listening to the 'voice of the client' and engaging in such data-driven techniques as process mapping, kaizen (continuous incremental improvement), elimination of waste and reduction of cycle time, all grouped under the proven business-improvement strategy, endorsed by the U.S. military, known as lean six sigma.

So whether the problem with the CAOs and DAOs (District Adjudications Officers) of USCIS is fear of fraud or fear of the poison pens of punitive supervisors, I'm afraid its well past the time for this agency to engage in an authentic transformation by adopting a completely new and dramatically improved business model.

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Raymond Kurzweil, a scientist and futurist, predicts a new epoch he calls the "Singularity." This is the point along the evolutionary path where the line between human beings and technology is crossed, where quasi-human/quasi-machine beings possess far more brainpower and longevity than mere mortals. As Kurzweil puts it:

One can make a strong case that [the Singularity is] actually the cutting edge of the evolution of intelligence in general, because there's no indication that it's occurred anywhere else. To me that is what human civilization is all about. It is part of our destiny and part of the destiny of evolution to continue to progress ever faster, and to grow the power of intelligence exponentially.To contemplate stopping that — to think human beings are fine the way they are — is a misplaced fond remembrance of what human beings used to be. What human beings are is a species that has undergone a cultural and technological evolution, and it's the nature of evolution that it accelerates, and that its powers grow exponentially, and that's what we're talking about. The next stage of this will be to amplify our own intellectual powers with the results of our technology.

In matters of immigration, the Singularity is approaching more quickly than we lowly humans can comfortably tolerate and outpacing the capability of lawyers and policy wonks to understand and harness it for good rather than ill. I can cite many examples -- the Labor Department's new iCert portal and Homeland Security's E-Verify database, to name just two -- both portending an ominous new era of secret data mining and invasions of privacy. As scary as these technologies are, they are noisome gnats in comparison to the threats posed by the State Department's new electronic nonimmigrant visa application required for use at several consular posts -- the DS-160.

To hear State tell the Office of Management and Budget (OMB) in its Supporting Statement, the DS-160 is a marvel of efficiency and simplicity, and a boon to visa applicants worldwide:

The Department has developed an application process that will allow respondents [visa applicants] to electronically submit their applications to the Department. . . .The applicant will be asked to provide answers to a series of standardized questions. Depending on the applicant’s answers to these standard questions, the applicant will be asked specific questions concerning their application. For example, all applicants are asked “What is the purpose of your trip to the United States?” If the applicant answers, “fiancé” the applicant will then be directed to answer questions specific to nonimmigrants that are coming to the United States to marry U.S. citizens. Or, if the applicant answers “student”, the applicant will be asked questions pertaining to his or her education plans. Once the application is completed and the applicant has verified the answers provided, the applicant will electronically sign and submit the application to the Department in electronic form. The applicant may print a copy of the application for record keeping purposes, but no paper copy of the application is submitted to the Department. The applicant will present to the Department in paper an application confirmation page which will contain a record locater in the form of a 2-D bar code. The consular officer will scan the bar code to electronically retrieve the application from the computer database. The electronic form will ensure that consular officers have all the necessary information to process the application and will significantly reduce the need for additional paperwork during the applicant’s interview. The electronic submission of the application to the Department will allow for the information to be reviewed before the time of an interview.

The problem with the DS-160, however, is that the visa applicant (and his/her lawyer, family member or sponsoring employer) cannot see the questions to be answered in advance or even print out a copy of all or part of the form before sitting down to provide answers, given under penalty of perjury, that will determine whether the applicant's personal version of the American Dream will ever be realized.

In my view, State snookered OMB in approving the release of the DS-160 under the Paperwork Reduction Act (PRA) without providing the public with access to a complete copy of the form and all the questions posed. The purpose of the PRA is to reduce the burden of completing government forms; it is not to allow government agencies to force visa applicants and their stakeholders to play "whack a mole" or "peek a boo" as different answers pop up unexpectedly.

Before the Singularity, Hamlet's exclamation eloquently celebrated humankind's evolution:

What a piece of work is a man! How noble in reason, how infinite in faculties, in form and moving how express and admirable, in action how like an angel, in apprehension how like a god! The beauty of the world, the paragon of animals . . .

After the atrocity of the DS-160, however, as State tramples on legal rights and human sensibilities, the rest of Hamlet's phrase is particularly apt, for this electronic Singular Sensation turns humans into the "quintessence of dust."

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I've always loved to travel, especially to foreign lands. In law school, I devoured all the courses that dealt with international law -- public international law (involving relations between countries and international organizations), private international law (dealing with transnational contracts between individuals or businesses), conflicts of laws, and a seminar on international business transactions. Those classes -- I thought -- would provide my ticket to see the world. After a stint ghostwriting judicial opinions for a state appellate judge, I joined a small, well-regarded firm in the late '70s and practiced international business and tax law.

I thought my dream was about to come true. After a time, however, I soon learned that the job of international-contracts scrivener was less than fulfilling. I was eager for a change. By fortunate happenstance, I stumbled on another area of law teeming with international flavor and opportunities aplenty to travel: immigration law. Better still, I discovered a passion for law that until then had not existed. It's been 30-plus years and my passion for immigration still burns brightly.

Lately, however, what I always saw as a helping profession has become a hurting occupation. I hurt because my job causes me, against my will and my heart, to transmit hurt to others. I tell clients whose petitions and applications the government has rejected (in my view, unjustly, or I wouldn't have taken the assignment) that they must set aside their American dreams and leave the country or risk a 10-year bar on returning here by appealing the denial or litigating. I also tell employers that they must terminate some of their best workers. These are the ones (the employer belatedly discovers) who lack work permission. I then imagine the cascade of hurt my advice inflicts: Families are torn asunder, businesses are threatened, and dreams are dashed.

This is the toxic effluvia of the new Homeland Security policy that dispenses with high-profile worksite raids and instead uses threats of criminal prosecution to tighten the vise on employers and thereby cause the ouster of unauthorized foreign workers from job sites nationwide. At the same time, the front page of today's Wall St. Journal proclaims that another Executive Branch agency is overwhelmed by a flood of tax cheats who pursue government-sanctioned amnesty after having secreted untaxed money in offshore accounts ("Tax Evaders Flock to IRS to Confess Their Sins").

Why the rush to put the immigration squeeze on now? Is this a cynical and heartless ploy to appease and co-opt the xenophobes in advance of the push this fall for comprehensive immigration reform?

Ironically, in the same WSJ edition, another article hits closer to home: "Got Workers? Dairy Farms Run Low on Labor -- Even in Recession, U.S. Job Candidates Are Scarce; Milk Producers Relying on Immigrants Worry About a Crackdown."

Something in these contrasting articles caused me to go back and search for a passage in President Obama's autobiographical Dreams from My Father. I find it in Chapter 16. His Aunt Zeituni (who now awaits her fate in a reopened deportation hearing) tells a younger Barack:

. . . [D]on't judge [your father] too harshly. . . . If you have something, then everyone will want a piece of it. So you have to draw the line somewhere. If everyone is family, no one is family. Your father, he never understood this, I think.

So, for now, we see where the "forgiveness" line is drawn. On one side, tax cheats; on the other, dairy workers who "deliver calves, milk cows and scrape manure." This blogger and unhappy bearer of bad immigration tidings therefore asks: Who's milking whom?

Federal Inspectors General (IGs) are critically-important public servants -- except when they are entranced by the siren song of individual Members of Congress who commission reports that lead to phony, pre-ordained and self-serving outcomes. When performing their responsibilities as Congress intended, the IGs work like truffle-sniffing canines, faithfully rooting out crimes, waste, fraud and abuse. They are also tasked with the duty "to provide leadership and coordination and recommend policies for activities designed . . . to promote economy, efficiency, and effectiveness in the administration of federal programs . . . and provide a means for keeping the head of the establishment and the Congress fully and currently informed about [bureaucratic] problems and deficiencies."

We've seen the regrettable pattern before, with Sen. Chuck Grassley's repeated insistence that USCIS find the widespread fraud in the H-1B visa program that he is certain exists. The result: USCIS conducted a poorly designed, internally referential (er, reverential) report that -- when results are extrapolated -- claim fraud and technical abuses are rampant. My point is not to suggest that fraud is as rare as a five-legged puppy. Rather it is that we must adopt the strategy that Ronald Reagan employed with the Soviets ("trust, but verify").

We now have another example of an IG hypnotized by the chatter of immigration-agency insiders with skewed views, a report issued back in March 2005 by theState Department's IG (but released just this week) entitled "Nonimmigrant Visa Adjudication: Standards for Refusing Applicants." State's 2005 IG report was commissioned by James Sensenbrenner, Jr., then-Chairman of the House Judiciary Committee, and Sen. Jon Kyl, Senate Judiciary Committee member, who asked the IG "to review the process by which adjudications are made and reviewed under section 214(b) of the [Immigration and Nationality Act (INA)]." They also requested that OIG review the merits of several proposals that might strengthen the Department of State's . . . ability to combat mala fide applicants, particularly those intending to do harm while in the United States."

INA § 214(b) is a nunchuk provision of law, which when coupled with § 291, gives U.S. consular officers unfettered power to knock out virtually any nonimmigrant visa applicant. Section 214(b) requires the applicant to prove that s/he (a) qualifies for the particular nonimmigrant visa sought, and (b) for most visa categories, has an unabandoned permanent residence in a particular home country to which the individual will return after achieving the purpose of entering the United States. Section 291 puts the burden on the applicant to prove to the consular officer's "satisfaction" that the requirements of INA § 214(b) have been established. (For a previous blog post and podcast on the subject, click here and there.)

The 2005 State IG report found, not surprisingly, that consular officers love § 214(b), but that it does not go far enough. Asking consular officers about 214(b) is like asking Warren Jeffs if he favors polygamy and child brides. The IG and the Conoffs want 214(b) carve-outs (introduced in the Immigration Act of 1990) removed for H-1B (specialty occupation workers), L-1 (intracompany transferees) and O-1(extraordinary ability aliens). One thing they don't want is to incorporate internal agency adjudication standards on 214(b)'s "intent-to-return-home" requirement into State Department regulations because that would reduce the officer's much-coveted "flexibility." That would also risk opening the subject to public comment under the Administrative Procedures Act and to the many nonpartisan reports criticizing 214(b) as in need of scale-back or elimination, such as the well-reasoned analysis issued by the University of California at Irvine and the Merage Foundations.

The problem with the recent spate of IG immigration reports is that they ask their questions in hermetically-sealed and cloistered environments. Open the doors and windows, much like the USCIS Ombudsman, and ask affected stakeholders, knowledgeable experts and (heaven forfend) immigration lawyers what's wrong and the IGs will get a very different earful of conclusions.

If the IGs -- when studying immigration -- are to fulfill their statutory mission of achieving "economy, efficiency, and effectiveness" and keeping Department Secretaries and Congress "fully and currently informed about [bureaucratic] problems and deficiencies," they would be better advised to study two other recent reports that reach conclusions diametrically opposed to the Conoffs' short-sighted grumblings. One report would be an enlightening study published under the auspices of the Small Business Administration ("High-tech Immigrant Entrepreneurship in the United States") and another is the recent bipartisan report of the Council on Foreign Relations (Independent Task Report No. 63 "U.S. Immigration Policy") that exhaustively and dispassionately covers the immigration debate.

Failing that, the IGs mis-reporting on immigration should take to some leisurely summer reading. As an essay last Sunday in the New York Times Book Review ("Still 'Ugly' after All These Years") reminded us, in speaking of a 1958 classic novel: "[I]t’s worth recalling that the impolitic travelers in 'The Ugly American' aren’t drunken backpackers or seniors sporting black socks, but the so-called educated elite of the diplomatic corps."

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The Office of Ombudsman (Ombudsman) to U.S. Citizenship and Immigration Services (USCIS) has just released an outstanding 2009 Annual Report to Congress. The culmination of an especially ambitious and successful year of several spot-on recommendations, the Report focuses a laser beam on the many shortfalls in USCIS's performance.

Among the Report's many worthy insights, the Ombudsman cites numerous customer-service lapses:

* USCIS has been forced to fund day-to-day operations through the ebb and flow of filing fees rather than by Congressionally appropriated sums (this includes the $491 million dollar contract with IBM now funded solely by Premium Processing fees to pay for the agency's electronic "Transformation" initiatives which will not begin to bear fruit until February, 2011 and may yet "incur substantial additional costs").

* USCIS has not moved to enable the scanning of paper documents or the online payment of filing fees.

* USCIS has endorsed the National Customer Service Center (NCSC) adoption of a call-center scripting approach that relies on canned and unhelpful responses (Tier 1) and a rotating crew of USCIS Information Officers who lack access to agency records (Tier 2) to address egregious delays and deficiencies in USCIS's performance.

* USCIS has not met its self-imposed targets for reductions in average processing times for all categories of petitions and applications for immigration benefits.

The work of the Ombudsman is a godsend, but not a deus ex machina. With altogether too much toleration and not enough outrage for my taste, the Ombudsman's report restates longstanding USCIS problems but does not condemn the lack of significant forward movement. Why doesn't the Report seriously challenge:

* The flawed premises and exaggerated conclusions of the agency's H-1B fraud and abuse survey?

* The fact that the second-largest category of new hires involved "fraud and security positions" during the first stage of expanded USCIS hiring" funded by user fees that should be earmarked for adjudication?

* The manifest lack of accountability of adjudicators who flout policy memoranda issued by USCIS?

* The USCIS assertion of legitimacy and reasonableness that the precious right of employment authorization should ordinarily take 90 days to grant? or

* The lack of meaningful appeal rights and right to legal counsel for all parties in interest (including the foreign citizen applicants) in all categories of immigration-benefits requests?

According to a knowledgeable Congressional insider who was present at its creation, the Office of Ombudsman -- beyond its stated statutory mission of "assist[ing] individuals and employers in resolving problems" with USCIS -- was intended to take the burden of immigration-related constituent services off the backs of the Senators' and Representatives' staffs. The problem with offloading constituent complaints to the Ombudsman is that it takes pressure off Congress to hold USCIS accountable. Why hold an oversight committee hearing (Members of Congress might say candidly to their visages in the mirror) when we can read and forget each annual Ombudsman's report?

The time for tolerance is past due. Righteous indignation is needed now. Congress must bite the bullet and fund USCIS on a long-term basis with appropriated funds. It should also expand the Ombudsman's authority so that it is "Tri-Bureau" in scope, and covers all three agencies (USCIS, ICE and CBP) that together interpret and apply the immigration laws within Homeland Security. Indeed, if the Obama Administration and Congress are serious about the proper functioning of the federal immigration system, they would also create Offices of the Ombudsman for the Departments of Labor and State, and place a "Tri-Department" Ombudsman on top, so that stakeholders really have a "seat at the table" for comprehensive immigration reform.

Meantime, the USCIS Ombudsman should stop sipping the agency's Kool-Aid. It should conduct a full financial audit of USCIS's application of user fees for purposes within and outside of the adjudication-only mandate of the Homeland Security Act. It should be directly involved in all aspects of the Transformation program, including contract administration. It should abide by Immigration and Nationality Act § 452 which confers on the Ombudsman "the responsibility and authority . . . to appoint local ombudsmen and make available at least 1 such ombudsman for each State [emphasis added]."

Don't get me wrong. The Ombudsman is performing well a critically important role. But there is simply too much dysfunction in America's broken immigration system merely to compliment the Ombudsman for a solid, if temperate, report.

The heavy lifting on comprehensive immigration reform involves far more than merely enhanced border protection, a path to legal status for the undocumented and an orderly system for future worker flows. It will require a complete overhaul of the government agencies that now mismanage a slew of immigration programs that, if optimally administered, could and should be the rejuvenating lifeblood of our nation.

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In the same month that the world commemorates the 20th anniversary of the bloody showdown in China's Tieneman Square, we are again witnessing (this time, through the samizdat of Twitter and YouTube) what may become another defeat for democratic freedoms in a different Asian country, Iran.

For a sixth straight day, Iranian citizens of every demographic, including a growing cohort of Islamic clerics, have marched in the streets and braved the bludgeon of the militia and the police to protest the outcome of last week's disputed Presidential election. No one can predict the outcome, although Time Magazine suggests four plausible endgames. As the world watches, Iranians desperately plead for America's help. A letter to President Obama, circulating in the Iranian-American community from an anonymous writer in Iran, poignantly places in stark relief the urgency and fear of the small "d" democrats of Iran:

Dear Mr. President,

. . .

It is not convincing now to stand by and watch on the pretext that you don’t want to interfere in the internal politics of Iran. Concern is not enough. Watching to see if demonstrations gain momentum is not enough. Interviewing a few conservative analysts is not enough. We are watching but may not be there to judge you when this is over. Will you abide by the dictates of your conscience and take a stance in [favor] of a nation that is at the mercy of a soul-less system? Or will you all stand by and watch only to say, in a decade or two, that you made a grave mistake? I’m pleading to your heart, Barack Obama, because I believe you are sincere. Please say what you mean and mean what you say.

Sadly, the world hears a tone-deaf President Obama respond with so little empathy that it would surely embarrass his prospective Supreme Court nominee. Answering a question from the New York Times and CNBC, the president sounded an out-of-character, discordant note by observing on Tuesday that from an American national security perspective, there was little daylight between Iranian President Mahmoud Ahmadinejad and his prime opponent, Mir Hussein Moussavi:

“Either way,” Mr. Obama said, the United States is “going to be dealing with an Iranian regime that has historically been hostile to the United States, that has caused some problems in the neighborhood and is pursuing nuclear weapons.”

What do the democratic stirrings in Iran and a reticent president have to do with a blog on the dysfunctions of America's immigration system?

Harken back to the fallout from the Chinese Communists' quelling of democracy with tanks and bloodshed in Tieneman Square. The Congress and the first President Bush took two-and-a-half years to protect the Chinese citizens who feared return to the Peoples Republic by passing the Chinese Student Protection Act of 1992. That law allowed a generation of primarily young Chinese to obtain permanent residence in the U.S., and probably contributed significantly to the decade of innovation and prosperity that followed. However President Obama decides to respond to events on the ground in Iran, the Congress should immediately hold hearings and speedily enact legislation, much like CSPA '92, that would allow the thousands of Iranian citizens now in the U.S. to apply for permanent residence.

Secretary of State Hillary Clinton could also take a page from history by easing the standard for granting U.S. nonimmigrant visas to Iranians as State did when many pro-Western Iranians were fleeing Iran with the fall of the Shah. As memory serves, State instructed consular officers to apply the requirement that a visa applicant must intend to return to the person's country of residence by considering, in the case of Iranians, whether the person would be likely to return to Iran if and when the political instability there were to ease.

In short, President Obama had it right when he offered his Persian New Year message to the people and leaders of Iran:

The United States wants the Islamic Republic of Iran to take its rightful place in the community of nations. You have that right -- but it comes with real responsibilities, and that place cannot be reached through terror or arms, but rather through peaceful actions that demonstrate the true greatness of the Iranian people and civilization. And the measure of that greatness is not the capacity to destroy, it is your demonstrated ability to build and create.

So on the occasion of your New Year, I want you, the people and leaders of Iran, to understand the future that we seek. It's a future with renewed exchanges among our people, and greater opportunities for partnership and commerce. It's a future where the old divisions are overcome, where you and all of your neighbors and the wider world can live in greater security and greater peace.

The time for actions to back up these words, by the President and Congress, is now. Or, as Bill Maher laid down in his New Rules segment last week:

I'm glad Obama is president, but the "audacity of hope" part is over. Right now, I'm hoping for a little more audacity.

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It's Groundhog Day in Las Vegas, as immigration attorneys convene for the first day of the annual conference of the American Immigration Lawyers Association -- for many of us, regrettably, a victory of hope over experience. This is not intended as a smackdown of AILA. On the contrary, AILA has assembled an all star cast of speakers and is offering a collection of cutting-edge immigration topics. Rather, the reference to the film is more a commentary on the annual uttering of unhelpful, straight-faced responses by most (but not all) of the agency officials on the dais to the pressing concerns of the lawyers on behalf of their clients. As regular AILA conference attendees can attest, the typical government representative's spiel involves an unctuous appreciation of the importance of meeting with lawyers to share information. This is followed by the recognition that while there are problems, the situation is not as bad as it once was. The recitation then ends with the assurance that a regulation or policy memorandum addressing and resolving the lawyers' concerns will be issued in the near future, but meantime the government representative is not at liberty to suggest what the new regulation or memorandum will say or when it will be published. As the sage American philopher -- Yogi Berra -- would say, if he were here: "It's like déjà vu all over again." The furor du jour on the first day of the conference is about the proliferation of government requests (mostly from U.S. Citizenship and Immigration Services [USCIS]) for additional evidence (RFEs). The RFEs often run to several pages. A comparison of the RFEs reveals that many are boilerplate demands made without reference to the facts in the particular case. As reported today at the AILA conference, even publicly traded, long established, and financially sound companies are ordered to produce voluminous evidence proving their existence and viability or risk denial of their petitions. The viral spread of extravagant RFEs is an effront to USCIS Headquarters policy (as reflected in a Feb. 16, 2005 policy memorandum):

A RFE [sic] is most appropriate when a particular piece or pieces of necessary evidence are missing, and the highest quality RFE is one that limits the request to the missing evidence. Generally it is unacceptable to issue a RFE for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is still required. “Broad brush” RFEs tend to generate “broad brush” responses (and initial filings) that overburden our customers, over-document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents. While it is sensible to use well articulated templates that set out an array of common components of RFEs for a particular case type, it is not normally appropriate to “dump” the entire template in a RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent, using the relevant portion from the template. The RFE should set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required.

As the first day of the AILA conference drew to a close, I bumped into a podcaster (Dan Kowalski, Editor of Bender's Immigration Bulletin). He noticed a chagrined look on my face and asked what was bothering me. Here then is my podcasted rant on unruly RFEs, the unsupervised adjudicators who issue them and the agency officials who defend the practice from the podium rather than uphold their own headquarters policies. --------

On the heels of my May 8 post (Do Immigration Fee Revenues Drive Justice at the USCIS?), the Office of the Ombudsman to U.S. Citizenship and Immigration Services (USCIS) issued a May 15 report criticizing the unfairness and inconsistency across USCIS offices nationwide of the agency's procedures for getting a seasoned officer to take a second look at an adjudicator's erroneous decision or action. The report, entitled "Motions Matter: Improving the Filing and Review Process for Motions To Reopen or Reconsider," affirms the point that "clear Service errors" are widespread yet unresolved problems:

Rectifying clear Service error is a recurring customer and stakeholder concern. Filing and paying [$585] for a formal motion to reopen to correct clear Service error is costly and potentially time consuming. In addition, because refund procedures vary by office, formal motions may unfairly shift the financial burden to correct a clear Service error to USCIS customers. [Footnotes omitted.]

The Ombudsman, especially under the laudably activist reign of Michael Dougherty (who resigned recently to take a position in the private sector), has played an important role at what the Anderson Cooper 360° blog might call, "keeping them honest." But even the most vigilant and persistent Ombudsman cannot replace the oversight roles of Congress, the President and the courts.

Bob Dylan in All Along the Watchtower could well have been thinking of USCIS when he metaphorically described the suffering that results from organizational misbehavior:

"There must be some way out of here" said the joker to the thief "There's too much confusion, I can't get no relief."

The Roman poet, Juvenal, asked the right question:

"Quis custodiet ipsos custodes?" (Who regulates the regulators?).

More recently, in an aptly titled New York Times essay, "The Way We Live Now: Diminshed Returns," Harvard Business School professor Niall Ferguson, although speaking of the financial crisis, could also have been describing the failings of the immigration bureaucracy when he noted:

"The reality is that crises are more often caused by bad regulation than by deregulation." [Emphasis in the original.]

Comprehensive immigration reform (including essential reforms to the system of family-related and employment-based legal immigration) -- no matter how smartly enacted -- will be sent on a fool's errand if Congress and the Obama Administration do not also reform the broken management system at all of our federal immigration agencies, and then allow the jurisdiction-stripped courts to be revested with authority to overturn agency error and wrongdoing.

Immigration lawyers, including this blogger, have attended liaison meetings with the USCIS California Service Center and its predecessor agency, INS, for decades. These meetings have been periodically convened (typically on at least a quarterly basis) since the agency was first housed, decades ago, in San Ysidro CA just inside the U.S. border with Tijuana (the facility was then known as the INS Western Adjudication Center -- hence the answer to the trivia question of why receipt numbers for this office begin with "WAC").

In the 1980s, lawyers and agency leaders alike could look out the WAC's window at the border and literally see foreign citizens assemble, as dusk approached, preparing to hop the easily surmounted fence. Yet, even then INS officials could appreciate the difference between legal immigration and illegality. We were allies in a common effort to make the legal immigration system work fairly.

If trends developed suggesting problems in adjudications or clear Service errors, the old INS and many previous CSC directors and assistant center directors would invite the submission by immigration lawyers of sample cases so that supervisors could maintain quality control. Indeed, one of the grounds for requesting and receiving an expedited adjudication, according to the CSC policy guidelines, was "clear service error" in a prior decision.

At Wednesday's CSC "external stakeholders" liaison meeting, however, the published answer to item # 2 on the formal agenda showed that the times clearly have changed. Citing 8 C.F.R. § 103.5(a)(5) which authorizes the USCIS to reopen or reconsider a decision at the instance of the agency adjudicator, item # 2 asked how an applicant for an immigration benefit could invoke the regulation where the initial decision involves an obvious mistake by USCIS. The succinct answer -- file a motion with the proper fee. The fee for a motion to reopen or reconsider is $585.

To be sure, a footer on the published minutes made clear that the answers provided are merely the individual opinions of the officials present at the liaison meeting and do not necessarily reflect the policies and interpretations of USCIS. Still, in these straitened times, it sure seems like price gouging when an agency with the word "Services" in its title appoints officers who cannot acknowledge their own clear mistakes without shaking down the public by demanding almost six Ben Franklins.

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In a refreshing break from the Bush Administration's enforcement strategy, John Morton, President Obama's nominee to head Immigration and Customs Enforcement (ICE), testified before the Senate Committee on Homeland Security and Governmental Affairs that, if he is nominated, immigration law enforcement efforts would focus less on unauthorized workers and more on the employers who hire them: “We need to place renewed focus on employers to ensure that they are playing by the rules.”

At Morton's nomination hearing, Sen. Claire McCaskill, D-Mo., who supports his nomination, said American employers who have employed unauthorized foreign workers show “absolutely no fear that they would ever face meaningful enforcement.” She added that Morton's new focus on employers “will really be like shooting fish in a barrel. I’m looking forward to seeing some of those fish float.”

If playing by the immigration rules is the au courant enforcement theme, then Morton should also take aim at another full barrel of fish -- the bureaucrats and enforcement officers who flout the immigration laws. Recent reports from the courts suggest that judges have taken the government to task for their treatment of religious workers, widows and widowers applying for green cards and foreign citizens who seek to stay in the U.S. long enough to challenge unjust removal orders.

If confirmed as expected, Morton should reach out to such stakeholders as business and trade groups, faith-based organizations, immigrants right groups and immigration bar associations. He should ask for examples (this blog lists many) where the government has not played by the immigration rules. With the blessings of Pres. Obama and Sec. Napolitano, he should then convene a meeting of the leaders of ICE and its sister agencies in the Dept. of Homeland Security (DHS), U.S. Citizenship and Immigration Services and Customs and Border Protection. This convocation should take a probing self-inventory to see whether their enforcement, admission and adjudication practices play by the immigration rules.

In other words, Morton should cause the rule-breakers in the government to lead by example. That would be a refreshing enforcement strategy and a fine kettle of fish indeed!

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The New York Times reported this week on a fascinating scientific study. Researchers have discovered the possibility that bad memories can be deleted from our minds. The prospect of applying this finding to the world of immigration is even more intriguing.

Imagine if immigration opponents like Norman Matloff, Ron Hira and John Miano could stop blathering about employment-based immigration merely by deleting the falsehoods they spout:

• Matloff: "Underpayment of H-1Bs is usually in full compliance with the law, with employers exploiting loopholes;"
• Hira: "Loopholes enable employers to hire H-1B workers at below-market wages;"
• Miano: "The United States has a very generous immigration policy for skilled workers. America’s doors are wide open to the best minds in the world — both for permanent residency and for guest workers. For high-skilled workers with distinguished ability, the U.S. has “O” temporary guest worker visas, for which there is no numerical limit. The situation is the same for people seeking green cards."

As for so-called H-1B loopholes, Matloff and Hira know not of which they speak. The dozens of pages of H-1B regulations published by the Labor Department require that H-1B workers be paid the "required" wage - a term defined as the higher of the prevailing wage in the geographic area where the work is performed or the actual wage paid to similarly qualified workers in the same job at the employer's worksite. In most cases, employers merely use the prevailing wage for the particular job that the Labor Department provides. Clearly, the Matloof/Hira loophole argument is sufficiently loopy to be worthy of deletion from memory.

Miano's claim is equally forgettable. No process wrapped in the thick red tape of ever-changing immigration rules, policy memoes and press releases that takes years to untangle can honestly be called "generous" and "wide open" -- unless an uncovered manhole can be termed "wide open" and "generous" in that it offers a free ride to the sewer. Miano also shows signs of amnesia when he describes the "O" visa as requiring "distinguished ability" -- a term that formerly qualified a professional worker for an H-1B visa -- when the "O" actually requires the much more demanding standard of "extraordinary ability."

But immigration memory-deletion should not be taken to extremes. We want the Members of Congress to remember the politicians who lost their seats in the last election by opposing comprehensive immigration reform. This recollection should be etched forever in our legislators' consciousness as President Obama embarks on the fulfillment of his campaign promise to address our dysfunctional immigration system in his first year in office.

As the New York Times reports, recessions have a way of changing attitudes about incarceration, even among the ardent yet newly frugal law-and-order types. The states are finding that imprisoning convicts can bust already strapped state budgets. Alternatives to incarceration, such as diversion for treatment or early release, are therefore increasingly the norm. And as Lindsay Lohan shows, ankle monitors can be more than just a way to monitor the wayward, but also a fashion statement.

In the topsy-turvy word of immigration, however, the detention of immigrants, most of whom have committed no crime, is a growth industry for Immigration and Customs Enforcement (ICE) and the private incarceration companies that contract with ICE. On March 26, Amnesty International (AI) charged the U.S. with human rights violations in the detention of immigrants:

The US immigrant-detention population has surged in the past decade, resulting in a lack of due process that has driven some detainees to attempt suicide, according to an Amnesty International report. In the last decade the number of immigrants in detention has tripled from 10,000 in 1996 to over 30,000 in 2008. Those detained include asylum seekers, survivors of torture and human trafficking, lawful permanent US residents and the parents of US citizen children.

The Feds, aided by a docile judiciary, have long justified the denial of immigrants' due process rights by a word game. Deportation (or, removal, as it's now called), although a long-term banishment, and often a life sentence of separation from family and friends, is a "civil" proceeding, and as such, the legal protections given persons accused of crimes do not apply. With linguistic (and sophistic) legerdemain, the jailers and deporters deny immigrants the presumption of innocence, the right to a trial by jury, the deterrent of the exclusionary rule, and the appointment of defense counsel for the indigent at government expense.

In essence, the "civilizing" of the detention and deportation process, a legal ruse, has become for its woebegotten incarcerants at once dehumanizing and demonizing. Because this is only a civil process, anything apparently goes. Immigrants have died in custody for want of medical care. Persons with claims to U.S. citizenship, accused of migrancy, have languished in immigration jails -- In 2007, some 322 people in detention with potential claims for US citizenship according to AI were in custody. Lifelong permanent residents convicted of minor, non-violent crimes are held in custody until deportation can be arranged. Even "Auntie Zeituni" -- whose nephew is the President of the United States -- although not incarcerated, faces civil deportation back to Kenya.

It is time that Congress stops the twin charades of "civil" deportation and "civil" detention, and at least provide immigrants with the level of due process granted accused misdemeanants, if for no other reason than that the perpetuation of these evils gives lawless regimes abroad a way for the garlic to tell the onion: "You stink!"

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In times of economic stress, people turn to rituals. Some finger rosaries or worry beads. Other folks, as the Wall St. Journal's Sue Shellenbarger reminds us ("Life Stories: Children Find Meaning in Old Family Tales" [3/12/09, p. D1]), revert to an age-old tradition, the passing on to the next generation of family stories about earlier ancestors suffering and (sometimes) transcending hardship.

In the immigration legal community, we too have our ceremonies. Every year, invariably as winter turns to spring, we behave ritualistically. We try to soothe anxious employers and would-be workers from abroad as we prepare their H-1B visa petitions. On the eve of every April Fools Day, we pray or cross our fingers and then consign (to Federal Express and other overnight couriers) precious packages, addressed to USCIS, containing our clients' hopes and dreams of futures soon to be revealed. Just as Boomer males awaited their individual futures in the draft-era lottery, foreign students and prospective workers stand by their mailboxes for the results of the H-1B lottery.

Another immigration ritual with perhaps just as much riding on the outcome occurs in the second week of every month as immigrant hopefuls await publication of the State Department's Visa Bulletin. The raw news of the monthly cutoff dates in family and employment-based preference categories is scanned by mostly crestfallen readers who see backlogs that pose formidable barriers to the American Dream. Just as important is the agency's prediction of future movement of cutoff dates that determine career and life outcomes. The latest Bulletin captured the modern-day zeitgeist of dysfunctional immigration policies in doubletalk that would rival the Newspeak of George Orwell's 1984:

Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out. It has also been necessary to retrogress the Employment Third Preference Other Worker cut-off date for all countries in order to hold the issuance level within the annual limit. [Bolding and italics added.]

The highlighted sentence is as pregnant (with meaning) as Octomom (with offspring) before she entered the birthing room. To immigration cognoscenti, including legions of frustrated men- and ladies-in-waiting from abroad, the message is clear. Expect to maintain a state of suspended animation for several years before your energy and ideas can be put to productive use. Or as George Carlin said, "it's called the American Dream because you have to be asleep to believe it."

Our government, and a somnolent public, must recognize that these foreign strivers will not wait forever. They will not entrust their fate to the headless horsemen of America's current immigration system. As Vivek Wadhwa and his collagues have shown, they will simply follow a lifelong ritual. They will take their minds, energy and talents and go home, "the place," as Robert Frost reminds us, "where, when you have to go there, they have to take you in."

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The talk in Washington, on Wall Street and across America is all about the problem of zombie banks. These are financial institutions that appear to be alive and operating normally (if you can believe their advertising), but are all virtually dead from infections caused by toxic assets and undeclared losses on overvalued real estate and other credit interests. One prophet of financial gloom and doom, Nouriel Roubini -- an NYU Stern Business School professor -- favors the dreaded "N" word, the nationalization of failing banks ("Merging two zombie banks is like having two drunks trying to help each other to stand up," he says).

With talk of zombies in vogue, Congress ventured recently into the field of revivification when it enacted the stimulus legislation, the American Recovery and Reinvestment Act (ARRA). Our legislators dug deeply into the cemetery of bad, but near-dead immigration laws to resurrect the notion of H-1B dependency, secreting it stealthily inside ARRA. This provision in ARRA, Section 1611 -- a short but powerful three sentences, dubbed the "Employ American Workers Act" (EAWA) -- is a version of H-1B dependency on steroids. EAWA crams dependency down the throats of entities that received or will receive TARP (Troubled Assets Relief Program) funds, namely, several feeble financial institutions, two auto companies -- Chrysler and GM, the wobbly insurer AIG, and GMAC, GM's finance arm, as well as a host of financial institutions that availed themselves of credit from the Fed under Section 13 of the Federal Reserve Act.

EAWA prohibits TARP- and Fed-funds recipients from hiring new H-1B workers (professionals in specialty occupations) unless the recipients first try to find and hire a U.S. worker who is at least as qualified as the H-1B candidate the employer wants to employ. EAWA allows refused American job applicants to file complaints with the Attorney General (AG) alleging unlawful refusal to hire or misrepresentation concerning a hiring decision, establishes a procedure for binding federal arbitration if the AG finds reasonable cause to believe that the statutory violations alleged in the complaint occurred, and permits imposition of unspecified “administrative remedies,” including civil fines and debarment from the employment-based immigration system, as the AG “determines to be appropriate.”

EAWA also prohibits TARP- and Fed-funds recipients from "displacing" (laying off) any U.S. workers and replacing them with an H-1B employee, whether at its own job site or at any worksite of a customer, for 90 days before and after (a) the filing of an H-1B petition (for work at the employer's own facility), or (b) the placement of the H-1B worker at the customer site.

H-1B dependency had been an immigration zombie of sorts because it was almost a dead letter that expired for several years with a sunset clause and then once automatically reactivated, applied to very few businesses. H-1B dependency is easily avoided by employing only "exempt H-1B workers" who are paid at least $60,000 per year or those with a masters or higher degree. Under EAWA, however, TARP- and Fed-funds recipients may not escape the burdens of H-1B dependency by hiring exempt H-1B workers.

So in short, Congress has engaged in a perverse form of necromancy by using an immigration zombie to help zombie banks try to stand up.

I call EAWA what it is -- protectionist legislation that will anger our global trading partners and imperil the very businesses that the folks at TARP and the Fed are trying to save. H-1B workers often are the bearers of bright ideas and innovation. Why stifle their contributions?

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For a more extensive treatment of EAWA and H-1B dependency, read my article, co-authored with Ted Chiappari, THE EMPLOY AMERICAN WORKERS ACT: PROTECTIONIST TURDUCKEN, IMMIGRATION STYLE, published on Feb. 23 in The New York Law Journal, courtesy of the copyright holder, IncisiveMedia.

For more on H-1B dependency, see "Awakening a Slumbering Giant: The Department of Labor's Interim Final Rule on H-1B Dependency," by A. James Vazquez-Azpiri and Angelo A. Paparelli.

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The bicentennial of Abraham Lincoln's birth is a fitting moment to ponder the state of our fractious and fractured nation of immigrants. Ending his First Inaugural Address, President Lincoln spoke prophetically in words that could well describe the path America must pursue if the deep divide over immigration policy is ever to be bridged:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The hate speech and hate crimes, the demonization of immigrants by some, cannot be allowed to represent to the world the values that America holds dear. The hypocrisy and prejudice of non-native nativists, whose forebears displaced the indigenous peoples of North America, cannot be permitted to stanch the lifeblood of this country, its ever-vibrant tradition of renewal and reinvention through immigration.

The justifiable fears of many Americans about an economy run amok ought not blind us to the manifold contributions to our prosperity that immigrants have always made and, if permitted, will continue to make. Shekhar Gupta, editor of The Indian Express put the point eloquently to New York Times columnist, Thomas Friedman:

Dear America, please remember how you got to be the wealthiest country in history. It wasn’t through protectionism, or state-owned banks or fearing free trade. No, the formula was very simple: build this really flexible, really open economy, tolerate creative destruction so dead capital is quickly redeployed to better ideas and companies, pour into it the most diverse, smart and energetic immigrants from every corner of the world and then stir and repeat, stir and repeat, stir and repeat, stir and repeat.

Others among our better celestial spirits, the Interfaith Immigration Coalition, held a press conference with Members of Congress on Feb. 11 to announce the launch of the campaign for “Prayer, Renewal and Action on Immigration” and to publish its Interfaith Platform on Humane Immigration Reform. Serendipitously, the secular Migration Policy Institute just released a scholarly report and 36 recommendations on how our broken immigration system can be repaired and made to function.

Whether the motivation be a hard-nosed pragmatism founded on dollars and sense, a faith-based commitment (reflected in Bruce and Judy Hake's article, The Scriptural Foundations Of An Open Immigration Policy, and Rev. Joan M. Maruskin's accompanying compilation of passages from the Koran), or the studied views of respected immigration policy experts, the time is now to vivify President Lincoln's profoundly humane and practical vision for America.

Immigration reform cannot wait for a more appropriate day. With courage in Congress, the White House and among the American people, comprehensive immigration reform will sooner than later be enacted, so that we can "yet swell the chorus of the Union, when again touched, as surely [we] will be, by the better angels of our nature."

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The first days of the Obama administration have already witnessed a new form of alternative energy. Long pent-up momentum has been released in the forward movement of rallying cries for comprehensive immigration reform. With no time to wait or patience, the President's campaign supporters urge quick action. Others urge action on backlog reduction at USCIS and the Labor Department.

In the yin and yang of immigration, however, immigration advocates are heartened by the negative energy of just-in-time scrutiny of the Bush administration's twilight adoption of immigration regulations. The new President's Chief of Staff has issued a memo that urges the Executive Branch department heads to review for 60 days all new and proposed regulations. The memo makes exceptions for national security and the public welfare. But it also raises fresh hopes that ill-advised initiatives like the federal contractor E-Verify mandate might be reconsidered or put on ice until the error-prone system is improved.

Like a gyroscope spinning in perfect balance, the Obama administration must channel the positive energy of reform. It must also rethink the failed Bush late-term policy of enforcement-only.

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The end of one presidency and the start of another often spark strange behaviors in Washington, especially when spiked with the catnip of immigration.

Remember the Nannygates of years past when Zoe Baird and Kimba Wood (Clinton nominees for Attorney General) and Linda Chavez (Bush's Secretary of Labor Designate) all fell from grace for housing or employing unauthorized foreign workers. Strangely, however, this year, Treasury nominee, Timothy Geithner, is defended for payroll tax violations by Republicans who whisper nary a word about his foreign housekeeper's expired work permit.

Witness also George Bush last week speaking to a group of Texas reporters and regretting that he pushed his failed bid to privatize Social Security in 2004 rather than fight early and hard for immigration reform: "I'm very disappointed that [comprehensive immigration reform] didn't pass . . . not for political standing or for Latinos, but because it was best for the country." Mr. Bush, in today's Farewell Address to the Nation, still seems to understand that America "is a nation that inspires immigrants to risk everything for the dream of freedom."

Yet his Administration in the past fiscal year doubled federal prosecutions of immigrants rather than aggressively pursue serious crimes. As one unnamed prosecutor told the New York Times:

“'A lot of the guys I work with did nothing but the most complex cases — taking down multigenerational crime families, international crime, drug trafficking syndicates — you know, big fish,' said the prosecutor, who did not want to be identified as criticizing the department he works for. 'Now these folks are dealing with these improper entry and illegal reentry cases.' He added, 'It’s demoralizing for them, and us.'”

This same mania over immigration enforcement was also apparent at today's confirmation hearing for Arizona Governor Janet Napolitano, the Obama pick for Secretary of Homeland Security, an encounter that the Immigration Policy Center likened to a "tea party" that left precious time for serious discussion of the new Administration's policies on comprehensive immigration reform:

"Serving more as a tea party than a rigorous cross examination, confirmation hearings are notoriously poor venues for deep policy discussions. The Governor has a wealth of relevant experience and a deep understanding of all of the issues about which the Senators questioned her. However, the hearing left little room for drilling down into the specifics of complex policy issues. While discussion of enforcement was plentiful, questions and (therefore answers) about what to do with 12 million people living without documentation in the U.S. were in short supply."

As we approach the cool and collected era of "no drama" Obama, the new President should recognize that the problem of the vulnerable underclass of immigrants lacking legal status will not go away. The Migration Policy Institute reports that, despite the imploding U.S. economy, undocumented immigrants are staying put, notwithstanding anectdotal evidence to suggest that they're homeward bound. The solution, then, is not to repeat the mistake of Bush's temporizing on immigration. Just as the incoming President is reading history books to find ways to fix the economic mess we're in, he should likewise be sure to remember recent history, or as George Santayana reminds us, we all may be condemned to repeat it.

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Last week, a client died unexpectedly, and two government officials tasked with administering the immigration laws retired after long careers of honorable service.

The client, a renaissance man of many talents, was remembered by a throng of mourners representing a wide cross-section of the community -- academia, local government, the arts, family and friends. I saw him two weeks before he died. He was joyful because his long-awaited administrative appeal had finally produced a favorable decision and a remand. We both had truly expected that he'd soon enjoy immigration justice after many years of waiting. His death underscored the truth of the maxim that justice delayed is justice denied.

The retiring immigration officials represented an increasingly rare genus of civil servant. I wrote a farewell note to one in words that could have applied equally to both: "You have always been my model of the superlative public official – courteous, helpful, responsive, knowledgeable and friendly."

Neither of these officers were pushovers. Both understood the immigration laws, applied them fairly, knew how to listen, kept an open mind, and took time to read an application for an immigration benefit carefully to identify the strengths and weaknesses of the case. They were not afraid to reach a decision within a reasonable period of time, or to reconsider if new evidence or additional legal arguments were offered. Most of all, they reflected a tradition of even-handedness and timely justice best reflected in a memorandum from Durwood Powell, Jr., a long-retired Regional Commissioner of the legacy agency, Immigration and Naturalization Service.

Sad to say, however, too many of today's breed of immigration official display a different set of priorities. Haunted by fear that he or she will be second-guessed and reprimanded for granting an immigration benefit to an undeserving or possibly dangerous applicant, officers are wary and chary of saying "yes." They tend to know the fine points of civil service rules governing their employee benefits, but are less zealous in mastering the admittedly complex immigration laws or publishing regulations that would help the public understand the law. Speed of decision-making is espoused as an important value, but too often honored more in the breach than the observance. Many look for ways to say "no" even if the effort at times produces specious reasoning. Others build new hierarchies of power, whether authorized by statute or not. There is the Fraud Detection and National Security Unit of United States Citizenship and Immigration Services, growing by leaps and bounds with the fuel of immigration user fees paid by legitimate and deserving applicants. There is an overlapping group at USCIS headquarters and the regional service centers dubbed the "Threat Assessment" team.

Ironically, the very existence of immigration delays and artificial obstacles created by the ferreters of perceived fraud and the risk-averse adjudicators produces the results they fear. According to a Homeland Security Department threat assessment, "[l]ong waits for immigration . . . will cause more foreigners to try to enter the U.S. illegally."

Tossing cynicism to the wind, I hereby offer a few New Year resolutions for immigration officials to consider adopting:

1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
2. I will not issue requests for evidence merely as a means of pushing a case off my desk.
3. I will decide cases promptly and remember that justice delayed is justice denied.
4. I will not judge the case by the size of the company or the nationality of the applicant.
5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

These days, the news on immigration seems like one large and scary technology mashup. The evidence is everywhere:

• The Department of Homeland Security (DHS) publishes a final rule that authorizes the taking of DNA specimens from persons merely detained (not necessarily found liable) for alleged civil violations of the immigration laws.
• DHS reports to Congress on its data mining activities as the ACLU's Legislative Counsel, Timothy Sparapani, criticizes predictive data mining as a "categorical and unmitigated waste of taxpayer dollars . . . akin to alchemy or astrology in its relationship to science."
• Congress considers legislation that would reign in the practice of a DHS unit (Customs and Border Protection) in seizing and searching the laptops and cellphones of U.S. citizens and lawful residents at U.S. ports of entry without any suspicion of wrongdoing.
• U.S. Citizenship and Immigration Services (USCIS) awards IBM almost a half billion dollar contract that the vendor claims will produce technology to "serve as a key piece to enable the Agency to speed benefits determination, combat identity fraud, and reduce processing time backlogs."
• The American Council for International Personnel reports in unofficial minutes of its liaison meeting with the USCIS California Service Center that "USCIS is looking more on the internet for publicly available information to verify an issue to resolve it before issuing [a request for additional evidence (RFE)]" -- all the better to jump to a hasty conclusion and issue a mistaken RFE.
• E-Verify offiials offer webinars to federal contractors (on December 11 at 10:00 AM EST, December 18 at 12:00 PM EST and December 22 at 2:00 PM EST) by calling (888) 464-4218 or emailing E-Verify@dhs.gov and providing your name, company's name, and phone number.
• USCIS has gone all Web 2.0 on us by posting its tweets on Twitter.

Meantime, in the Luddite world of technophones, we learn that -- shades of Mitt Romney! -- DHS has fined the housecleaning service of its boss, Michael Chertoff, for employing unauthorized foreign workers, while the chief CBP officer in New England, Lorraine Henderson, is indicted for the felony of allegedly harboring an undocumented Brazilian house cleaner.

I guess the lesson from all of these ominous portents can be summed up in the secretly recorded warning that erstwhile CBP Chief Henderson reportedly offered her housekeeper two days shy of the 7th anniversary of Sept. 11: "You have to be careful 'cause they will deport you. Be careful."

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The two-year presidential campaign created new legions of policy wonks. Now, with the Bush-to-Obama interregnum in full swing, the wonks have turned into an avid audience observing the jo-ha-kyū movements of Kabuki theatre as performed by the new administration-in-waiting.

On the immigration front, the thoughtful and deliberate character of the President-elect is on full, if subtle, display. During the campaign, he took counsel from two pro-immigration heavyweights -- Bill Ong Hing and Jennifer Chacón. Now, he's announced the appointment of a duo of leading lights to head his immigration advisory group: Alexander Aleinikoff, who has long argued for the fundamental restructuring of our immigration system and Mariano-Florentino Cuéllar, reported by the ABA to be the next Director of U.S. Citizenship and Immigration Services (USCIS), who has argued forcefully for the restoration of habeus corpus.

In a spirit of bipartisanship (much like the rumored retention of Secretary of Defense Robert Gates), President-elect Obama should consider keeping in place the current Ombudsman to USCIS (Michael Dougherty) who despite a very short tenure has made great strides in keeping USCIS on its toes.

What message is conveyed when, in less than 24 hours after the election of Barack Obama, the director of Immigration and Customs Enforcement (ICE), Julie L. Myers, immigration raider extraordinaire, announces her resignation?

What does it signify when two days after the vote, U.S. Citizenship and Immigration Services (USCIS) rushes out a self-congratulatory press release that tells nothing of its recent vendetta against the H-1B and L-1 visa categories?

What does it mean when the Department of Labor (DOL) stipulates to dismissal of the Fragomen suit rather than defend its chameleon-like blunders from June to September on the attorney's role in PERM recruitment?

It means that the immigration bureaucrats are running scared. They realize that their extra-legal practices will soon face sunlight and scrutiny. They know that a new day is dawning in this nation of immigrants.

Newark Mayor Cory Booker -- interviewed on MSNBC after President-elect Obama's victory was confirmed -- said it best:

“I reject the idea of a post-racial America. I want to luxuriate in the racial deliciousness of our country: the Italian-Americans, the Irish-Americans, the Mexican-Americans. I mean, that’s what makes America great. We are a nation that celebrates racial diversity. We’re not Norway. We’re not South Korea. We are the United States of America. The story of America is bringing such differences together to manifest a united set of ideals, not a united culture, not a united language, not a united religion, but a united set of ideals. That was what made America dramatic when it was founded, the first country of its kind in humanity. So I reject that [the idea of a post-racial America]. I want to celebrate all of America: its richness, its diversity, its deliciousness.”

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The final presidential debate is now history. An allegedly unlicensed (illegal?) plumber nicknamed Joe (whose real name is Sam) received top billing, having been mentioned over 25 times in the 90-minute encounter. Less than a week ago debate moderator, Bob Schieffer of CBS, hinted that immigration -- a topic missing in action in the first two presidential debates and the lone Palin-Biden debate -- at long last would be the subject of a probing question:

If I could pose one question, let's just say on immigration and say, 'Gentlemen, what are we going to do about immigration? You can build that fence, but you're still going to have 10 million illegal immigrants in this country. What are you going to do with 'em? Talk with me about that for 10 minutes.'

Alas, the only reference to immigration came when McCain accused Obama of airing ads that "misportray[ed]" his position on immigration. Why are the candidates addressing immigration only in slime-tossing ads aired on Spanish-language programs? "Why are the candidates "dissin'" immigration? According to a recent Zogby/Inter-American Dialogue survey, the white-hot political heat of the anti-legalization crowd seems to have turned to a warm glow in favor of a path to citizenship with some sting:

Sixty-seven percent [of likely voters] would support a path to citizenship for immigrants in the U.S. illegally if they pay taxes, pay a penalty and learn English -- 80% of Democrats, 57% of Republicans and 62% of political independents agree with this new path to citizenship. More than half (54%) said the same for immigrants who were brought to the U.S. by their parents before their 16th birthday. Most (53%) also support expanding temporary worker programs for migrants as a way to fill jobs that are not being taken by American workers.

The silence is even more puzzling given the size of the likely Latino vote in four battleground states (Florida,Colorado, New Mexico and Nevada) and immigration reform among the top four issues for Latino voters, many of whom remain undecided. In the few days remaining to the election, maybe Joe (er, Sam) the plumber can unclog the silent gunk, and persuade his newfound friends, Sens. Obama and McCain, to come clean on immigration. --------

As political theatre, the Vice Presidential debate was so-so entertaining but sorely lacking on a critical issue of public policy. There was a "shout out" to third graders and a salute to the Joe Sixpacks and Hockey Moms of America from Gov. Palin, a politician who seems never to have uttered the word "immigration" from Wasilla to Anchorage to the lower-48 states' campaign trail. There was plenty of kitchen-table talk and the debunking of Sen. McCain's maverick moniker by Sen. Biden. But where were the candidates on the issue that immigration policy wonks and much of the public want aired? Where was Gwen Ifill, usually a class act journalist, who never asked about immigration reform?

Our country needs sunlight on immigration. Our citizens need to hear how the undocumented children and teens brought across the border by their struggling parents can be allowed to contribute to society rather than face a a fast track to the subterranean economy and street-gang membership. Our country needs an alternative to showboating ICE raids and wedge-issue politics.

Ironically, of all the pressing problems that need fixing, none could be accomplished so inexpensively as immigration reform. Budget-busting issues like health-care, tax cuts for folks earning less than $250,000 (as Obama-Biden support) or for all (as McCain-Palin propose), infrastructure refurbishment and green energy initiatives -- all are threatened by the Wall Street bailout (just sweetened to $850 million in order to tease out more House votes). Comprehensive immigration reform, on the other hand, will be funded by user fees and the payment of fines and taxes as the admission ticket for unauthorized immigrants yearning to get on the path to legal status. Humane solutions and fiscal responsibility can go hand in hand with immigration reform - if only we'd just talk about it.

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Bloomberg.com has posted a scary article on how America's growing financial crisis might lower our nation's appeal as a world financial center and repository of foreign investments. In a strange coincidence, Wall St. Journal immigration reporter, Miriam Jordan, reported today on the global relocation of people seeking a better, more prosperous life. Her article ("With Millions on the Move, This Guide Maps the Routes to Prosperity") reports on a new study by the Economist Intelligence Unit, confirming that the U.S. still ranks #1 in "attractiveness to immigrants."

If (despite the financial turmoil) our nation remains the destination country of choice for immigration, why are our legislators and the Administration not scurrying to adopt more welcoming investment- and employment-based immigration laws?

The Congress could start by reauthorizing the regional center pilot program, a critical component of the EB-5 Immigrant Investor visa category. Regional center authorization runs out on September 30. According to Invest in the USA (IIUSA), the failure to reauthorize the EB-5 regional center program will cause the loss of $100 million in investment and 3,000 new jobs in Vermont alone, and similar losses will occur in California, Maryland, Wisconsin and other states with active regional centers. Senator Patrick Leahy of Vermont is reportedly working with the Senate leadership to include a simple five-year extension in a continuing resolution (CR) that the House and Senate will pass next week to fund the government after September 30. The CR will start in the House and will not be subject to amendment in the Senate. Therefore, the EB-5 extension, if it is to be enacted before the sunset, must be included in the House version of the CR.

On another front, the House Judiciary Committee held a rescheduled mark up two days ago on four immigration bills including, H.R. 5882, a green card recapture bill supported by the Compete America coalition. The recapture bill ought not be controversial. It merely allows the preservation (recapture) of squandered immigrant visas left unused because the responsible agencies (State, USCIS and the FBI) could not process the allocated visa quota in prior years before each annual deadline. Alas, the committee ran out of time before it could mark up H.R. 5882. Reportedly, a mark up might be rescheduled for next week. If Congress decides to adjourn for the elections on September 26, however, then the chance of enacting H.R. 5882 grows very dim.

Laudably, Treasury Secretary Paulson and members of Congress are working this weekend to create a new government entity to assume toxic loans and restore stability to the financial system. Why can't others in the legislative power structure, having just come off a five-week vacation, work over the weekend to inject prosperity into our country by the speedy adoption of enlightened and essential immigration laws?

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The last few days I've been gnawed upon by the feeling that my recent postings on the unreliable words of USCIS and DOL left something important unsaid. The recanting of DOL and reneging of USCIS keep reminding me of my law school days as my classmates and I watched the daily unfolding of the Wategate scandal on TV in the student lounge. When DOL issued its "restatement" of the role of attorneys in PERM recruitment and the AAO said, in effect, that USCIS is not bound by anything it says unless contained in a regulation or precedent decision, the words of Nixon's then Press Secretary, the late Ron Ziegler, came to mind. He famously repudiated all of his previous factual statements about the Nixon Administration's asserted non-involvement in the Watergate break-in and cover-up by saying that his prior statements were "inoperative." Our immigration bureaucrats seem to have forgotten this lesson of history. Facts are never inoperative. Statements, once made and relied upon, can never be imagined away with the turn of an administrator's phrase, as if they never happened. An important reliance interest is damaged when the public cannot trust government to stand by its word. Stakeholder expectations, and business and personal plans, are dashed against the rock of administrative duplicity if not mendacity when governmental announcements of policy are issued with implicit mental reservations that these utterances are ephemeral and can be revoked at will. Words are not vapors that dissipate with the wind of bureaucratic expediency. Pope John Paul II had it right when he said:

Trust is essential for our social wellbeing. Without trusting the good will of others we retreat into bureaucracy, rules and demands for more law and order. Trust is based on positive experiences with other people and it grows with use. We need to trust that others are going to be basically reasonable beings.

Owen D. Young, a lawyer and former chairman of GE, was also correct in observing:

We may accept the expanding power of bureaucrats so long as we bask in their friendly smile. But it is a dangerous temptation. Today politics may be our friend and tomorrow we may be its victims.

Why do we lawyers busy ourselves with the reading of immigration policy memoes that cannot be believed? Why do we fly or drive to attend liaison meetings with government agencies for front row seats at word-fests of deception? What good are we to clients if we cannot offer assured statements about what the "law" is? Or to put it more tangibly, suppose undocumented immigrants disbelieved the following DHS announcement communicated through its Assistant Press Secretary, Michael Keegan, in a September 11 email to AILA:

In the event of an emergency - such as a hurricane - and the need for an officially ordered evacuation, our highest priorities are the safe evacuation of people who are leaving the danger zone, engagement in life-saving and life-sustaining activities, maintenance of public order, prevention of the loss of property to the extent possible, and assistance with the speedy recovery of the region. There will be no DHS immigration enforcement operations associated with evacuations and sheltering. The department's law enforcement components will be at the ready to help anyone in need of assistance. Obviously, the laws will not be suspended, but in the event of an evacuation, we want to make sure that we can help local authorities move traffic out of the danger zone quickly, safely, and efficiently. (Italics added.)

What if the undocumented in the path of Hurricanes Ike or Gustav decided not to board buses to escape the hurricanes because they suspected that the announcement was in truth a sting operation? What if they instead stayed put and drowned? Would those deaths be inoperative? --------

The Bishop of Providence Rhode Island, Thomas J. Tobin, and 15 pastors in his diocese may have hit upon a divinely-inspired strategy to prod the Bush Administration, in the sunset of its reign, into putting the kibosh on its aggressive immigration-raids enforcement policies. The strategy is conscientious objection, a principle that the Administration just endorsed with its new proposed rule published on August 21 by the Department of Health and Human Services that would uphold the right of health care professionals to refuse to participate in abortions or other medical procedures that the worker believes would violate personal conscience.

Sauce for the goose is gravy for the gander. Conscientious objection is a lawful basis to refuse to perform work, which though legal, would violate the worker's conscience. See, e.g., guidance on the legal right to refuse work based on moral scruples issued by the States of California and Washington. Here is what Bishop Tobin and the priests have suggested in an August 19 letter to Immigration and Customs Enforcement (ICE) after observing a spate of hurtful immigration raids in their state:

What we have witnessed is that the police action of ICE against immigrants has divided the community, instilled fear in our streets, disrupted the everyday life of good people and separated family members, innocent of any crime, from one another. The confusing and secretive detention of those arrested has further complicated the situation. As religious leaders concerned for our people we would be negligent of our pastoral duties if we didn’t speak out against these unjust government policies. . . .

Additionally, we encourage the agents and staff of ICE to evaluate the morality of their participation in immigration raids in the context of their faith and sanctity of their conscience. If their discernment leads them to the conclusion that they cannot participate in such raids in good conscience, we urge them not to do so. If ICE agents refuse to participate in immigration raids in conformity with their faith and conscience, we urge the Federal Government to fully respect the well-founded principles of conscientious objection.

Imagine if ICE agents and staff flat out refused to go on raids. Imagine if Immigration Judges and Government Trial Attorneys did the same. As Bruce Hake has shown us, there are rich scriptural foundations that support a sincere refusal to arrest the undcomented. Lou Dobbs would of course have a conniption fit. But maybe, just maybe, we could revisit our dysfunctional immigration laws and call a pause in our half-baked enforcement policies until a new Administration and Congress could take up a pragmatic and humane effort at comprehensive immigration reform.

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In a perverse and delicious irony, the Bush administration, and Attorney General Michael Mukasey in particular, recently bestowed what may prove to be a helpful gift on foreign citizens in removal proceedings. The gift results from the AG's refusal to fire or reassign any of the roughly 31 judges (18 of whom the New York Times has identified) who were hired in violation of civil service laws. As the Justice Department's Inspector General reported, these judges, dubbed by Monica Goodling and her administration cronies as "Bushies," though possessing scant immigration experience, were hired for their ideological or partisan activities or beliefs.

The gift, likely made without purposeful donative intent, is the opportunity to apply a theory variously known as the Hawthorne effect (based on an industrial performance study in the 1930s) or as I and others prefer to call it, the sentinel effect.

Although controversial, the sentinel effect holds that if you single out a group of people, make them feel special, and let them know you're watching, their behavior improves in measurable ways.

Let's suppose then that foreign citizens, aided by zealous immigration lawyers who use the sentinel effect, begin to single out the Bushie immigration judges. To apply the sentinel effect, lawyers should divide their clients' cases into into two categories: (1) immigration cases not yet heard but assigned to a Bushie judge, and (2) immigration cases already heard by such a judge.

I outline the strategy and hint at the sentinel effect in a recent Op-Ed published by The Los Angeles Daily Journal:

[Category 1 cases]. In cases not yet heard, lawyers whose hearing is assigned to a Bushie immigration judge should file a motion for recusal. Even if the motion is denied, the assertion of error will be preserved for appeal, and the judge, in the meantime, will likely be on his or her best behavior in hearing the client's requests for relief from removal. (Interestingly, one of the tainted judges has a 16 percent asylum denial rate, compared with a national average of 59.8 percent, according to TRAC Immigration, while another Goodling appointee has denied 90.7 percent of all asylum requests.)

In cases not yet heard, lawyers whose hearing is assigned to a Bushie immigration judge should file a motion for recusal. Even if the motion is denied, the assertion of error will be preserved for appeal, and the judge, in the meantime, will likely be on his or her best behavior in hearing the client's requests for relief from removal. (Interestingly, one of the tainted judges has a 16 percent asylum denial rate, compared with a national average of 59.8 percent, according to TRAC Immigration, while another Goodling appointee has denied 90.7 percent of all asylum requests.)

Perhaps the IJ with the 16% asylum denial rate, anticipating that his conduct would come under scrutiny, applied the sentinel effect proactively. Perhaps the other improperly appointed judges -- with asylum denial rates substantially above the national or city averages -- might yet adjust their rate of asylum approval (consciously or unconsciously, who is to say?) if they know their conduct is under scrutiny.

The sentinel effect may also apply to cases already heard:

[Category 2 cases]. If the hearing or appeals process seems to have been prejudiced against the client based on the manifest behavior of an unlawfully hired judge, the immigration lawyer should consider filing a motion to reopen and remand for a new hearing before a judge not appointed through the illegal process. . . .

If the hearing or appeals process seems to have been prejudiced against the client based on the manifest behavior of an unlawfully hired judge, the immigration lawyer should consider filing a motion to reopen and remand for a new hearing before a judge not appointed through the illegal process. . . .

Lawyers with immigration clients who were harmed by the unlawful hires should also consider other strategies. These might include the submission of an online complaint to the assistant chief immigration judge for conduct and professionalism, MaryBeth Keller. In an egregious case, the lawyer of an immigration client held in detention or deported based on the dubious legal ruling of a demonstrably incompetent or biased immigration judge who was appointed illegally, might consider civil litigation alleging tort violations, especially if the detention was abusive, or resulted in injury or death for lack of proper medical care, or the deportation caused substantial harm to the client or the client's family or business associates. In addition, a class action in federal district court for injunctive relief and damages may also be viable.

To be sure, I'm not suggesting that the controversial sentinel effect is a surefire winner. Based on the remarks in the New York Times by the leader of the IJs' union, immigration lawyers should expect resistance if they challenge improperly hired judges:

Dana Marks, an immigration judge in San Francisco and the president of the judges' union, said her organization opposed reassigning its new members.

"We are confident that many of the people hired under this process are excellent judges," said Judge Marks, who was appointed in 1987, "and should not be penalized for having been hired under a process that they had no control over at the time, that some of them may not even have known was irregular or inappropriate [italics and bolding supplied]."

Still, the cardinal rule of ethics (never do anything you wouldn't want proclaimed on the front pages of the nation's newspapers) may apply here. Or, as the New York Times reported in yesterday's article about a self-policing practice at the controversial clothing-optional San Onofre beach in California: "[i]f you wouldn't do it in front of a police officer, don't do it here."

In other words, the sentinel effect may be one additional strategy to improve immigration-related judicial ethics and behavior. For other suggestions, see Prof. Michelle Benedetto's excellent article ("Crisis on the Immigration Bench: An Ethical Perspective."). Here is the abstract of her article:

The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom.

Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that the existing structural crisis has substantial implications for judicial ethics. Evidence of biased and incompetent judicial conduct has been found in statistics showing inconsistent decisions and cases reviewed by circuit courts. Recognizing the breadth and severity of the problem, the Attorney General proposed new ethical Codes of Conduct for immigration judges in June 2007. However, the proposed Codes are weakened by their lack of specificity and enforceability. Accordingly, the article recommends reforms designed to encourage unbiased and competent judicial behavior. Implementation of these reforms will initiate the process of restoring the ethical integrity of the immigration bench.

The bottom line is that something must be done to improve the ethics and behavior of immigration judges in order to ensure procedural due process for foreign citizens in removal proceedings. The gift of the sentinel effect, then, may be one step in that direction.

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Chalk up one for USCIS and a Federal Judge. The agency's 17-month extension of F-1 optional practical training has survived a motion for preliminary injunction sought by the Programmers Guild. U.S. District Judge Faith S. Hochberg issued an August 5 order finding a lack of causal connection and insufficient harm to sustain the claim of Guild's members (out-of-work or underemployed engineers and programmers) that failure to grant a preliminary injuction would irreparably injure them.

USCIS's lawyers filed a nifty memorandum of law with apparently persuasive arguments, including a history of the agency's pre-INA (Immigration and Nationality Act) authority to grant employment authorization to F-1 students. The government's memorandum contains language (italicized below) that may be useful for citation by the employer community, nonimmigrant applicants for benefits and the immigration bar in a request for compassion or expedited adjudication, agency recognition of extraordinary circumstances, comments to a proposed rule or arguments in support of legislation authorizing more H-1B visa numbers or recapture of unused employment-based immigrant visas:

Even were this Court to find Plaintiffs’ injuries “concrete and particular,” and even were the Court to find a viable causal nexus between Interim Final Rule [IFR] and Plaintiffs’ alleged injuries, Plaintiffs’ case for standing still fails because this Court cannot redress their injuries. Foreign students might still petition for H-1B visas; employers might still hire them. Jobs might be exported overseas as U.S. employers try to remain competitive in a global market. Practical training has existed for over sixty years, yet Plaintiffs, by their own admission, were “unemployed” or “underemployed” before promulgation of the IFR. Plaintiffs misdirect their attack on the extension of OPT within the Interim Final Rule.

* * *

Were the Court to issue a preliminary injunction, thousands of otherwise lawfully present students could be forced out of status. Notwithstanding the hardship this would work upon these students in forcing them to leave the country to apply for an H-1B visa, an injunction would have more serious consequences still. A student’s eligibility for OPT (and by extension, a change of status to an H-1B visa) depends upon maintaining lawful status. See 8 U.S.C. § 1258(a) (limiting changes of nonimmigrant status to aliens who have maintained lawful status). A preliminary injunction would force thousands of students out-of-status.

Were the Court to enjoin this IFR, and thrust thousands of students out-of -status, the enormous disruption would affect not only students and prospective employers, but other more collateral interests. Stripping lawful status away from these students would result in untold confusion [for] third parties and the public. The preliminary injunction Plaintiffs seek would not preserve the status quo, it would throw an orderly and predictable system into a chaotic mess, as neither students nor employers could be sure of who could work or when [italics supplied].

Turnabout is fair play. Hoist the government on its own petard. (I'll stop gilding the lily for now with trite chestnuts.)

Remind them with their own words that insensitive rules and rulings result in extraordinarily harsh and irreparable consequences to human beings and American businesses. If USCIS won't listen to employers, foreign citizens and immigration lawyers, maybe they'll listen to themselves.

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The National Foundation for American Policy this week released a bluntly accurate critique of the recent anti-attorney, anti-employer shenanigans at the U.S. Department of Labor (DOL). The report, entitled "Certifiable: The Department of Labor's Approach to Labor Certification," chastises the agency for crafting the labor certification process without statutory authority ("DOL's mandated advertising and recruitment scheme, which it wields like a club against employers, their attorneys and skilled immigrants, goes well beyond what the law prescribes for labor certification.")

Authored by Stuart Anderson, the NFAP report aptly describes the DOL's convoluted process of labor-market testing as one that "adds a significant dead weight cost to the operations of many of America's most innovative companies, [and diverts] energy and resources that employers could better utilize on innovations that could create more jobs and wealth in the United States."

The NFAP urges Congress to minimize the DOL's role or "largely remove the [agency] from the [employment-based immigration] process," quoting with favor my recent article in The New York Law Journal, co-authored with Ted J. Chiappari, that describes the DOL's apparent view of lawyers in the labor-certification process as essentially nothing more than "potted plants."

In its conclusion, the report offers what apparently is the real reason for the DOL's process, more Potemkin village than the real world of recruitment:

"Given its actions, the Department of Labor has shown it has no interest in proposing or operating a simple system, since that would reduce the role and influence of Labor Department employees. It increasingly appears that the process contrived by the Department of Labor and the department's battles against employers and their attorneys is not about protecting jobs for U.S. workers but jobs for employees at the U.S. Department of Labor [emphasis added]."

(CORRECTION: When drafting the NYLJ article I got carried away with the italicizer function of my word processor, and mistakenly italicized a few more words of text than the DOL had actually altered when it slipped in, without explanation, the phrase "attorney for the employer" to the existing regulatory ban in 20 CFR § 656.10(b)(2)(i) on involvement by the lawyer for the alien in considering or interviewing U.S. worker job applicants.]

On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn't enough room for the couple to go through that unjust portal. Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrine that the courts will not consider visa refusals based on a factual decision of an American consular officer.

The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that "when a citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." The Ninth Circuit rested this slim right of review on the citizen's liberty interest in marriage:

[We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application. The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures.” Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).

The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.

In many other situations, however, the "reason to believe" standard does not apply. In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal. Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith. I suspect that some cases of this type are out there. Build the argument and the clients will come.

Congratulations to the Bustamantes' lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.

Sometimes, for no apparent reason, a word or phrase bubbles up from deep within the realm of memory. As I studied the excellent 2008 USCIS Ombudsman's Report to Congress, out from my cerebral hard drive popped "Hello Out There!" -- the title and opening and ending lines of William Saroyan's outstanding 1942 one-act play. The play is about angst, the existential cry of the human spirit beset by a world of injustice, but also about hopeful beginnings. (In high school I played the smallest of bit parts -- the jailer -- a ten-second walk-on with no lines.)

As I wondered why this phrase suddenly popped in my mind, into my consciousness came another meaning of "hello," pronounced with an adolescent sing-song intonation that stresses the last two syllables, as in "HellOOo." This slang meaning of "hello," as confirmed in www.SlangSite.com, expresses astonished incredulity at another person's naivete.

Pondering the two meanings of this common salutation, I at last made the connection to the Ombudsman's report. On one hand, his report is a deep-throated "Hello Out There!" -- an earnest clarion call alerting us in detail to the many problems and dysfunctions of USCIS, and a hopeful urging to our nation's leaders for resolute action. On the other, the report may well evoke a skeptical and smarmy reaction from members of the public and the immigration cognoscenti whose hopes have been dashed repeatedly by countless broken promises and initiatives that failed.

I take the quixotic view of the Ombudsman's report. If he can help in achieving even a glass half-full of his many worthy recommendations, and earlier unanswered suggestions to his predecessor, our country will be well served.

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I lost a great friend this weekend, Steve Fischel, but America lost a patriot. Stunned and tearful as the news of his passing spread, I walked aimlessly through the Vancouver Convention Center last Saturday afternoon, realizing in awe how many AILA members likewise cherished a close friendship with him.

Steve and I were to share an EB-5 panel last Wednesday, but he never made it. A passenger on his flight took ill and the plane was diverted. His last emails to me were classic Steve. He wrote to be sure we both were ready so that we would give our audience good value. In reply I'd emailed him my portion of the presentation on best practices in EB-5 risk management, ironically entitled: "Stress Relief and Blissful Sleep." He replied by email: "Thanks. This is helpful. Look forward to see you. S"

I never saw Steve at the AILA conference, but learned right away that he had been felled by a ruptured aortic aneurysm as he sat chatting with friends.

My loss, even when amplified by the heartfelt grief of so many of Steve's friends in AILA and his colleagues in government, does not tell the full story of America's loss of this marvelous fallen patriot. Steve served honorably and well in the State Department for 31-plus years, but we in AILA first came to know him in 1981 as he articulated eloquently the Department's positions on a host of immigration issues. Unlike so many of the current crop of government officials who administer and enforce the immigration laws, Steve appreciated and respected immigration lawyers. He saw us not as adversaries but as participants in a legal process that brought profound blessings to America. Steve, like other officals of his era (Cornelius "Dick" Scully at State, and Jackie Bednarz and Larry Weinig at INS -- all thankfully still alive), believed that his job was to help lawyers, newcomers and veterans alike, understand the immigration law and the government's interpretations. He never had an axe to grind; his approach was always to achieve the correct legal answer and the just result.

To be sure, we didn't always agree, especially on consular nonreviewability, but I never walked away from an exchange with Steve feeling that he'd denied me a fair hearing or a thoughtful response. With a twinkle in his eye, a wide smile and a deadpan, comedic retort, Steve could joust with the best of us.

He made a great, positive impact on immigration law, helping to craft the NAFTA TN provisions, improving the J-1 waiver process, and reconciling the conflicting E-1 and E-2 interpretations of INS and State, to name but a few. And then he retired from State, the deserving recipient of awards aplenty, and crossed the aisle to practice immigration law, always with success and gusto. The American Immigration Law Foundation, which he served as a member of the Board of Trustees, awarded him its Distinguished Public Service Award in March 2006. The video of his acceptance speech will bring a tear or several to your eyes but it's worth watching.

Although most Americans and millions of immigrants to our country may never have known Steve, his impact on their lives, the benefits he helped confer, the American Dreams fulfilled with his aid, will be remembered sadly and proudly by all of the many close friends who mourn his passing.

Steve,

Although your life was cut short, you can now enjoy stress relief and blissful sleep. May you know, in the words of Ralph Waldo Emerson, that you lived life successfully indeed:

"Those are a success who have lived well, laughed often, and loved much; who have gained the respect of intelligent people and the love of children, who have filled their niche and accomplished their task, who leave the world better than they found it, whether by a perfect poem or a rescued soul; who never lacked appreciation of the earth's beauty or failed to express it; who looked for the best in others and gave the best they had."

Americans are far more welcoming and warm-hearted than the reputedly cold-hearted Swiss, we like to believe. As the New York Times reports today, the Swiss people are set to vote on a ballot measure of dubious constitutionality that would let local citizens decide in secret and give no reason for rejecting a fellow townsperson's application for naturalization.

The Times' article tells the sad tale of Ms. Milikije Arifi, a 30-year legal resident of Switzerland originally from Macedonia, who is fluent in the predominant Swiss tongue (German), speaks German with a Swiss accent, has complied with all laws, paid taxes, and proudly supported the national soccer team. The Town Council of a Zurich suburb denied her naturalization application in a secret ballot, offering "insufficient integration" as the basis for its refusal of citizenship. Milikije's lawyer suspects another motive:

"This is clearly a case of arbitrariness . . . The council thinks this woman looks like a Gypsy with her colorful clothes and her jewelry, so they just reject her in this succint Swiss way."

America is not Switzerland. Citizenship through naturalization is a privilege the U.S. gladly grants to eligible foreign-born permanent residents who play by our rules, reside here for the required period of physicial presence (usually five years), and prove they can communicate in English and understand a modicum of American Civics and History. In our system, there is no test for "integration," and if someone is denied naturalization our examiners give them a full explanation in writing. Indeed, U.S. Citizenship and Immigration Services (USCIS), the folks who decide naturalization applications, proudly displays on its website a photo of new citizens, a rainbow of races and gleeful peoples, proudly waving miniature American flags.

A look behind the scenes of this festive peoplescape, however, reveals a Swiss-like power to bar the path to citizenship much earlier in the process and likewise offer no reason whatsoever. Most foreign nationals who are granted U.S. permanent residency, the first requirement for citizenship, must first pass muster before an American consular officer at a U.S. embassy or consulate abroad. Consular officials enjoy absolute power to decide the facts necessary to establish a foreign applicant's eligibility for a U.S. visa. And American courts have repeatedly upheld this fact-finding form of consular absolutism expressed in the decision to grant or deny a visa. If the facts were on the table, however, and the consular officer had to explain his decision in writing, perhaps that would at least salve the hurt feelings of a refused visa applicant.

Alas, this is not the law of the land. Immigration and Nationality Act (INA) § 212 includes in subsection (a)(3) among the categories of foreign persons who can be refused a visa:

"Any alien who a consular officer . . . has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . unlawful activity.

Thus, discovery of an adverse "fact" is not required; a consular officer may simply refuse a visa if s/he has mere "reasonable ground to believe" that the foreign citizen will enter the U.S. to engage "incidentally" in any unlawful activity. Thus, the presumption of innocence and the requirement of criminal conviction that satisfies due process are not needed. Apparently, spitting on the sidewalk in violation of a city ordinance would be sufficient. Worse yet, another section of the immigration law, INA § 212(b)(3), allows the consul to give no reason whatsoever for the wishy-washy "reason-to-believe [intent-to-engage-in]-unlawful-activity" basis for refusal of a visa.

So, yes, our laws (which reflect the choices of the people we elect, and presumably, our own values) are not like those of the Swiss. We are more efficient (we can keep people out much earlier than the Swiss). We are also more parsimonious with words (we need not even be "succinct" - we can merely remain mum).

Rather than engage in self-congratulation at our supposed moral superiority, we Americans should look more often behind the scenes of our immigration laws and procedures. Perhaps we'd find Oz, a supposed wizard who is merely "an ordinary, American man who has been using a lot of elaborate magic tricks and props to make himself seem 'great and powerful.'"

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Is there something in the water? Has the frenzied focus on immigration enforcement prevailed over the rule of law? Here's my sample bill of particulars:

• Congress gives the Secretary of Homeland Security authority to waive environmental and all other laws that stand in his way in building the fence that will go nowhere, i.e., as the Secretary acknowledges, will not be a cure-all in stopping the centuries-old cross border traffic (which all but begs for a legal way to manage the flow);
• The Federal District Court in Iowa, announcing in a press release the dispatch of Federal Judges to Waterloo, Iowa, for the criminal prosecution of "illegal aliens," seems to forget about the presumption that all defendants are considered innocent until proven guilty;
• The same Federal Court is reportedly assigning appointed defense counsel up to 10 cases per lawyer and conducting mass hearings, thus making it impossible for the defense lawyers to conduct a meaningful defense and for the defendants to receive a fair trial;
• Federal law enforcement authorities were reportedly aware of an Iowa state investigation into alleged child labor law violations at the Pittsfield, Iowa Agriprocessors plant, but wilfully interfered by conducting the raid and arresting and detaining several children (including a 13-year-old) who were prepared to testify about child labor abuses.

To be sure, no one believes we should turn a blind eye to violations of the immigration laws. Rather, we should temper this zeal for an immigration-enforcement-at-all-cost policy with a dose of respect for the rule of other laws too.

Gigabytes of platitudes have spewn forth from the anti-immigration cabal in Congress about their self-proclaimed respect for foreign citizens who wait patiently in line and play by the rules. The law-abiding folks from other countries -- those with work visas or green cards who pay U.S. taxes and those living abroad whose spouses are in the U.S. military -- aren't buying the blather.

In fact, despite the economic stimulus checks now being sent out, these benighted folks aren't buying much of anything. That's because Congress has denied them their rebate, even though they've paid U.S. taxes, by requiring a Social Security Number for every household member. The problem is that IRS gladly accepts tax payments from law-abiding foreign citizens and issues them a "taxpayer identification number" or "TIN" but the Social Security Administration (SSA) refuses to issue them a Social Security Number.

So, by Congressional decree and SSA fiat, these folks who "wait patiently" and "play by the rules" will be cheated out of the $1,200 rebate for a married couple and the $300 per-child rebate. Obviously, if they play by Congress' rules, they'd better be patient because they'll be waiting a very long time for that phantom rebate.

Has it come to this? Foreseeable panic spreads when U.S. Immigration and Customs Enforcement (ICE) officers enter neighborhoods near schools. City and school officials in Oakland and Berkeley California have their hands full calming the frayed nerves of children in panic.

When will ICE learn to temper its power with common sense? America has many problems: poverty, lack of health care, an economy toppling into recession, a crumbling infrastructure, an over-stretched military, food and gas inflation, pollution, to name but a few. Must our government add to the pain by scaring our children?

ICE should chill for now. Let the next President and the forthcoming Congress have a chance to lead the charge for immigration reform, rather than unleash an overzealous police agency to spread panic in the land.

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Our immigration policy hurts more than helps. Just one example is the way we treat incoming foreign students. Dr. Allan E. Goodman, President/CEO of the Institute of International Education, made the point vividly in recent testimony before the House Committee on Science and Technology (Subcommittee on Research and Science Education):

We can all imagine how circumstances might impact international students coming to the United States. Many of us have helped our own children negotiate entering college and understand that it can be a time of great anticipation and excitement but also nervousness and trepidation for young people . . . . [I]magine the incredible fortitude, drive and courage to leave your home country, fly to the United States, navigate the non-immigrant visa review and border entry processes and enter an institution of higher learning here in America.

. . . . All too often we hear of unpleasant and extremely harassing treatment of incoming students and scholars, particularly of those who come from the Middle East or whose name identifies them as an adherent of Islam. Sometimes the [Department of Homeland Security border] inspector does not appear to understand the process by which international students are admitted to our colleges and universities, and end up questioning the student about issues that have already been decided by the visa-granting [U.S. consular] officer back in the home country.

This treatment can be particularly intimidating for students who may be traveling abroad for the very first time and who may be confused of what is being asked of them. Some students hail from countries or cultures where figures of authority are never questioned or talked to – even if trying to clarify a request or order. And, of course, there are cultural or religious issues to be bridged. For instance, some Muslim women are not allowed to talk to men outside their family. Some cultures do not encourage direct eye contact with strangers, and hence the student may appear evasive or non-forthcoming in responding.

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It's a Monday morning. I'm groggily sipping my usual espresso as I skim my emails before getting down to the business of immigration law. An email from a stranger leads me to a page of five finalists in a video contest on immigration in America. The contestants' films lift my spirits. One talks of how we're a great nation because we're different. Another describes the human suffering of American children in the aftermath of a Feb. 2008 raid on a Van Nuys, California, printing supply company. A third shows, humorously but sadly, the perceptions that members of the public often have when visiting a USCIS district office, that of an agency afflicted with ineptitude and indifference, outdated technology, and chaotic file rooms, all covered with a false patina of concern. The fourth involves interviews of Americans living in a small border town who express sincere compassion for the plight of desperate migrants. The last, a student film, is an interview with Lady Liberty. The films are short; but the impression they leave you with is lasting. Take a look. You'll be touched, and glad you did.

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Judging from the response, this blogger's commentary today in Forbes.com annoyed more than a few opponents of legal immigration. One writer thought the piece was funny, suggesting that my commentary earned me a spot on Jay Leno's Tonight Show. Others suggested a pecuniary interest in that more work visas mean more work for immigration lawyers. But one writer, a foreign worker who gave up on the U.S. immigration system, tells of how he and other foreign transplants prospering at newfound jobs in London could no longer tolerate the unfairness and dysfunction of America's broken system of legal immigration. In essence, that commenter proved the point of the article: Congress and the Administration should be ashamed that -- in all their claimed concern for the failing economy -- they have overlooked a readily available, jobs-based solution to our nation's economic woes. Now more than ever, surgical corrections to the employment-based, legal immigration system are urgently needed. Scrap the ill-conceived visa quotas and allow our country to benefit from the job-creating talents of the foreign workers who we educate in America or who want to come and contribute to our country. --------

Commentary: The Lowly Form I-9 Gets a Low-Level Makeover By Ted J. Chiappari and Angelo A. Paparelli - New York Law Journal

As of Dec. 26, 2007, all employers must use the updated Form I-9, which the U.S. Citizenship and Immigration Services (USCIS) published in November. In use since 1986, the I-9, Employment Eligibility Verification, is the form that all employers are required to complete at the time of hiring to verify the employment eligibility of new hires.

The USCIS has also issued a revised Handbook for Employers (Form M-274), which had been outdated and out of print for over a decade. The new I-9 can be downloaded from http://www.uscis.gov/files/form/I-9.pdf, and the new handbook from http://www.uscis.gov/files/nativedocuments/m-274.pdf.

The changes in the updated version seem minimal, some might say insignificant, and appear really more makeup than makeover. But they are long overdue, having been legislated by Congress in 1996. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), §412(a), P.L 104-208, 110 Stat. 3009-546, 3009-666-3009-667, amending Immigration and Nationality Act §274A(b)(1), 8 U.S.C. §1324a(b)(1), shortened the list of acceptable documents proving both identity and employment eligibility in an attempt to simplify the I-9 process and improve employer compliance. The Immigration and Naturalization Service (INS), the predecessor of USCIS and its sister agencies within the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), implemented the statute by regulation in 1997, but never updated the actual form.

The publication of the new form provides an opportunity to explore how the labor-intensive Form I-9 fits in with recent DHS initiatives and the overall immigration enforcement scheme in the United States.

To read entire article go to: link 1 or link 2 See attribution and permission to print this article on article links.

Faced with a dwindling supply of available workers, you may be among the many employers looking to fill your ranks with foreign nationals. Hiring immigrants, after all, has long been a valued technique for getting the job done in America.

Today, though, employers need to tread more carefully over what has become rougher legal terrain. As the nation’s headlines attest, employers can be hit with stiff penalties when errors are made hiring workers from other nations who are in the United States temporarily or permanently.

Federal regulations are tightening up in ways that target employers of undocumented workers. And that’s only the start: State governments around the country are creating a confusing patchwork of laws related to the hiring of foreign nationals, following the failure of Congress to pass comprehensive immigration reform last summer. “The states are having to pick up where the federal government did not come through,” notes David Kotick, managing partner of Apsan Law Group, an immigration law firm in New York.

Even municipalities are getting into the act. “Many local communities are fighting illegal immigration by targeting businesses,” cautions Kotick. “Employers who hire undocumented aliens face steep fines and the loss of their business licenses. Some laws even mandate jail time for repeat offenders.”

Verify eligibility Whatever your location, you are subject to federal regulations which require you to verify the employment eligibility of anyone you hire. “Every individual, once hired, must be asked for documents that prove their identity and their work authorization,” cautions Carlina Tapia-Ruano, partner at Chicago-based Tapia-Ruano & Gunn, an immigration law firm (www.trgpc.com ). The employer must have each hired individual fill out an I-9 form, titled “Employment Eligibility Verification,” issued by the U.S. Citizen and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). (To avoid any appearance of discrimination, the law requires that you have individuals complete this form only after being hired, not during the recruitment process.)

You can download a copy of an I-9 form from www.uscis.gov. Click on “Immigration Forms” and then “Employment Eligibility Verification” or I-9, toward the bottom of the list.

On part 1 of the I-9 form, the employee enters basic information such as name, address, social security number and date of birth. Just as important is the section on the employment status of the individual. There are only three choices here: The individual is either 1) a U.S. Citizen; 2) a legal permanent resident, or 3) an alien authorized to work until a given date. The employee must sign and date the form.

In Part 2 of the form, you must certify that you have made sure the documents provided by the employee

establish the individual’s identity and employment authorization. What documents are acceptable? There is an extensive list on the back of the I-9 form. Any one document from a list of 10 are acceptable as proof of both identity and employment eligibility. (A passport and a permanent resident card are two examples.) Additionally, there are nearly two dozen additional documents that have been certified as proof of one of the two criteria.

Part 3 provides space for updating the form’s information after a worker’s previous work authorization has expired.

“The law requires that the signatures and the information be completed within three days of the employee’s hire date,” notes Tapia-Ruano. “Many attorneys recommend that employers attach photocopies of the reviewed documents to each I-9, to help protect the business in the event of an audit.”

Avoid Errors Gathering documents is one thing. Making sure they are authentic and that all of the blanks are filled in correctly is another. Failure to do so can be costly. Penalties for errors can range from $1,000 to $10,000 per violation. “The penalties can accumulate very quickly even with a single I-9 form if there are numerous violations,” cautions Tapia-Ruano. “Some employers have been hit with hundreds and thousands of dollars in penalties and fines.”

Even employers who make innocent mistakes can be fined, cautions Tapia-Ruano. “If a receptionist or whoever is assisting employees in completing the I-9 forms makes mistakes, then even if the workers are U.S. born citizens the employer is subject to fines. The fact that this can happen repeatedly makes employers very uncomfortable.”

Employers should make sure that everyone who helps employees fill out I-9’s is trained to avoid as many errors as possible, suggests Tapia-Ruano. “And I would encourage internal audit of I-9’s on a periodic basis. Don’t wait for an audit by the Department of Homeland Security.”

While the I-9 form looks simple, attorneys caution employers from making these common errors: Illegal bias: Avoid charges of discrimination by requiring every employee (not just the ones whom you believe are from another country because of their appearance or their speech) to fill out an I-9 form.

Entry errors: “Any mistakes can or will result in fines,” cautions Tapia-Ruano. One of the more common errors is incorrect indication of the employee’s immigration status. An employee with a work visa, for example, may have erroneously filled in “permanent resident.” Such a mistake is significant even if done innocently. “It is the employer’s duty to make sure the entries are accurate.”

Over-restrictive documentation: Avoid requiring documentation that is more restrictive than what the law mandates. An employer might be tempted to do this to simplify record keeping, but it is illegal and can lead to fines as well as charges of discrimination. “The I-9 provides a list of documents which are acceptable as proof,” notes Tapia-Ruano. “You must accept the employee’s decision as to which of the listed documents to provide.”

Failure to assess authenticity: The employer must not accept documents that a reasonable person would suspect were fraudulent either because they look doctored or look like duplicates.

Procrastination: Another mistake is to put off the task of examining the employee’s documents and getting the I-9 in order. “It’s not uncommon for employers to wait more than three days,” notes Tapia-Ruano. “Again, that can result in fines.”

Allowing expiration dates to slip by: Many employees have permission to work for only a limited period of time. “You need a system to continue to verify the employment status of an individual throughout the period of employment,” cautions Tapia-Ruano. Prior to the expiration date, ask the employee to present new verification documents.

It’s important to retain these I-9 forms in a safe place. “At any time, the Department of Homeland Security or the U.S. Department of Labor may come around and perform what they call an ‘employment audit’ of I-9s,” adds Tapia-Ruano.

Safe Harbor Rules The U.S. Social Security Administration (SSA) has long been in the practice of sending “no match” letters to employers when workers’ names and social security numbers on W-2 Forms do not match the SSA records. In the past, employers had never been sure what to do after receiving these letters. Should a worker who cannot reconcile the discrepancy be fired?

“In many cases employers have kept the employees on board, fearing that a termination decision based on a no-match letter might lead to charges of discrimination,” notes Angelo A. Paparelli, managing partner of Paparelli & Partners, an immigration law firm with offices in New York City and Irvine, Calif. (www.entertheusa.com). “After all, there can be legitimate reasons why a no-match occurs. A female employee might have gotten married, for example, and changed her name to her husband’s without notifying the social security administration. Or the social security administration could have misspelled the name.” Indeed, the web site of the U.S. Immigration and Customs Enforcement division of the Department of Homeland Security states that “an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.”

Times, though, are changing. Today’s employers face more severe fines for hiring illegal immigrants and there is a general national mood shift against undocumented foreign nationals. Many observers, therefore, are concerned that employers will opt to risk discrimination lawsuits over the federal government’s civil and criminal penalties for employment of undocumented workers. “The fear is that many people will be terminated based on foreign appearance and name,” cautions Paparelli.

As partial mitigation for this problem, in August of 2007 the Department of Homeland Security issued new regulations intended to clarify matters while providing a “safe harbor” for employers who hire foreign nationals. The regulations define what steps employers must take within what time frames to avoid legal liability for hiring undocumented workers.

You should be aware of this safe harbor as well of any additional regulations that are likely to flow from the federal pipeline. See the sidebar, “Safe Harbor for Employers.”

Maybe the safe harbor regulations are intended to reduce ambiguity, but employers still face the costly task of checking and double checking documents. And the safe harbor regulations carry their own heightened risk of financial penalty. “The procedures defined in the rules are not really voluntary,” cautions Paparelli. “The employer who fails to carry out the defined steps risks being charged with ‘constructive knowledge’ of the employment of workers who lack the right to work. This would put the employer in violation of immigration laws.”

Stay Informed Many feel that recent changes in federal regulations represent an attempt to shift the border control effort from the government to the private sector. “Employers feel an unreasonable burden is being placed on their shoulders to control undocumented employees,” says attorney Tapia-Ruano.

If more is expected of the employer than ever before, though, it only highlights the need to maintain vigilance in hiring procedures. As the face of America’s workforce changes, employers can be sure there will be additional changes in federal, state and local regulations. [End of story. Sidebars follow.]

Sidebar 1: Safe Harbor for Employers For decades the U.S. Social Security Administration (SSA) has sent “no match” letters to employers when workers’ names and social security numbers did not correspond to the agency’s records.

Employers have been unsure what to do after receiving the letters. There was no firm guidance from the government and in many cases employees remained on the payroll in a kind of limbo.

This situation has changed. In August of 2007 the U.S. Immigrations and Customs Enforcement division of the Department of Homeland Security issued new regulations that defined the steps to be taken by employers receiving no match letters. At the same time, those employers who follow the procedures are granted safe harbor from prosecution.

To access these procedures, point your browser to the U.S. Immigration and Custom Enforcement web site, www.ice.gov, then click on “Safe Harbor for Employers Information Center.” A series of documents describe what must be done after the receipt of a letter . Here is a brief synopsis: 1) Within 30 days, check your records to ensure that the mismatch was not the result of a clerical error. 2) If this does not resolve the problem, ask the employee to confirm the accuracy of the employer's records. 3) Ask the employee to resolve the issue with SSA within 90 days from the date the employer received the no-match letter. 4) If the employee was able to successfully resolve the mismatch, ensure that the instructions in the SSA letter have been followed. 5) If the issue is still unresolved, initiate another verification round as if the employee were newly hired.

Sidebar 2: Understanding Employment Visas

Documents which certify that “foreign nationals” -- people who are natives of other countries—are eligible to work in the United States are called “employment visas.” Not all employment visas are alike. In fact there are a host of different kinds. (To peruse the full array of visas with explanations, navigate to the web page maintained by the U.S. Department of State at www.unitedstatesvisas.gov, and also http://travel.state.gov/visa.)

Many employers hire unskilled workers with H-2B visas, valid for temporary employment for up to a year. “There is a tremendous need for people to fill such positions in this country,” notes David Kotick, managing partner of Apsan Law Group, an immigration law firm in New York.

Arranging for H-2B visas can take up to four months to complete. The process begins when the employer obtains a labor verification from the U.S. Department of Labor. Then the employer files a petition with the Department of Homeland Security. When that petition is approved the worker can apply for a visa and a passport from the U.S. consulate in his or her own country.

The U.S. limits such visas to 66,000 annually. “It’s nowhere near enough,” says Kotick. “They run out very quickly and there is a severe labor shortage for these workers that affects business profits and the economy as a whole.”

“What’s really needed is a program that provides for a year-round legal status for guest workers,” notes Kotick. “That was part of the Congressional immigration reform package that fell through.”

Sidebar 3: Getting Help Employers requiring legal assistance on immigration law may turn to resources such as these: ** The Academy of Business Immigration Lawyers (www.abil.com). ** The American Immigration Lawyers Association (www.aila.org). ** FindLaw. (Categorizes attorneys by legal issue, including immigration law) (http://lawyers.findlaw.com). [End of sidebars.]

Copyright© 2007 by Phillip M. Perry - used with permission. www.editorialcalendar.net

See also the story posted on the site of Area Development magazine: Click this link

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USCIS Announces Revised Form I-9

Update: For an analysis of the new Form I-9 and the likely DHS enforcement strategies, see “The Lowly Form I-9 Gets a Low-Level Makeover,” by Ted J. Chiappari and Angelo A. Paparelli, published on December 24, 2007 in the New York Law Journal, and available here: http://www.entertheusa.com/publications/0712-njlj.pdf

On November 7, 2007, USCIS announced that a revised Employment Eligibility Verification Form (Form I-9) is now available for use, as well as the (Form M-274) which provides employers with instructions for completing the Form I-9, and guidance in how to avoid charges of unlawful discrimination on the basis of national origin or citizenship. Since the U.S. Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), U.S. employers have had to verify that prospective employees have legal permission (authorization) to work in the United States. U.S. employers perform the verification process by proper and timely completion and retention of Form I-9 (Employment Eligibility Verification Form) for each worker hired after November 6, 1986.

The content of Form I-9 has changed little since being introduced as part of the employment verification process, but the new version of Form I-9 does contain substantive revisions. The primary distinction between the old and new version of the form is the removal of certain documents that can now be presented by newly hired employees to establish both identity and employment eligibility (‘List A” documents). The documents which have been removed from List A include the Certificate of Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Card (I-151), Unexpired Refugee Travel Document (Form I-571) and Unexpired Reentry Permit (Form I-327).

The removal of these documents comports with the mandate contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) requiring a reduction in the number of documents employers may accept from newly hired employees during the employment verification process. According to the November 7, 2007 announcement issued by the USCIS Office of Communications, the documents removed were those deemed susceptible to counterfeiting, tampering and fraud. USCIS has indicated that the revised version of Form I-9 (dated 06/05/07) is available on their website, and is encouraging employers to start using the form immediately. The agency has further advised that the form will become “effective” once notice of the revised form is published in the Federal Register, and that employers failing to use the revised form after the effective date will be subject to fines and penalties.

The USCIS Announcement and Fact Sheet on the revised form may be viewed at: http://www.uscis.gov/files/pressrelease/FormI9Update110707.pdf http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf

The revised Form I-9 and Handbook for Employers may be accessed by clicking on the following links:http://www.uscis.gov/files/form/I-9.pdf http://www.uscis.gov/files/nativedocuments/m-274.pdf

For further information concerning the employment verification process, please feel free to contact our office at (949) 955-5555.

Several Latino families and individuals, represented by the Puerto Rican Legal Defense and Education Fund and an international law firm, filed a class action suit on September 20, 2007, against the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security, charging that its agents unlawfully broke into and entered the homes of Latinos in the New York area without judicially issued warrants or other legal justification. The complaint describes armed ICE agents breaking down doors or forcing their way into Latino households in the pre-dawn hours without court warrants, terrifying children and adults, and looking for individuals who often do not even reside in the homes.

A press release announcing the suit is available at http://www.prldef.org/Press/Press%20Releases/ICE/Press%20Release%20-%20Latinos%20Challenge%20Constitutionality%20of%20Home%20Raids%20Conducted%20by%20ICE.pdf.

A related article is at http://jurist.law.pitt.edu:80/paperchase/2007/09/ice-sued-over-immigration-raids.php

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Hold off on Uncorking the Champagne

On October 10, 2007, the U.S. District Court for the Northern District of California granted plaintiffs’ motion for preliminary injunction preventing implementation of the Department of Homeland Security’s final rule concerning actions to be taken by employers who receive Social Security Administration (SSA) No-Match letters. American Federation of Labor, et al. v. Michael Chertoff, et al. (N.D., CA, No. C 07-04472-CRB, Oct. 10, 2007).

Plaintiffs, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County, along with other local labor movements, originally filed an application for a Temporary Restraining Order (TRO) on August 29, 2007, with the U.S. District Court in California. The application was granted by the court on August 31, 2007, for a period of 30 days, and on October 1, 2007, was extended by the court for an additional 10-day period.

The final rule, entitled ‘Safe-Harbor Procedures for Employers Who Receive a No-Match Letter”, set forth procedures to be followed by employers in responding to a no-match letter issued by the Social Security Administration (SSA) identifying a discrepancy between name and social security number (SSN) information contained in SSA’s database and name and SSN information being used by an employer for tax and payroll purposes.

Under the final rule, employers would be given 90 days from receipt of a no-match letter (the “safe haven” period) in which to follow certain proscribed procedures to address the discrepancy, by either resolving and correcting the discrepancy, re-verifying the employee’s work authorization, or terminating the employee if the discrepancy cannot be resolved. Employers failing to follow the procedures contained in the final rule, would be subject to civil and criminal penalties and could also be charged with having had knowledge or “constructive knowledge” of the employee lacking work authorization (an allegation that, according to language contained in the final rule, would not be leveled against employers responding to SSA no-match letters within the proscribed 90-day safe haven period). On the other hand, employers electing under pressure to terminate employees within the 90-day safe harbor period, in order to avoid possible prosecution under the final rule, would also have been exposed to liability and charges of wrongful termination and employment discrimination by those workers terminated.

In criticizing the rule, the National Immigration Law Center, in a press release dated October 1, 2007, stressed that employers who currently receive SSA no-match letters are not required to take any action, and that such letters have never been construed as evidence of an employee not having permission to work in the U.S. As noted in the press release, “there are many innocent reasons for such discrepancies such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world”.

In granting plaintiffs’ motion for a preliminary injunction, the court voiced its own concerns regarding the likelihood of harm, not only to the plaintiffs, but to U.S. workers and employers generally, stating the following:

“As demonstrated by plaintiffs, the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers. This is so because, as the government recognizes, the no-match letters are based on SSA records that include numerous errors. Moreover, the threat of criminal prosecution, (under the guise of a safe-harbor provision), reinforced by a directive that the employer who receives a no-match letter must follow the safe harbor procedures or expose themselves to criminal and civil liability, reflects a major change in DHS policy”.

District Court Judge Charles Breyer concluded that the regulation, if enforced, would have required an immediate and significant change in plaintiffs’ conduct which, given the number of no-match letters SSA was planning to mail out (approximately 140,000 such notices, pertaining to approximately 8 million employees), necessitated further consideration of the final rule prior to implementation.

While this is good news, employers should recognize that DHS and Immigration & Customs Enforcement (ICE) still have plenty of civil and criminal law enforcement tools to encourage compliance with the rules against unlawful hiring, even without relying on the enjoined no-match rule. The best advice is to review your employment-based immigration compliance practices and take whatever corrective action is necessary. Call Paparelli & Partners LLP if you need any help.

Additional updated information on the preliminary injunction may be obtained on the National Immigration Law Center’s website. The link to the website is: http://www.nilc.org/index.htm

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