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

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

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

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

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

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

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

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

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

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

[Blogger's Note: This post -- originally published on March 31, 2013 -- is a guest column (updated on April 3, 2013) to reflect actions by the 11th Circuit Court of Appeals and U.S. Citizenship and Immigration Services.

The original post was authored by a former federal government official who played a substantial role in immigration policy. The revisions were added by your blogmeister. Our guest columnist desires anonymity but provides thoughtful commentary on a work visa program gone awry.

The H-2B visa, it seems, has become everyone's punching bag -- from the courts, to Congress, to the administrative agencies that implement our immigration laws, not to mention organized labor and business interests.

As the final stumbling block to comprehensive immigration reform is  removed – a system to provide for future flows of lower skilled workers, we can only hope that this presumed successor to the H-2B will prove more functional than the present convoluted skein it will replace.]

Oh What a Tangled Immigration
Web We Weave:
A Knotty Future For the H-2B Program

By Keyrock

H-2B (or not H-2B) is indeed the question on the minds of many employers following a recent federal court decision in the Eastern District of Pennsylvania.  In a situation befitting the indecisiveness of Shakespeare’s Hamlet, employers who rely on the H-2B program -- the visa category for temporary and seasonal workers, other than those in agriculture (H-2A) and specialty occupations (H-1B) -- find themselves beset by uncertainty on all sides:  the courts, the Congress and the Department of Labor (DOL). 

First, the uncertainly from the courts.  In just the past four years, legal disputes over the H-2B program and DOL’s  authority to issue regulations have grown increasingly complex, involving no fewer than four separate lines of litigation heard by judges in four district courts and three courts of appeals, with cases presenting overlapping issues and claims producing conflicting decisions affecting different groups of plaintiffs, defendants and intervening parties.  Presently, contradictory decisions from federal courts in Pennsylvania and Florida about whether DOL possesses authority to issue H-2B regulations are on appeal at the 3rd and 11th Circuit Courts of Appeal, respectively.

The litigation began in Pennsylvania in 2009 with a suit by a worker advocacy group challenging DOL’s first-ever H-2B regulations.  A 2010 decision in that case found flaws with the notice and comment process relating to DOL’s  4-tier wage calculation methodology in the program.  As a result of the court’s decision, DOL continued to use the 4-tier wage structure while they attempted to promulgate a replacement rule. 

In August 2011, DOL proposed a replacement rule, commonly known as the H-2B Wage Rule.  But in doing so, DOL fundamentally altered the longstanding wage methodology in the program forcing some employers to immediately absorb wage increases of more than 100%.  In the fall of 2011, facing the prospect of economic ruin from DOL’s wage rates, employers filed suit in Louisiana (subsequently transferred to Pennsylvania) challenging the agency’s authority to issue the Wage Rule.  Shortly thereafter, DOL published another set of H-2B regulations, which were then enjoined by a federal court in Florida and that decision was upheld in 3-0 decision by the 11th Circuit Court of Appeals on April 1.

Last week,  the Pennsylvania judge added to the uncertainty for employers by issuing a decision relating to the original H-2B case from 2009.  In the opinion, the judge removed from the H-2B regulations, the 4-tier wage calculation that had been found procedurally invalid in the 2010 opinion (by the now-deceased judge who originally heard the case), but which DOL was continuing to use as a result of the other litigation and intervening congressional action. 

DOL’s actions add to the uncertainty.   In response to the Pennsylvania ruling, DOL declared in a March 29 Notice, that as of March 22 it is no longer issuing H-2B wages to employers unless they seek a wage based on (1) a collective bargaining agreement, (2) a Service Contract Act determination, (3) a Davis-Bacon Act determination, or (4) a private wage survey.  DOL further indicates in the Notice that it will publish yet another rule within 30 days describing how it will issue H-2B wages in the future. 

But, in the midst of the litigation back in the fall of 2011, Congress sided with employers opposed to DOL’s Wage Rule by attaching a “rider” to the agency’s appropriations bill that prohibits the agency from implementing that rule.  The rider has repeatedly been renewed, including as recently as last week when the President signed into law the 2013 government funding bill on March 26.  As part of the ongoing restriction on DOL’s appropriations bill, Congress (and the President) have directed DOL to continue to apply the very same 4-tier wage methodology vacated by the Pennsylvania judge on March 21.

So what will DOL do when it issues a new wage rule in the next few weeks?  Curiously, DOL’s  Notice says it will promulgate a rule “that complies with the court’s interpretation of what the statutory and regulatory framework require.” Missing from that statement is any recognition that Congress has already dictated what is required by DOL. And DOL’s Notice obviously does not reference the just-released 11th Circuit Court of Appeals decision, which says DOL lacks authority to issue H-2B regulations.  What DOL will do next is anyone’s guess.

USCIS weighs in by suspending action on H-2B petitions.  Adding to employer travails, U.S. Citizenship and Immigration Services (USCIS) -- in light of the Pennsylvania federal court injunction -- announced on April 2 that it will temporarily cease adjudication of all H-2B petitions, in part, because the "Department of Labor intends to promulgate a revised wage rule within 30 days of the date of the Court order." 

Congress started it all.  Much of this uncertainty stems from the language Congress used (or didn’t) when the H-2B program was created as part of the Immigration Reform and Control Act in 1986.  The sparse statutory language describing the H-2B program, particularly when compared to the language describing the H-2A program, has led to real questions about the extent, and even the existence, of DOL regulatory authority over the program.  Those questions continue to produce a growing mountain of court decisions, congressional directives, regulations, enjoined regulations, and statutory language [8 U.S.C 1101(a)(15)(H)(ii)(b)] that have tied the H-2B program in knots. But now, the 11th Circuit, in the only appellate decision weighing in on the topic, seems to have resolved that question (for now) in declaring that the statutory language reflects a conscious decision by Congress not to grant DOL rulemaking power in the H-2B program.

The H-2B program is a critical lifeline for many seasonal businesses that cannot find sufficient numbers of U.S. workers who want to take the relatively short-term employment opportunities.  Studies have shown that these seasonal jobs filled by foreign workers are, however, important to our economy and lead to the employment of many thousands more year-round U.S. workers.  If the DOL fails to provide H-2B employers with market-based wage rates, critical seasonal jobs will go unfilled and as a result, businesses and their U.S. workers will suffer.

Congress has an excellent opportunity to clear up the uncertainty about the H-2B program as part of comprehensive immigration reform legislation.  Unfortunately, as many learned observers have noted,  real concerns persist about whether an immigration deal can be reached given the hostility some interest groups reportedly have towards any type of guest worker program.

If, as an old Pope once said, “hope springs eternal,” let’s hope the arrival of spring brings some untangling of uncertainties for employers who rely on the H-2B program to meet their short-term and seasonal labor needs.

• Why don't they just get into line like everyone else?
• Why don't they wait their turn?
• Why don't they just follow the law?
• Why should we reward lawbreakers who disrespect our laws?
• Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?

All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than enduring extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.

The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reform apparently has swallowed these memes whole hog:

[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.

The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:

["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.

To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:

The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.

As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:

Instead of dying in the desert, they might just die waiting to become permanent residents.

Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system: 

With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration "wait-your-turn" memes:

[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

As President Obama has said: "Today we have an immigration system that is out of date and badly broken." 

[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:

As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.

The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)

The situation of getting "in line" is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:

1. There are multiple lines, not just one;
2. Unless you have a family or employer sponsor, there is no line whatsoever available;
3. It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
5. There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".

The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The "line" flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

We didn't always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:

The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"): 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.

Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static "line."

As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:

Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent. 

Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.

Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency.  We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.

Consider too these dictionary definitions:

alien /ˈeɪlijən/adjective

1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to 

▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.

2: from another country :foreign

▪ alien residents

3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy

4: from somewhere other than the planet Earth 

▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.

alienate  /ˈālēəˌnāt/Verb

1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: "the association alienated its members".

1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed

2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law

3: to cause to be withdrawn or diverted

Synonyms: alien, estrange, disaffect, disgruntle, sour

When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:

Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."

But times and phrasings have changed.  We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians.  So, "aliens" -- the word -- must go.

We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity.  Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.  

If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto":

America need not surrender its sovereignty.  It need not open the borders for all to enter.  It must make hard choices, yet do so with respect for the dignity of all.  As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":

We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . . 

We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . . 

We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .

To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .

When the rights of migrants are denied the rights of citizens are at risk.

Dignity has no nationality.

On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:

We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.

Let's start by banishing bullying words, hate speech and statutory epithets.  Let's stop the name-calling and start the welcoming.

Master of the Senate: The Years of Lyndon Johnson, [Vol.] III, by Robert A. Caro

The fight to end the pirating of legislative progress, the effort by Sen. Harry Reid (Democratic Majority Leader), and supported by President Obama, to soften the rough edges of the filibuster, is the talk of Washington and the media.   If Reid's proposals were as drastic as Sen. Mitch McConnell (GOP Minority Leader) asserts, this alleged wielding of the "nuclear option" -- the cutting off of otherwise unlimited debate in the Senate --  might threaten the precious checks and balances of constitutional government.  But McConnell weeps alligator tears.

Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the "World's Greatest Deliberative Body" without respite.  Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill).  Reid would make changes that -- as Washington Post reporter, Ezra Klein, notes -- are "not dramatic":

[Sen. Reid] wants to be able to make the motion to debate a bill -- but not the vote to pass it -- immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.

Klein also suggests:

None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)

His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced.  Furthermore, with such a change, the sway of the swing vote -- just as in the Supreme Court where Justice Anthony Kennedy carries great clout -- would minimize polarization.  It would also promote greater compromise and empower moderates of the minority party and independents. 

We no longer live in the time of Lincoln when robust Senate debate was witnessed merely by the eyeballs in the Gallery or readers of limited-circulation newspapers. Social media spreads audio, video and text of Senate proceedings in real-time around the globe.  Consider, for example, the favorable reaction to Sen. Bernie Sanders' "The American People are Angry" speech railing against income inequality in 2010 that quickly went viral.

Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and "attrition through enforcement" played in marginalizing the GOP and the anti-immigration fringe in the last election.  Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CIR).

Without a softening of the filibuster rules, we're likely to witness, as we already have seen, the resuscitation of previous small-bore CIR proposals that merely traded legalization with a path to citizenship and modest future flows of temporary workers for greater border and worksite enforcement.  While these measures are necessary in any CIR bill, they don't go nearly far enough to address America's 21st Century needs. As NAFSA, the Association of International Educators, recently noted:

In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery -- a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.

At a time when Republicans are trying to cut out the Diversity Visa lottery and its 55,000 annual green cards, America faces the lowest birth rate on record and an aging population.  Cities like Detroit face bankruptcy unless infusions of new immigrants with their innovations and investments are welcomed through reforms of the immigration laws.  Skilled immigrants matter. So do "Immigration Entrepreneurs." But America's outmoded visa quotas, pulled from thin air rather than derived through empirical evidence, demoralize and dissuade intending immigrants.  Just as pressing, cross-border families deserve the most important of family values, the right to live together, free of heartless, quota-induced separations.

Republicans are searching the wilderness in three camps seeking a principled immigration policy.  One group remains full-throatedly opposed, like Mark Krikorian, dubbed an "anti-immigration scholar/kook" by Salon's Alex Pareene; another proposes miserly, piecemeal reforms like the Achieve Act, which would be a stricter DREAM Act with no path to citizenship (other than the second class variety); and a growing number favor CIR.

An improved set of filibuster reforms, while still protecting minority rights, might just peel off enough moderate Republicans to enact America-friendly CIR.  Go Harry Go!  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

Also today, Cesar's widow, Helen, continues her effort, with many others, to urge the New York Times to replace the odious, overbroad and outdated term, "illegal immigrant," with "undocumented immigrant" or another less racially charged phrase.

For me, Columbus Day is personal.  I was born on October 12 -- the original day of remembering the Italian explorer's first touchdown on Guanahani, as the island of San Salvador was known in 1492 -- that is, until three-day weekends became more important than historical accuracy and Columbia became a misspelling of a South American country known for fine coffee more than the name by which to distinguish America and the New World from Old Europe.

The President's Columbus-Day commemoration of the leader of farm workers strikes me as doubly ironic (and also quite politic) because early Italian immigrants, like my grandparents, came as impoverished and landless farmers to this new world of promised "opportunity" and were as reviled and unappreciated as Hispanic field workers in Chavez's time and other unauthorized immigrants still are today. 

As social and cultural historian Yoni Appelbaum reminds us in The Atlantic, ("How Columbus Day Fell Victim to Its Own Success"), the Italian explorer who outsourced his services to Spain has become an enduring symbol of the genocide of indigenous people, even though Italian immigrants were vilified and some were murdered when they arrived on America's shores in the early Twentieth Century:

Many Americans believed Italians to be racially inferior, their difference made visible by their "swarthy" or "brown" skins. They were often portrayed as primitive, violent, and unassimilable, and their Catholicism brought them in for further abuse. After an 1891 lynching of Italians in New Orleans, a New York Times editorial proclaimed Sicilians "a pest without mitigation," adding, for good measure, that "our own rattlesnakes are as good citizens as they."

The plight of individuals who migrate from poverty to opportunity is also reflected in an eye-opening book of great scholarship by Pulitzer-prize winning New York Times author Isabel Wilkerson in The Warmth of Other Suns: The Epic Story of America's Great Migration. Although the African-Americans she interviewed never saw themselves as immigrants, she maintained that the "central argument of [her] book [is] that the Great Migration [of Southern Blacks to Northern and Western cities] was an unrecognized immigration within the country":

"The participants bore the marks of immigrant behavior. They plotted a course to places in the North and West that had some connection to their homes of origin. They created colonies of the villages they came from, imported the food and folkways of the Old Country, and built their lives around the people and churches they knew from back home. They took work the people already there considered beneath them. They doubled up and took in roomers to make ends meet. They tried to instill in their children the values of the Old Country while pressing them to succeed by the standards of the New World they were in."

By insisting that "Readers Won’t Benefit if Times Bans the Term ‘Illegal Immigrant’," The New York Times Public Editor, Margaret Sullivan, mistakenly aligns herself with Ann Coulter ("Immigrant rights are not civil rights . . . Civil rights are only for Blacks") and continues the sad tradition of The Grey Lady in belatedly dropping venomous pejoratives in common use as ad hominem attacks on discrete and defenseless groups within society.  Sullivan also facilitates the effort of anti-immigrant NumbersUSA to pit African Americans against their immigrant brothers and sisters in a recent TV commercial.  Let's be clear, the term "illegal immigrant" is grammatically and legally incorrect.  It is more than just a term.  The media needs to drop the 'i' word. It is simply not the right description.  As much as I respect Times' immigration reporter, Julia Preston, and its immigration editorialist, Lawrence Downes, for their fine work, 'illegal immigrant' is not interchangeable with 'undocumented immigrant'.

The best rule of usage and comportment is not the AP Stylebook but rather the Golden Rule as adopted by every major faith and by people of no faith in faiths.

If we, as Americans, subjugate the civil rights of any and all people we lose our way and slide toward a form of national mental illness, as  Eric Fromm said it so well in "The Sane Society":  

Nationalism is our form of incest, is our idolatry, is our insanity. ''Patriotism'' is its cult. It should hardly be necessary to say, that by ''patriotism'' I mean that attitude which puts the own nation above humanity, above the principles of truth and justice; not the loving interest in one's own nation, which is the concern with the nation's spiritual as much as with its material welfare /never with its power over other nations. Just as love for one individual which excludes the love for others is not love, love for one's country which is not part of one's love for humanity is not love, but idolatrous worship.

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

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

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

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

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

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

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

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

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

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

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

Rather than enjoying a customary post-convention bump in the polls, GOP candidate Mitt Romney received "easily the worst rating given to any of the last eight convention acceptance speeches." In a different kind of bump, a bio-pic many thought tended to humanize the candidate was bumped on broadcast TV by a frizzle-haired Clint Eastwood (apparently trying to reprise his role in the 1969 film musical, Paint Your Wagon), who has moved from talking to trees to ad libbing with a chair.

The convention, however, was not without its own lyrical high note.  Former Secretary of State Condoleezza Rice, clearly repudiated the hate- and fear-filled immigration plank in the Republican platform (which, with double-bordered emphasis, urged self-deportation and ruled out any remedy for the unauthorized in our midst). In its place, she delivered a heartfelt tribute to the truest form of American exceptionalism, our tradition as a welcoming nation:

But the American ideal is indeed endangered today. There is no country, no not even a rising China, that can do more harm to us than we can do to ourselves if we fail to accomplish the tasks before us here at home.

More than at any other time in history — the ability to mobilize the creativity and ambition of human beings forms the foundation of greatness. We have always done that better than any country in the world. People have come here from all over because they believed in our creed — of opportunity and limitless horizons. They have come from the world’s most impoverished nations to make five dollars not fifty cents — and they have come from the world’s advanced societies as engineers and scientists to help fuel the knowledge based revolution in the Silicon Valley of California; the research triangle of North Carolina; in Austin, Texas; along Route 128 in Massachusetts – and across our country.

We must continue to welcome the world’s most ambitious people to be a part of us. In that way we stay perpetually young and optimistic and determined. We need immigration laws that protect our borders; meet our economic needs; and yet show that we are a compassionate people.

It's not that other convention speakers ignored immigration. Many waxed rhapsodic about their immigrant forebears who endured every form of privation so that their children might have a chance at freedom and prosperity in America.  As Sen. Mark Rubio offered, his father -- a Cuban émigré -- worked the bar at the back of the room so that his son "one day . . . could stand behind a podium in the front of a room."

Perhaps even more moving were the refugee sagas of George Romney, Mitt's father, and his father-in-law, both of whom fled revolution in Mexico for safety, succor and eventual success in America, as tearfully re-told by George's grandson, Craig. Other Republican speakers -- Nikki Haley, Mia Love, John Thune -- also regaled the crowd with their immigrant ancestors' sentimental journeys to America.  

While Marathon Man Paul Ryan's whopper of a speech did not touch on immigration, it could well have encompassed the subject in these stirring words:  

Our different faiths [Ryan's Catholicism and Romney's Mormonism] come together in the same moral creed. We believe that in every life there is goodness; for every person, there is hope. Each one of us was made for a reason, bearing the image and likeness of the Lord of Life.

We have responsibilities, one to another – we do not each face the world alone. And the greatest of all responsibilities, is that of the strong to protect the weak. The truest measure of any society is how it treats those who cannot defend or care for themselves.

Apparently, however, given Ryan's decidedly anti-immigrant stance, for every undocumented person, hope begins only after self-deportation.  The GOP’s muddled message on immigration is not the way to win the Presidency or capture control of Congress.  

Republicans seemingly prefer their immigration under glass, viewed from the hermetically sealed distance of generations long extinct, observed through the prism of anodyne nostalgia.  With this profoundly dumb policy (read: insensate or, demographically speaking, just plain stupid, as you prefer), will they wake up after Election Day to consider their shared fate with the party's long extinct mascot -- no, not the Mastodon, but rather the Dodo Bird?

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

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

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

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

Four Fresh and Seasoned Immigration Reform Proposals

By Roxana Bacon and Esther Olavarria

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

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

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

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

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

1. Southern Border Enforcement;

2. Labor-based Immigration;

3. Interior Enforcement;

4. Forced Migration.

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

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

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

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

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

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

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

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

a. National security crimes, including terrorism;

b. Homicide/Murder;

c. Aggravated sexual offenses;

d. Armed robbery/burglary;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next Steps

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

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

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

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

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

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

In these parlous times, our nation is regularly compared to the nearly deadbeat country of Greece, which tried recently but unsuccessfully to sell off some of its sovereign assets. Fortunately for the U.S., however, the sale of our national patrimony is not imminent.  Mount Rushmore, Old Faithful and Lady Liberty are safe, at least for now. Still, America clearly needs more revenue.  With pledge-bound Republicans and Tea Partiers having taken tax increases off the table (except when labeled as immigration user fees), the prospect of near-term levies on the domestic population are virtually nil. 

Not surprisingly, the Senate Judiciary Committee, Subcommittee on Immigration, Refugees and Border Security, will hold a hearing July 26, 2011 on “The Economic Imperative for Enacting Immigration Reform” -- something I've argued in a a slew of blog posts over many years.

Maybe, just possibly, perhaps, cross the fingers, our financial desparation will at last cause a tripartisan immigration consensus to emerge.  Even though comprehensive immigration reform (including a path to lawful status for the undocumented) seems a non-starter at present, one revenue-generating reform to the legal immigration system may be the graspable piece of fruit hanging low to the ground.

As a patriotic American, a 35+ year immigration lawyer and former tax attorney, who has learned a few things about exceptionally affluent foreigners, I offer a royalty-free, open-source concept for the Committee to consider. 

Enter our deus ex machina: A worthy and viable revenue-raising immigration reform -- The $$$ Visa. My proposal for the $$$ Visa is based on fundamental truths about super-rich foreign nationals:

1. They enjoy and will pay for special privileges;
2. They don't like unpleasant surprises;
3. They consider themselves VIPs who deserve red-carpet treatment;
4. They usually don't want to immigrate because green card status entails U.S. taxation of their worldwide assets and an exit tax for long term residents who later leave America for good;
5. They create a passel of jobs by hiring minions of lawyers, accountants, financial advisers, chauffuers, interior decorators, designers, stylists, household workers and security personnel who perform for them an array of quotidian tasks (look up family offices here);
6. They seek safety, security and predictability;
7. They are fearful of political risks and want to hedge their bets with safe lodging in America as a backup plan;
8. They have gobs of disposable income; and
9. They are lured to America by its many enticements.

I therefore propose that the $$$ Visa be established as a revenue-raising, jobs-creating vehicle that would permit the ultra-wealthy to help us by helping themselves.  Here are the attributes of the $$$ Visa:

1. For a nonrefundable filing fee of $1 million made payable to the U.S. Treasury, U.S. consular officers abroad and U.S. Citizenship and Immigration Services (USCIS) officers in the U.S. would grant a qualifying foreign citizen, together with his or her spouse and minor children, a $$$ Visa or corresponding $$$ nonimmigrant status, with the visa valid for up to five years on a multiple-entry basis, and each change or extension of status, and each admission period to the U.S. under the visa, granted in two-year increments.
2. Neither U.S. consular officers nor USCIS adjudicators would be authorized to delay $$$ Visa issuance by the need to investigate whether the money so paid came from lawful funds. Instead, the Treasury Department under its current "government-wide multisource financial intelligence and analysis network," known as FinCEN, would establish by regulation the procedure to issue a "certificate of financial eligibility (CFE)."  As an inducement to lift the veil on bank secrecy and encourage federal tax compliance, the federal government would make expedited and streamlined CFE issuance available to citizens of countries that have enacted IRS-approved "Know Your Customer" laws (although nationals of other countries could still qualify for the CFE through more routine and likely slower procedures).
3. A small portion of the revenues generated from the $$$ Visa would be used to establish a red-carpeted VIP lane at U.S. ports of entry.  It's the least we can do to thank them for their contributions to deficit reduction.
4. All of the usual immigration screening procedures would apply to applicants for the $$$ Visa.  No drug cartel chief, terrorist with money, pedophile or other personae non grata could enter on this visa.
5. IRS tax residency rules will stay the same and apply to $$$ Visa holders who remain in the U.S. for periods that satisfy the "physical-presence" test.  Thus, $$$ Visa holders who remain in the U.S. for comparatively short periods would still be classified as nonresidents for income tax purposes while those who stay here longer would be taxed as residents and thereby subject their worldwide income to U.S. taxation.
6. Renewals of $$$ Visas for the same validity period as the original grant would be allowed in the U.S. or abroad at an American consular post for another nonrefundable payment to the U.S. Treasury of $1 million.
7. The $$$ Visa would provide no path to U.S. citizenship, although such visa holders would still be eligible to attain green card status and to naturalize through other existing legal avenues. Thus, no one could claim that we are selling citizenship.       

Critics would likely charge that we are showing preference to the wealthy and privileged.  Not so.  The U.S. already grants immigration benefits to many individuals of typically modest means, such as battered spouses, victims of human trafficking, asylees, refugees, students on scholarships, lottery winners and a host of temporary workers paid down-to-earth salaries. The $$$ Visa would merely level the polo field. 

After all, America, we can easily entice the ultra-wealthy to come to our country by citing our very own famous quotesmith, Mike Hammer, who said: "There are no pockets in a shroud."  Or, Congress, as the author of the quote at the start of this post reminds us: "Take the money and run!"

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act. 

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

Were it not for the Republicans who keep moving the goal posts on border security, he claimed on May 10 in El Paso, we'd be able, together, to devise the grand solution that fixes our nation's wholly dysfunctional immigration system: 

We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done. But even though we’ve answered these concerns, I’ve got to say I suspect there are still going to be some who are trying to move the goal posts on us one more time. . . . they said we needed to triple the Border Patrol. Or now they’re going to say we need to quadruple the Border Patrol. Or they’ll want a higher fence. Maybe they’ll need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics.

Some may be moved by his crocodile tears to swallow the notion that his hands are tied. I have a few words in response:  Balderdash. Bunkum. Hogwash. Fiddle-faddle.

Either this president is not the analytical, data-gathering, cooly-decisive and valiant leader portrayed by the media, particularly since the takedown of Osama Bid Laden, or, he is playing politics with people's lives and "America’s 21st century economy."  There's no need to repeat previous posts (here, here, here, here, here and there) on his broad executive authority to ameliorate the traumas endured by DREAMers and the other undocumented among us. 

The simple fact, known all too well by immigration insiders but rarely reported, is that President Obama could vastly improve America's competitiveness and stop the flight of foreign talent back to their homelands by reversing or recalibrating several administrative rules or rulings that have long thrown foreign entrepreneurs into the moat with the immigration alligators.  

Here are some things that President Obama could accomplish immediately, solely by executive action, to allow existing America's immigration laws to help create jobs:

• Restore Self-Sponsorship for Working Owners. Since 2010, U.S. Citizenship and Immigration Services (USCIS) has prevented foreign entrepreneurs from receiving an H-1B visa (for workers in specialty occupations).  The agency took this action notwithstanding four precedent decisions, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958), that allowed a foreign citizen to incorporate a business and use the entity to sponsor the individual's work visa or green card.  The President could easily order USCIS to withdraw the 2010 USCIS memorandum that abruptly strayed from precedent decisions, as the American Immigration Lawyers Association (AILA) has urged. 
• Restore L-1A Function-Manager Eligibility. The Immigration Act of 1990 (IMMACT) allows managers of essential corporate functions to qualify for an L-1A work visa (for intracompany transferees) and a first preference green card (for multinational managers).  Before IMMACT, only managers of personnel could be granted these benefits.  USCIS routinely denies function-manager requests by claiming that the person does not manage the particular function but primarily performs the function.  This interpretation has rendered the function-manager category a dead letter.  Congress had no need to create the function manager classification in IMMACT if subordinate personnel were to be required to perform the function (so that the function manager could manage it) since a people-manager category already existed. To offer a simple example, a corporate controller under the current USCIS interpretation cannot qualify as a function manager unless the person manages other people -- something that controllers rarely do. The President can easily remedy this mistaken interpretation by instructing USCIS that managers of key corporate components and functions are eligible for function-manager designation even if the individual also performs the function.  This would allow foreign entrepreneurs to create new U.S. businesses and start creating jobs for U.S. workers right away.
• Restore L-1B Specialized-Knowledge Eligibility. The USCIS Office of Public Outreach got an earful of criticism last week from stakeholders urging the agency to revert to longstanding interpretations of eligibility for an L-1B intracompany transferee visa under the specialized knowledge subcategory. In the teleconference, callers explained that the L-1B had been properly interpreted for decades until 2008 when a non-precedent decision of the USCIS Administrative Appeals Office without warning dramatically restricted its interpretation of L-1B specialized knowledge. Here too, the President could swiftly help foreign entrepreneurs create American jobs by restoring their longstanding ability to send key workers with specialized knowledge to the United States. 
• Expand Schedule A to include “special-merit” foreign citizens.  The Department of Labor (DOL) under its Schedule A regulation has long allowed persons whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. Schedule A now includes registered nurses, physical therapists and persons of exceptional ability. Back in 2002, AILA asked the DOL but the agency refused to expand Schedule A by allowing "special-merit" foreign citizens to immigrate. AILA made this request because the normal labor market rules deprive a wide array of worthy aliens of any opportunity for PERM labor certification.  Individuals in the unwelcome category include investors, entrepreneurs and working owners, and foreign-born employees who are “so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien”.  Under orders from the President, the expanded use of Schedule A for these special-merit foreign citizens would allow fair consideration of deserving cases that have had little or no access to labor certification under the current system.
• Allow the filing (but not the approval) of green card applications before the visa quota is open. Today, because of quota backlogs and an unfair allocation system, a person born in India holding a university degree, whose employer's immigrant visa petition has been approved, may have to wait as much as 20 years before being allowed just to file a green card (adjustment of status) application. The wait is only marginally less for those born in China.  During that time, the person's spouse and working-age children ordinarily cannot work, and the children are at risk of "aging-out" -- reaching age 21 and thus losing green-card eligibility. What's worse, if the foreign worker loses his job in the meantime, the whole immigration sponsorship process (if the family involved has the stomach to pursue it) must go back to square one. As much as America may otherwise be attractive to foreign entrepreneurs and key workers, no sane person would find the risk and limitations of these waiting periods enticing.  In a New York minute, if he were so inclined, President Obama could make the wait more tolerable.  All he'd need to do is instruct USCIS to accept for filing adjustment applications for the beneficiaries of approved immigrant visa petitions and issue a rule freezing the dependent children's age as of the date of filing the green card application.  This way, in the interim until the quota is current, the spouse and working-age children could work or study, and the foreign employee would not be tempted to give up on America, return home and compete against us.

President Obama is no fool.  He understands the link between immigration, innovation and job creation, as he explained to the crowd in El Paso:

[O]ur laws discourage [foreign students educated in the U.S.] from using those skills to start a business or a new industry here in the United States. Instead of training entrepreneurs to stay here, we train them to create jobs for our competition. That makes no sense. In a global marketplace, we need all the talent we can attract, all the talent we can get to stay here to start businesses -- not just to benefit those individuals, but because their contribution will benefit all Americans. 

Look at Intel, look at Google, look at Yahoo, look at eBay. All those great American companies, all the jobs they've created, everything that has helped us take leadership in the high-tech industry, every one of those was founded by, guess who, an immigrant. (Applause.) 

So we don’t want the next Intel or the next Google to be created in China or India. We want those companies and jobs to take root here. (Applause.) Bill Gates gets this. He knows a little something about the high-tech industry. He said, “The United States will find it far more difficult to maintain its competitive edge if it excludes those who are able and willing to help us compete.” 

So immigration is not just the right thing to do. It’s smart for our economy. It’s smart for our economy. (Applause.) And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.

Why does the President wait for Congress to act when he has his executive pen in his pocket?  Why should immediate job creation be held hostage to Washingtonian impasse, when the job-eating immigration alligators under his control can be easily restrained?  I'm no politico, but it's politics, I suppose.

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

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

3 : an unmanned aircraft or ship guided by remote control

4 : DRUDGE . . .

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

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

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

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

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

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

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

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

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

The Middle East, still the source of most of the world's energy, has witnessed civilian protestors toppling despots and prompting autocrats to invite foreign-state and mercenary armies to quell peaceful demonstrations and slaughter citizens. Libya's never-predictable Muammar el-Qaddafi, having nearly routed indigenous rebels centered around Benghazi, faces a UN-authorized no-fly zone and aerial attacks mounted at the behest of the Arab League, an organization now critical of air assaults that may provoke a full-blown war.      

Japan, no longer the world's second largest economy, is shaken by a 9.0 earthquake and tsunami that caused the deaths of probably 10,000 or more citizens and devastated the northeastern countryside. The resulting radiation fallout from severely damaged nuclear plants now contaminates the food supply and threatens public health. The devastation has also rocked the nuclear energy industry and called into question whether fission power will replace fossil fuels anytime soon.

With these events capturing public attention, President Obama is in Brazil, the worlds seventh-largest economy, the global leader in sustainable bio-fuels and ninth-largest oil producer with huge off-shore reserves.  The President hopes to return home with business deals that produce American jobs and secure access to less volatile sources of energy.  Whether or not he succeeds on this trip, he could not have failed to hear the sharp criticism leveled against American policy by Brazil's President, Dilma Rousseff, who chided the U.S. for its past "empty rhetoric."  As The New York Times reported, a "deeper relationship [with Brazil]," she said, must "be a construct amongst equals."

The two presidents failed, however, to reach an agreement that would allow Brazilians to enter the U.S. as business visitors or tourists under the Visa Waiver Permanent Program. Nor did President Obama endorse Brazil's call for a permanent seat on the UN Security Council, although on his state visit to India -- according to the NYT -- he "lent support to that country’s hopes for a permanent seat."

In this world of ever-erupting turbulence, a functioning immigration system would serve to promote America's foreign policy and economic interests, while honoring its tradition as a nation hospitable to hard-working immigrants.  Beyond securing the border against terrorists, criminals and ne'er-do-wells, an efficient and effectual immigration system would encourage investment, innovation and job-creation.  It would provide orderly systems for family reunification and refuge for the persecuted.  It would also bear marks of humility and wisdom, recognizing that our diversity is our greatest strength and that our actions abroad often stoke the push factors propelling and compelling people to breach our borders.

The present immigration system in the U.S. merely pays lip service to these objectives while suffering from malign neglect and willful meanspiritedness. Despite a 1986 federal law prohibiting employers from hiring workers whom they know or should know lack the legal right to work, the agencies charged with enforcement have yet to agree on the definition of "employment." Notwithstanding a 1996 law punishing illegal overstays, these same agencies continue to split hairs over the distinction between violation of nonimmigrant "status" and "unlawful presence," have yet to publish a rule defining what it even means to "maintain [legal] status," and still assert that a foreign citizen can be work-authorized yet have no immigration status. 

Most of us in this nation of immigrators bewail the system but do little to insist on adult conversations among lawmakers that might lead to pragmatic and humane solutions. In a time of focus on deficit reduction, we want more border security but would never tolerate a tax increase to pay for it.

Yet the candle-lighters among us, who'd rather not just curse the darkness, see a few glimmers, of luminosity. 

Business leaders in Utah, Colorado, Nebraska, Florida, Kansas, Oklahoma and, yes, even Arizona, have beaten back efforts to make state immigration laws still more draconian.  A leading labor union blasts the Administration's senseless and expensive immigration enforcement policy, while the Organization of American States faults us for inhumane immigrant detention practices.  A Tea Party leader -- Dick Armey -- says that if necessary to care for his babies he would break the law, ironically, on essentially the same grounds that spur unauthorized migrants to cross the border looking for work.  Hispanic members of the GOP propose a comprehensive and largely workable 12-point plan for immigration reform. Mainstream reporters such as NBCs Tom Brokaw are beginning to focus attention on America's brain drain -- the loss of talented foreign workers who've become so fed up with the quota backlogs, visa-screening delays and hassles on reentry to the U.S. that they take the education we provided them and leave to compete with the U.S. from their native lands. A new Start-Up Visa bill has emerged (but not as user-friendly as the U.K.'s) to woo foreign investors.

Although movement on immigration reform in Utah is heartening, the country cannot have the states enacting 50 versions of foreign policy or an equal number of immigration codes.  Only the federal government is positioned to steer a unified course on immigration. We can start by asking why the prosperous and rapidly growing BRIC countries (Brazil, Russia, India and China) are shut out from the E-2 treaty-based nonimmigrant visa category.  This entrepreneurial visa allows foreign investors from select treaty countries to start U.S. businesses quickly with whatever minimum amount of capital would ordinarily be sufficient to begin operations and start hiring, rather than invest the minimum $500,000 and create the ten jobs needed for the investor green card, the EB-5, with its costly tax consequences as the added price for permanent residency.

America has waited too long to revamp its immigration laws.  The usual three pillars of comprehensive reform (border security, worksite enforcement and legalization for the unauthorized in our midst) are not enough to make America globally competitive and enticing.  How many more whirlwinds of global change must jostle and buffet us before our leaders in Washington realize that we are falling from our perch as top dog?  Economic prosperity and job creation must be our prime immigration policy, with pragmatism and humane treatment closely in tow.  The sane voices must grow louder and more insistent. Outspoken business and union leaders, and one Tea Party icon, coupled with contrary-to-type Hispanic conservatives, and constant prodding from new economic powerhouses abroad -- all are a promising start.

In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm.  Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork.  Thus, large employers pursued a strategy of "just right":  Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid. 

All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.  

Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal.  Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage: 

1. Review  Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations. 

2. Decide How the Auditor Should Present the Report.  Consider the pros and cons of an oral versus a written audit report.  An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance. 

3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected.  Careless employers will fare worse.  Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once.  Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.

4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply.  Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.

5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria.  Protect against cronyism.  Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions.  Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.

6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.  Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants.  Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

7. Strengthen Global Mobility Management.  It's not just about complying with U.S. immigration laws.  Foreign countries' immigration statutes can be just as nasty when the rules are violated.  Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored.  Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.

In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers.  Beware the ICE Bears.

Demographics don’t lie. Populations in the developed world are aging rapidly, especially in Europe, Japan and Russia. To a lesser but still pronounced degree, the ratio of older to younger citizens is also projected to increase in the United States, Australia, New Zealand, Canada, Singapore, Hong Kong, Taiwan and South Korea. At the same time, the global market for knowledge workers, especially in the STEM fields of Science, Technology, Engineering and Mathematics, is growing ever hotter with no cool-down in sight. More troubling still, China, India and other fast-rising global competitors with sizable populations are producing STEM graduates with Masters and PhDs, and submitting patent applications, at a more rapid pace than the world’s perennial leader, the United States.

The trend lines of these forces are ominous. Increasingly, globally competitive businesses must broaden the recruiting search beyond national borders if they are to secure the brightest and best workers. As new, more demanding jobs are created, will your recruiting team find and hire the best of a globally scarce lot? One essential way to prepare your company’s recruiters is to confirm that the team makes optimal use of employment-based options under U.S. and foreign immigration laws. Another equally important measure is to provide recruiters with the training and resources required to avoid the many mission-killing snares of global migration.

This article will offer tips on best practices in global recruiting. It will also suggest precautions your company should take to avoid the glare of adverse publicity, the arrest of company personnel and the imposition of stiff fines for violating a nation’s immigration laws.

It’s the 21st Century: Do You Know Where Your Recruiters Are?

Many companies have built their recruiting models on a solid domestic foundation, with incremental growth coming one country at a time. The premise for this approach has been eminently sensible. People on the ground in a particular country are best suited to know the labor market, maintain knowledge of nation-centric immigration and visa laws, and hire local lawyers or other service providers to cut through the immigration red tape. But this focus on location-specific recruiting management has rapidly been overtaken by events.

Today, it is by no means unusual for Hiring Candidate A, a citizen of Country B and permanent resident of Country C, with a spouse from Country D, to be stationed initially for training in Country E, and then permanently assigned to Country F. Which country’s recruiting team is best tasked with the unenviable chore of sorting out multinational immigration compliance? How will senior management be assured that, in this common scenario, resources are best deployed, costs kept under control and a hiccup-less process for new-candidate hiring will occur?

Many businesses now realize that the best way to clear the global hire’s path to success at the company is through a combination of local immigration resources and centralized oversight and support. With this approach, a global-hiring database is made available to the entire recruiting team, globally compliant case-management software gathers the required immigration data and documents on every candidate’s academic credentials and career history (while tracking immigration and hiring deadlines), and the services of globally-capable or location-appropriate immigration providers are obtained at favorable rates.

Is Your Company Recruiting “Stealth Employees”?

A dangerous “under-the-radar” practice is growing in frequency. The “stealth employee” can be a new recruit or transferee from an affiliate, often one slotted to fill a senior position, who enters the country of intended employment without first obtaining proper immigration visas or work permits. Frequently, the process moves ahead at a fast clip. Here is a very realistic scenario:

Step One: Candidate accepts offer to work in a country other than that of the person’s nationality or permanent residence. Step Two: Press release is issued proclaiming the appointment, effective immediately, and listing the individual’s new job title and duties in the host country. Step Three: New hire enters the country of employment and expresses to the immigration inspector the intention to engage in “business.” Step Four: The “business visitor” starts working immediately, though lacking a proper visa or work permit to begin employment. Step Five: Arrests, imprisonment, significant fines and penalties, and damage to the business brand and reputation ensue.

Stealth employees risk serious damage to themselves and to the enterprise. The solution is simple. Make sure your recruiters and business managers show restraint. After Step One, Step Two must always involve serious attention to host-country immigration requirements and compliance.

Brand Your Company as Immigration Friendly

For a moment, put yourself in the shoes of a prospective new hire. Imagine you are a top performer with an outstanding track record who must choose among multiple offers for attractive jobs in various countries. You and your spouse (successfully employed in a separate career) have two school-age children. You are willing to move from your home country but wonder how tough will it be to jump each country’s immigration hurdles. You ask yourself which of these companies will stand by my family and me to make sure that the process to permanent residence and citizenship is smooth, immigration requirements are satisfied, my spouse can get a work permit, and our children will be allowed to study all the way through college. Savvy recruiters know that the availability or absence of full-fledged immigration support for the duration of the candidate’s career is often the deal-breaker.

Leading companies also recognize that immigration support requires more than hiring a lawyer and signing papers. Today, with immigration a hot-button political issue, successful companies recognize that developing an immigration-friendly brand requires significant corporate resources. Recruiting, Government Affairs, Media/ Public Relations, and Human Resources must all participate. Company officials must advocate for enlightened employment-based immigration laws and the elimination or expansion of work-visa and permanent-immigration quotas. Success stories of foreign hires who’ve made significant contributions to corporate and national prosperity must be widely publicized. Immigration lawyers must be retained who are not merely procurers of visa benefits but also capable corporate strategists. Any company that wants to glean a healthy share of top foreign talent must be prepared to cultivate and maintain a brand image as an enthusiastic supporter of employment-based immigration in each country where the enterprise does business.

Recruiters Must Know and Take Advantage of All Immigration “Process Opportunities”

Immigration laws and procedures are much like a metaphorical maze. Enter, make a quick left, pass the first intersection, turn left again, and voilà, your new hire reaches immigration nirvana. For others, however, the maze becomes a trap. Your candidate enters and moves through the corridors into the deeper passages of the maze, remaining lost there for unnecessary months and years. The immigration maze is most complex and confusing in the United States; but these days – especially since 9/11 and its aftermath – other countries are rapidly vying with the U.S. for the world title of “Most Complicated Immigration Maze.”

Every developed country, however, also creates immigration process opportunities – special laws, procedures, interpretations, rules, regulations and court cases – that help new foreign hires speed through the maze more quickly. In the U.S., for example, over the last few years the federal government has:

• made it easier for your recruiters to lure away foreign candidates from competitors (using a technique known as “portability”) and thereby piggyback on the immigration procedures and recruiting efforts of prior employers; • allowed companies involved in mergers, acquisitions and other forms of restructuring to continue employing foreign workers after the deal closes without obtaining new permission or amending the employees’ visas; • created numerous special categories offering work visas that are otherwise unavailable, e.g., E-3 visas for Australians, special H-1B visas for citizens of Chile and Singapore, and H-1B visas for foreign students graduating from U.S. universities with Masters or Ph. D. degrees; • allowed spouses of some foreign workers to obtain work permits; and • permitted extensions of stay in the U.S. (beyond normal time limits) for certain foreign employees who are waiting for permanent resident (“green card”) quotas to re-open.

On the other hand, the U.S. government (along with other countries) has made it harder and more expensive to qualify for immigration benefits in many cases. Security clearances can be quick and routine, or slow and burdensome, depending on the content and quality of the visa applications filed with U.S. consular officers. U.S. visa applications submitted at American consular posts and embassies in Canada or Mexico are easily approved for some nationalities and virtually impossible for others.

Unless your recruiters know all about (and are proactive in utilizing) these immigration process opportunities (while staying clear of visa traps), they will be ill equipped to make wise, “immigration-friendly” hires. Senior management must therefore make sure that recruiters are trained in immigration hiring requirements and opportunities, and that the training is updated as often as new developments arise.

Your Recruiters Must Be Wary of Immigration Enforcement Techniques, “Wal-Mart” Style Risks and Government Data Mining.

As foreign recruiting becomes increasingly a business imperative, your company’s recruiting professionals must be sensitive to the flip side of the visa coin, immigration law enforcement. Accessing high-quality foreign talent can do wonders for the bottom line, but inattention to immigration laws can trigger Sarbanes-Oxley exposures, wreak havoc on corporate reputation, lead to expensive fines, and require burdensome consent decrees. Perhaps the biggest problem to overcome is the prevailing perception among some recruiters that immigration is just so much trivial paperwork to sign and submit after a brief and casual skim. The reality is quite different. Immigration statutes, if violated, can trigger a full array of civil and criminal penalties.

Consider, for example, the rules punishing an employer for hiring a foreign worker with knowledge (actual or inferred) that the worker has no right to be employed in the United States. Although the rules took effect in 1986, and are now generally understood, less well known is the law prohibiting the use of a contract to circumvent the ban on unlawfully hiring foreign citizens.

As one prominent example, on March 18, 2005, Wal-Mart entered into a consent decree with ICE (a chilling but appropriate acronym for Immigration and Customs Enforcement, a police agency within the U.S. Department of Homeland Security). The company agreed to pay $11 million to settle allegations (without admitting or denying the charges) that it knowingly used illegal immigrants to serve as janitors in its stores. As civil suits continue against Wal-Mart, allegations have surfaced that a company vice president counseled subcontractors on how to create subsidiaries to avoid immigration rules against unlawful hiring. Whatever the truth may be in the claims against Wal-Mart, the lesson for your company’s recruiting team is obvious. Immigration problems cannot simply be “papered” over and ignored.

Indeed, the required immigration paperwork of an earlier era is rapidly being replaced by the mandatory on-line submission of applications for immigration benefits. Take for example, the U.S. Department of Labor’s new PERM system for labor market testing (required in order for the agency to “certify” that no qualified U.S. workers are available for a job that a sponsoring employer wants a foreign worker to fill).

PERM – an acronym for Program Electronic Review Management – will gather and mine electronic data outlining the recruitment efforts, for years past, of every participating U.S. employer. Before PERM, labor certification applications were maintained in paper files that were sent off to dusty, musty storage in off-site government warehouses. These old paper files were easy for government examiners to send away but harder to retrieve. With PERM, however, a government investigator can learn with just a few keystrokes whether the employer has been consistent and accurate about its sworn statements concerning actual job duties, job requirements and recruitment efforts from application to application over time.

Inconsistencies and inaccuracies in employer requirements can trigger government audits and investigations. Is anyone on your recruiting and HR teams concerned that all claims made by your company are, and remain, consistent and truthful from case to case as time passes? Someone in your company must be. The time may well have already arrived when your company needs to appoint an internal (or external) immigration compliance officer, ombudsman or maven.

The World May Be Flat but National Borders Remain Intact

As the U.S. Supreme Court has said, control of a country’s borders through immigration regulation is an inherent attribute of a nation’s sovereignty. Noted author Thomas Friedman would amend the notion – as he persuasively argues in his best-selling business book, The World is Flat. Friedman asserts that digital communication along the globe-crossed pathways of countless fiber-optic lines is the great leveler of national boundaries. While the predicted fall of international borders is clearly premature, senior management in leading companies must carefully consider whether their professional recruiters are fully prepared to use global immigration laws to capture a generous share of the world’s much-coveted top talent. If your company’s recruiters are “not ready for prime-time” players on the world stage, then management must act.