[Blogger's Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici's angst, as I noted in "The Distressed Bearer of Bad Immigration Tidings."

There are of course so many immigration stories, as I noted in my post, "Telling Immigration Stories," which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book -- Green Card Stories -- which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici's quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole ("Nici") Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated - in Spanish - that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment -- to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits - and I was afraid of having my blood drawn again - so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

[Blogger's Note:  Today's post comes to us courtesy of my colleague, Brandon Meyer, a prolific writer whose analysis and commentary cover a wide array of immigration law topics.   Brandon offers a spirited post on a troubling aspect of the EB-5 employment-creation immigrant investor green card category. Thanks to him for having allowed me to be in top holiday spirits, undiverted from the season's pleasing diversions by the labor of love that is www.nationofimmigrators.com.]

What Are We Paying for? 

USCIS and the I-526 Exemplar Process

By Brandon Meyer 

[Author's Prescript]: In the spirit of fairness and open dialogue, I contacted the Community Relations Department of the California Service Center prior to publication to elicit their comment.  No reply was received. 

USCIS Director Alejandro Mayorkas deserves credit for trying to bring meaningful procedural and operational reforms to USCIS in general and to the EB-5 program specifically.  He has pushed for regulatory clarity, consistency of adjudications, and most notably, the introduction of premium processing for EB-5 petitions.  However, the Director’s hard work and good will are in danger of being wasted by his own organization.  A salient example of how the Director’s own agency actively undermines his initiatives is brought to the fore when considering the sham that is the I-526 exemplar process. 

USCIS Propaganda: 

The concept of the I-526 exemplar petition was introduced by the December 11, 2009 memo on “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38) (the “Neufeld Memo”).[1] 

The theory behind allowing qualifying Regional Center projects to file so-called “Exemplar Petitions” was to improve overall EB-5 processing.  If a project submitted a sample I-526 petition for prior USCIS review and the project did not materially change over time, then the subsequent I-526 petitions were supposed to be processed in a more consistent manner.  At first, exemplar processing was a courtesy provided free by USCIS.  An exemplar was filed and eventually USCIS would issue an approval notice.  Since there was no fee for an exemplar, USCIS did not issue an I-797 receipt notice upon filing.[2] 

Something changed around Fall 2010.  My office filed an I-526 exemplar petition in October 2010, just prior to the implementation of Form I-924 and the attendant $6,230.00 filing fee.  We received an I-797 receipt notice based on this exemplar filing in which the filing was deemed an amendment to the Regional Center’s designation.  Legally, this was not correct.  The exemplar filing neither asked for an expansion of the Regional Center’s area of geographic scope, nor was the filing asking for the addition of a new industrial focus.  The filing was simply requesting pre-approval of a new project in an area where the Regional Center was already established and in an industry for which it was likewise already approved.  So why was this exemplar classified as an amendment?  USCIS was gearing up for the money grab. 

In the intervening two years since the Neufeld Memo appeared, USCIS has said time and again that the exemplar process was meant to improve the adjudication of subsequently filed I-526 petitions. 

The Reality: 

Apologies to the late Edwin Starr and his classic 1969 anti-war song, “War,” but paraphrasing his lyrics provides us with a clear picture of the reality of the I-924 exemplar process as applied by USCIS.[3] 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!  Say it again!” 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!” 

It has become painfully obvious, despite Director Mayorkas’ public comments and USCIS written guidance to the contrary, that USCIS has no intention of honoring its numerous promises to give deference to an I-526 exemplar approval.  EB-5 stakeholders continue to receive Requests for Evidence (“RFEs”) for I-526 petitions based on approved exemplar petitions where there was no change to the project.  The RFEs are questioning aspects of the EB-5 projects, aspects that were reviewed (or were supposed to have been reviewed) during the exemplar process.  So why was the project good enough during the exemplar process, but now magically deficient when serving as the basis of an I-526 petition?  Did USCIS just cash the $6,230 check, put the filing on the shelf for months, then pick it up and send an approval without reviewing it? 

So why is USCIS issuing RFEs for I-526 petitions for project-related questions vetted and approved during the exemplar process?  The Neufeld memo quoted above states on page four: 

“A previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.”[4] 

The reasons outlined for not giving an exemplar approval deference are fair enough.  However, none of the RFEs for I-526 petitions based on an approved exemplar make of these assertions, nor has the exemplar petition approval been reopened for any of these reasons.  Therefore, USCIS is not following its own guidance. Is this intentional or does the left hand not know what the right hand is doing? 

During the September 2010 EB-5 stakeholders meeting held at the California Service Center, USCIS officials told the audience that stakeholders were going to be happy with the November 2010 introduction of Form I-924, with its $6,230.00 filing fee, as well as the increase in the Form I-526 filing fee to $1,500.00.  How could this be, I asked?  The answer I received was that these astronomical fees would allow USCIS to raise headcount by hiring more adjudicators and more specialist business analysts and economists.  The logical outcome, of course, would be that not only would sluggish, slothful, or glacial processing times remarkably improve, but the quality of adjudications would also improve and become more consistent!  “What could be better?”  “How could you not like these fees?”  “We’re giving you want you want!” 

Well, I was skeptical about this bright-future propaganda that was being force-fed on the EB-5 stakeholder community then, and the events of the past 15 months have confirmed my initial pessimism.  Processing times have not budged one bit.  It still takes USCIS eight months to process an I-526 petition.[5] The quality and consistency of EB-5 adjudication has not improved either.  Stakeholders regularly receive RFEs for specious reasons based on shaky reasoning.  Thus, if these high fees were the solution to the problem of slow and inconsistent processing, the solution has failed. 

During the November 2011 AILA California Chapters Conference, my San Diego AILA colleague Kimberly Roubidoux noted wistfully that when she began her career in immigration law, H-1Bs cost $85.00 and were adjudicated in three weeks by the Vermont Service Center.[6]  Today, H-1Bs can cost up to $3,550.00 in filing fees and the Vermont Service Center now needs four months to make a decision on an H-1B.[7]  Yes, folks, you are paying 41 times more to get something 5 ½ times slower.  Now that’s value. 

As we know, USCIS is mostly funded by user fees and the agency must periodically justify to the U.S. Congress that its fees are appropriate.  Yet, as fees increase across the board, service fails to improve.  How can USCIS continue to justify its fees? Sadly, I would be willing to surmise that USCIS could raise I-526 filing fees to $5,000.00 and I-924 filing fees to $25,000.00 and we would still fail to see any the benefits promised by USCIS during the September 2010 EB-5 stakeholders meeting. 

Yet, despite the failure of increased fees to improve EB-5 processing times and service, Director Mayorkas wishes to implement premium processing for certain Form I-924 applications and possibly certain Form I-526 petitions.  The Director’s rationale is sensible and worthy of support.  Job creation and investment are often on hold while the Forms I-924 and I-526 remain stuck for almost a year each in the bowels of the USCIS California Service Center.  However, Director Mayorkas unfortunately misses the point.  Fees at any level would fail to solve the problem.  The problem is the perverse incentives that USCIS faces when trying to fund its own operations. 

I generally do not subscribe to conspiracy theories.  Conspiracy theories are best left to people who can spends weeks at a time camping out in parks and public squares, protesting whatever it is they’re protesting (these people would benefit immensely from the job creating stimulus of a functional EB-5 program). I will nonetheless offer my own conspiracy theory.  EB-5 stakeholders have noticed an upswing in EB-5 related RFEs (although USCIS would probably dispute this assertion, they always do until the true numbers eventually leak out) and another slow down in processing times that coincides with the Director’s initial announcement that he wished to introduce premium processing into EB-5.  Coincidence?  I don’t think so. 

Another factor driving this upsurge in EB-5 RFEs is also too coincidental to be anything but deliberate.  As referenced above, the EB-5 unit has seen an upsurge in headcount funded by these skyrocketing fees.  The RFEs that question the basis of exemplar approvals tend to be focused on the business plans and economic studies included as part of the approved exemplar petition.  Therefore, I surmise this trend is also intentional as a way for USCIS to justify expanding its headcount in this area, under the “look, just look at these bad business plans and economic studies.  Good thing we hired all these people.  Let’s give ourselves a pat on the back for our foresight.” 

For years, the EB-5 stakeholder community has had to listen to a series of unconvincing excuses as to why premium processing was inappropriate for EB-5.  “Impossible.”  “EB-5s are too complex.”  “We can’t guarantee that we can process in 15 days.”  And my favorite, usually offered in a dismissive manner, “nothing is a priority if everything is a priority.” 

By pushing premium processing, Director Mayorkas, knowingly or otherwise, is offering a direct challenge to these years of accumulated dismissals of the idea that premium processing could work for EB-5. 

Therefore, my conspiracy theory is that this upsurge in EB-5 related RFEs and a slow down in processing times is part of a deliberate bureaucratic counterattack to delay and hopefully kill off Mr. Mayorkas' EB-5 premium processing idea once and for all.  How sad would that be?  While USCIS career bureaucrats protect their turf and reputations, job creation and investment in the U.S. remain stalled.  Yes, indeed.  The American people are being held hostage.  USCIS can hire as many “Entrepreneurs in Residence,” and bring in as many business process consultants as they want.  The underlying problem will not change. 

Don’t get me wrong.  Obtaining an exemplar approval is not entirely useless.  It continues to serve as a mechanism for new projects affiliating with existing Regional Centers to show that USCIS recognizes this affiliation.  With the Regional Center marketplace becoming more crowded and fake Regional Center projects popping up from time to time, an exemplar approval can be useful in marketing to show potential investors that the project is real.  However, providing Regional Center projects with marketing credibility was not, and should not be the intention of the exemplar process. 

While the theory behind the exemplar process is exemplary, the reality of the situation has become an absolute joke, a shameless money grab.  So the next time you feel like filing an exemplar and paying the $6,230 I-924 filing fee, do something more useful with that money.  Put the money pile in a fireplace and light it on fire. You’ll get more out of it, such as keeping warm on a cold winter’s night or possibly toasting some marshmallows if you're motivated. 

Brandon Meyer is Principal of Meyer Law Group, a full service immigration law firm with offices in Stamford, CT and Solana Beach, CA.  His e-mail address is Brandon@meyerlawgroup.us.

---

[1] “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38), December 11, 2009.

[2] I asked the question during the March 2010 stakeholders outreach session, “well, if you won’t issue an I-797, how do we know you have the filing and are working on it?”  The answer I received was something to the effect of “trust us.”

[3] See http://en.wikipedia.org/wiki/Edwin_Starr, last accessed December 21, 2011.

[4] 2009 Neufeld Memo, page 4.

[5] See the latest California Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37645, last accessed December 21, 2011.

[6] The principal blogger of www.nationofimmigrators.com, Angelo Paparelli, was also a panelist during Kimberly’s reminiscences.

[7] See the latest Vermont Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37649, last accessed December 21, 2011.

[Blogger's note:  Sincere thanks go to my colleague and friend, Karin Wolman, for giving me a writing respite during my summer vacation.  Karin's latest guest post, like her prior ones, available here and here, critique USCIS policy changes that make it less likely that deserving workers, entrepreneurs and investors will receive the employment-based immigration benefits Congress intended in enacting the Immigration Act of 1990. As President George H. W. Bush predicted (incorrectly, it turns out) in his signing statement:

  

[The 1990 Act] will encourage the immigration of exceptionally talented people, such as scientists, engineers, and educators. Other provisions of [The 1990 Act] will promote the initiation of new business in rural areas and the investment of foreign capital in our economy.

As the National Journal recently reported in an article discussing the discovery of internal hacking of management emails occurring at the USCIS Texas Service Center, "'insider threats '" continue to threaten the initiatives of USCIS leadership. The National Journal's piece focused on technology and security threats from agency insiders. I suggested in a recent post, however, that perhaps the greater threat to progress in embracing the President's pro-jobs and innovation agenda is adjudicator resistance and internal insubordination.  Karin Wolman's post below also highlights the type of internal resistance to change that is emblematic of the dysfunctions of government authorities in the immigration ecosphere.]

Guest Post: USCIS Entrepreneur Initiatives - Do They Really Help?

By Karin Wolman

The most important thing to know about the DHS Press Release and press conferenceof August 2, 2011 on Initiatives to Promote Startup Enterprises and Spur Job Creation, the published USCIS Fact Sheet of the same title of August 3, 2011, the USCIS FAQ Regarding Entrepreneurs and the Employment-Based Second Preference, and the related Entrepreneurs Stakeholder Engagement conference call of August 11, is that all these initiatives are largely window-dressing, despite excited coverage in the Wall Street Journal. They represent no substantive changes in the Service's occasionally contorted interpretations of the law.

For all the lip service to the Administration's laudable goals of helping entrepreneurs spur the growth of new businesses, for now, USCIS is not changing any of its interpretations of law. The Service is not in any way relaxing its insistence on the US sponsoring company having to demonstrate a “right to control” the foreign worker, and offers no policy guidance loosening the Service’s unduly restrictive definition of who can considered an “employee” under the Immigration & Nationality Act, per a Donald Neufeld memorandum of January 8, 2010, ("the Neufeld memo") - which does not have the force of law, nor even regulation - nor will they instruct officers to restrict that memo and its definitions to the H-1B context. There is no policy guidance loosening the Service’s narrow, literal-minded geographic reading of the phrase “national in scope,” with respect to job creation as a benefit to the United States under the EB-2 National Interest Waiver. There is no promise of a path for E-2 Treaty Investors to transition to permanent residence. In fact, these initiatives for entrepreneurs herald no real increase in the availability of anytype of visas for employee-owners or owner-directors, either of foreign-owned startups under the H-1B or O-1 visa category, or E-2, or EB-2 green cards for entrepreneurs under the National Interest Waiver, or for director-owners of privately held multinational companies under the L-1A or multinational manager or executive visas.

The attitude embodied in the January 2010 Neufeld memo is an obsession with a “right to control” the H1B worker, a single factor weighted far more heavily than all other factors combined. It has prompted a relentless drive among adjudicators to pierce the corporate veil at will, and to start by assuming that all owner-beneficiary scenarios are somehow “fraudulent.” Its treatment of any employee with an ownership stake as ˜not a real employee’ is deeply damaging to all manner of entrepreneurial businesses seeking visa benefits for their workers.

The Neufeld memo on its face does not apply to the O-1 visa, nor to L-1 or multinational manager immigrant visas “ those categories were never intended to be unavailable to owners who happen to be employees of the US business - but the Service has become enamored of applying its new, narrow definition of “employee” across all visa categories. To date, USCIS offers no concrete authority for combating persistent misapplication of the “right to control” standard at the individual case level, except for a non-binding suggestion that it may be possible for an owner-employee to demonstrate “control” over his or her employment by a Board of Directors.

The Neufeld memo has spread throughout all areas of employment-based visa adjudications, encouraging adjudicators to zealously apply a restrictive interpretation of the “employer-employee” relationship drawn from the Darden[1] and Clackamas[2] cases. These cases on which the Service relies for its definition of “employee” did not involve immigration law at all; they related to the definitions of “employee” with regard to eligibility for ERISA pension benefits and to applicability of access requirements under the Americans with Disabilities Act. In relying on those cherry-picked Supreme court decisions, USCIS elected to ignore an array of long-standing precedents providing guidance on the definitions of the employer-employee relationship that were specific to immigration law, and which had been followed by the agency for decades[3], as well as more recent Supreme Court case law[4]. The legal deficiencies in the Neufeld memo and its strained definition of “employee” are numerous, but they are laid out in magnificent detail in the American Immigration Lawyers Association memo to the director and chief counsel of USCIS of January 26, 2010, so I will not attempt to recreate or paraphrase those arguments here (the AILA memois 24 pages long). This paragraph is intended as a mere CliffsNotes®-style summary of some major flaws in the Neufeld memo, for those unfamiliar with its contents and AILA’s response.

When asked during the August 11 Stakeholder Engagement call on Entrepreneurs if there will be any attempt to clarify or limit application of the Neufeld memo to H-1B adjudications, Service representatives ignored the question and offered no response. However, during the California Service Center Stakeholder Engagement call of Wednesday, August 10, USCIS representatives explicitly said that the Entrepreneur initiatives do not represent any substantive changes in USCIS interpretation of the law, regulations, and applicable legal standards. They intend to stand by their current interpretation of who can be an “employer” under the Immigration & Nationality Act, tacitly acknowledging that they have no plans to scale back inappropriate mission creep of the Neufeld memo into the realm of O-1s, L-1s, and beyond.

The definition of “employee” urged by the Neufeld memo is based on a factually false assumption that owner-directors seek to start a business in the US for the main purpose of getting themselves a visa, rather than to realize a business goal. It contradicts decades of specific, on-point guidance in precedent cases acknowledging the difference between a company and an individual; but most importantly, it seeks to disallow visa eligibility for entrepreneurs on every scale. The notion that if a worker has an ownership stake in a business, then any visa petition by that business on the worker’s behalf is a fraud, is not just an erroneous premise: it is inherently hostile to a broad array of new and startup-phase businesses, small businesses, privately-held multinationals, companies with partnership or employee-shareholder models for growth, and any company in which a foreign national has a hand in funding, starting or expanding the US business. As a matter of visa policy, this is economic suicide.

At the very moment in our history when the U.S. economy most desperately needs the services of those individuals willing to put their own money, as well as their time, effort, skills and intellectual capital, into starting and growing US companies, USCIS adjudicators are dreaming up an ever-expanding universe of reasons to say 'no’ based on the size and age of a business and on the “right to control” the foreign worker. USCIS agency leadership has admitted it has no plans to rein them in, and does not even intend to issue guidance explicitly limiting application of the Neufeld memo or its definition of who is an “employee” to H-1B adjudications, which was its ostensible purpose when published. This makes their well-publicized “entrepreneur” initiatives ring hollow.

So, what could USCIS do to offer concrete improvements? Without making any changes to the statute or the regulations, USCIS could enhance visa opportunities for entrepreneurs and owner-directors by retracting some of its more onerous and tortured interpretations of law. Here are a few good places to start:

A) withdraw the Neufeld memo,

Or, at the very least,

B) issue an H-1B policy memo and officer retraining, limiting application of the Neufeld memo and the “right to control” definition of an employer-employee relationship to H-1B adjudications, and clarify that this narrow definition does not apply to O-1s, to L-1s, or to multinational managers;

C) issue an EB-2 policy memo and officer retraining on the second prong of NYSDOT for National Interest Waivers, noting that creation of a substantial number of jobs for US workers in even one location could be deemed to offer significant prospective benefit to national interests of the United States, if, for example, those jobs are in manufacturing, or in industries that have suffered significant layoffs in the past two years in the state or region where the business is located, or in industries where the US has lost significant market share to foreign competitors. Each of those provide a real, substantial benefit to our nation that could be documented with quantitative evidence.

 

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[1] Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 (1992)

[2] Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003)

[3] Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980), Matter of Allan Gee, Inc., 17 I&N Dec. 296 (Acting Reg. Comm. 1979), and Matter of M--, 8 I&N Dec. 24 (BIA 1958, AG 1958)

[4] Raymond D. Yates, M.D.,P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S. Ct. 1330 (2004)

 

[Blogger's Note: Today's guest posting on immigration dysfunctionality offers a view on pop culture. The parenthetical "(REALLY!?!)" in the title -- inserted as an editorial comment by the blog's usual author -- suggests the smarmy skepticism of an Amy Poehler and Seth Meyers riff on Saturday Night Live. The Haloween-themed guest post is by Nici Kersey, my colleague at Seyfarth Shaw LLP and a rising star in the immigration-lawyer firmament.]

For Halloween, I have decided to dress as Max from Where the Wild Things Are. I was not able to locate a Max costume at any of the traditional Halloween costume stores, so I channeled my former costume designer self, pulled out the sewing machine, and made one. I chose Max because the costume was much easier to make than the costume for any of the other “wild things” and because I have of late been feeling a lot like Max. Bottled up anger and frustration, often directed toward the immigration authorities, make me want to tear through the woods screaming. “Roar! Roar! ROAR!”

A recent example:

A colleague asked if I could help his friend with an immigration issue. For immigration attorneys, this is a frequent occurrence. Typically, the question is about a boyfriend, fiancée, friend, nanny, or neighbor who is in the U.S. “illegally.” Those discussions are often heartbreaking, as there is frequently not much that we can do to help.

This time, the discussion was upsetting for a different reason. A gentleman who had been in the U.S. for several years, working in H-1B status, complained that his wife was unable to obtain a driver’s license. The man’s employer had violated numerous immigration laws and regulations by requiring, for example, that he pay the costs and attorney fees associated with his H-1B visa petitions and with his labor certification application, but he was not interested in trying to recoup those costs (totaling more than $10,000). His main concern was that his wife was not able to drive.

In Atlanta, not being able to drive is a fairly serious disability, as public transportation is unreliable and inconvenient. This man’s wife was suffering from a frustrating lack of independence and a serious case of cabin fever. (Still, I was surprised by the lack of concern over the ten grand.)

Due to government error in issuing the H-4 approval notice to this man’s wife, the notice did not include a start date or an expiration date. When she went to the license branch, she was turned away, as her immigration document did not contain the information necessary for issuance of the license, and the SAVE (Systematic Alien Verification for Entitlements) system could not verify that she was legally allowed to be in the United States.

She tried contacting USCIS to correct the error and was told she would have a response within 45 days. (The wild things roared their terrible roars …) No response ever arrived. (… and gnashed their terrible teeth …) We contacted USCIS and SAVE to attempt to correct the error, and we were told that we would have a response within 45 days. (… and rolled their terrible eyes …) Again, no response ever arrived. (… and showed their terrible claws …) Because of the length of time the woman’s husband had spent in the U.S. in H-1B status, her H-4 status was only valid for 1 year, and by this time, nearly half of that year was already gone.

In the end, rather than continue to seek a revised approval notice or a driver’s license, the couple decided to move to Canada, where the gentleman has been offered a job. The good news is that the new employer treats its foreign national employees well and will pay all of the immigration-related costs for the couple’s move to Canada and for their maintenance of immigration-status in Canada. More good news? The man’s wife should be able to obtain a Canadian driver’s license. The bad news is that the U.S. lost a talented individual who had hoped to make the U.S. his permanent home. He had to uproot his family, which had lived in Atlanta for nearly a decade and had come to consider this his home. All of this, over something as simple as a driver’s license. Roar.

As has been noted in this blog in the past, USCIS does not offer an acceptable form of customer service. I accept that the government makes mistakes; we all do. But it should never take 45 days to correct a clear government error – an error that could be corrected by re-printing a single sheet of paper and sticking it in the mail. Here, it took more than 90 days to not correct the error or do anything at all to cure the problem. (If I regularly treated my clients this way, I would likely be not only fired but also disbarred.) It is due to problems like this that the U.S. is becoming a less desirable destination for so many talented individuals. It is due, in part, to our immigration system that the U.S. lost the recent bid to host the Olympics.

A Canadian friend recently called and said that his J-2 work authorization was set to expire and that he needed to extend it. “Is that something you can help me with?” he asked. I said that I would be glad to help. “So, can I just bring this down to your office and you can stamp it or something?” I explained that that was not exactly an accurate description of the extension process. “But I thought that attorneys were ‘officers of the court’ and that you could take care of these types of things.” Let the wild rumpus start!

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Guest Column By Peter Schey President, Center for Human Rights and Constitutional Law pschey@centerforhumanrights.org

Whether made out of an abysmal ignorance or reckless disregard of fairly well-known facts regarding immigration policy, Gov. Arnold Schwarzenneger’s recent comments on this subject are hopelessly misguided, profoundly embarrassing to California, and virtually guarantee that the State with the most at stake on migration issues in this country will have no voice at the negotiating table when it comes to immigration policy.

Gov. Schwarzenneger, who has never answered questions regarding the legality of his own employment when he arrived here as an immigrant in 1971, or authorized the release of his immigration files for public scrutiny, has now launched a xenophobic and senseless crusade against the migrant community living in California while at the same time claiming to be “the champion of immigrants.” If he is their champion, then immigrants in California feel they have been hit and seriously wounded by friendly fire.

Within the past two weeks the governor has made several incredibly stupid statements relating to migration policy and California’s role in the national immigration debate.

First came his widely publicized and incomprehensible comment that the federal Government should simply “close the borders in California and all across between Mexico and the United States.” These words were hardly out of his mouth when his handlers corrected the record by claiming that the governor’s poor command of English was to blame and what he actually meant to say was that we should “secure” the borders. Even with its limited English, the immigrant community asked itself what part of “close” does the Governor not understand?

Is this the Sharon solution for separating Israelis and Palestinians? Does California’s governor, who supports “family values,” really believe that we can fortify our borders to stop wives from joining their husbands, and parents from joining their children, crossing the borders without documents because of ten-year delays in getting their family-based visas? The family values cherished by these migrants will give them the courage to cross any fortifications the governor has in mind when he thinks we should simply close the borders

Even more troubling than this absurd comment was the Governor’s aside that in any event immigration policy is a national issue, and therefore “there’s not much that we can do here in California." What he should have said is “there is nothing we, the most impacted State in the country, are doing about immigration policy because I haven’t studied the issue and I know nothing about it.”

Then came the Governor’s amazing endorsement of the vigilante Minutemen. Schwarzenneger became the first Governor in the country to endorse vigilantism. Every high federal official involved in border protection, including President Bush, has condemned vigilantism as dangerous and unhelpful to border enforcement. But Gov. Schwarzenneger offers vigilantes a big California cigar: "I think they've done a terrific job," Schwarzenegger says of the vigilante Minuteman. Adopting the vigilante line, he complains that the “federal government is not doing their [sic] job. It's a shame that the private citizen has to go in there and start patrolling our borders."

While Schwarzenneger is obviously clueless about what the federal Government is doing, it is hardly sitting on its hands when it comes to border enforcement. The federal National Border Patrol Strategy, adopted after the formation of the Department of Homeland Security, has several ambitious goals including operational control of the nation’s border, particularly the borders with Mexico and Canada. The U.S. Customs and Border Protection agency currently pursues a wide range of strategies to secure the borders including training and deploying thousands of officers with highly sophisticated surveillance equipment, using rapid deployment units to quickly counter and interdict based on shifts in smuggling routes and tactical intelligence, use of interior checkpoints and enforcement operations, and coordination and partnering with other federal and State law enforcement agencies.

These activities result in about a million migrant apprehensions and removals a year. The border is hardly “open,” as Schwarzenneger and the vigilantes say. The federal Government has a range of major enforcement initiatives taking place along the borders. Schwarzenneger just has no idea what they involve, and therefore is not in a position to make any meaningful recommendations regarding enhanced border enforcement.

As for endorsing the vigilante response, the governor’s statements again show his total lack of understanding of border issues. The recent surge in United States vigilante groups has seen armed and unarmed civilian patrols, gunpoint detentions and interrogations, assaults and batteries, and murder. Much of this vigilante activity is colored by white supremacist ideology. Most vigilante web sites bristle with racist and anti-government rhetoric that can only encourage violence against migrants.

On April 10 Maricopa County sheriff's deputies in Arizona arrested 24-year-old Patrick Haab on several counts of aggravated assault with a deadly weapon after he drew a pistol on seven immigrants at an Interstate 8 rest stop and forced them to lay on the ground while he called 911 and reported having captured a group of “illegal aliens.” Haab, who is on medication for battle distress syndrome after serving in Iraq, states that his military training just kicked in and he thought he was doing the right thing for his country. It seems Haab forgot he was on Interstate 8 in Maricopa County, USA, 200 hundred miles from the Mexican border, not at a Green Zone checkpoint in Baghdad.

Most Minutemen and their vigilante partners see Haab as a patriotic hero, and have publicly urged Arizona authorities not to prosecute the case for assault with a deadly weapon. If the Arizona authorities pursue Mr. Haab too hard, maybe he will take up the governor’s invitation and move to California.

The governor’s observation that the vigilantes have “cut down the crossing of illegal immigrants a huge percentage” is absurd. The vigilantes haven’t reduced undocumented migration across the Mexico-U.S. border, they have simply rechanneled migrants to safer crossing areas. There is no evidence that adding a few hundred vigilantes to the thousands of trained, armed, and well-equipped U.S. Border Patrol agents already there, has had any impact at all on the total numbers of migrants crossing the Mexico-U.S. border.

Border Patrol agents deal with armed drug smugglers virtually every day and are also responsible for preventing the illegal entry of terrorists. The Air Branch of the U.S. Customs and Border Protection, and its subordinate Air Unit, use aviation assets to perform missions related to securing the land borders from incursions of would-be terrorists or smugglers.

The task of these trained enforcement officers is obviously made far more difficult when hundreds of vigilantes are roaming the desert along the border in search of immigrants, some organized and others not, many armed with guns, and a significant number holding virulent anti-government and white-supremacy views. Indeed, the Border Patrol points out that the vigilantes have hindered border enforcement efforts by tripping electronic alarms, destroying evidence, smothering footprints, interfering with tracking operations, and diverting migrants from Government patrols that might have apprehended them. Gov. Schwarzenneger’s senseless applause for the vigilantes is not the type of support law enforcement officers risking their lives along the nation’s borders are looking for.

California more than any other State in the country has an enormous stake in the national debate on immigration policy. Mexican-Americans represent at least a quarter of the state's population, and an even larger share of the state's youth. As many as half the undocumented migrants in the country live in California, most in Southern California where they pick the Governor’s vegetables, wash dishes in the restaurants he frequents, clean his hotel rooms, and watch his neighbors’ children. Everyone agrees that the vast majority of these immigrants, aside from their undocumented entries, are law-abiding members of their communities and contribute in many ways to California’s cultural diversity and economic growth. Were they all to leave California to protest the Governor’s new immigrant-bashing pronouncements, there is little doubt the recovering California economy would suffer a major blow.

There were early signs that Schwarzenegger may become engaged in migration issues and California-Mexico relations. In October 2003, shortly before taking office, he met with Mexico’s foreign minister Dr. Luis Ernesto Derbez. Derbez is well-versed in domestic and transnational economic, trade and migration issues and the opportunity was there to commence an important dialogue. A Schwarzenegger supporter who arranged the meeting said “his intention is to find a solution for immigrants to come to the United States and work here in a legal way.” It appears that Schwarzenegger quickly forgot whatever he learned in this meeting, and dropped the subject of immigration reform entirely from his agenda.

A planned visit by President Fox to California was cancelled when Schwarzenegger snubbed Fox by arranging to leave on a trip to Japan during the Mexican President’s 3-day visit to California. Sources in the office of the Mexican Presidency were quoted as saying that the trip was cancelled because “the appropriate political conditions do not exist” in order to open a dialogue with Gov. Schwarzenegger. The Mexican President was reported to be disheartened by the lack of interest shown by Schwarzenegger in migration and California-Mexico trade issues, and Fox wisely decided to concentrate on someone who is thinking about migration and trade policies, namely President Bush.

So now Bush and Fox and their subordinates are engaged in substantive talks regarding migration policy that will broadly impact on California, and Gov. Schwarzenneger has no role whatsoever in the discussion. Others, including trade unions, faith-based groups, business associations, and community-based organizations, also actively promote their views in the migration policy debate. But Schwarzenegger and his administration are a no-show in the meetings where immigration policy is discussed and formulated.

Instead of scaring a lot of people by supporting vigilantism and talking about “closing” the border, positions that are music to the ears of xenophobic and white-supremacy fringe groups, the Governor would do well to form a California Commission on Immigration Reform and get up to speed with these vitally important issues. He might then be in a position to make recommendations on behalf of California that the White House and Congress may take seriously. The Governor could, for example --

• Support a major decrease in the 3.5 million backlog of visa applications that leave about one million migrants in undocumented status in California. Promptly and efficiently legalizing those in the decade-long “pipeline” who are eligible for visas under existing laws would add millions of dollars to the taxes California collects, reduce the exploitation of these workers, allow them to drive legally instead of without licenses or insurance, and integrate them into the social and economic fabric of the State.

• Recommend major improvements in the labor certification process under which certain immigrants are granted visas based upon job offers that U.S. workers are unwilling to fill. Today in California a willing employer with a job opening who petitions for an immigrant to fill the position must often wait for several years for the visa to be approved. By the time the position is filled, the several-year old “certification” that no U.S. workers were available to fill the job is useless. While the processing of these applications is delayed, many employers illegally hire the foreign workers they are trying to obtain visas for. California could and should be formulating recommendations to fix a labor certification process everyone agrees is broken.

• Endorse stiffer enforcement of employer sanctions laws meant to deter the hiring of undocumented workers. Enforcement of such laws in California is virtually non-existent and thousands of California employers skirt labor laws, health and safety laws, and wage and hour laws by hiring exploitable undocumented workers. In addition to making proposals at the federal level, the Governor could reduce the incentive to hire undocumented workers in California by increasing penalties imposed on employers who violate state labor laws when the victims are undocumented workers.

• As an immigrant who has succeeded in this country, the Governor could also be a forceful voice in the debate over whether to legalize some portion of the undocumented population living in California not currently eligible for visas. Most economists agree that California would be far better off if immigrants who have been living here for many years, have been productive members of their communities, and have no criminal records, could transition from undocumented to documented status. With increased salaries, increased buying power, and increased tax payments, the benefit to California of the economic integration of migrants is likely in the hundreds of millions of dollars.

At the same time as he has disqualified himself from any meaningful role in the immigration policy debate, Gov. Schwarzenneger has also disqualified himself from playing any major role in improving California-Mexico relations. Since 1999, California's largest export market is Mexico. This trade involves about $16 billion worth of goods a year, roughly 17 percent of all California exports. It is estimated that for every $1 billion of California exports to Mexico, 14,000 to 16,000 higher paying jobs are created in California. The health of California’s economy therefore depends not only on the hard work of its migrant population, but also its relations with Mexico.

Gov. Schwarzenneger’s recent controversial remarks on the border and vigilantes have outraged the Mexican public and political leaders. The Mexican government is rightfully concerned that vigilantes pose a significant danger of violent confrontations with migrants crossing the border. It has raised this issue directly with President Bush who has publicly agreed that vigilantism along the border is not desirable from the standpoint of either the national security or border protection. If Schwarzenegger’s anti-immigrant rhetoric results in California exports to Mexico dropping by just one percent, that’s about one billion dollars more the Governor will have to cut from teacher’s and firemen’s pensions, or from the education budget.

In the final analysis, Gov. Schwarzenneger appears to be following the “wedge” politics of former Gov. Pete Wilson. When your popularity goes down and your poll numbers go South, its time to select a vulnerable population, probably non-white, with little political representation, and scapegoat it. Wilson jumped on the anti-immigrant Proposition 187 wagon and rode it to reelection. However, he will always be remembered as the Governor who endorsed throwing thousands of children out of the public schools solely because of their parent’s immigration status in order to win reelection. The anti-immigrant initiative he endorsed to save his political career was soon thereafter declared unconstitutional by the federal courts.

While leaders of the vigilantes call Gov. Schwarzenneger’s comments “gratifying” and extol his vision on their fear-mongering web sites, leaders of the Mexican American community call the governor's comments "shameful" and "nothing short of base racism." Art Torres, chairman of the California Democratic Party, said, "He's become an Austrian Minuteman now." The governor’s impromptu foray into the immigration question has predictably ignited a divisive debate driven by emotions and fear, rather than sound policy analysis.

Mark Twain once said that to a man with a hammer, everything starts to look like a nail. Gov. Schwarzenegger needs to understand that migration strategies involve complex public policy decisions and California’s interests are not served by a sledgehammer approach to these issues. While it is unclear whether Schwarzenegger can ever regain sufficient credibility to play any meaningful role in the immigration policy debate, he would serve California well by either keeping his uninformed opinions to himself and pretending California has no borders and no immigrants, or, better yet, by educating himself on the subject and, with advice from migration experts and input from the immigrant communities he professes to care about, begin a process of formulating proposals that would benefit the state he governs.

*Peter Schey is the President and Executive Director of the Center for Human Rights and Constitutional Law. He has represented hundreds of thousands of migrants in class action cases involving their legal rights and assisted in the drafting of federal and state legislation addressing migration policy issues for over 20 years. He may be contacted at pschey@centerforhumanrights.org

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