French philosopher and aphorist, François-Marie Arouet, better known by his nom de plume, Voltaire, wrote in Italian that "Il meglio è l'inimico del bene [the perfect is the enemy of the good]."

The wisdom of this saying, championed by pragmatists everywhere, comes to mind upon reading a May 30, 2013 Policy Memorandum (PM) issued by the Department of Homeland Security component known as United States Citizenship and Immigration Services (USCIS).

The agency and its popular Director, Alejandro Mayorkas, must be commended for removing much of the entangling underbrush that has grown around the "Employment Creation" fifth preference immigrant visa category (EB-5) for an investor who places at risk either $500,000 or $1 million (depending on location) in a commercial venture projected to create at least 10 jobs for U.S. workers.

With the enthusiasm of a vigilant homeowner wielding a high-powered weed-whacker, USCIS's PM has obliterated many ambiguities and unanswered questions that had prevented the widely popular EB-5 investor program to reach its full potential.

In one document, USCIS offered a comprehensive set of interpretations that promises to allow the EB-5 category to flourish.  Gone are most of the lingering doubts about the viability of bridge financing, and the stultifying restrictions imposed by an overly granular application of multi-digit "NAICS" codes -- a numbering system known as the North American Industry Classification System that the U.S. Census Bureau uses to identify and monitor various types of business establishments.

Also welcome are clarifications concerning (a) the relative power of the states and USCIS to define Targeted Employment Areas or TEAs -- rural areas and areas with unemployment at or above 150% of the national unemployment rate; (b) the specific circumstances when USCIS-designated Regional Centers (public or private entities authorized to accept EB-5 funds and allow its foreign investors to count direct and indirect job creation in reaching the 10-jobs-per-investor minimum) may or must submit amended petitions in order to change business activities or location, or when prior favorable EB-5 determinations will be given "deference," i.e.,  binding effect; and (c) the very limited situations when a business plan that has been derailed by unforeseen changes might adversely affect the later USCIS decision whether to remove conditions on permanent residence.

Still, without striving for perfection, USCIS could have made the PM much better.  Here are my suggestions for EB-5 PM 2.0:

• Kill or reincorporate the past.  The latest PM takes a wishy-washy approach in dealing with several prior policy utterances, listed below:

The PM states: "Prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded."  Why allow ambiguities to linger?  USCIS should rescind all prior guidance and incorporate all extant EB-5 policies in a single document as THE EB-5 Policy. Having taken the weasely approach of allowing prior non-conflicting EB-5 policies to survive, the new PM merely begs the question and allows agency adjudicators, regional centers, individual investors and their lawyers to argue over the "extent" to which prior policies have been superseded or supplanted.  Enough with the arguing.  Make it clear in one document.   

• Republish the policy as a proposed or interim final rule in the Federal Register and allow notice and public comment.  The new PM says:

SCOPE: This PM is applicable to, and is binding on, all USCIS employees. * * *

VII. Use

This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

If USCIS were to pursue the admittedly slow procedure envisioned under the Administrative Procedure Act for publishing notice of a rule and the opportunity for the public to comment, none of the quoted verbiage, wiggle words no doubt drafted by the USCIS Office of Chief Counsel, would be necessary.  As welcome as the new PM is, and although it was preceded by a draft version on which the public was allowed to comment, USCIS never published the comments in the Federal Register (as would occur with a proposed or interim rule) and never explained why some comments were adopted and others eschewed.  Instead, the public and the courts are left to guess at whether the PM will actually be applied and be something on which the stakeholder community may rely.

• Make sure economists are not EB-5 adjudicators.  Last week at a public forum, Director Mayorkas waxed lyrical over a supposed innovation he heralded. Henceforth, EB-5 adjudications would be made not by Immigration Officers but by newly hired economists who, he surmises, are better equipped by education to tackle the complex business and economic issues that arise in EB-5 petitions.  From now on, USCIS would no longer adopt the "hire to train" approach, whereby an indivdual is brought into the agency without experience and then trained in adjudicating a variety of immigration-benefits petitions and applications.  Rather, here on out in the EB-5 context, according to Director Mayorkas,  the agency will pursue a "hire to the skill" strategy, one that means that the successful job applicant at USCIS will only be hired if s/he already possesses the requisite skill -- an approach much like that of private industry. While the "hire to the skill" concept has much to commend it, the particular skill USCIS requires is not that of an economist.  No, the skill in question is possessed by those with a legal education.  At bottom, the EB-5 -- although containing elements of economic theory -- is ultimately a legal determination made by the application of facts to law.  USCIS should instead offer positions at a level of GS-13 and above to persons with at least a juris doctorate, preferably with bar admission and the ethical testing that entails.  This is not forging a new path; rather, it is merely replicating the reorganization of an adjudication function as occurred when the USCIS Asylum Office was reconstituted with lawyers in place of multi-function general adjudicators.  Economists can be advisors but should never be USCIS adjudicators.
• Follow existing USCIS regulations in determining when a restructuring or reorganization creates a new EB-5 commercial enterprise. The EB-5 requires investment in a "new commercial enterprise" created, restructured or reorganized after the effective date of the law, November 29, 1990. On this point, the new PM states: 

The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R. § 204.6(h)(2). The facts of Matter of Soffici — where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel— were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm’r 1998) (“A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership.”). On the other hand, examples that could qualify as restructurings or reorganizations include a plan that converts a restaurant into a nightclub, or a plan that adds substantial crop production to an existing livestock farm.

The PM too narrowly defines a corporate restructuring or reorganization as only encompassing a change in the business model or plan. Instead, USCIS should adopt a customary corporate or tax law determination of when a reorganization or restructuring occurs as it did in its I-9 (employment-eligibility verification) rules at 8 C.F.R. § 274a.2(b)(1)(vii).  In that USCIS regulation an employer has the option of treating an individual as either a continuing or a newly hired employee if the worker "continues his or her employment with a related, successor, or reorganized employer" and the "employer . . . continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets . . ."  Thus, whenever a predecessor entity undergoes a change involving a corporate reorganization, merger, or sale of stock or assets, then the successor entity thereby created should be treated at the employer's option as a new commercial entity for EB-5 purposes.  If the "simple change in ownership" dictum of the legacy agency in Matter of Soffici is to the contrary, then USCIS should overrule it.  Sauce for the goose is sauce for the gander.

• No EB-5 adjudication without representation.  USCIS must allow every party in the EB-5 ecosystem with a valid legal interest to protect the right to counsel at no expense to the government in proceedings before the agency.  USCIS must not persist in perpetuating conflicts of interest (real or really possible) by barring the attorney for the regional center or the pooled-investment enterprise to advocate for the validity of his or her client's position when a foreign citizen submits a petition for EB-5 classification on Form I-526 or a petition for removal of conditions on Form I-829. Regional centers and pooled investment entities have their businesses and brands at stake with every I-526 and I-829 submitted, yet USCIS muzzles them and expects the investor-chosen lawyer to carry their water.  The SEC would never require businesses to risk their assets or reputations by relying on the investors' counsel to argue their interests.  Neither should USCIS.
• No unsigned EB-5 adjudications.  The new PM goes a long way toward greater transparency, but not quite far enough.  The history of the EB-5 program has been pock-marked by policy reversals and arbitrary rulings.  One measure of transparency is accountability.  A decisionmaker becomes accountable when adjudicator puts on one's product his or her name (or nom de plum, in recognition of the need for personal and/or homeland security).  There must be a way for the government (outside of USCIS), the public and the EB-5 stakeholder community to hold accountable any adjudicator who repeatedly flouts USCIS's EB-5 policy.  If it worked for Voltaire (née François-Marie Arouet), it should also work for USCIS adjudicators.
• It's time for Expedited Adjudication.  Quite a while back, USCIS indicated that it would adopt Premium Processing expedited service for at least some EB-5 adjudications. With the hiring rate still barely keeping up with population growth, the time for quick decisions across all categories of EB-5 petitions is NOW.
• It's time for coupling. There is no reason why the new PM did not announce a benefit that is presaged in S. 744, the comprehensive immigration reform bill awaiting floor debate in the Senate.  That bill, as amended by a change Senator Leahy proposed, would allow foreign citizens who submit EB-5 petitions to file, concurrently, corresponding applications for adjustment of status to conditional permanent resident.  Concurrent petition and adjustment filing has long been allowed by USCIS -- without the need for enabling legislation -- in the first three employment-based green card categories. USCIS should extend the same privilege to EB-5 petitioners and their immediate family members.  

* * *

The USCIS should be applauded for issuing a comprehensible and almost comprehensive PM.  The huzzahs will be louder still if and when it adopts additional measures, suggested above and by others, that would create conditions for the EB-5 program to blossom even more prodigiously in the years ahead.

Much has been written since April 17 when the bipartisan Gang of Eight senators introduced S. 744, a brobdingnagian immigration reform bill that overlays 844 pages of turgid text on top of the already gargantuan and complex Immigration and Nationality Act.  The Migration Policy Institute, the National Immigration Law Center, and the American Immigration Lawyers Association (AILA) have each offered a helpful analysis of the bill.  This legislative leviathan grew to 867 pages on April 30 with the substitution of a “managers’ amendment” (available here as revised and here as redlined, as well as here with AILA’s redlined section-by-section analysis released on May 1). 

Although most of the media focus has homed in on border security and the seemingly IED-laden roadway to citizenship for undocumented immigrants, U.S. companies -- especially the General Counsel (GCs) who advise them -- are slated to be on the receiving end of shock and awe if the “Border Security, Economic Opportunity, and Immigration Modernization Act,” or BESSIE MAE, as wags like to call it, ever becomes law.

As I explained in a recent article (penned before the managers’ amendment), “Senate Immigration Reform Bill Offers Surprises Galore for Employers,” BESSIE MAE presents American companies with a slew of opportunities and burdens.  Consider just a few:

• The H-1B visa quota will rise from 65,00 to 110,000, with a phased escalation clause pushing the quota as high as 180,000 per fiscal year, based on employer demand and the unemployment rate for “management, professional and related occupations.” Yet this Faustian gift will cost employers dearly in pre-hiring recruitment, higher filing fees, increased record-keeping, expanded enforcement authority for the Labor Department, and greater potential fines and penalties. 
• Similarly, managers and executives who may or may not become L-1A intracompany transferees would be allowed to enter the U.S. as business visitors for up to 90 days “to oversee and observe the United States operations of their related companies, . . . [and]  [e]stablish strategic objectives when needed,” while “employees of multinational corporations [may] enter . . . to observe the operations of a related United States company and participate in select leadership and development training activities . . .” Yet in return, employers lose the free hand heretofore available to devise creative incentives and bonuses for their inbound expatriate employees who now, like their H-1B brothers and sisters, must be paid the " prevailing wage" under the watchful eyes of the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services.
• In like manner, employers would be given immunity (none dare call it "amnesty") if they maintain on their payrolls workers who are undocumented immigrants but who express the intention to apply for the new Registered Provisional Immigrant status. Yet, enrollment in a veritable E-Verify on steroids will become mandatory for all employers, and the Form I-9 (Employment Eligibility Verification) will continue to be required.   Worse yet, any new hires who fail to receive confirmation of employment eligibility from E-Verify on the first try must continue to be paid, trained and employed while they pursue a host of new administrative hearing and appeal rights of indeterminate length.

Proactive GCs of corporate America should therefore make sure that their companies are ready for the tsunami of change that will sweep over the enterprise if BESSIE MAE or any equally unreasonable facsimile thereof makes it into the statute books.

The old way of managing immigration, as a backwater area of law relegated to Procurement, Recruiting, Human Resources, and Payroll Administration, or -- worse yet --  to foreign nationals seeking work visas who are encouraged or allowed to find a low-cost immigration lawyer to "help" the company, will no longer do.   Years back, it was sufficient to consider adopting tips from such articles as, "A Three-Point Immigration Manifesto For Chief Legal Officers And Outside Counsel," and “Global Mobility Management—A Primer for Chief Legal Officers and HR Executives.” Times since then, however, have changed.

To best manage risk, exploit opportunities and control costs across the enterprise while squeezing the most value out of limited resources, GCs must adopt a comprehensive plan of immigration portfolio management, whose key components should address a variety of essential concerns:

• Immigration-customized technology and tools.  Immigration Tech tools should include integrated dashboards (developed, prepared and maintained by external immigration counsel and a client-dedicated project management expert at the law firm) with "Single Sign-On" capability and screen views customized to the specific but differing needs of in-house counsel, and all other essential stakeholders within the enterprise. Access would therefore be instantly available to:   
  • an online collaboration tool using secure FTP extranet technology to exchange and logically organize immigration work product, thereby dispensing with the need to search for on-the-fly emails. 
  • a robust immigration case management system listing case status and key expiration dates for all employees on work visas or pursuing green cards,
  • user-customizable and standard reports showing deviations from internal policies and service level agreements with outside immigration counsel,
  • legal matter management, E-billing and performance analytics on immigration benefits procurement and compliance defense,
  • an "E-Room" library that houses documents which FDNS or other immigration enforcement personnel might demand to see on short notice such as H-1B public access folders, individual and multi-slot Labor Condition Applications, petitions and applications submitted to immigration agencies, recruiting and advertising materials required for immigrant and nonimmigrant work visa eligibility, vendor agreements with IT and business consulting firms that employ their own foreign workers onsite at company locations, and posting and nondisplacement attestations, and 
  • a consulting hotline and an online consulting log which serves as a knowledge-management repository for all responses to varying fact patterns, FAQs, memorandums and other oral or written guidance provided to the corporate client over time, with links to the contact information of the lawyer providing the guidance so that there is easy followup with a subject matter expert who can provide any new updates or more nuanced responses. 
• Key Immigration Performance Indicators. Metrics would be based on real-time data derived from Human Resource Information Systems that are linked and updated bi-directionally for use by internal recruiters and hiring personnel, and the business's outside immigration lawyers.
• True Partnering with Outside Counsel.  "Partnering" is a meaningless buzzword in too many law firms' pitch kits -- one tossed at chief procurement officers who claim to want quality and strategic counsel but are only willing to pay for commoditized immigration legal services offered by the lowest bidder. Real partnering looks more like this: 
  • It begins with a convergence process in which only one or at most two firms are selected after a carefully conceived request-for-proposal process is concluded, a process in which immigration lawyers come into corporate headquarters not to brag about their talents, but instead model what it would be like to work side-by-side with them to achieve the company's business mission while minimizing risks and controlling wasteful practices. 
  • The chosen law firm(s) would invest time, money and resources into a long-term relationship, offering all of the integrated legal services required in the immigration arena -- not just Johnny and Jane One-Note visa and green card services, but scalable immigration benefits-procurement assistance,  interdisciplinary immigration-compliance defense, federal court litigation and appellate law services, tax advice, U.S. and international employment law representation and export control law guidance -- all under one roof.
  • Immigration counsel would meet regularly and ad hoc as needed to evaluate the final immigration reform legislation, advocate for employer-friendly rulemaking, and map out action plans and task owners so that the enterprise is poised to pounce upon immigration opportunities with training programs and internal open-house forums for foreign nationals and managers, prepare Congressional outreach and media strategies, and eliminate or minimize old and new compliance risks.  Also included in these meetings would be an annual "Client 101" orientation program taught by in-house counsel for the external team of immigration lawyers, paralegals, project managers and administrative staff to learn all about the company and its culture and a periodic Client/Law-Firm Summit.
  • Immigration counsel would also provide benchmarking opportunities to help develop best practices based on the experience and wisdom of comparable businesses in similar industries and share knowledge and strategic thinking from other industry contacts with in-house counsel.
• Services would utilize the best principles of legal process innovation. Six Sigma, Lean Services, Voice of the Client, Scorecards, collaborative process mapping, stakeholder satisfaction surveys and other innovative practices would be employed to manage immigration compliance risks, measure performance metrics, reduce errors, speed cycle time, minimize costs and waste, and make sure that the corporate client becomes, and remains, an "immigration friendly company" to facilitate the hiring and retention of best-in-class talent.

* * *

No longer on hearing the word "immigration" should GCs be made to suffer that all-too-familiar form of queasiness which arises when an "alien" substantive-law problem lands on his or her desk.  Inoculation with a healthy dose of immigration portfolio management will provide GCs with immunity from the worst that the likes of BESSIE MAE can try to inflict on them.  So there's no reason to toss one's most recent meal.  Just take a prescription for immigration portfolio management and contact the most qualified immigration counsel to be found.

[Blogger's note:  Today's guest column is by my colleague at Seyfarth Shaw, John Quill. Three abiding passions animate John -- love of family, sports (hockey in particular) and immigration law.  His passion for sports and frustration with U.S. immigration law's employer-sanctions enforcement regime combine today to bring us this insightful and wistful post.] 

The I-9 Audit Process is a Game

--

Alas, it is Football, not Soccer

By John Quill

My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football -- rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or "Football" to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems.  

• First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.”)  
• Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.

Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, or players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of NationOfImmigrators.com are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring complex regulations and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS's I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act's) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.”

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

None of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.  

Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.

As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).

The 2012 IMMI Awardees

Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:

Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.  

Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:

[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.

Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 31.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as "Deporter in Chief" and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 -- an all-time high -- the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year -- especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals").  Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency's contract on its Transformation program for the online submission of immigration forms, and the issuance of a "guidance memorandum" offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of "tenant occupancy" that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit's deportation for his post-Newtown critique of America's woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.

Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied":  The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.

However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions."  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona's nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law's provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year's IMMI goes to those feckless employers throughout America who fail to recognize that -- no matter what happens on comprehensive immigration reform -- the Feds are coming to check your business's immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.

* * *

Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.

[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.

The recent CNN GOP debate on foreign policy surprised many for what it included and excluded.  Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America.  The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:

"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

This prompted an attractive or repellant response (depending on one's views) concerning magnets. Candidates Bachmann and Romney chided Gingrich on the magnet of amnesty and the magnet of taxpayer-subsidized college tuition for DREAMers -- although post-debate reporting and opposition research revealed that both Willard Mitt and Michele Marie have espoused positions on legalization similar to Newton Leroy McPherson (Newt's name at birth).

However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs.  It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America.  Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade.  Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad.  Or so the theory goes.

In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset.  Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work. 

Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge.  None of these choices attract, magnetically or otherwise.  An extended stay at Club Fed is not desirable.  Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.

As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:     

Some may think that the problem of job magnets will be solved once E-Verify, the federal employment verification database, becomes mandatory, as House Judiciary Committee Chairman, Lamar Smith (R. TX) has proposed.  It will not -- because E-Verify suffers from the law of GIGO.  The database is debased because it depends on the doubtful accuracy of Social Security Administration and Homeland Security Department records.  Moreover, although E-Verify has recently (and rather quietly) gained access to Department of State records on American citizens who've received a U.S. passport or passport card (I for one don't remember giving permission), and Mississippi DMV records, the e-system remains incomplete.  It still cannot catch identity theft and citizen impersonators.  It will not be foolproof until every American, not just every foreigner, is in the database.

That's not likely to happen anytime soon.  Witness the strange bedfellows of immigration who have opposed the REAL ID Act and encouraged states to drag their feet or demand waivers of the requirement that states satisfy federal standards for issuing new drivers licenses.  Opposition is also growing over a similar identification requirement, the Voter ID laws cropping up across the country. 

Politicians skirmishing for debating points will not solve our immigration dysfunctions.  The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn.  We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane.  Are we ready to be biometrically identified in a digital dossier to get a job?

As early as last January, Rep. Lamar Smith, Chair of the House Judiciary Committee, outlined plans to hold hearings to investigate the Obama Administration's policies on immigration-related worksite enforcement and propose a bill that would require employers to enroll in E-Verify, the Federal online screening tool that purports to verify work eligibility. 

True to his word, hearings on worksite enforcement and E-Verify have been held. And at last, a draft of a mandatory E-Verify bill, current as of June 8, is circulating on Capitol Hill.  Tentatively titled the “Legal Workforce Act” (LWA) and labeled a "Discussion Draft," the proposal would profoundly change hiring processes in the United States, and introduce expensive compliance obligations on all employers.  It would also increase the burdens on federal and state courts and on public and private prisons by creating a host of new LWA criminal penalties involving sentences to run consecutively (read: longer incarceration periods). 

Curious readers can take an early peek at a few key provisions of Rep. Smith's proposal:

• Mandatory Use Phased in.  Employers would be required to enroll and use E-Verify by a set deadline based on the number of current workers.  From the date LWA is enacted (if ever), E-Verify would be required within: 30 days for covered federal contractors; six months (for employers of 10,000 of more personnel); 12 months (for firms with 500 to 9,999 employees); 18 months (20 to 499 workers); two years (1 to 19 workers); and three years (for employers of farm workers).
• E-Verify Use Only for New Hires. Except for federal vendors who must verify current employees assigned to a covered federal contract, the LWA will only apply to new hires.  Also, it will not apply to farm workers returning to a former employer.
• No Preemption of AZ-style E-Verify Laws. LWA would permit the proliferation of state laws and local rules mandating E-Verify use as recently blessed by the Supreme Court in U.S. Chamber of Commerce v. Whiting: "A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system".  
• Weakened Good Faith Compliance Defense.  The LWA enfeebles the Sonny Bono amendment, enacted in 1996, which gives employers 10 days to correct technical or procedural Form I-9compliance failures after ICE points them out.  Although the Smith proposal would extend the curative period to 30 days, it would apply the defense only to compliance errors that are "de minimus."  Good faith compliance would be available, however, for E-Verify queries that failed because the online system was unavailable at the time.
• Criminal Penalties for false I-9 attestations and improper use of E-Verify.  Individuals would face criminal penalties of up to two years and fines for knowingly furnishing a social security number or DHS-approved ID or authorization number that does not belong to the person or submitting such a number in an E-Verify screening. Helpfully, however, the LWA waives a good faith first violation of the unlawful hiring rules.
• Change in retention period.  Employers would now be required to hold on to electronic or paper verification records for the later of five years from date of hire (currently it's three years) or one year from date of termination.

Back in January, Rep. Smith characterized mandatory E-Verify usage as something of a no-brainer, or in business-speak as low-hanging fruit, suggesting that 70% of Americans would agree with his assertion.  Given the sweeping harshness of the LWA, however, U.S. employers, proponents of immigrant rights and the American people must do more than just talk about Rep. Smith's "Discussion Draft."  The fruity guantlet from the right has been hurled into the political arena.  It's time to give it the Gallagher treatment.

The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE).  These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.

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.

Well it’s about time. Although it took 17 years, Congress finally heeded the cry of employers and enacted legislation that authorizes the use of electronic signatures and the electronic retention of the ubiquitous “Employment Eligibility Verification” known as the Form I-9.

One month shy of the 17-year anniversary of IRCA (The Immigration Reform and Control Act of 1986), our national legislature enacted and President Bush signed Public Law 108-390.¹ While the new law was never officially trumpeted as environmental legislation, tree-huggers around the country (and beleaguered Human Resources professionals as well) are reportedly celebrating the paper-saving features of this new law. The new legislation is clearly a welcome development, but the transition to digital signatures and storage, as the present article will show, cannot occur until many unanswered questions are first resolved.

Public Law 108-390 (the Act) amends § 274A of the Immigration and Nationality Act (INA) [8 Code of Federal Regulations § 1324a] in two ways. When the Act takes effect:

1. Employers and newly-hired employees may make the respective I-9 attestations required of them by “a hand-written or an electronic signature.”²

2. Employers will also have a choice of the means by which to retain the Form I-9 ³ , i.e., employers may choose to keep on file “a paper, microfiche, microfilm, or electronic version” of the completed form.

The Act is effective no later than April 28, 2005, the 180th day after the President signed the law, unless the Secretary, Department of Homeland Security (DHS), or subordinate DHS officials, implement the Act before then by publishing final regulations in the Federal Register.

In order to avoid the confusion and widely varying approaches that would likely ensue if employers acted without implementing regulations, representatives of two immigration agencies within DHS, the Bureaus of Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (USCIS) met on December 10, 2004 with a number of business organizations to address a variety of as yet unanswered questions.⁴ The meeting generated a number of issues and suggestions for future action, outlined below.

This author predicts that the regulation implementing digital I-9s will likely be published in final form only a few days or weeks before April 28, 2005. Thus, employers, for now, must be prepared to consider several issues and possible strategies as they embark on the Digital I-9 Superhighway.

1. What Should Employers Do with Their Huge Inventory of Current I-9s?

Employers pressed for office space may ask whether the Act allows for conversion of existing paper I-9 files into digital scans. Presumably, the permission granted in the Act to maintain an “electronic version” of each employee’s Form I-9 could be read to include pre-existing paper I-9s converted after April 28, 2005 into a digital format. While the answer for now remains unknown, employers may wish to put our requests for proposals and secure bids from vendors on the application features and cost of digital conversion.

Employers should also consider whether all steps have been taken under existing law to remove and discard original Form I-9s that are no longer subject to the I-9 retention rule. Assuming that there is no pending or actual threat of a government investigation or a discovery demand in litigation, Forms I-9 are no longer required to be retained as of the later of one year from date of employee termination, or, three years from date of hire.

Employers should also consider performing an audit of retained I-9s and taking good faith steps to correct Forms I-9 that are found to be out of compliance with regulations⁵. Moreover, with the advent of the Sarbanes-Oxley Act (Public Act 107-204) and the recent amendment of the U.S. Sentencing Guidelines applicable to corporate defendants, employers (in consultation with legal counsel) may decide that an audit of I-9s is perhaps more than merely voluntary and recommended but mandatory and required for all but the bold and reckless.⁶

Employers should also be aware of the administrative statute of limitations applicable to I-9s: Five years from the first date of hire (in instances where no I-9 was ever prepared and maintained); or, five years from the date when an I-9 was prepared correctly and completed fully.⁷

2. After April 28, 2005, Will Scanning an Original Paper-Version of a Signed I-9 and Discarding the Paper Version Be Allowed?

Again, no one yet knows whether the permission granted in the Act to retain an electronic version of the Forms I-9 extends only to those forms which also comply with the new “electronic signature” requirements, or, whether hand-written signatures can be scanned and preserved instead of maintaining the original paper-based, signed version.

From the perspective of government immigration enforcement authorities and prosecutors, however, digital preservation of I-9s will likely only be allowed for electronic signatures that provide a ready basis for prosecution of false statements and other immigration crimes committed in the I-9 context. Thus, this author predicts that the scanning/discarding of hand-signed I-9s will not likely be treated as adequate compliance.

3. What Standards Will the Government Adopt for Electronic Signatures and the Electronic Retention of I-9s?

Business representatives at the December 10, 2005 meeting urged ICE and USCIS to refrain from adopting specific technological standards that may fall prey to obsolescence over time but instead to refer to an already-accepted standard such as the Federal Rules of Evidence. While the Federal Rules may change over time, as technologies, judicial interpretations and statutes change, employers will likely enjoy the greatest degree of flexibility if the I-9 technologies ultimately adopted by employers are likely to avoid the fate of the Betamax video-recorder and the 8-track tape player.

Whatever the standard ultimately adopted, the government’s immigration agencies and prosecutors will want to ensure that they will be able to detect and confirm whether electronic tampering has occurred. The challenge, therefore, of confirming the tamper-free condition of digital I-9s presents a different and possibly more difficult obstacle than that presented by paper I-9s.

4. How Will Existing I-9 Procedures Be Integrated with Forthcoming Electronic-Signature/Retention Regulations?

Current immigration regulations cover substantial turf. They allow for dispensation from I-9 compliance in limited circumstances, for example, when re-hiring employees who had a reasonable expectation of continued employment, or transferring I-9 liability and physical possession of the I-9 forms to a successor or reorganized employee. Current regulations also (1) allow the employer to decide whether or not to make and retain copies of documents confirming identity and work permission, (2) prescribe rules on re-verifying the continuing employment authorizing for workers with time-limited work permits, and (3) outline procedures for compliance with a government investigator’s demand to produce I-9s for inspection in the course of an audit. The forthcoming digital I-9 regulations must address these areas of intersection with the rules adopted in an era of paper I-9 forms. For now, however, employers should use the waiting time to reevaluate their I-9 compliance practices and decide just how far and how fast they intend to drive down the Digital I-9 Superhighway.

5. Will the Government Also Publish a New I-9 Form and a Streamlined List of Acceptable Documents When Issuing the New Digital I-9 Regulation?

In a perfect world, DHS’s immigration agencies would simultaneously issue a new Form I-9 and a Congressionally-mandated shorter list of acceptable documents of identity and employment eligibility when publishing the new electronic I-9 regulation. With a nod to Otto Von Bismark, the German Prussian politician, this writer suggests, however, that not only politics, but also government rulemaking, involves “the art of the possible.”

Although theoretically possible, if the history of delayed rulemaking⁸ offers any basis for prediction, then publication of a new I-9 form and shorter list of acceptable documents is not very likely by April, 2005. This means that employers desiring to go paperless may be required to adopt digital I-9 procedures in at least two phases. The first phase would entail a transition from the paper version of the form to an identical, digital version that also enables electronic-signature capability. The second phase, or later phases, may then entail the wholly digital capture of information and e-signatures in a searchable database.

6. What Software Applications Are Recommended When Driving down the Digital I-9 Superhighway?

The law of “employer sanctions” – of which I-9 regulations form only a part – has developed substantially since IRCA's enactment in 1986. Numerous agency opinion letters, subsequent laws, and administrative and judicial decisions have provided answers to many questions not fully developed in the applicable regulations. Despite these developments, the I-9 form has changed only once since 1986, and not again in the 12 years since 1991.

The optimal electronic version of the I-9, therefore, would be interactive and include expert systems that take account of the evolving body of employer-sanctions law and prevent the completion of the form with incorrect or legally insupportable answers or signatures. The form would also be searchable across all data fields, and fully integrate with other popular payroll and HR software applications.

In the coming months, HR professionals can expect to be deluged by software product offerings that promise to simplify I-9 procedures, eliminate forests of paper files, and make legal compliance all but a few mouse clicks away. This author’s advice: Proceed slowly, thoughtfully and in step-at-a-time fashion. Take a lesson from the history of how other government agencies transitioned from a paper-based to a paperless world. Perhaps helpful, early guidance can be gleaned from an examination of federal agencies’ actions in implementing the “Electronic Signatures in Global and National Commerce Act” (P.L. 106-229) and the “Government Paperwork Elimination Act” (P.L. 105-277), as well as the Office of Management and Budget’s e-Government Strategy.

Until the successful vendors are sorted out, and the government publishes its technical parameters, however, the best interim way may be a simple, internal, proprietary system that adjusts to the needs and capabilities of the particular employer. Whether a PDF-based, easy solution will ultimately work, however, must await the government’s no-later-than-April rulemaking.

* * * * * As has been seen, while the Act has been passed and planning has begun, the I-9 Superhighway remains more a concept than a reality. Electronic diamond lanes, toll roads, car-pooling and road-testing all must yet occur. Employers should not sit on the sidelines waiting for the ribbon to be cut and the highway opened. HR associations and trade groups should join the bandwagon of business interests and payroll administrators who are urging the federal government to allow speed and maneuverability on this digital roadway. Whether your company is a road-maker or just a bystander, this author suggests you make sure your business is ready for the ride and the road ahead.

^1. Click here for the text of Public Law 108-390.

^2. Employees are required to complete section 1 of Form I-9 no later than the first day of hire and attest (by checking off one of three boxes and signing and dating the section in the spaces provided) to the individual’s particular U.S. citizenship or immigration status and confirm the right to work in the United States. Employers must confirm in no less than three days from first hire, by completing and signing Section 2 and thereby attesting that the just-hired employee presented acceptable and seemingly genuine original documents that relate to the particular employee and confirm employment eligibility in this country. For reverification of the work authorization of existing employees with time-limited employment authorization, employers must sign an attestation (before the employee’s current work permission expires) confirming that the same individual again presented an original document or documents authorizing a new grant of employment permission.

^3. A “fillable” version of Form I-9 can be found at: http://uscis.gov/graphics/formsfee/forms/i-9.htm.

^4. The author expresses appreciation to attorney Linda Dodd-Major, formerly the Director of Office of Business Liaison, Immigration and Naturalization Service, for background information on this meeting.

^5. For a list of questions that employers and their counsel should pose when considering an I-9 audit, see A. Lamdin, M. Patrick, R. Gump and A. Paparelli, “When Uncle Sam Knocks: Representing Employers Who Face or Fear Government Investigators,” Vol. 2, 1997-98 Immigration and Nationality Law Handbook (American Immigration Lawyers Association).

^6. For an article on Sarbanes-Oxley Act and the new corporate sentencing guidelines, see R. Morvillo and R. Anello, “Corporate Compliance Programs: No Longer Voluntary,” New York Law Journal 3 (December 7, 2004).

^7. United States v. Curran Eng'g Co., Inc., 7 OCAHO no. 975, 874, at 892 93 (1997), 1997 WL 1051469.

^8. See, e.g., A. Paparelli, Second Open Letter to the USCIS Ombudsman, Prakash Khatri, dated May 7, 2004 (available at http://www.nationofimmigrators.com ) asked that the Ombudsman pressure USCIS to reduce its other, less-visible backlog, namely, the year-long list of unpublished regulations.

Click here for text of the law