Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

The usual xenophobic suspects made the usual noises after the tragic events in Boston last week.  Perhaps the most premature outcry came from electrified-border-fence proponent, Rep. Steve King, Republican from Iowa, who a day after the marathon explosions linked a report (ultimately untrue) that a Saudi national had planted the bombs with King's mission to stop comprehensive immigration reform (CIR):

We need to be ever vigilant. We need to go far deeper into our border crossings. . . . We need to take a look at the visa-waiver program and wonder what we’re doing. If we can’t background-check people that are coming from Saudi Arabia, how do we think we are going to background check the 11 to 20 million people that are here from who knows where?

Another occurred on Reddit, where an amateur sleuth named Pizzaman along with multiple Reddit contributors noted the similarity to the photos of Suspect #2 (Dzhokhar Tsarnaev) and a missing Brown University student of Indian descent, Sunil Tripathi, whose whereabouts, sadly, remain unknown. (Reddit's moderator has since apologized for this misinformation disaster to the Tripathi family (who are as American as you and I.) 

Still another erupted, quite expectedly, from one of Ann Coulter's Twitter posts after the death of Suspect #1 (Tamerlan Tsarnaev) in which she mocked G8 member, Sen. Marco Rubio: "It's too bad Suspect # 1 won't be able to be legalized by Marco Rubio, now."

Similarly, long-time jingoist, Pat Buchanan suggested three days after the bombing that the focus should only be on border security.  Apparently forgetting that the Brothers Tsarnaev entered the U.S. legally, with the older having become a permanent resident and the younger a citizen, Buchanan slammed undocumented immigrants who aspire to become Americans:

Why do you have to do anything? What is this nonsense that ‘they’re in the shadows’? With due respect, they ought to be in the shadows! They’ve broken the law to get into the country…. Do nothing!… You [the Republican party] don’t have [to] bribe, you don’t have to give up your principled positions… in order to get Barack Obama to do his duty and defend the border!

Fortunately, CIR proponents on the right and left in Congress and elsewhere gave forth with rapid responses:

• Republican point man on immigration in the House, Rep. Mario Diaz-Balart, disagreed with Sen. Grassley: "[E]very crime that is committed right now is under the current immigration system. So what does that lead me to believe? We need to fix the current immigration system, if in fact there is any connection between immigration at all."
• A spokesman for Sen. Marco Rubio (R. FL) issued this statement:  “There are legitimate policy questions to ask and answer about what role our immigration system played, if any, in what happened . . . Regardless of the circumstances in Boston, immigration reform that strengthens our borders and gives us a better accounting of who is in our country and why will improve our national security. Americans will reject any attempt to tie the losers responsible for the attacks in Boston with the millions of law-abiding immigrants currently living in the US and those hoping to immigrate here in the future.”
• Republican Senators John McCain and Lindsey Graham released a joint statement: “Some have already suggested that the circumstances of this terrible tragedy are justification for delaying or stopping entirely the effort. . . In fact, the opposite is true: Immigration reform will strengthen our nation’s security by helping us identify exactly who has entered our country and who has left.”
• Democrats, Chuck Schumer and Dick Durbin, also rejected the flawed reasoning which would link CIR to the bombings.  Sen. Schumer warned against the temptation to "“jump to conclusions” and “conflate” the Boston tragedy with immigration reform. Sen. Durbin noted that CIR would enhance our security: "[E]veryone, the 11 million people who were basically living in the shadows in America, [has] to come forward, register with the government, go through a criminal background check. That will make us safer.”  I made the same point when the Christmas-time underwear bomber succeeded in nothing more than scorching his private parts. See "Using Immigration to Stem the Terror Threat," (Dec. 30, 2009).
• The New York Times Editorial Board observed that CIR's opponents are desperate and that CIR would make finding wrongdoers easier: "Until the bombing came along, the antis were running out of arguments. They cannot rail against 'illegals,' since the bill is all about making things legal and upright, with registration, fines and fees. They cannot argue seriously that reform is bad for business: turning a shadow population of anonymous, underpaid laborers into on-the-books employees and taxpayers, with papers and workplace protections, will only help the economy grow. About all they have left is scary aliens. . . .There is a better way to be safer: pass an immigration bill. If terrorists, drug traffickers and gangbangers are sharp needles in the immigrant haystack, then shrink the haystack. Get 11 million people on the books. Find out who they are."
• Matthew Iglesias of Slate suggested seemingly counterintuitive but spot-on points that doing nothing will only encourage illegal immigration and let more terrorists and killers in and that the proposed 20,000-to-200,000 W visas for lesser-skilled workers likewise may be insufficient to stem illegal border crossings -- the precise point I made on April 18 to Abigail Rubenstein of Law360 Employment ("[That] the U.S. Chamber and the AFL-CIO reached a consensus on a lesser-skilled worker visa is wonderful, but the numbers make the program illusory").
• The General Counsel of the American Immigration Lawyers Association, David Leopold, persuasively explained, in essence, that immigration adjudicators are not soothsayers and that no one can foresee how an immigrant's life will turn, as reported in The Atlantic: "At the time that the Tsarnaevs applied for asylum, Tamerlan and Dzhokhar were very young. There was almost certainly nothing in their background that would have raised any red flags; apparently, there was nothing in the father's either. Here, Leopold made a key point: 'You can't predict future behavior.' For any democratic country that wants to participate in international society, Leopold pointed out, you have to assume some level of risk. Despite that, 'the systems they have in place,' meaning those security screenings, are 'doing the job.'"

Despite CIR proponents' quick retorts, the Boston bombings will likely make enactment all the more difficult.  Unlike an esteemed colleague who predicts a less than 50% chance, I'm still optimistic that CIR will be enacted.  If anything, Boston made the price of doing nothing simply too high.  Still, with background checks on gun sales a non-starter in the Senate despite 90% support among the American people, nothing can be taken for granted.

Here's what CIR's proponents must do now:

•  Urge the Senate to adjust the balance of funding in the Senate proposal, the "Border Security, Economic Opportunity, and Immigration Modernization Act’’ (or, "BESSIE MAE," as a prominent immigration editor has dubbed it) between border security (proposed at an overly generous and likely somewhat wasteful $6.5 billion) and the measly, wholly inadequate amount ($10 million) authorized for the integration of immigrants into American society. Whenever a refugee or any other immigrant comes to America, we want to provide the environment to prosper like Google founder Sergey Brin, a refugee from the Soviet Union, and not turn sociopathic as apparently happened with bombing suspect Dzhokhar Tsarnaev.  Meantime, until CIR is passed, kudos to U.S. Citizenship and Immigration Services for its recently announced Citizenship and Integration Grant Program, which will offer almost $10 million in funding during the grant period.
• Remind Republicans that the November 2012 election was a watershed. Republicans will continue to be the party of old white men, unless they take the politically smart and courageous act to pass CIR. Doing nothing is not an option if the GOP is to survive.
• Humanize the immigration debate. Point out that among those killed in the bombings was Lu Lingzi, an only child and Boston University graduate student majoring in Mathematics and Statistics -- precisely the type of STEM student we want here -- whose death her father described as like a "dagger in our hearts."
• Point to history.  We didn't stop immigration after the Puritans (themselves religious refugees) conducted their deadly Salem Witch Trials. Indeed, had America closed the door to English refugees, there'd be far fewer Anglos who oppose CIR.
• Make the point that Bostonians and the police got it right. Show that the post-bombing resilient spirit of Boston, and the close collaboration of federal and state law enforcement personnel (who cooperated superbly in speedily identifying and neutralizing the suspects), demonstrate that we've grown up as a country and a government since 9/11.  No virulent backlash against foreigners has sprung up since Monday's bombing, save for the vicious hate spewing from a few, notably, Fox News contributor Erik Rush, who tweeted "Let's kill all of them (Muslims)" and then backed down quickly after he was confronted, claiming that he was merely engaging in sarcasm.  Here, unlike 9/11 there was no inter-agency withholding of information and no governmental failure to connect the dots.  Indeed, the immigration system, insofar as it was involved, worked, given that USCIS held off on the naturalization application of Tamerlan Tsarnaev based on information derived from the FBI's investigation into his background.
• Make sure that CIR clearly puts the burden on the immigration agencies to publish implementing regulations on strict deadlines or face a loss of funding, and that Congress conducts regular public oversight hearings after enactment during the implementation phase.  If the events of last week proved anything -- no, not the bombing, but rather the Texas fertilizer plant explosion that killed at least 14 people -- it is that government agencies must be held accountable and be funded properly (see my first bullet above about rational allocation of immigration budgets). User fee funding as the primary financial source for CIR implementation, which the G8s' proposal envisions, simply won't do.

The last time America was hit on its soil -- September 11, 2001 -- a different, far more modest immigration reform, known as Section 245(i), fell victim to the understandable Congressional blowback, even though that provision would have helped numerous undocumented immigrants who had nothing to do with terrorism.  Well that was then.  This time it's different.  America has matured.  CIR will pass, unless its supporters fail at the ground game of persuasively mobilizing public opinion and holding our legislators' feet to the fire.  Let's not get all weak-kneed and wobbly when vigilance and community organizing like never before is what's required.  And we should recognize that eight-year-old bombing victim, Martin Richards, could just as well have been describing why we need immigration reform when he wrote these words on his poster:  "Let's stop hurting people. Peace."

Winston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform.  Instead he was commenting on the Allies' post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:

I hope these speculative studies will be entrusted mainly to those on whose hands time hangs heavy, and that we shall not overlook Mrs. [Hannah] Glasse’s Cookery Book recipe for the jugged hare—"First catch your hare."  -- The Last Lion: Winston Spencer Churchill: Defender of the Realm, 1940-1965,  by William Manchester and Paul Re.

This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most.  The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.

What's the connection?  Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners.  Given much less, if any, attention, however, is whether the government's immigration bureaucracy can competently manage, regulate and enforce all these laws.  Are the immigration bureaucrats, judges and police up to the task?  

To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that "go from good to great":

. . . start not with "where" but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.

I submit -- as I've argued elsewhere and often in this blog -- that:

• The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system ("boarding the right people onto the bus");
• The heel-draggers and naysayers among the immigration bureaucracy, the cultists of "No," the feather-bedding careerists, and the power-mongers -- all must be exited ("getting the wrong people off the bus"); and, especially important,
• Our immigration leadership must be deployed strategically and intelligently ("putting them in the right seats on the bus").

So what's this got to do with the SEC's civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.  

The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters.  The agency's professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy.  Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America's goods and services.

The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. -- U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively -- have no special expertise in assessing legitimate or illegitimate business practices.

For examples in the EB-5 context see:

• Immigration's NannyStateGate: Picking EB-5 Winners and Losers
• The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?
• Immigration-Agency Lawbreaking Revealed: USCIS's EB-5 "Tenant-Occupancy" Scandal
• What Are We Paying for? USCIS and the I-526 Exemplar Process
• Dollars and Jobs for EB-5 Green Cards: A Challenging Route to U.S. Residency
• The Relevance of U.S. Securities Laws to Immigrant Investors, Eb-5 Regional Centers and Their Advisors
• Investing in America through the E-2 and EB-5 Visa Categories.

If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives:  The StartUp Visa Act and the Startup Act 2.0.  These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.

The StartUp Visa Act asks DHS to decide if "a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested" at least $100,000 on behalf of a "qualified immigrant entrepreneur . . . whose commercial activities" in two years will "create not fewer than 5 new full-time jobs in the United States," and "raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue."  

Similarly, the Startup Act 2.0 expects DHS to assess whether a "qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . .  at least 2 full-time employees  . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . .  during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5  full-time employees . . ."

I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS's mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.  

As for business and investment cases, particularly the EB-5 immigrant and E-2 nonimmigrant categories, decisions about investment sufficiency, investor protection, and job creation prospects should be vested in the Commerce Department or a similarly qualified department or agency of government. See, "Economic Prosperity - The Missing Immigration Mission," and February 19, 2010 Memorandum of the Alliance of Business Immigration Lawyers  to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, Headquarters (USCIS) Re: "Employment-Based Immigration Proposals for Inclusion in Comprehensive [Immigration] Legislation":

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

If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS's immigration inspectors and State's consular officers determine the question whether the individual investor or family member is or is not admissible to the United States.  In other words, USCIS's role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.

For this to occur, however, Congress must really think big.  It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.

Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, "you may say that I'm a dreamer, but I'm not the only one."  For as Winston Churchill also said:

We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.

"How old would you be if you didn't know how old you are?" ~ Satchel Paige

One of the benefits of having played in the immigration sandbox for a long time is to see old friends return. A fondly remembered playmate -- who left in 1995 and returned in 2010 -- is a good ol' cuss named ACUS -- the Administrative Conference of the United States. Not to be confused with ACORN, ACUS (at a glance or in historical context) left the sandbox because it became homeless (Congress cut off its allowance).  

Back in the day, ACUS was a great friend to advocates of more functional immigration laws.  It adopted Recommendation 89-9 (Processing and Review of Visa Denials) at the urging of a tireless law professor, James Nafziger, who has long railed against the scourge of consular nonreviewability, or as many prefer, consular absolutism, an injury that can still hurt years after a visa refusal.  Apparently to save its funding ACUS claimed in 1995 that it had indeed made progress on consular review -- a fib I forgive, given ACUS's latest activity (described later in this post):

89-9 Processing and Review of Visa Denials Partially implemented. Recommends that the Department of State implement changes in its procedures for review of visa applications at United States consulates abroad. The recommended changes include permitting the assistance of attorneys, increased explanation of the basis for denials, making public advisory opinions of the Visa Office, and studying the development of an administrative appeals process for visa denials. The Recommendation was transmitted to the Secretary of State and to relevant Congressional committees. In 1990, the ABA adopted a resolution supporting most elements of this recommendation [p. 56]. In 1990, the Legal Adviser of the State Department indicated, in a letter to the Chairman, that the Department was considering implementing specified parts of the Recommendation but would likely not initiate a study of the implementation of administrative appeals. In 1992, H.R. 5173 was introduced to establish a Board of Visa Appeals in the State Department. In 1993, the State Department issued a cable emphasizing the need to give explanations of the reasons for visa denials, and providing additional information in cases where an advisory opinion is being sought. (Italics in original.)

(In addition to the ACUS and ABA proposals for consular review, AILA's Board of Governors adopted a resolution urging consular review based on an article I co-authored with Mitchell Tilner: “A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases,” Interpreter Releases, October 7, 1988.) Defiantly, however, the State Department remains as intransigent as ever in opposing any system for review of visa refusals (indeed, State even eliminated the Board of Appellate Review which protected U.S. citizens who challenged governmental claims that they'd expatriated).  Congress never established a Board of Visa Appeals. Attorneys still are barred from most consular interviews and advisory opinions are not published. 

While that battle is in pause mode, ACUS is proposing a slew of administrative reforms for consideration on June 16 that would apply generally to all Executive Branch agencies. The most important for immigration aficionados would make the immigration system more just and efficient.  The ACUS proposal offers a cornucopia of improvements (37 in all) to the immigration courts and the removal process which would help take the 800 lb. kangaroo out of the court room. The recommendations are backed up by a 133-page report by Law Professor Lenni Benson (I'm proud to say she was my former partner at Bryan Cave [see her here as she explains CIR's promise and peril in this 9-minute video]) and Russell Wheeler, a visiting fellow at the Brookings Institution.

If ACUS approves the recommendation to fix the immigration removal system, that will surely change the national dialogue.  Although the reincarnated ACUS hasn't yet tackled comprehensive immigration reform, this public-private partnership will deflate the arguments of immigration hardliners who oppose CRI and just hate it that border crossings are down. By showing how the system can be made more efficient, less costly and more just -- meaning that people who really ought not be here are removed quickly and cheaply, while those with equity are allowed to reclaim their quest for the American Dream -- ACUS will help force the opponents of reform to face the inevitable need to fix the two other legs of the CRI stool (the undocumented who are here and future flows of those whom we need). 

Among the other ACUS proposals for consideration on June 16 is one that likewise addresses immigration dysfunctionality.  As the Federal Regulations Advisor Blog describes it, the proposal would "Improv[e] Coordination of Related Agency Responsibilities:

The Committee on Collaborative Governance makes recommendations on the perceived problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. In reviewing the report by Jody Freeman (Harvard) and Jim Rossi (Florida State), agencies will need first to determine their jurisdiction, an issue of large concern by itself.

The problem of endemic dysfunctionality in the perpetual brouhaha that masquerades as interagency dialogue in the immigration space, however, is not one of mere perception. To be sure, sometimes the separation of functions can serve as a helpful system of checks and balances as for example when Congress wisely separated immigration enforcement from benefits adjudication in enacting the Homeland Security Act of 2002. But mostly the problems of mission creep and mission avoidance remain.  Even more troubling to stakeholders is the despicable reality that immigration officials in one agency rarely learn let alone understand or master the overlapping regulations of another agency in what ACUS refers to as "shared regulatory space."

So I'm delighted that ACUS is back in the immigration sandbox.  Although the cynics might say that ACUS builds castles in the sand, I'm with many American forebears who would urge ACUS to continue striving.  These, I fancy, would include the age-defiant Satchel Paige in the quote above and Henry David Thoreau, whom (for the sake of maintaining my sandbox metaphor) I paraphrase thusly: "If you have built castles in the [sand], your work need not be lost; that is where they should be. Now put the foundations under them."

Welcome back ACUS. Let's Quixote-like (as opposed to coyote-like) build CIR castles with solid foundations and tilt at more dysfunctional windmills in the immigration sandbox together!

Ever since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines.  The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself:  "I hate [bleep]ing immigration law!"

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
2. Distinguish boilerplate from customized text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case which declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, your resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.

Europe is at a tipping point.  Will the European Union be dashed on Greek or Italian shores.  Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell. 

As this is written, European pols, especially those of the Teutonic variety, may well be mulling the words of Emerson, the American transcendentalist, in his essay on Self-Reliance:

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.

America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." 

Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee.  Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration. 

President Obama is no less immune to criticism.  The Deporter-in-Chief campaigned for a first term on comprehensive immigration reform.  When challenged for nonfeasance, however, he pleaded that he could not "wave a magic wand and make it happen". Yet by allowing Homeland Security officers to exercise prosecutorial discretion in immigration matters and issuing executive orders to ease the housing crisis, the burden of student loans, and soon healthcare deficiencies, he has acted unilaterally, saying "[w]e can't wait" for Congress to act.

So when is consistency a virtue and when is it foolish?  In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.

PERM labor certifications should not take three months in one case and 27 in another (even if an audit ensues) -- the current range of DOL processing times, as I learned yesterday at the AILA California Chapters Conference in San Francisco.  A blanket L-1 visa applicant in Chennai should be just as deserving of her visa if an identically qualified blanket L-1 applicant is approved at a U.S. consulate elsewhere. An H-1B work visa petition for a small business approved at the USCIS Vermont Service Center should not be denied on virtually identical facts at the VSC's California counterpart (likewise the general consensus of panelists describing the regional-service-center status quo at the San Francisco AILA conference). 

The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers).  A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").

Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical. 

Consistency creates what we lawyers call a "reliance interest."  Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering.  As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.

Worse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions.  Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.    

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote: 

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation. 

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.) 

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots. 

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer. 

Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits. 

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]). 

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies. 

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws. 

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed: 

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them. 

We have work to do at home, on our culture and in our country.