As I've viewed immigration over the last 40 years, passionate advocates have come and gone, fortunate foreign citizens have been granted green cards and then naturalized; but the harshness and hard-heartedness of immigration law as a reflection of American cultural norms hasn't really diminished.

For example, back in the 1980s I set a personal goal (to help end consular absolutism and introduce a measure of fairness into the visa process). In this, I have utterly failed, and have at times trended toward despondency.

Although some of the State Department's power has shifted to Homeland Security, State's Bureau of Consular Affairs has defended the prerogatives of consular officers like a hyper-vigilant Tiger Mom. Despite many articles, blog posts, ABA and AILA resolutions, and open-mike challenges at State Department public forums, visa refusals based on the decisions of consular officers on questions of fact remain virtually unassailable, as a March 28, 2013 decision of the Ninth Circuit Court of Appeals painfully affirmed.

But occasional discouragement is not  surrender.  As Martin Luther King, Jr., reminds and emboldens us, “the arc of the moral universe is long, but it bends toward justice.”

Developments this past week in American immigration have proved him right.

On Friday, U.S. Immigration and Customs Enforcement (ICE) agreed to pay $1 million in settlement to a group of plaintiffs for early-morning home raids that terrorized their children. Adriana Aguilar, a U.S. citizen and the lead plaintiff, described the pain that jack-booted action by federal officers caused:

My son, who was just four years old, was crying in fear of gunmen in his home at four in the morning . . . We asked them to show a warrant or any other authority they had for being inside our home. They ignored us.

Earlier in the week, the Associated Press announced that it would no longer include the term, "illegal immigrant," in its authoritative Stylebook -- the journalist's bible. According to its Senior Vice President and Executive Editor Kathleen Carroll, the move is part of an ongoing effort by the AP to rid the Stylebook of labels (thus, schizophrenic is replaced by person afflicted with schizophrenia).   As she explained:

It’s kind of a lazy device that those of us who type for a living can become overly reliant on as a shortcut . . . It ends up pigeonholing people or creating long descriptive titles where you use some main event in someone’s life to become the modifier before their name.

Unpacking the AP move, MSNBC's Melissa Harris-Perry and a panel of thoughtful analysts offered a "MUST-WATCH" in-depth assessment of just how profound this arc-bending action in dropping the "illegal" slur is.  The panel likened the groundswell of opposition pressuring the AP on its use of the shortcuts, "illegals" and "illegal immigrant," to the lunchroom sit-ins of the Civil Rights Movement, when "colored" people were charged with illegality by virtue of geography, punished for where they sat on the planet or in the diner (or in the case of aspiring Americans, on the wrong side of a border):

Within hours of the AP change -- even faster than the two days after the Republican debacle at the polls it took Sean Hannity to flip on legalization -- the New York Times responded in kind.  Through its Public Editor, Margaret Sullivan (who last October declined to recommend any such change because readers wouldn't benefit), the Grey Lady announced that "for the past couple of months, [theTimes] has also been considering changes to its stylebook entry on this term and will probably announce them to staff members this week."

The last big thing came to view yesterday. The New York Times posted an obituary announcing the death on March 17 of Lawrence H. Fuchs. I didn't know or remember Mr. Fuchs, but the headline describing him as "Expert on Immigration," caught my eye. The obit alerted me to the seminal role he played leading up to the Reagan-era legalization program, describing him as "a federal government adviser [who in 1986] helped lay the groundwork for the last major overhaul of American immigration law."

Embarrassed about my unfamiliarity with Mr. Fuchs, and curious too, I Googled his name and found the preface to one of his books on Amazon. What he wrote there made me realize that immigration reform has already begun, that the great cultural integration of which he speaks began again -- like unseen swirls in the tide of change, cresting into huge waves bigger than Sandy -- on November 8:

Since the Second World War the national unity of Americans has been tied increasingly to a strong civic culture that permits and protects expressions of ethnic and religious diversity based on individual rights and that also inhibits and ameliorates conflict among religious, ethnic, and racial groups. It is the civic culture that unites Americans and protects their freedom—including their right to be ethnic. . . .

The system would not be severely tested as long as most immigrants were English or Scots. The new republic, as George Washington said in his farewell address, was united by “the same religion, manners, habits and political principles." But differences in religion, habit, and manners proliferated after the immigration of large numbers of Germans (many of whom were Catholic), Scandinavians and Irish Catholics throughout the last sixty years of the nineteenth century, and of eastern old southern Europeans, a majority of whom were Catholic or Jewish, in the decade before and after the turn of the twentieth. Political principles remained the core of national community. The new immigrants entered a process of ethnic-Americanization through participation in the political system, and, in so doing, established even more dearly the American civic culture as a basis of American unity.

The difference between 1990 (when Mr. Fuchs wrote, The American Kaleidoscope: Race, Ethnicity, and the Civic Culture) and now is that this time the acculturation occurred in reverse. Americans except on paper -- the DREAMers -- "established even more dearly the American civic culture as a basis of American unity" in a way that forced our language to adapt and their parents and themselves to be relieved of the smear "illegal." The revolution was not just televised, it was also publicized . . . by the Associated Press.

So watch out State.  I've got my metaphorical bow and quiver, and I'm still shooting arcing arrows of justice at consular absolutism!

Konishi V. Immigration and Naturalization Service, 661 F.2d 818 (9CA, 1981)(citations and quote marks omitted)

Immigration entrepreneurship is all the rage.  Comprehensive immigration reformers on the left and right agree that entrepreneurs beget innovation which begets jobs for Americans. Our history proves it. Research studies support the link.   Foreign entrepreneurs are encouraged to come through the "front door." The President wants to welcome more of them. Members of Congress, hoping to avoid stemming the tide of innovation, are proposing a new flow of workers, especially in the STEM fields of Science, Technology, Engineering and Math with a three's-the-charm bill, the Startup Act 3.0.  

In addition, a shoeleather-avoidant "Virtual March for Immigration Reform," dubbed the "March for Innovation," is set for a day this spring in order "to ensure that the broad immigration bills being considered in Congress include provisions to boost innovation and entrepreneurship, and . . . to seize the moment and get immigration reform passed."

While we obsess on the need to invite more immigrant entrepreneurs, why is there no comparable fixation on the importance of welcoming entrepreneurship's kissing cousin, creativity?

We acknowledge the creativity of knowledge workers, yet we fail to see the urgency of freely inviting members of the creative classes, our free-lance artists, writers, journalists, poets, painters, inspirational speakers, filmmakers, bloggers, videographers, performing artists, multi-media stylists and other creativity entrepreneurs.  As the artist, Konishi, convinced the court, the "activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist."

Regrettably for America, however, our immigration laws are just as broken and dysfunctional when applied to creatives as to entrepreneurs. Foreign artists, even if they possess "extraordinary ability," or manifest their artistry in "culturally unique" ways, must still be tied to an established U.S. agent or an employer.  They must also present a "consultation" from a peer group (usually a labor union that extorts a protectionist fee to confirm for the benefit of Homeland Security that its guild members' would accept the foreign artist into the fold on payment of union dues). Similar restrictions apply to media free-lancers who must present journalistic credentials and a contract with a U.S. company even if they propose to enter the U.S. to offer or produce creatively presented information or education.

Surprisingly, although we recognize the compelling need to eliminate immigration barriers for noncitizen entrepreneurs, we ignore the job-creating qualities of foreign artists, even though both groups share Steve Jobs' remarkable insight into the creative process -- one that likewise motivates many immigrants to embark for America:

If you want to live your life in a creative way, as an artist, you have to not look back too much. You have to be willing to take whatever you’ve done and whoever you were and throw them away. The more the outside world tries to reinforce an image of you, the harder it is to continue to be an artist, which is why a lot of times, artists have to say, “Bye. I have to go. I’m going crazy and I’m getting out of here.” 

Artists and creatives are everywhere, yet America mostly spurns them. Our legislators and the Obama Administration, just like the commissars of the old Soviet Union, must ultimately wake up to the reality that the Federales have no special talent for picking winners, and that planned economies, more often than not, tend to overlook the budding artist and the possibly math-phobic virtuoso.  

Let us also therefore revise our immigration laws to welcome these promising, early-stage artistic strangers even before they find an audience.  With fair and open-hearted screening processes we surely can craft a way to identify creatives offering the potential to spawn new art forms, new industries and new jobs.

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

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

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

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

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

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

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

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

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

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

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

"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!

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.

Immigration, perhaps more than any other subject, challenges professional journalists. The law is complex, obscure and difficult to understand and even harder to explain. Immigration procedures are varied and the decisions of courts and bureaucrats often seem arbitrary, inconsistent or otherwise inexplicable.  Stridency and bias on both sides of the immigration debate frustrate efforts to uncover the real facts. Deadlines and word limits make thorough and accurate reporting elusive.

There is reason, however, to be hopeful.  In 2010, the Atlantic Philanthropies joined with The New York Times to support journalism institutes that try to improve reporting on a variety of important topics, including immigration. One such effort, "The Changing Face of America - Immigration from the Ground up," co-sponsored by the Graduate School of Journalism at UC Berkeley and the Chief Justice Earl Warren Institute on Law and Social Policy at the UC Berkeley Law School, will soon present a five-day intensive for journalists.  Last year's program is viewable online.

I spoke at last year's event on the topic, "Jobs Americans Can't (Won't) Do. Balancing Labor Market Needs with Worker Rights." As shown in the video below, I maintain that reporting on our nation's dysfunctional system of immigration requires heavy lifting. I offered a case in point, the Department of Labor's convoluted process of labor market testing which requires deep digging into legislative history and the discovery that bureaucrats have created political cover for themselves while perpetrating a cruel hoax on U.S. workers and the public.  

Another respected venue is the Institute for Justice and Journalism (IJJ) which has been offering fellowships to immigration journalists since 2003.  The IJJ's Immigration in the Heartland web site offers a wealth of excellent articles.  The next IJJ program will be in April and will focus on the 2012 elections, with the deadline for applications on January 17.

Some reporters excel in immigration reporting -- Miriam Jordan (The Wall Street Journal), Julia Preston (The New York Times) as well as Suzanne Gamboa and Amy Taxin (Associated Press) -- to name a precious few. Others rise to the top through editorial writing on immigration, such as Lawrence Downes (The New York Times), among the best of all.  Many others have embraced the task with energy and passion by devoting themselves to reporting on immigration reform, such as Phuong Ly, who established Gateway California, "a nonprofit that helps journalists connect to immigrants," and Julianne Hing of Colorlines. Probably the most courageous proponent of better immigration coverage by journalists is Jose Antonio Vargas, a Pulitzer Prize winner who outed himself as an undocumented immigrant since childhood.

As the 2011 Fellows gather at UC Berkeley in November for the second annual institute (also titled,"The Changing Face of America - Immigration from the Ground up"), immigration aficionados and the public can look forward to better and still better reporting on the complex and life-changing issues arising in this turbulent Nation of Immigrants.