Posted by Angelo A. Paparelli on April 07, 2013

Arcing toward Immigration Justice: "Illegals" No More

Thumbnail image for rainbow arc.jpgAll of us at times become dispirited.  

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!

Posted by Angelo A. Paparelli on March 10, 2013

The New I-9: Why Now When We Need Immigration Amnesty for Employers?

bomb_ww2_falling_sky_highangle.jpg

The New I-9:

Why Now When We Need Immigration Amnesty for Employers?

By Nicole Kersey and Angelo A. Paparelli

 

Irony was plentiful last week in Washington and around the country. 

One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul's filibustery droning against drones in protest of John Brennan's nomination as new CIA director. 

Also last week President Obama met with religious leaders to promote "Commonsense [sic] Immigration Reform" as the "leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations" -- especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).  

At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, "aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship," is accused of flip-flopping on immigration.

Last week also witnessed the release of two noteworthy publications on immigration.  

One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility: 

Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)

The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.

All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS).  The agency projects that the new I-9 -- consisting of seven pages of instructions to complete two pages of the form itself (up from the current one-page form) -- will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million. 

Why now?

With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?

CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary.   Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.

Why did the form change?

The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:

-          The old form “expired.”

-          The expiration gave USCIS an opportunity to implement improvements to the form.

-          Improvements (according to USCIS) include:

-          Adding “helpful” fields such as the employee e-mail address and telephone number

-          Revising Section 1 to make it “easier to read and understand”

-          Adding an area for a 3D barcode to “promote the modernization of USCIS forms”

-          Giving employers more space

-          Making the instructions clearer and easier to understand

Whether this was truly the most opportune time to make changes to the form is highly questionable.  Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now.  Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date?  USCIS doesn't say.

Did USCIS adequately respond to public comments?

Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments.  While this suggests that USCIS actually read the comments, the agency's response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form.  The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.) 

What changed?

The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions.  The List of Acceptable Documents still occupies a single page.   Aside from formatting and stylistic changes, there are also substantive changes:

  • The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.  
    • Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
    • Confirmation that P.O. Boxes are not acceptable.
    • A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
    • Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
    • The addition of instructions for minors and disabled employees.
    • In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
    • More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
    • The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
    • New fields have been added for employees to record telephone numbers and e-mail addresses.  These fields are optional.  The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
    • Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name). 
    • Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form.  This relates to CBP’s plans for automation of the I-94 card.  Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data.  Others are instructed to write “N/A” in these fields.
    • The signature box for the employee has been improved to prevent employees from signing outside of the box.
    • In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.”  While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
    • “Alien #” has been changed to “Alien Registration Number/USCIS Number.”  For many, this causes confusion.  Let us make it clear:  the numbers are the same, but some government-issued documents use different terms to refer to the same number.
    • A 3D barcode box has been added to the form.  This is a mysterious box, as it is unclear what the government plans to do with it.  All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
    • A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
    • Additional dedicated fields for recording “extra” List A documents have been added.  These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards.  They may cause confusion, however, for others.  It is still not clear which document should be recorded first, second, or third.
    • The employer’s attestation statement has been changed somewhat.  It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
    • Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes.  Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
    • The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not  valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”

What should employers do?

USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.

With that somewhat clunky guidance, we suggest that employers do the following:

Consider waiting to use the new form until you take time to:

  • Read and digest the revised M-274 Handbook for Employers, available here. 
  • Update your company policies and protocols to reflect changes to the form.
  • Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them. 
  • Anticipate questions and issues that may arise.
  • Be ready to fix the foreseeable mistakes that are likely to arise.
  • Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.

* * *

fireworkssam.jpgSen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.  

Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.

Posted by Angelo A. Paparelli on November 18, 2012

Reforming Immigration "with Liberty and Justice for All"

road closed sign.jpgAs Republicans join Democrats in contemplating reform of the nation's dysfunctional immigration system, the final line of the Pledge of Allegiance ("with liberty and justice for all") is the best place to start. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

welcome_mat2.jpgThese suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers. 

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

 

Posted by Angelo A. Paparelli on November 04, 2012

Immigration and the Elections: Attention and Imagination Required

[Blogger's note: 

Dear Readers: I promise that this post is indeed about immigration and the quadrennial election on Tuesday.   Please read to the end, beyond the meandering yet relevant introduction, to see the connection.]

Davidfosterwallace.jpgJust over four years ago, David Foster Wallace, a gifted, troubled writer of wide acclaim, took his life. Fans of his writing, myself included, have marveled at his intelligence, wit and humanity.  Reading Foster Wallace is an exercise in mental gymnastics and focused attention that pays bountiful dividends. 

Rod Serling.bmpThirty-seven years ago, another writer and deep thinker, Rod Serling, who gave us the Twilight Zone television series, lost his life to heart failure while likewise still in his prime.  Gene Roddenberry, futurist and creator of Star Trek, could have been describing Foster Wallace when he lauded Serling thusly: "No one could know Serling, or view or read his work, without recognizing his deep affection for humanity . . . and his determination to enlarge our horizons by giving us a better understanding of ourselves."

Serling's introduction to his show -- epitomizing the man himself -- is forever a part of American culture:  

You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!

I thought about the parallels between the two writers this week when I stumbled on a Twitter post that led me to Foster Wallace's 2005 commencement address at Kenyon College. Here are excerpts from his talk about the real value of a college education, the ability to distinguish, depending on the degree of our committment to "attention" (Foster Wallace's take) or "imagination" (Serling's formulation), the autonomic from the conscious thoughts that come to mind while experiencing life's prosaic events. 

Foster Wallace illustrates his point as he describes a mundane, seemingly "boring" wait at a grocery checkout line, disrupted by the outburst of a frazzled mother yelling at her boisterous child:

[If] you're aware enough to give yourself a choice, you can choose to look differently at this fat, dead-eyed, over-made-up lady who just screamed at her kid in the checkout line. Maybe she's not usually like this. Maybe she's been up three straight nights holding the hand of a husband who is dying of bone cancer. Or maybe this very lady is the low-wage clerk at the motor vehicle department, who just yesterday helped your spouse resolve a horrific, infuriating, red-tape problem through some small act of bureaucratic kindness. . . .

[The] so-called real world will not discourage you from operating on your default settings, because the so-called real world of men and money and power hums merrily along in a pool of fear and anger and frustration and craving and worship of self. Our own present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom. The freedom all to be lords of our tiny skull-sized kingdoms, alone at the center of all creation. This kind of freedom has much to recommend it. But of course there are all different kinds of freedom, and the kind that is most precious you will not hear much talk about . . . in the great outside world of wanting and achieving. . . . The really important kind of freedom involves attention and awareness and discipline, and being able truly to care about other people and to sacrifice for them over and over in myriad petty, unsexy ways every day.

That is real freedom. That is being educated, and understanding how to think. The alternative is unconsciousness, the default setting, the rat race, the constant gnawing sense of having had, and lost, some infinite thing. . . .

[If] you really learn how to pay attention, then you will know there are other options. It will actually be within your power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.

Just as serendipity triggered by social media led me to think of Foster Wallace, and then to Serling, it led me to my friend and immigration-law colleague, Paul Parsons, who this week offered an inspiring Facebook post to show "why being a U.S. immigration lawyer can be the greatest job in the world":

Last Friday we received our first two Deferred Action for Childhood Arrivals (DACA) approvals, and one of those clients sent this uplifting message today:

I just wanted to take another opportunity to thank you all for your help. I do not think I will ever be able to explain with words or emotions how immensely happy and grateful I am. For the first time in my life, I have a sense of belonging in the country that has raised me. My life has not been easy. I have had my fair shares of bumps and bruises along the way, but [life] is not supposed to be easy.

I know you all take pride in the work you do, because there are not many people that can say their job involves giving people the opportunity for a better future. You give hope to those who might have felt hopeless. You all can go home with the satisfaction of knowing you helped somebody, in many cases an entire family.

There are memories of things, events, and people that I will never forget, some good and some bad. Now I have one more good memory to add and you all will be part of it. Keep up the good work because there are many others like me waiting for the same opportunity.

. . . You are in the business of changing [lives] for the better, thank you again for making my life one of those. There is a saying that goes “Before you have a story you need to have a storm”. Well the storm has just past and the story is now only beginning.

As Americans vote for our leaders this week, I hope that we use both our attention and our imagination; that we remember our origin as a nation of immigrants; that we recall the wonders of immigrant innovation and the resulting benefits we enjoy; and that we call to mind our "power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down."  

I hope as we enter the "other . . . dimension" of the voting booth, "a dimension not only of sight and sound but of mind," that we are not entranced into reflexive thinking about "the so-called real world of men and money and power [which] hums merrily along in a pool of fear and anger and frustration and craving and worship of self." Although our "present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom," I hope we remember that elections trigger consequences, and that precious lives and futures depend on our choices.

I also hope we acknowledge that America needs people, and more people, like Paul Parson's client, as well as the remarkable contributors whose lives are poignantly revealed in Green Card Stories, just as much as we need dedicated public servants who help "resolve horrific, infuriating, red-tape problem[s] through some small act of bureaucratic kindness." 

In short, I hope we choose leaders who are likely to welcome rather than reject our nation's courageous and deserving immigrants.

Posted by Angelo A. Paparelli on October 22, 2012

Immigration Lawyers to Join Big Bird in Unemployment Lines

Bernie Wolfsdorf and Big Bird.JPGDebate scorers and pollsters called it even.  Mitt Romney won the first Presidential debate, essentially by showing up. Barack Obama prevailed in the second, a verbal brawl, by departing the state of suspended animation, entering New York state, and manning up.

Observers of the Twittersphere honed in on one line -- Mitt Romney's non-responsive comment to a question in the second Presidential debate on pay equality ("I brought us whole binders full of, of women").

Another remark, however, prompted intense reactions among immigration lawyers: 

[You] shouldn’t have to hire a lawyer to figure out how to get into this country legally.

Within minutes of the debate's end, a Facebook group, "Immigration Education for Mitt Romney," sprang into existence. The group's "About" tab describes its raison d'être: "Since Mitt Romney seems to think that immigration law & policy can be simple, as he stated during the Presidential debate on 10-16-2012, we need to educate Mr. Romney about immigration law & policy."

Immigration lawyer Randall Caudle posed the first question (for which I'll provide a Rosetta Stone in brackets):

What do these acronyms mean & what is the immigration status of an individual with each of these? PIP [Parole in Place], AP [Advance Parole], OPT EAD [Optional Practical Training Employment Authorization Document], POSABAG [Period of Stay Authorized by the Attorney General], AOS [Adjustment of Status], VWP [Visa Waiver Program], ACWIA [American Competitiveness and Workforce Improvement Act] Portability [the ability to change jobs or employers in the same or a similar occupational classification without losing AOS eligibility], AAO [Administrative Appeals Office] Appeal Pending, BIA [Board of Immigration Appeals] Appeal pending with or without motion to stay deportation (9th circuit or other circuit), LPR [Lawful Permanent Resident], USC [U.S. Citizen], CSPA [Child Status Protection Act] beneficiary, RFE [Request for Additional Evidence] for CGFNS [Commission on Graduates of Foreign Nursing Schools, the International Commission on Healthcare Professions and the International Consultants of Delaware] Cert. for RN [Registered Nurse] or PT [Physical Therapist], CIMT [Crime involving Moral Turpitude], AgFel [Aggravated Felony], TA Admin Close [Trial Attorney Administrative Closure], CLPR [Conditional Lawful Permanent Resident], EWI [Entry without Inspection], ICE hold [U.S. Immigration and Customs Enforcement detainer], TN [Trade NAFTA {North American Free Trade Agreement}], NIV [Nonimmigrant Visa], IV [Immigrant Visa], OTM [Other than Mexican] (this one is complicated for your father & grandfather), & of course the easy one - DACA [Deferred Action for Childhood Arrivals]?

 Another immigration lawyer, Susan Bond, replied to Mr. Caudle in two posts:

Brilliant Idea . . . . Wouldn't it be great if Romney had to actually answer some of these questions. . . .

I don't think we need doctors. If the medical system were efficient enough, we could just go into booths -- much like the airport screening booths, and with the wave of a wand, we would know what ails us and learn the cure. Diagnosis completed, and when you exit the booth, a prescription comes out of a machine with the swipe of a credit card. What's so hard about that?

Given Mr. Romney's promise to shrink government, encourage "undocumented, illegals (sic)" to engage in "self-deportation," and squeeze the costs out of health care, a kiosk-based, self-service approach is at least a consistent, if oddly aberrant, set of policy prescriptions for the über-contortionistic Flipper of flip-floppers.

The former governor's underlying proposition, however, that our legal immigration system is so mind-bogglingly complex that it must be simplified, is a worthy notion -- as I've urged in prior posts ("Immigration Law is Too Complex and Important for Johnny or Jane One-Notes," and "Two Market-Based Proposals for Immigration Reform: Cap-and-Trade or Uncap-and-Grow?").  Indeed, the system's very complexity is the answer to the naive question posed by poorly informed Americans: "Why don't they just get in line and follow the rules?" -- as Mike Flynn, Shikha Dalmia and Terry Colon of Reason.org make plain in this chart (click for full size):  Reason Immigration Chart.jpg

If, miraculously, the laws and procedures were simplified, I would still recommend (accusations of self-serving behavior notwithstanding) that all but the most simple and clearly deserving requests for legal immigration benefits should be pursued only with competent legal representation and counsel.  Even the seemingly simple benefits program, DACA, requires help from an experienced immigration lawyer, as Senator Dick Durbin and Rep. Luis Gutierrez apparently have learned by now. 

Immigration lawyers are entrusted with lives, fortunes and destinies yet to manifest.  Former immigration agency spokesperson, Karen Kraushaar, had it right when she said: "Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold."

In short, I'll believe that a President Romney will eliminate the need for immigration lawyers by streamlining the ways to enter and work legally in America after he accomplishes a comparable hat trick, that is, just as soon as he simplifies the tax laws and fires his accountant. 

Posted by Angelo A. Paparelli on August 19, 2012

Immigration Brainstorming and DREAMstorming

Thumbnail image for robot pen and sword.jpgAndrew Jackson had his "Kitchen Cabinet," Franklin Roosevelt his "Brain Trust."   Seth Godin has his "Tribes," web-based "silos of interest." 

I've been a member of many tribes (as I write this I'm recalling my tattered T-shirt from my own and my adult daughter's Indian Princess days, many moons ago [click here to see the shirt]).

In the Googlean sense, immigration lawyers likewise have their "circles" (if a noun can become a verb, I guess it can be an adjective as well). We lawyers of the immigration arts congregate privately in many places including local bar associations, on IMMLOG (a practitioners' list serve run by Kevin Dixler) and IMMPROF (a list serve for professors of immigration law, hosted by Hiroshi Motomura), through the American Immigration lawyers Association (the national immigration bar), which has a New Members Division, a group for Senior Lawyers (known as the Silver Foxes, led by Ken Stern), and numerous AILA Interest Groups. There's even "Cool Immigration Lawyers," a private meeting place on Facebook "for cool immigration attorneys who think it is awesome to help people and to insist on justice for everyone."

My prime immigration tribe is the Alliance of Business Immigration Lawyers (ABIL).  It's expanded wonderfully over the last 10+ years since I founded it; but it still performs its original mission very well.  ABIL was established on the principle of "competitive empathy," the notion that although we operate in separate law firms, "none of us is as smart as all of us." I liken it to a 12-Step Group for battle-weary immigration practitioners who acknowledge we're "powerless" over the ever-crashing waves of change washing over our chosen field of law.

The most recent tsunami -- the Obama Administration's program of immigration enforcement abatement, known as DACA (Deferred Action for Childhood Arrivals) -- has flooded the immigration tribal counsel with challenges and questions since August 15 when U.S. Citizenship and Immigration Services (USCIS) released DACA forms, instructions and FAQs.  These include Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, Form I-765WS, a work-need worksheet, and a DACA web page with FAQ.

The challenges include concerns among DREAMers and immigration community-based organizations that lawyers may price-gouge to handle DACA cases, reflected recently by perhaps the most-famous DREAMer, Jose Antonio Vargas, who tweeted from @Joseiswriting on August 16: "I try to be positive, but there is a special place in hell for lawyers who take advantage of #DACA by overcharging, etc." (I tweeted back to Jose, who is my client: "[Jose]: Please don't jump to conclusions. You need to know the facts of the case to know if the fee is fair or foul."  He responded by kindly urging his Twitter followers to follow: "@angelopaparelli: a great lawyer who's been advising me and, in turn, keeping me sane. [T]hank you for the help and support!")

The flip side of this concern is the difficulty individual immigration lawyers have had setting an ethically proper and reasonable fee in a practice area where fixed, project-based fees are the norm. Outside observers without an institutional history of how immigration-benefits programs have been (mis)managed might naïvely assume that the task must not be too complex, just three forms, the I-821D, the work permit application and the corresponding worksheet to show economic need, supported by written proof of a few "simple" facts (entry to the U.S. before age 15, five-years of continuous presence as of June 15, 2012, presence in the country on that day, no older than 30, and no serious criminal history.)  They would be mistaken.

USCIS knows that Congress, the Media, the Presidential campaigns, and the pro- and anti-immigration interest groups will be watching closely to see whether the agency can handle the estimated 1.7 million youth potentially eligible for DACA, whether fraud will infect the program or be minimized, whether the agency will act with humanitarian compassion under law or ICE-like negativity in exercising prosecutorial discretion, and whether employers who help a DREAMer acknowledge physical presence and past or current employment in the U.S. will face investigation and enforcement actions by USCIS's Fraud Detection and National Security Directorate (FDNS) or by ICE.

The immigration bar, electronically-transmitting the 21st Century equivalent of tribal smoke signals over these last frenetic days, knows that immigration confusion and complexity will flourish like a Chia pet on growth hormones as USCIS's implementation of DACA unfolds. Witness the many unanswered issues and concerns that DACA has generated as reflected in the notes of the USCIS's DACA Public Engagement on August 14, provided courtesy of Sally Kinoshita, an immigration lawyer and Deputy Director at the Immigrant Legal Resource Center (ILRC), the ILRC's DACA Criminal Bars Chart, and postings of the American Immigration Council by its Legal Action Center (DACA Practice Advisory) and Immigration Policy Center (Deferred Action for Childhood Arrivals: A Q&A Guide [Updated]). 

Even the most mundane issues involve significant costs that clients or lawyers must bear unless answered soon.  Attorney Marty Rosenbluth, Executive Director at the North Carolina Immigrant Rights Project asks of Facebook's "Cool Immigration Lawyers":

I know that some questions USCIS/DHS/ICE will answer with "it depends on the totality of the circumstances", but I think we can get a clear answer to a few questions before we start filing hundreds of these things. If we go through all the trouble of tabbing the appendices, are they going to be stripped off so the documents can be scanned before the person who will be deciding actually reads it? We thought it would make the [applications] easy to follow, but if they are just going to be stripped off beforehand we won't bother.

Also, we were thinking of using color coding, but if the scans are [black & white] there is no point there either.

* * *

Thank goodness for immigration-lawyer tribes. Besides "help[ing] people and . . . insist[ing] on justice for everyone," while trying to keep our staffs paid and doors open, we also dedicate our time and talent to advise and represent DREAMers as they wade through DACA's treacherous waters. Were it not for these collegial tribes, many of us (probably myself included) would have thrown in the towel years ago, mirroring the fate of Murray Burns, the protagonist in Herb Gardner's A Thousand Clowns.

Played by Jason Robards in the classic 1965 film, Murray explains why he finally had had enough and quit his job as TV personality, Chuckles the Clown. While ordering a martini one evening after work, he was asked by the bartender if he wanted an onion or olive with it. Murray responds: "Gosh and golly, you betcha!"  We are not clownish robots with pens and swords. Our immigration tribes help remind us of who we are and why we do what we do.

[Blogger's postscript] 

Although I'd seen the film and loved it, I couldn't find the Chuckles the Clown quote on the internet except in stray chats and a web-published book, The Robot's Pen and Sword, by an unnamed author whose site is the source of the photo above.

[Blogger's post- postscript]

My last blog post, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman.  Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree: 

I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different.  The historian in me.

I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate  the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.

I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.