Posted by Angelo A. Paparelli on May 05, 2013

Memo to GCs: If Ever There Is a Time for Immigration Portfolio Management, It's Now.

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

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

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

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

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

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

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

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

* * *

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

Posted by Angelo A. Paparelli on March 31, 2013

Oh What a Tangled Immigration Web We Weave: A Knotty Future For the H-2B Program

woman in knots.jpg

[Blogger's Note: This post -- originally published on March 31, 2013 -- is a guest column (updated on April 3, 2013) to reflect actions by the 11th Circuit Court of Appeals and U.S. Citizenship and Immigration Services.

The original post was authored by a former federal government official who played a substantial role in immigration policy. The revisions were added by your blogmeister. Our guest columnist desires anonymity but provides thoughtful commentary on a work visa program gone awry.

The H-2B visa, it seems, has become everyone's punching bag -- from the courts, to Congress, to the administrative agencies that implement our immigration laws, not to mention organized labor and business interests.

As the final stumbling block to comprehensive immigration reform is  removed – a system to provide for future flows of lower skilled workers, we can only hope that this presumed successor to the H-2B will prove more functional than the present convoluted skein it will replace.]

Oh What a Tangled Immigration
Web We Weave:
A Knotty Future For the H-2B Program

By Keyrock

H-2B (or not H-2B) is indeed the question on the minds of many employers following a recent federal court decision in the Eastern District of Pennsylvania.  In a situation befitting the indecisiveness of Shakespeare’s Hamlet, employers who rely on the H-2B program -- the visa category for temporary and seasonal workers, other than those in agriculture (H-2A) and specialty occupations (H-1B) -- find themselves beset by uncertainty on all sides:  the courts, the Congress and the Department of Labor (DOL). 

First, the uncertainly from the courts.  In just the past four years, legal disputes over the H-2B program and DOL’s  authority to issue regulations have grown increasingly complex, involving no fewer than four separate lines of litigation heard by judges in four district courts and three courts of appeals, with cases presenting overlapping issues and claims producing conflicting decisions affecting different groups of plaintiffs, defendants and intervening parties.  Presently, contradictory decisions from federal courts in Pennsylvania and Florida about whether DOL possesses authority to issue H-2B regulations are on appeal at the 3rd and 11th Circuit Courts of Appeal, respectively.

The litigation began in Pennsylvania in 2009 with a suit by a worker advocacy group challenging DOL’s first-ever H-2B regulations.  A 2010 decision in that case found flaws with the notice and comment process relating to DOL’s  4-tier wage calculation methodology in the program.  As a result of the court’s decision, DOL continued to use the 4-tier wage structure while they attempted to promulgate a replacement rule. 

In August 2011, DOL proposed a replacement rule, commonly known as the H-2B Wage Rule.  But in doing so, DOL fundamentally altered the longstanding wage methodology in the program forcing some employers to immediately absorb wage increases of more than 100%.  In the fall of 2011, facing the prospect of economic ruin from DOL’s wage rates, employers filed suit in Louisiana (subsequently transferred to Pennsylvania) challenging the agency’s authority to issue the Wage Rule.  Shortly thereafter, DOL published another set of H-2B regulations, which were then enjoined by a federal court in Florida and that decision was upheld in 3-0 decision by the 11th Circuit Court of Appeals on April 1.

Last week,  the Pennsylvania judge added to the uncertainty for employers by issuing a decision relating to the original H-2B case from 2009.  In the opinion, the judge removed from the H-2B regulations, the 4-tier wage calculation that had been found procedurally invalid in the 2010 opinion (by the now-deceased judge who originally heard the case), but which DOL was continuing to use as a result of the other litigation and intervening congressional action. 

DOL’s actions add to the uncertainty.   In response to the Pennsylvania ruling, DOL declared in a March 29 Notice, that as of March 22 it is no longer issuing H-2B wages to employers unless they seek a wage based on (1) a collective bargaining agreement, (2) a Service Contract Act determination, (3) a Davis-Bacon Act determination, or (4) a private wage survey.  DOL further indicates in the Notice that it will publish yet another rule within 30 days describing how it will issue H-2B wages in the future. 

But, in the midst of the litigation back in the fall of 2011, Congress sided with employers opposed to DOL’s Wage Rule by attaching a “rider” to the agency’s appropriations bill that prohibits the agency from implementing that rule.  The rider has repeatedly been renewed, including as recently as last week when the President signed into law the 2013 government funding bill on March 26.  As part of the ongoing restriction on DOL’s appropriations bill, Congress (and the President) have directed DOL to continue to apply the very same 4-tier wage methodology vacated by the Pennsylvania judge on March 21.

So what will DOL do when it issues a new wage rule in the next few weeks?  Curiously, DOL’s  Notice says it will promulgate a rule “that complies with the court’s interpretation of what the statutory and regulatory framework require.” Missing from that statement is any recognition that Congress has already dictated what is required by DOL. And DOL’s Notice obviously does not reference the just-released 11th Circuit Court of Appeals decision, which says DOL lacks authority to issue H-2B regulations.  What DOL will do next is anyone’s guess.

USCIS weighs in by suspending action on H-2B petitions.  Adding to employer travails, U.S. Citizenship and Immigration Services (USCIS) -- in light of the Pennsylvania federal court injunction -- announced on April 2 that it will temporarily cease adjudication of all H-2B petitions, in part, because the "Department of Labor intends to promulgate a revised wage rule within 30 days of the date of the Court order." 

Congress started it all.  Much of this uncertainty stems from the language Congress used (or didn’t) when the H-2B program was created as part of the Immigration Reform and Control Act in 1986.  The sparse statutory language describing the H-2B program, particularly when compared to the language describing the H-2A program, has led to real questions about the extent, and even the existence, of DOL regulatory authority over the program.  Those questions continue to produce a growing mountain of court decisions, congressional directives, regulations, enjoined regulations, and statutory language [8 U.S.C 1101(a)(15)(H)(ii)(b)] that have tied the H-2B program in knots. But now, the 11th Circuit, in the only appellate decision weighing in on the topic, seems to have resolved that question (for now) in declaring that the statutory language reflects a conscious decision by Congress not to grant DOL rulemaking power in the H-2B program.

The H-2B program is a critical lifeline for many seasonal businesses that cannot find sufficient numbers of U.S. workers who want to take the relatively short-term employment opportunities.  Studies have shown that these seasonal jobs filled by foreign workers are, however, important to our economy and lead to the employment of many thousands more year-round U.S. workers.  If the DOL fails to provide H-2B employers with market-based wage rates, critical seasonal jobs will go unfilled and as a result, businesses and their U.S. workers will suffer.

Congress has an excellent opportunity to clear up the uncertainty about the H-2B program as part of comprehensive immigration reform legislation.  Unfortunately, as many learned observers have noted,  real concerns persist about whether an immigration deal can be reached given the hostility some interest groups reportedly have towards any type of guest worker program.

If, as an old Pope once said, “hope springs eternal,” let’s hope the arrival of spring brings some untangling of uncertainties for employers who rely on the H-2B program to meet their short-term and seasonal labor needs.

Posted by Angelo A. Paparelli on March 24, 2013

Immigration Quota Reform: Waste Not, Want Not

Savings.jpgFrugality, something second nature to our colonial forebears, is a trait we Americans seem to have forgotten.  We are profligate in our material acquisitions and in their disposition. (Witness the growing mountains of toxic electronic waste that are almost as hard to be rid of as spent nuclear fuel.)   Saving for a rainy day is not the meme it once was.

Similarly, in the immigration ecosphere, federal officials are just as wasteful of finite resources.  Over many years, administrators at U.S. Citizenship and Immigration Services and the State Department's Visa Office have bungled the distribution of a most precious commodity under their charge -- the annual allocation of immigrant visas. Unlike material waste, however, immigrant-visa quota numbers evaporate without a trace rather than linger in the environment.  Every September 30, all unused immigrant visas for that fiscal year disappear.  

Moreover, unless Congress intervenes, nothing can be done to recapture a green card lost because immigration bureaucrats gave it to the wrong person or otherwise failed to make it available in time to a deserving would-be immigrant.  

Unfortunately, "courts are not time machines" capable of undoing immigration-agency mistakes, as the Ninth Circuit Court of Appeals ruled last week in Li v. Kerry. The three judges deciding the case found themselves powerless to help a group of plaintiffs born in China who claimed they were the victims of improper green card allocation by USCIS and the State Department.

Although these agencies reportedly violated a law requiring the conferral of immigrant visas on a first-come, first-served basis, they instead gave green cards due the plaintiffs to other foreign citizens.  The judges' response:  Too bad, too sad -- for Congress created no penalty or remedy that the courts could apply when immigration officials, however often, misallocate or waste green cards.  As Judge Reinhardt noted in his concurrence:

Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas. . . . [A]ccording to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China. These visas—numbering over 2,300—would have permitted applicants from China to live and work in this country as legal permanent residents and to start on a path to United States citizenship at the time intended by Congress. Instead, the government erroneously gave these visas to individuals from other countries, many of whom had been waiting far less time for the same type of visa than their Chinese counterparts. . . .

[W]hat is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it. Although we dismiss Plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result.

If courts can't fix the problem, then our elected leaders, having claimed repeatedly to be ultra-concerned about the interests of law-abiding immigrants who have played by the rules and patiently waited in the green-card line, must act.

The solution is not just for Congress to recapture lost green cards, as it did twice before in 2000 and 2005 when passing the American Competitiveness in the Twenty-First Century Act and the REAL ID Act, and as the President has just suggested ("The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas . . . ").

As part of comprehensive immigration reform, Congress should enact a law providing that unused quota-limited immigrant and nonimmigrant visas in any fiscal year should automatically roll over for use in later years. The law should also grant courts the power to craft equitable remedies for persons like the plaintiffs in Li v. Kerry, short-changed by erroneous actions or omissions of immigration bureaucrats, without taking away vested visa benefits already conferred on others.

This new law ought to be a no-brainer.  It grants not a single extra visa beyond the quota set by Congress.  Rather, it reaffirms that we are not just a nation of immigrants but a frugal people as well. 

Posted by Angelo A. Paparelli on February 24, 2013

Will the new Labor-Business Accord Produce an Immigration Death Panel?

Cabinet_of_Dr_Caligari_1920_Lobby_Card.jpgOne of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.

The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.  

Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:

[There] are instances – even during tough economic times – when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . . 

[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today’s technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.

The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:

The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.

The problems with the concept, however, are many.

For one, we tried this before and it went nowhere.  In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]  

When the Labor Department proposed its initial list, however, all hell broke out.  Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified.  Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:

No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .

Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.

 

Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers must carry the burden of recruitment under an artificial labor certification program (DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers) that is an "empty ritual":

PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.

Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:

[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.

I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled.  I offer, however, some friendly amendments.  

U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs.  A simple print-out of the screen shot from the government's forthcoming database showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition.  Thus, DOL's current PERM labor certification procedure could be eliminated.

Moreover, there should be no change in current H-1B requirements  relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas.  As I explained to NPR's Martin Kaste:

These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.

So let us now face the question posed in the title of this post:  

Will the new labor-business accord produce an immigration death panel?  The answer is "NO"  -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.  

But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."

Posted by Angelo A. Paparelli on February 03, 2013

The Immigration Line is Too Damn Long (and Slow)

people mover.jpgSteadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:

  • Why don't they just get into line like everyone else?
  • Why don't they wait their turn?
  • Why don't they just follow the law?
  • Why should we reward lawbreakers who disrespect our laws?
  • Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?

All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than enduring extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.

The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reform apparently has swallowed these memes whole hog:

[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.

The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:

["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.

To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:

The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.

As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:

Instead of dying in the desert, they might just die waiting to become permanent residents.

Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system: 

With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration "wait-your-turn" memes:

[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

As President Obama has said: "Today we have an immigration system that is out of date and badly broken." 

[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:

As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.

The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)

The situation of getting "in line" is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:

  1. There are multiple lines, not just one;
  2. Unless you have a family or employer sponsor, there is no line whatsoever available;
  3. It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
  4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
  5. There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".

The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The "line" flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

We didn't always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:

 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the illegals who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers. 
The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation. 

The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"): 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.

Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static "line."