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

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

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

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

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

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

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

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

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

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

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

VII. Use

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

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

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

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

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

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

* * *

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

[Blogger's Note:  Today's post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole ("Nici") Kersey.  I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.

Also, there's still time to nominate Immigration's Winners and Losers for the 2012 Nation of Immigrators Awards -- The IMMIs. 

Tweet your nominees on Twitter at #2012IMMIS or email me.]

All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist

By Nicole Kersey

I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog.  I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift.  If you’ve ever been in my closet, well, that’s creepy.  But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.    

So my holiday gift to you:  Ten of my greatest tips for avoiding liability for immigration-related violations.  [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles.  And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)!  I splurged on something a little more fun for you.]

At least by 1602 with the chartering of the Dutch East India Company, and perhaps as early as the 1300s with the formation of the first colleganza, a rudimentary joint-stock company set up in Venice to share the cost of a trade expedition, human beings and corporations have cohabited the earth.

Although the shared habitation of human and juridical beings has never been entirely peaceful, governments have recognized the countervailing benefits of authorizing associations of people to incorporate fictitious legal entities. When corporate rights are recognized and liabilities limited, governments perceive it more likely that profits will be generated and workers hired than through riskier sole proprietorships and partnerships. 

Governments can also control the behavior of companies, as Arizona has done in enacting a statute mandating enrollment in E-Verify, the Department of Homeland Security’s employment-eligibility verification database – a law the Supreme Court upheld in U.S. Chamber of Commerce v. Whiting. 

To be sure, the legislatively-recognized corporate form at times provides shelter from legal storms while leaving sentient members of the species, homo sapiens, unprotected. For example, the constitutional rights of free association and speech – when applied to corporations – spawn consequences that repulse most ordinary citizens, such as the harmful flood released by the Supreme Court of anonymous corporate donations that fund Super-PAC campaign ads through its ironically titled decision, Citizens United v. Federal Election Commission. 

Moreover, when corporations are formed abroad, and profits – though generated through domestic activities – are treated as having been earned outside the United States, federal tax coffers are less full than they otherwise might be.  This happens, for example, through the “age-old ruse” of a blind trust (another form of fictive legal entity) when money that might otherwise be subject to U.S. taxation is stashed in a Swiss or Cayman Islands entity, as a certain GOP Presidential candidate who believes that "[c]orporations are people, my friend," perhaps understands quite well. 

In the immigration sphere, bureaucrats in the Department of Labor (DOL)  and U.S. Citizenship and Immigration Services (USCIS) often refuse to accept the established rule-of-law principle that companies are to be treated as distinct from their individual owners. Although the Obama Administration claims as its official policy enthusiastic support for small-business entrepreneurship, these agencies have adopted regulations or policies at cross purposes that make it nearly impossible for the sole owner of a corporation to qualify through that entity for an employment-based work visa or green card.

The DOL’s Tomfoolery. The DOL has enshrined in its regulations requirements protecting the labor certification process from seemingly sinister “[a]lien influence and control over [a] job opportunity.” These regulations mandate the submission of evidence envisioned in an administrative law case, Matter of Modular Container Systems, Inc., 89-INA-288 (BALCA 1991).  A decision rendered by a panel of civil servants with law degrees known as the Board of Alien Labor Certification Appeals (BALCA), Modular Container Systems made it almost impossible for a corporate entity owned, say 10% or more, by a foreign citizen to sponsor that individual’s labor certification application:

We hold . . . that if the alien or close family members have a substantial ownership interest in the sponsoring employer, the burden is on the employer to establish that employment of the alien is not tantamount to self-employment, and therefore a per se bar to labor certification.

BALCA therefore clearly ignored the venerable Anglo-American legal principle that a corporation is distinct from its owners since the panel ruled that the employee of a corporation is not to be treated as such but rather as engaging in activity “tantamount to self-employment.” 

The DOL regulations, while claiming to accept Modular Container Systems, ignored the corporate form in a different way, namely, by establishing an irrefutable presumption of “bad faith.”   This proposition holds that no  job opportunity could be considered “bona fide” under the labor-certification recruitment process if a foreign citizen sponsored by a corporate employer for a green card (or a family member) holds a material percentage of stock in the corporate sponsor or otherwise could influence the company in determining the qualifications of U.S. citizen job applicants. While this principle may seem logical at first blush, it ignores the other-worldly fictions (as I’ve shown here, here, here, here, here and there) that are part-and-parcel of the DOL’s bass-ackward labor-market testing procedures. 

Inherent in the DOL’s rule precluding working-owner labor certification is the unproven assumption that an individual shareholder is more likely than a corporate entity to commit fraud. The lengthy list of prominent corporate frauds and other corporate scandals, however, belies the proposition. 

USCIS’s Three-Card Monty. USCIS, the component within the Department of Homeland Security charged with granting or refusing employment-based immigration benefits, likewise flouts the corporate form whenever it wishes.  Yet its misfeasance is worse than that of the DOL. 

Rather than publish a proposed regulation and allow an opportunity for public comment, USCIS simply announces novel interpretations of requirements to establish an employer-employee relationship as a prerequisite to approving a work-visa petition.  USCIS's out-of-nowhere interpretations flout binding and well-settled legal precedents, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958).  These decisions uniformly recognized the distinction between a corporation and its shareholders, thereby allowing a foreign citizen to incorporate a business and legitimately use the entity to sponsor the individual's work visa or green card, activities praised and coveted in the business world as “immigrant entrepreneurship.” 

USCIS, however, in ostensive deference to the Obama Administration’s entrepreneurship initiatives, has claimed to espouse the cause of entrepreneurial job-creation with élan. It has created a much-vaunted “Entrepreneurs in Residence” program, and issued and twice amended an FAQ ("Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the 'Employee-Employer Relationship' in H-1B Petitions") showing how the agency promotes immigrant entrepreneurship.  Retreating a tad from its interpretations limiting the recognition of an employer-employee relationship, the agency's FAQ offers an encouraging workaround:

Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship? 

A12.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary. (Emphasis added.)

Unfortunately, an off-message adjudicator at the USCIS California Service Center disputes the concept embraced by the agency's headquarters that the creation of a higher authority with the right of control over the H-1B worker will allow a petitioning corporation to demonstrate that a working owner is in a valid employer-employee relationship with the entity. In this decision, the CSC adjudicator ignored the evidence that a limited liability company (LLC), owned equally by the H-1B beneficiary and another member, was controlled by its managers rather than its members.  The adjudicator determined that the members' shared theoretical authority to remove the managers negated an employer-employee relationship.

Ironically, if the entity were a corporation with a board of directors and a sole shareholder as the working owner, USCIS headquarters appears ready, based on the FAQ, to find an employer-employee relationship and approve the H-1B petition, even though a 100% shareholder could fire the board just as easily as sole or joint members of an LLC could remove the managers.

* * *

This, sadly, is what happens when immigration bureaucrats create irrebuttable presumptions of bad faith by working owners or float new and unwarranted interpretations that disregard settled law dating back centuries.  Corporations – though they are not people – possess enforceable legal rights.  Ignoring the distinction between a corporate entity and its owners does nothing to promote the just administration of the immigration laws, hampers job creation and entrepreneurship, and persuades an increasingly cynical public that the agencies make up seat-of-the-pants "law" on the fly.

"[A] riddle, wrapped in a mystery, inside an enigma"  ~ Winston Churchill

The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939.  U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts.  Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.

If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items -- border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents.  It must also strive to simplify the law.  

Consider what should be a straightforward concept -- following the rules.  How does a noncitizen comply with the immigration laws?  What does it take to maintain legal immigration status?  Sadly, the answer is as clear as fracking fluid runoff.  

For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a "nonimmigrant") through the action of a third party, say a parent or spouse, a spouse's employer, a university official, or a lawyer, can "fail to maintain nonimmigrant status," be in a condition known as "unlawful presence" and "not [be] in a lawful nonimmigrant status" -- three phrases in law or regulation that often don't mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for "duration of status," a condition that carries no date-certain expiration. Go figure.) 

Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as "advance parole") and then reenter in order to await the grant of a green card under the adjustment of status process.  Such a person would not have maintained nonimmigrant status -- indeed would not have any legal status (because parole is not a status) -- and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.

Or, consider a foreign person with a U.S. work permit.  As I've noted in an earlier post about human levitation, you may have the right to work here but not to be here.

Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one's passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.  

Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened.  The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period.  Or s/he may be misled by the DMV which issues a driver's license with a validity period extending to the later end date on the clip-out I-94.  

Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person's immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal -- all because of confusion over the simple concept of maintaining legal immigration status.

If that's not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the "last action rule" in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The "rule" sounds simple enough: Whichever status was the last one granted ("the last action") controls the person's nonimmigrant status.  Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II). 

Still worse, if the immigration laws make it virtually impossible to know who's in legal status, they make it harder than a Rubik's Cube to figure out who's here illegally, as DREAM activist Prerna Lal explains in "It's More Complicated than Legal vs. Illegal," her open letter to Ruben Navarette -- which challenges his defense of the slur, "illegal immigrant."

If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed -- assuming that the immigration agency exercises its heart (which it occasionally does).  Still, it's a shame USCIS doesn't heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that "yield up meaning only grudgingly" to reveal "morsels of comprehension [which] must be pried from mollusks of jargon." 

The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doe provided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.

It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:

• Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives. 
• Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here, here, here, here, here and there), provided the legal justification. 
• A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper. 
• Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:

Dismissing interruptions from an impudent, pull-up-the-gangplank journalist who immigrated from Ireland, and outcries from foes on the right (perhaps the most ironic from the author of the Bush torture memo assailing Obama's executive overreach), President Obama finally projected a modicum of courage. In a Rose Garden address, he announced that giving deferred action and work permits to DREAMers in the exercise of executive discretion is the "right thing to do."  

The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million.

Are they up to the job?  

The challenge will be daunting.  No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.

Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred?

Here's what should be done:

• ICE and USCIS should publish regulations and OMB should approve them on an expedited basis.  Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment.  As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement."  Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.  
• USCIS should use the EAD application process as the platform for deferred action requests.  USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history).  By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
• USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications.  USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification.  Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon.  Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators.  If needed, USCIS can also hire and train more adjudicators  -- assuming that $380 per EAD application is sufficient.  If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
• USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort).  Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here." 
• Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR.  Like a balloon held under water, CIR must eventually emerge.  Possibly ephemeral deferred action status and evanescent work permits are insufficient.  They are revocable, and offer no path to citizenship and no route to full integration into American society.  The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows.  We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide." 

As Martin Luther King, Jr., the quintessential Dreamer, reminds us, "the arc of the moral universe is long but it bends toward justice."  Let's make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.

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

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

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

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

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

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

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

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

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

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

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

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

With the 2012 presidential campaign in full throb, candidates Obama and Romney are embracing "the vision thing" -- that nemesis of the first President Bush whose reelection effort reportedly failed because he did not "frame his positions on individual issues in a compelling and unified manner." The two de facto nominees paint a starkly different picture of where each would take America and of government's role in getting us there. Surprisingly, however, on one point they agree: The cumulative burden of federal regulations is simply overwhelming.

For his part, President Obama took aim at the glut of regulations "which may be redundant, inconsistent, or overlapping" by issuing Executive Order 13563 in January last year. Implementing the President's mandate, Cass Sunstein, OMB Administrator, released a memo to the heads of "Executive Departments and Agencies" two months ago, requiring greater public participation and consideration of how to reduce the profusion of conflicting and burdensome regulations, especially by lightening the load on start-ups and small businesses.

Not to be undone, Mitt Romney, the presumed Republican nominee, would impose "a regulatory cap" set at "zero" to limit "the rate at which agencies could impose new regulations":

[If] an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden. While not a panacea for the problem of over-regulation, implementation of this conservative principle would go some distance toward halting the relentless growth of the regulatory state.

Readers of Nation of Immigrators know, however, that -- more often than not -- I assail the lack of regulations and the expedient of ersatz rulemaking via press release, web posting and FAQ. Still, there is one pernicious immigration regulation that causes me to agree with the candidates about the evil of overregulation.  

A form of stealth rulemaking that I simply cannot abide, it stems from a simple dependent clause -- not even a complete sentence -- embedded in an obscure immigration regulation, 8 C.F.R. § 103.2(a)(1), that dates back at least to 1994. It was first adopted by the old INS (the Immigration and Naturalization Service), and later reaffirmed by U.S. Citizenship and Immigration Services (USCIS). It provides:

Every application, petition, appeal, motion, request, or other document submitted on the form prescribed . . . shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. (Emphasis added.)

On first blush, the regulation makes sense.  What's so bad about a harmless command that merely allows a change of government mailing address to be noted in new instructions to the form? Why should the feds be required to republish a regulation, with multi-agency review and OMB clearance, if the only change is the place where immigration petitions are filed?  If that's all the regulation means, I make no quibble.  But broadly interpreted, as bureaucrats are wont to do, the clause is a ploy to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, Executive Orders 12866 and 13563 and OMB Circular A-4.

Consider just two examples:  Form I-9 (Employment Eligibility Verification) and Form I-129 (Petition for a Nonimmigrant Worker). The I-9 is a one-page form with a list of acceptable documents of identity and work permission on the flip side. The I-129 is a workhorse.  Its submission is required for an alphabet soup of lettered work visa categories, including the E, H, L, O, P and Q.

USCIS has issued two sets of instructions for the I-9. One is just three pages. The other, Form M-274, the "Handbook for Employers," subtitled, "Instructions for Completing Form I-9," is a 64-page behemoth, a tome chockablock with directions that are not found in any regulation.  Take for example these M-274 instructions, involving (a) the interplay of Form I-9 and the government's supplemental online database, E-Verify, and (b) verification and reverification procedures for persons granted Temporary Protected Status (TPS):   

[(a)] Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.

* * *

[(b)] When DHS extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring Employment Authorization Documents (Forms I-766) for TPS beneficiaries from that country to allow time for USCIS to issue new Employment Authorization Documents (Forms I-766) bearing updated validity dates. The USCIS website and Federal Register will note if Employment Authorization Documents (Forms I-766) have been automatically extended for TPS beneficiaries from the particular country and to what date. The automatic extension is typically for six months, but the time period can vary. . . . You may accept an expired Employment Authorization Document (Form I-766) that has been auto-extended to complete the Form I-9, provided . . . [certain] information appears on the card as shown in the box at the top of the page.

Only a bureaucrat hermetically sealed within the Beltway Bubble, or one who assumes that every American employer has graduated with a speed-reading certificate, could display the chutzpah to suggest, as the three-page I-9 instructions proclaim in the section that provides the Paperwork Reduction Act notice:

The public reporting burden for this collection of information is estimated at 12 minutes per response including the time for reviewing the instructions and completing and submitting this form. (Emphasis added.)

Bureaucratic chutzpah becomes even more curdled and rancid when viewed in light of another USCIS communication, the agency's online news source, "I-9 Central."  As the American Immigration Lawyers Association has reported, inconsistencies abound between I-9 Central and the M-274's "instructions" (which I suppose according to the cited regulation have the force of a regulation).

The situation is just as disturbing when this wayward rule holds its sway over the instructions to Form I-129 which likewise supposedly exert regulatory force.  The I-129 instructions purport to grant the Homeland Security Department and USCIS a broad range of plenary powers:

The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided.

Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. (Underlining in original; bolding added.)

There's just a teensy-weensy problem with this full-throated trumpeting of power.  Simply stated, it ain't so.  None of the cited statutory sections or regulations allows USCIS to conduct "unannounced physical site inspections of residences and places of employment."  A pesky little provision known as the Fourth Amendment to the U.S. Constitution prohibits such jackboot tactics by federal officers:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Another way of putting the problem of publishing regulations by the unlawful shortcut of amending the text of immigration forms in perspective is to address it in terms of pure administrative law, as the author of the Federal Regulations Advisor blog, Lee Beck (who is now in private practice after a 23-year career at the Justice Department and DHS reviewing immigration regulations), phrases it:

Forms can only provide general information and instructions on how to fill out the form – forms cannot impose substantive requirements that can be enforced against an applicant or petitioner. Substantive requirements must be properly adopted in a regulation. Put another way, if a petitioner or applicant is required to act in a certain way, a regulation is required to tell the petitioner or applicant to act that way. Form instructions don’t have greater legal effect than guidance, memos, policy, or manuals.

That some federal officers, such as the swoop-down visitors from USCIS's Fraud Detection and Nationality Security Directorate, would try to defy Constitutional protections and black-letter administrative law through the back-door rewriting of the instructions to an immigration form is no surprise. It merely confirms what essayist, Jerry Pournelle, described as his "Iron Law of Bureaucracy":

[In] any bureaucratic organization there will be two kinds of people: those who work to further the actual goals of the organization, and those who work for the organization itself. . . .The Iron Law states that in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.