Posted by Angelo A. Paparelli on June 05, 2011

First, Do No (Immigration) Harm (to Business Visitors)

visa_stamp.jpgThe sage of the current age, Wikipedia, defines the term "nonmaleficence" -- from the Latin primum non nocere -- as a principle of medical ethics, one that in my view is equally applicable to the immigration sphere.  The princple holds that "given an existing problem, it may be better not to do something, or even to do nothing, than to risk causing more harm than good." Nonmaleficence comes to mind with the recurrence of an old controversy (largely out of public view) which, if its proponents win the day, could badly batter America's economy at a time when too many of our citizens are still reeling from the crash of 2008.  

The fight involves a "gallimaufry of foreign citizens" whom I listed in a 2000 article, "The Incredible Rightness of B-ing," including "truck drivers, tailors, computer professionals, missionaries, household workers, trainees, medical students, yachting crews, executives, seminar attendees, investors, athletes, corporate directors, plaintiffs, defendants, and expert witnesses."

They are not characters in search of an author, like the "lost souls in the Pirandello play." No, the members of this motley crew are all categorized as "business visitors" under U.S. immigration regulations and State Department guidance. Together with tourists, these soujourners from abroad comprise the "B" visitor visa category, and are also admitted as entrants to the U.S. with the designations "WB" (Waiver Business) and "WT" (Waiver Tourist) under the Visa Waiver Permanent Program.

In the 21st Century's first decade, however, visa hassles, security screens, faraway locations for consular interviews and other government-induced frustrations, have dissuaded legions of foreign visitors from coming to the U.S. and thus caused the loss to our economy of more than a half trillion dollars and 441,000 jobs, according to a Feb. 2010 report by Oxford Economics and the U.S. Travel Association ("The Lost Decade: The High Costs of America’s Failure to Compete for International Travel"). The problem continues in the second decade, as recent cyberspace postings (here, here, and here) attest.

Now Sen. Charles Grassley, a legislator on a vendetta to restrict legal immigration, has taken a swipe at a highly useful subcategory of business visitor, known in the arcane argot of immigration as the "B-1 in lieu of H-1" ("BiloH," for short).   In a letter to Secretaries Clinton and Napolitano (of State and Homeland Security, respectively), Sen. Grassley insists that the BiloH be eliminated as a lawful means of entry to the United States.  To understand his gripe, readers should first consider the longstanding interpretation of the BiloH here originating from the legacy agency, Immigration and Naturalization Service (INS), or this helpful explanation from the U.S. Embassy (Mumbai):

Any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:

* Hold the equivalent of a U.S. bachelor’s degree

* Plan to perform H-1B-caliber work or training

* Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.

* The task can be accomplished in a short period of time.

Sen. Grassley voices concern, based on unproven allegations yet to be litigated, that the BiloH is being "abused" by multinationals to circumvent "the annual caps and prevailing wage requirements of the H-1B visa program" while "defy[ing] the intent of Congress."  

For newcomers to immigration, the labor protections of the H-1B visa category to which the Senator refers were first introduced with the enactment of the Immigration Act of 1990 (IMMACT) -- a law that made no change to the visitor classifications or to the preexisting BiloH subcategory. As readers of this blog know, the H-1B category for workers in specialty occupations holding at least a bachelor's degree or the equivalent involves a convuluted process that only a bureacrat or pol could love.  In the years since 1990, the annual H-1B numerical quota has run out early several times, and businesses had to give up on otherwise lucrative projects because qualified workers with the needed education and skills could not be found domestically or imported until the next year's quota allotment.

In 1993, however, INS and the State Department tried to eliminate the BiloH and impose added restrictions on visitor visas, 58 Fed. Reg. 58982 (proposed November 5, 1993), 58 Fed. Reg. 40024 (proposed July 26, 1993).  Their proposals faced a storm of opposition and were never finalized.  Those opposed to eliminating the BiloH challenged the agencies' assertion, now resurrected by Sen. Grassley, that in passing new requirements on the H-1B in IMMACT, Congress must have intended (albeit silently) to eliminate the BiloH. 

Opponents, including this blogger, argued at the time that Congress must have wanted the BiloH to continue in use.  We maintained that the BiloH acts as a safety valve in situations where there is no U.S. job of an enduring nature to fill -- just a short term project that will go away before long.  This is in keeping with the agencies' view of the business visitor classification as a temporary "catch-all" category covering a wide array of commercial activities that are no threat to U.S. workers.

As even the most confirmed Luddite would be forced to admit, globalization has transformed the U.S. economy since 1993.  Thus, the importance of facilitating the entry of business visitors is even more important today than in decades past.  Regrettably, however, the State Department has responded to Sen. Grassley by rolling over.  Joseph E. Macmanus, State's Acting Assistant Secretary for Legislative Affairs, in a letter, replied that State is working with the Department of Homeland Security (DHS) to "remove . . . or substantially modify . . . [the BiloH]," but this "may require Federal Register notice."

No kidding that Federal Register notice would be required.  But not just notice; how about an opportunity to comment, as well?  We've seen this pattern all too often before.  Sen. Grassley complains about a perceived abuse and the agencies cower in fear and obsequiousness -- without regard to the facts, or the legal merits of his asserted concern. If State and DHS can't stand the heat then perhaps a cabinet-level Department with a mandate to espouse immigration and thereby promote our economic interests should utter the nonmaleficence principle in plain English:  "If it ain't broke, don't fix it." 

Posted by Angelo A. Paparelli on April 24, 2011

Demystifying Immigration Myths

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

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

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

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

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

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

Alfred-E-Newman.jpg

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

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

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

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

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

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

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

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

Posted by Angelo A. Paparelli on April 03, 2011

Immigration Punking -- Left, Right and Center

On the first day of the second quarter of 2011, I fell for a joke.  As the Urban Dictionary (definition #2) would word it, I was "punk'd"!  I didn't merely fall for just any immigration-related ersatz news item (like the passage of the CIRAF bill reported by my colleagues in ABIL), I breathlessly embraced as the truth an emailed report I quote below and forwarded it to an immigration reporter for a prominent newspaper, asking if the reporter would like a quote from me on this "big news."

Written by an author who knows immigration parlance and the real names and titles of immigration agency officials, the disinformation that gulled me was this:

April 1, 2011

Washington, DC - U.S. Citizenship and Immigration Services (USCIS) announced today relief for tens of thousands of people caught in long waits for immigrant visa availability. USCIS Director Alejandro Mayorkas said in a statement "These people have been living in a state of limbo in the United States for too long."

This program is initially going to be targeted at immigrants who have an approved "I-140 Immigrant Petition for Alien Worker" filed on their behalf, but cannot receive permanent residence because of backlogs in immigrant visa availability.  The new "Conditional Resident" status will be extended to such individuals who have had approved petitions filed on their behalf, and who have waited at least one year for availability of an immigrant visa. The Conditional Resident status will extend the same rights as Lawful Permanent Residence with two conditions: 1) Status will be extended for periods of 3 years, renewable indefinitely, and 2) Status will conditional on an immigrant visa not being available to the holder. Once an immigrant visa is available, the Conditional Residence will automatically be converted to Lawful Permanent Residence without further application being required by the immigrant.

James McCament, Chief of the Office of Legislative Affairs indicated that this change will take place by an administrative rule change, and that a Notice of Proposed Rulemaking (NPRM) should be published with the details of the proposed new status within the next 30 days. After a comment period, the new rule will take effect 60 days after publication in the Federal Register.

For more information, please contact the USCIS Office of April Fools at aprilfool@mailinator.com.

Similarly, recent immigration news -- regrettably, 100% reality-based -- suggested an April Foolsy, all-too-incredible quality.

On the enforcement front, a former Assistant Chief Counsel of U.S. Immigration and Customs Enforcement (ICE), Constantine Peter Kallas, perhaps wishing that he were merely a fictional character in an April Fool's prank, received a 17-year sentence and a $297,000 fine following his conviction "for taking bribes to help immigrants fill out false paperwork to remain legally in the country."

In the Executive Branch, both President Obama and his Homeland Security Secretary, Janet Napolitano, despite chants both minstrel and a cappella, threw ICE water on the notion that executive authority and administrative remedies might be used instead of police powers to provide even a fitful respite from the Administration's precedent-setting record of deporting foreign citizens largely without criminal records.  Unwilling to use the executive authority and discretion he clearly possesses, the President perhaps should consider adopting the robotic approach to immigration and border security now in a testing phase abroad.

Although Secretary Napolitano maintained that DREAM-Act-eligible students are not a priority enforcement target, neither explained why the extraordinary executive remedy of "parole in place" was used on a blanket basis as recently as in the last 12 months (with nary a peep from Congress) to help foreign citizens of the Commonwealth of the Northern Mariana Islands who just as innocently as the DREAMers violated the immigration laws. Nor did the President explain (despite his claim of thinking about jobs upon rising in the morning and retiring in the evening) why he has not endorsed the Startup Visa Act, a bill that a knowledgeable staffer for Republican Senator Richard Lugar predicted has "almost no chance of passage" unless the White House supports it.

In Congress, another form of unreality was on display at a hearing Thursday of the House Judiciary Committee's Immigration Policy subcommittee. The hearing considered whether the H-1B visa category was (select one:) too generous/too restrictive and whether we should (select one:) grant/not grant more green cards for tech workers.  Trying to achieve synthesis among competing views, House Judiciary Committee Chair, Lamar Smith (R. TX), offered prepared remarks in which he noted: 

Foreign workers are receiving H-1B visas to work as fashion models, dancers and as chefs, photographers and social workers . . . There is nothing wrong with those occupations, but I’m not sure that foreign fashion models and pastry chefs are as crucial to our success in the global economy as are computer scientists . . .

Tell that to viewers, judges, creative crew and participants in the popular, economically-vibrant TV shows, America's Next Top Model, Top Chef, So You Think You Can Dance, and Dancing with the Stars, and the less familiar but promising, Talk Therapy Television. Moreover, these are strange words indeed from a Republican about the H-1B visa (a $3 billion government-revenue generator) since the GOP claims to want to minimize regulation and refrain from trying to direct the economy.

On the hustings, at "a conservative conference last week organized by immigration hardliner Rep. Steve King . . . several possible GOP candidates present (Mississippi Gov. Haley Barbour, former House Speaker Newt Gingrich, even Rep. Michele Bachmann (R-Minn.)) didn't want to talk about immigration. Perhaps, the GOP is at last smelling the Hispanic java, demographically speaking.

Given these verisimilitudinous developments, I hope readers will forgive me for my (hopefully fleeting) naïveté.  After all, if Rip Van Winkle had not fallen asleep and then awakened during the Revolutionary War era, but had instead slumbered at about the middle of the last century and awakened today, he too would have concluded that nothing whatsoever changes about the U.S. immigration system, a broken process that perpetually "draw[s] . . . borders with pens that split lives like an ax."

Posted by Angelo A. Paparelli on March 26, 2011

Immigration 'Language is the Skin of the Soul'

As 1930s radio shows and 21st Century talk-radio shock jocks remind us, words -- perhaps even more than images -- carry evocative power, the power to incite passion.  Fernando Lázaro Carreter, the academician and guardian of Spanish (whose quote appears in the title of this post and in a slide deck I published years back on immigration writing for lawyers), viewed words as the epidermis, at once opaque and translucent, that thinly veils the emotions of the speaker. Lázaro Carreter and other wordsmiths such as George Orwell, William Safire, Frank Luntz and George Lakoff all recognized the power of language, and its modern companion "messaging," to pierce the fragile skin of the public and likewise expose emotions.

Two recent immigration-related events illustrate the language-induced unveiling of popular passions.  The first involved Virgil Peck, a Republican state lawmaker in Kansas, and the second a newly-minted third-grade teacher in Georgia. Were it not for the viral power of media, their ill-advised words might have been quarantined in a small pocket of each state.  Instead, carried aloft by the winds of social media and the 24/7 news cycle, the contagion spread and popular emotions have now been unleashed.

Mr. Peck, wearing his heart too loosely on his sleeve, unleashed on himself a pecking Twitterstorm from all directions, reminiscent of the phone-booth scene in Hitchock's The Birds. Although he has since apologized, outraged citizens now demand his resignation for these ill-chosen comments during an appropriation-committee discussion of the spread of wild swine in Kansas:  

89fa78df9fe01af19ce373ba4a6e2d02.gif"It looks like to me if shooting these immigrating feral hogs works maybe we have found a [solution] to our illegal immigration problem."

The teacher, on the job for about a year, may face discipline for using a lesson plan by Christian writer and proponent of homeschooling, Brenda B. Covert, lifted from an "educational" website, to teach third graders about "illegal aliens." 51558137-Georgia-3rd-Graders-Asked-What-U-S-Does-to-'Illegal-Aliens'.JPG

The lesson tells the allegory of an unwanted young boy, an interloper who hops a backyard fence to interrupt a play date involving Taylor, Sam and  Buster, Sam's dog.  Sam's mother, representing authority, makes the intruder leave.  A quiz follows with six questions, the last two of which are: 

5. What is a citizen?

A. a person who avoids cities

B. a person who lives in a city

C. a person who belongs to a country

D. a person who visits a country

6. What does the U.S. do with illegal aliens?

A. The U.S. puts them to work in the army.

B. The U.S. puts them to death.

C. The U.S. sends them back where they came from.

D. The U.S. shoots them into outer space.

Judging from the results of Newsweek's recent quizzing of Americans on the questions in the U.S. Citizenship and Immigration Services' naturalization examination (38% failed), the third-graders might be forgiven if they couldn't answer Question 5. (The 38% who flunked the naturalization exam would probably say that either 5.A or B. must be right, because, after all, "citizen" must have something to do with "cities.")

As for the last question (What does the U.S. do with illegal aliens?), I agree with 18-year-old Matt Trips, a self-described "pianist, composer, humanist, anthropologist, [and] probably some other stuff too," who says in the MUST SEE video below, "[Question 6] is disturbing to me on so many levels." (I won't paraphrase Matt [although I note that the town in question is not Duluth, MN, as he says, but Duluth, GA.] His 11-minute analysis speaks volumes about all that is wrong with teaching impressionable kids to fear other human beings and what a lesson like this says about our society.)

Matt's pique is mirrored by COLORLINES, a news daily that describes itself as "offering award-winning reporting, analysis, and solutions to today's racial justice issues." In keeping with COLORLINES' Drop the 'i' [illegal] Word campaign, writer Mónica Novoa rightly attacks EdHelper, the site where the offensive lesson plan originated: 

It’s outrageous that this website for educators provides such insidious anti-immigrant messages. As harmful as it is for children to indirectly imbibe hate speech through TV, media, etc., it is much more atrocious and harmful when that hate speech is being provided to them under the guise of education from a source they trust and possibly look up to.

The i-word opens the door to all kinds of messy interpretations, regardless of the form it takes. It teaches kids either that it’s ok to evoke violence against other human beings (whether in the form of a joke or a lesson plan) or to feel worthless if they are on the receiving end. While parents can prevent children from being exposed to racial slurs and hate-filled messages at home, it is also up to educators to ensure a safe learning environment. This is harmful to society as a whole, but especially to children who could be the target of i-word hate speech.

Had the Georgia teacher searched the web just a bit more, she would have found legitimate sources that offer an introduction to immigration and humanize immigrants, like the "Community Education Center" and "Teaching Tolerance."

Regrettably, however, the abuse of immigration language by public employees has occurred in the past.  Older observers of the immigration scene will recall Harold Ezell, then Regional Commissioner of the Immigration and Naturalization Service, who was wont to refer to undocumented immigrants entering America from Mexico's Rio Grande River as "wets" (short for the pejorative "wetbacks") and to dub apprehended immigrants as "illegal aliens" who should be "caught, skinned and fried." 

Compassionate and inclusive political speech -- a phrase I prefer over the maligned coinage, political correctness -- must frame the immigration debate of the future, as the astute philologists at the Opportunity Agenda demonstrate.  There can be no acquiescence with hate speech.  Xenophobes and nativists must be called to the carpet.  Now that the term "undocumented immigrant" has entered the Supreme Court's sober lexicon, introduced by a "wise Latina," the time is surely upon us to recognize, once and for all, that no human being is illegal!