As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).

The 2012 IMMI Awardees

Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:

Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.  

Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:

[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.

Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 31.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as "Deporter in Chief" and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 -- an all-time high -- the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year -- especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals").  Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency's contract on its Transformation program for the online submission of immigration forms, and the issuance of a "guidance memorandum" offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of "tenant occupancy" that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit's deportation for his post-Newtown critique of America's woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.

Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied":  The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.

However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions."  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona's nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law's provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year's IMMI goes to those feckless employers throughout America who fail to recognize that -- no matter what happens on comprehensive immigration reform -- the Feds are coming to check your business's immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.

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Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

The EB-5 immigrant investor green card program resembles a multi-country version of Chutes and Ladders, the "game of rewards and consequences".  In the EB-5 edition, the ladder represents progress toward a green card and the chute is an ICE-tunneled luge ride ending in immigration court at a removal hearing. 

This comparison only begins to approach the bewildering array of laws, regulations, holographic policy interpretations and artificial, bureaucratically-contrived traps for the unwary that lead up -- in two stages -- to the grant or denial to foreign investors of U.S. lawful permanent resident status.

Recently, however, the agency administering the EB-5 program, U.S. Citizenship and Immigration Services (USCIS), has made some encouraging moves.  In a message from its Director, Alejandro Mayorkas, the agency announced a variety of program changes. They include the formation of the Office of Immigrant Investor Programs, to be led by an individual with business experience, though not necessarily a lawyer, the creation of a regional center Review Board, the employment of eight economists, and the hiring of attorneys with transactional experience.  

Some of these green-shoots changes -- though heartening -- smack of a "been there, done that" moment. Veterans of the EB-5 program will recall the 2005 "Establishment of an Investor and Regional Center Unit," which placed control of the program within USCIS Headquarters, and the termination of the Unit by memorandum in 2009.  The decision to shut down what had evolved into a useful, facilitative practice of Headquarters engagement with EB-5 stakeholders, also included the unhelpful and ill-advised transfer of authority in EB-5 matters to the USCIS's California Service Center, and the decision to allow agency communication with only one lawyer in each investor's case, even though every EB-5 matter before USCIS typically includes multiple parties with varying legal interests, each represented by separate legal counsel.

As I noted in my October 22, 2012 New York Law Journal article (coauthored with Ted Chiappari), "Dollars and Jobs for EB-5 Green Cards:  A Challenging Route to U.S. Residency," this “Back to the Future” moment by itself is not enough:

[The] government immigration agencies, especially USCIS, must do more than the charge Director Mayorkas has laid down for the new EB-5 program chief.  It is not enough merely to ensure “that the program is administered efficiently, with integrity, with predictability, and with an understanding of today’s business realities.”  USCIS must publish proposed EB-5 regulations for public comment and then issue final rules that “maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.”

The sad truth is that investors pursuing an EB-5 green card put their lives and their wealth at risk. In doing so, they may well face the predicament of Jack Benny, the American comedian known for his tightwad ways.  When confronted by a mugger who screamed: “Don't make a move, this is a stickup. . . . Your money or your life,” Benny paused. The mugger insisted: “Look, bud! I said your money or your life!” Exasperated, Benny responded: “I'm thinking it over!” Such, sadly, is too often the unpalatable choice faced by incautious investors who leap without first looking carefully into the still perilous, but possibly improving, EB-5 immigrant visa program.

[Bloggers Note:  This post is authored jointly by Brandon Meyer and Angelo A. Paparelli] 

Some scandals raise eyebrows; others cause real economic harm.  The one we're about to reveal -- known as "tenant occupancy" -- does both.  It makes the GSA's Las Vegas cavorting pale in comparison. (Immigration lawyer alert:  For those with prurient interests [you know who you are], "tenant occupancy" is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)

Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department's immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America's immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA”) have typically been honored in the breach and ignored in the observance.

Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS's spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.

Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB).  Instead, the agency posts proposals on USCIS.gov.  Each mode of public notice allows for stakeholder comment and engagement.  But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS's web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.

Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.  

Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November's elections.  In particular, we speak of the EB-5 employment-creation investor green card program. Section 11033 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how a group of long-unresolved investor cases would be decided.

Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final. 

Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.

What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on "hold" at the headquarters level while "issues" remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.

Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.

For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds.  This is presumably the new expertise that USCIS's "newly-hired economists and business analysts" would bring to the analysis of job-counting methodology. 

The 2002 EB-5 legislation, however, already provides the proper analytical framework.  In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note): 

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)

Thus, Congress dictated that "general predictions" on "jobs . . . created directly or indirectly as a result of [EB-5] capital investments" should suffice.  So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?

Lawyers and petitioners who've filed Regional Center applications containing tenant-occupancy calculation methods soon found out.  Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs”), symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.

Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol. 

Although USCIS's RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.

The agency's RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”

These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.

If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)

USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration's own statements acknowledging that counting jobs is not an exact science but instead requires "crude" measures that involve admittedly inexact presumptions.  See, e.g., "Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009," Executive Office of The President Council Of Economic Advisers, May, 2009. 

The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).

Will USCIS announce its intention to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)?  Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS's lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA's OIG has done of that agency's Vegas escapades)?  Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA's mind reader to find out.

[Blogger's Note:  Today's post comes to us courtesy of my colleague, Brandon Meyer, a prolific writer whose analysis and commentary cover a wide array of immigration law topics.   Brandon offers a spirited post on a troubling aspect of the EB-5 employment-creation immigrant investor green card category. Thanks to him for having allowed me to be in top holiday spirits, undiverted from the season's pleasing diversions by the labor of love that is www.nationofimmigrators.com.]

What Are We Paying for? 

USCIS and the I-526 Exemplar Process

By Brandon Meyer 

[Author's Prescript]: In the spirit of fairness and open dialogue, I contacted the Community Relations Department of the California Service Center prior to publication to elicit their comment.  No reply was received. 

USCIS Director Alejandro Mayorkas deserves credit for trying to bring meaningful procedural and operational reforms to USCIS in general and to the EB-5 program specifically.  He has pushed for regulatory clarity, consistency of adjudications, and most notably, the introduction of premium processing for EB-5 petitions.  However, the Director’s hard work and good will are in danger of being wasted by his own organization.  A salient example of how the Director’s own agency actively undermines his initiatives is brought to the fore when considering the sham that is the I-526 exemplar process. 

USCIS Propaganda: 

The concept of the I-526 exemplar petition was introduced by the December 11, 2009 memo on “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38) (the “Neufeld Memo”).[1] 

The theory behind allowing qualifying Regional Center projects to file so-called “Exemplar Petitions” was to improve overall EB-5 processing.  If a project submitted a sample I-526 petition for prior USCIS review and the project did not materially change over time, then the subsequent I-526 petitions were supposed to be processed in a more consistent manner.  At first, exemplar processing was a courtesy provided free by USCIS.  An exemplar was filed and eventually USCIS would issue an approval notice.  Since there was no fee for an exemplar, USCIS did not issue an I-797 receipt notice upon filing.[2] 

Something changed around Fall 2010.  My office filed an I-526 exemplar petition in October 2010, just prior to the implementation of Form I-924 and the attendant $6,230.00 filing fee.  We received an I-797 receipt notice based on this exemplar filing in which the filing was deemed an amendment to the Regional Center’s designation.  Legally, this was not correct.  The exemplar filing neither asked for an expansion of the Regional Center’s area of geographic scope, nor was the filing asking for the addition of a new industrial focus.  The filing was simply requesting pre-approval of a new project in an area where the Regional Center was already established and in an industry for which it was likewise already approved.  So why was this exemplar classified as an amendment?  USCIS was gearing up for the money grab. 

In the intervening two years since the Neufeld Memo appeared, USCIS has said time and again that the exemplar process was meant to improve the adjudication of subsequently filed I-526 petitions. 

The Reality: 

Apologies to the late Edwin Starr and his classic 1969 anti-war song, “War,” but paraphrasing his lyrics provides us with a clear picture of the reality of the I-924 exemplar process as applied by USCIS.[3] 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!  Say it again!” 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!” 

It has become painfully obvious, despite Director Mayorkas’ public comments and USCIS written guidance to the contrary, that USCIS has no intention of honoring its numerous promises to give deference to an I-526 exemplar approval.  EB-5 stakeholders continue to receive Requests for Evidence (“RFEs”) for I-526 petitions based on approved exemplar petitions where there was no change to the project.  The RFEs are questioning aspects of the EB-5 projects, aspects that were reviewed (or were supposed to have been reviewed) during the exemplar process.  So why was the project good enough during the exemplar process, but now magically deficient when serving as the basis of an I-526 petition?  Did USCIS just cash the $6,230 check, put the filing on the shelf for months, then pick it up and send an approval without reviewing it? 

So why is USCIS issuing RFEs for I-526 petitions for project-related questions vetted and approved during the exemplar process?  The Neufeld memo quoted above states on page four: 

“A previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.”[4] 

The reasons outlined for not giving an exemplar approval deference are fair enough.  However, none of the RFEs for I-526 petitions based on an approved exemplar make of these assertions, nor has the exemplar petition approval been reopened for any of these reasons.  Therefore, USCIS is not following its own guidance. Is this intentional or does the left hand not know what the right hand is doing? 

During the September 2010 EB-5 stakeholders meeting held at the California Service Center, USCIS officials told the audience that stakeholders were going to be happy with the November 2010 introduction of Form I-924, with its $6,230.00 filing fee, as well as the increase in the Form I-526 filing fee to $1,500.00.  How could this be, I asked?  The answer I received was that these astronomical fees would allow USCIS to raise headcount by hiring more adjudicators and more specialist business analysts and economists.  The logical outcome, of course, would be that not only would sluggish, slothful, or glacial processing times remarkably improve, but the quality of adjudications would also improve and become more consistent!  “What could be better?”  “How could you not like these fees?”  “We’re giving you want you want!” 

Well, I was skeptical about this bright-future propaganda that was being force-fed on the EB-5 stakeholder community then, and the events of the past 15 months have confirmed my initial pessimism.  Processing times have not budged one bit.  It still takes USCIS eight months to process an I-526 petition.[5] The quality and consistency of EB-5 adjudication has not improved either.  Stakeholders regularly receive RFEs for specious reasons based on shaky reasoning.  Thus, if these high fees were the solution to the problem of slow and inconsistent processing, the solution has failed. 

During the November 2011 AILA California Chapters Conference, my San Diego AILA colleague Kimberly Roubidoux noted wistfully that when she began her career in immigration law, H-1Bs cost $85.00 and were adjudicated in three weeks by the Vermont Service Center.[6]  Today, H-1Bs can cost up to $3,550.00 in filing fees and the Vermont Service Center now needs four months to make a decision on an H-1B.[7]  Yes, folks, you are paying 41 times more to get something 5 ½ times slower.  Now that’s value. 

As we know, USCIS is mostly funded by user fees and the agency must periodically justify to the U.S. Congress that its fees are appropriate.  Yet, as fees increase across the board, service fails to improve.  How can USCIS continue to justify its fees? Sadly, I would be willing to surmise that USCIS could raise I-526 filing fees to $5,000.00 and I-924 filing fees to $25,000.00 and we would still fail to see any the benefits promised by USCIS during the September 2010 EB-5 stakeholders meeting. 

Yet, despite the failure of increased fees to improve EB-5 processing times and service, Director Mayorkas wishes to implement premium processing for certain Form I-924 applications and possibly certain Form I-526 petitions.  The Director’s rationale is sensible and worthy of support.  Job creation and investment are often on hold while the Forms I-924 and I-526 remain stuck for almost a year each in the bowels of the USCIS California Service Center.  However, Director Mayorkas unfortunately misses the point.  Fees at any level would fail to solve the problem.  The problem is the perverse incentives that USCIS faces when trying to fund its own operations. 

I generally do not subscribe to conspiracy theories.  Conspiracy theories are best left to people who can spends weeks at a time camping out in parks and public squares, protesting whatever it is they’re protesting (these people would benefit immensely from the job creating stimulus of a functional EB-5 program). I will nonetheless offer my own conspiracy theory.  EB-5 stakeholders have noticed an upswing in EB-5 related RFEs (although USCIS would probably dispute this assertion, they always do until the true numbers eventually leak out) and another slow down in processing times that coincides with the Director’s initial announcement that he wished to introduce premium processing into EB-5.  Coincidence?  I don’t think so. 

Another factor driving this upsurge in EB-5 RFEs is also too coincidental to be anything but deliberate.  As referenced above, the EB-5 unit has seen an upsurge in headcount funded by these skyrocketing fees.  The RFEs that question the basis of exemplar approvals tend to be focused on the business plans and economic studies included as part of the approved exemplar petition.  Therefore, I surmise this trend is also intentional as a way for USCIS to justify expanding its headcount in this area, under the “look, just look at these bad business plans and economic studies.  Good thing we hired all these people.  Let’s give ourselves a pat on the back for our foresight.” 

For years, the EB-5 stakeholder community has had to listen to a series of unconvincing excuses as to why premium processing was inappropriate for EB-5.  “Impossible.”  “EB-5s are too complex.”  “We can’t guarantee that we can process in 15 days.”  And my favorite, usually offered in a dismissive manner, “nothing is a priority if everything is a priority.” 

By pushing premium processing, Director Mayorkas, knowingly or otherwise, is offering a direct challenge to these years of accumulated dismissals of the idea that premium processing could work for EB-5. 

Therefore, my conspiracy theory is that this upsurge in EB-5 related RFEs and a slow down in processing times is part of a deliberate bureaucratic counterattack to delay and hopefully kill off Mr. Mayorkas' EB-5 premium processing idea once and for all.  How sad would that be?  While USCIS career bureaucrats protect their turf and reputations, job creation and investment in the U.S. remain stalled.  Yes, indeed.  The American people are being held hostage.  USCIS can hire as many “Entrepreneurs in Residence,” and bring in as many business process consultants as they want.  The underlying problem will not change. 

Don’t get me wrong.  Obtaining an exemplar approval is not entirely useless.  It continues to serve as a mechanism for new projects affiliating with existing Regional Centers to show that USCIS recognizes this affiliation.  With the Regional Center marketplace becoming more crowded and fake Regional Center projects popping up from time to time, an exemplar approval can be useful in marketing to show potential investors that the project is real.  However, providing Regional Center projects with marketing credibility was not, and should not be the intention of the exemplar process. 

While the theory behind the exemplar process is exemplary, the reality of the situation has become an absolute joke, a shameless money grab.  So the next time you feel like filing an exemplar and paying the $6,230 I-924 filing fee, do something more useful with that money.  Put the money pile in a fireplace and light it on fire. You’ll get more out of it, such as keeping warm on a cold winter’s night or possibly toasting some marshmallows if you're motivated. 

Brandon Meyer is Principal of Meyer Law Group, a full service immigration law firm with offices in Stamford, CT and Solana Beach, CA.  His e-mail address is Brandon@meyerlawgroup.us.

[1] “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38), December 11, 2009.

[2] I asked the question during the March 2010 stakeholders outreach session, “well, if you won’t issue an I-797, how do we know you have the filing and are working on it?”  The answer I received was something to the effect of “trust us.”

[3] See http://en.wikipedia.org/wiki/Edwin_Starr, last accessed December 21, 2011.

[4] 2009 Neufeld Memo, page 4.

[5] See the latest California Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37645, last accessed December 21, 2011.

[6] The principal blogger of www.nationofimmigrators.com, Angelo Paparelli, was also a panelist during Kimberly’s reminiscences.

[7] See the latest Vermont Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37649, last accessed December 21, 2011.

Despite persistent immigration deadlock in a Congress whose job approval has plummeted to its nadir, fresh tendrils of hope are sprouting: 

• We hear from reported remarks of Senator Richard Durbin that the Department of Homeland Security (DHS) will soon announce administrative action to give much-needed relief to individuals who would benefit from the DREAM Act, a bill still in its tenth year of infancy in the "world's greatest deliberative body." 
• Other welcome news came this week from the White House and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), announcing new immigration avenues for foreign entrepreneurs and releasing a related FAQ.
• These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion  for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).

These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders. 

I've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference.  Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 and Tyranny of Sloth #3). 

The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth. 

• It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
• It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
• It could be long institutional memories about a heads-will-roll "Zero Tolerance Policy," followed by the policy's revocation, then followed by a laudable effort to inventory and reconcile agency policies and survey the public. 
• There is probably also a significant measure of union-management tension, reflected, for example, in the attack on the prosecutorial discretion memos and public vote of no-confidence in John Morton by the ICE agents union and the formal opposition to discipline by the USCIS officers union, and
• Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies.  We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan and featuring a "cast of millions") and we know how it ends:
  • Scene 1:  Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
  • Scene 2:  INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
  • Scene 3: Years of expensive federal litigation ensues before final relief to denied "known to the government" beneficiaries is granted in 2008! 

Whatever the cause of bureaucratic intransigence, the President's laudable goal of creating jobs through more enlightened immigration policies and innumerable Conversations with the Director -- however commendable and well intentioned -- will not succeed unless "off-the-reservation" conduct by rogue underlings is sanctioned, not with ribbons and medals but with pink slips. 

As economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration. 

In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice.  (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)

One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross.   (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation."  I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")

Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates.  The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report.  Already, Dubai shares and UAE property values have increased.  The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."

The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where  I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues).  Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished.  A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010." 

Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story.  Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:

A city's real strength is its people:  entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.  

Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.   

If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority). 

This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document).  It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time). 

The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals. 

A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category. 

I've blogged before on this topic, but I'm clearly not the first to conceive it.  Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver.  Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act. 

A more recent precedent also comes to mind.  Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper.  A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]