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

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

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

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

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

By Keyrock

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The problems with the concept, however, are many.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Occupy Wall Street movement began with a poster, a word cloud, a QR Code and three lines of text:

#OCCUPYWALLSTREET

September 17th. Bring tent.

www.occupywallst.org. 

Steve Jobs launched his massively successful "Think Different" rebranding campaign for Apple in 1997 with a TV commercial and this script:

Here's to the Crazy Ones. The misfits. The rebels. The trouble-makers. The round pegs in the square holes. The ones who see things differently. They're not fond of rules, and they have no respect for the status-quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world...are the ones who do!

Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Service (USCIS), recently announced with the flourish of a press release an ingenious "Think Different" initiative that may well transform this vexed and vexing immigration agency.  His announcement heralded the new Entrepreneurs in Residence Program (EIR), an experiment that will tap the wisdom and experience of seasoned startup veterans to inject fresh air and fresh insights into USCIS.

The EIR, as the press release explained, "will utilize industry expertise to strengthen USCIS policies and practices" affecting foreign "investors, entrepreneurs and workers with specialized skills, knowledge, or abilities." As Director Mayorkas explained, the "initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth . . .  [with the] introduction of expert views from the private and public sector [which] will help [USCIS] to ensure that our policies and processes fully realize the immigration law's potential to create and protect American jobs."  A two-stage effort, the EIR begins as a "series of informational summits with industry leaders to gather high-level strategic input" and then the heavy lifting follows with the assembly of a "tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions."

The EIR occupation of USCIS cannot come a millisecond too soon.  Just like a Dream Act kid who keeps getting blamed for the mistakes of her undocumented parents, USCIS, only nine years old, keeps receiving many of the same brickbats that bombarded its ancestor, the former Immigration and Naturalization Service (INS).  Unlike the DREAMers, however, USCIS has magnified INS's peccadilloes and committed new more egregious ones of its own.  Ted Chiappari and I describe the venial and mortal sins of USCIS at length in our article, published last week in the New York Law Journal, "Intubation and Incubation Two Remedies for an Ailing Immigration Agency" (link courtesy of ALM Enterprises).

Whether intended or inadvertent, EIR is a deft stratagem, even more artful than Clintonesque triangulating.  Cleverness taken to the fourth degree, EIR, captured in one word, is all about quadrangulation.  If it is to succeed, EIR must task its occupiers to infiltrate and attack from within the four-sided challenge that is USCIS today: (1) the immigration stakeholder community and the USCIS Ombudsman clamoring for more user-friendly enhancements to fusty USCIS interpretations of work-visa eligibility, (2) the ever-campaigning President saying "we can't wait" for the enactment of job-creating legislation, (3) Socialism-incliningRepublicans in Congress, led by GOP commissars Smith and Grassley, who seem, counter-intuitively, to embrace immigration regulation more than job creation, and (4) the agency's anti-business, unionized adjudicators who prefer chaos theory over customer service.

Who will Director Mayorkas tap as the EIR's movers and shakers to prod, awaken, reeducate and redirect USCIS? As noted in the NYLJ  "Intubation/Incubation" article, ideally they should be "industry leaders" with just the right background:

[Entrepreneurs who] harbor a strong interest in an expansive reading of the employment-based immigration laws. Their likely interpretation would view the immigration laws as offering many opportunities to grow startup and established businesses in the U.S. by harnessing the innovations and skills of bright, energized and talented non-citizens. Prospective EIR participants with such interests and perspectives probably will have already used and intend to use again the employment-based immigration laws to secure USCIS's permission to hire foreign workers.

As the EIR experiment in intramural administrative sport begins, an October 29-30 Wall Street Journal editorial ("The Other Jobs Crisis") captured spot-on the immigration dysfunctions that beset America today. Migrant farm workers flee Alabama and Georgia, two states with nativist laws that cause produce to rot in the field. With few Americans willing to descend to back-breaking stoop labor, "incarcerated criminals" are dragooned to "work the fields." Republicans in Congress, the supposed "champion[s of] deregulation and business-led growth" focus on "immigration control" as "one of their main passions," while continuing "to ignore the economic costs" and the need "to overhaul the guest worker program to widen avenues for legal immigration."  Meantime, ironically on www.WSJ.com, GOP Presidential front-runner and pizza-chain turnaround artist, Herman Cain, callously rebukes the Occupy Wall St. protestors: "If you don't have a job and you're not rich, blame yourself! ... It is not a person's fault if they succeeded, it is a person's fault if they failed."

Like his Chief of Staff, Herman Cain is just blowing smoke.  He should know that not everyone can find a job in a nation with a 9.1% unemployment rate (but if Cain is truly "counter-factual" on the cause of U.S. joblessness, he is manifestly unfit for the presidency).  America desperately needs more job creators, the salutary byproducts of a functioning, business-friendly immigration system.  Since Congress will not act, and the President can't wait, my hope is that Director Mayorkas will install "demented" entrepreneurial occupiers of USCIS, "Crazy Ones" who "are crazy enough to think they can change" America by occupying his benighted agency.  

Credibility is the cornerstone of reputation.  That's why, despite the shock and awe that regular readers of NationOfImmigrators.com may experience, this blogger (who sees immigration dysfunction virtually everywhere, especially under the Obama Administration) now heartily applauds recent actions of two immigration agencies within the Department of Homeland Security (DHS) -- ICE (Immigration and Customs Enforcement) and USCIS (U.S. Citizenship and Immigration Services). 

As suggested below and in a Bender's Immigration Bulletin Podcast I recorded on June 18 at the 2011 American Immigration Lawyers Association (AILA) annual conference in San Diego, Directors, Alejandro Mayorkas of USCIS and John Morton of ICE, as well as the President and DHS Secretary Janet Napolitano, must be commended for taking significant steps to improve the administration of immigration justice (and along the way help the economy).

Mr. Mayorkas, to a far greater degree than any USCIS Director or legacy INS Commissioner in the last 30 years, expresses sincere respect for the rule of law.  He understands and requires compliance with the obligation of his agency's personnel to apply statutory immigration law in good faith as written and adhere to precedent decisions and national policies.   Mr. Mayorkas has brought the dispassion and intelligence of a lawyers' lawyer to USCIS, making changes based on reason and law, without favoring any person or interest, and committing to a policy of justice and equality of treatment and access.  (For any who may doubt or challenge my assertion, check out two sessions of the AILA conference in which Mr. Mayorkas offered his views [CD Nos. 17 & 86, purchase required]. If you think I routinely gush over the statements of USCIS officials at AILA conferences, disabuse yourself by checking out this prior rant.])

Mr. Morton -- despite a vote of no confidence by the ICE labor union -- has chosen to exercise leadership.  He has released two significant policy memos encouraging his officers to exercise  prosecutorial discretion, based on a 19-factor analysis, in favor of low-priority immigration violators and victims and witnesses of crime, and against perpetrators of violence and other serious felonies.

Most immigrants' rights groups chastised Mr. Morton, however, for not having gone far enough.  They attack ICE for not surrendering on the star-crossed program known as Secure Communities that has ensnared and deported far more petty immigration violators than hardened criminals. 

On the other hand, the nonpartisan Immigration Policy Center and AILA, the national immigration bar association, have lauded the new prosecutorial-discretion (PD) memos as positive moves.  They argue persuasively that in the absence of comprehensive immigration reforms which would align America's broken and wobbly immigration system with our national interests, and in an era of limited resources, the memos reflect a leadership decision to apply "smart enforcement" policies.  Smart enforcement, as the memos articulate, ensures that ICE's officers on the ground make individualized determinations of eligibility for prosecutorial discretion. 

Noncitizens whose personal circumstances, immigration history and foreseeable path to legal status cause them to rank low on the enforcement-priorities list -- the memos declare -- should be given deferred action.  Deferred action, in turn, makes them eligible for a work permit.  On the other side of the PD equation, individuals with particularly unsavory backgrounds or with rap sheets suggesting that they are dangerous to the communities should be fast-tracked on the due-process train headed for a removal hearing.  (One less understood but welcome aspect of the memos is that now an ICE attorney can set aside any Notice to Appear that he or she determines would involve an individual who is better suited for deferred action than a removal hearing, thereby freeing up precious judicial and executive resources to remove highly undesirable or dangerous noncitizens.)

Despite the deserving plaudits at the top of USCIS and ICE, it remains to be seen whether these interim, though important, initiatives will bear fruit.  Will the line officers and supervisors of each agency embrace their leaders' moves?  Or, as is perhaps more likely, will they engage in passive-aggressive behavior, palace intrigue and heel-dragging? 

Given the ICE union's condemnation of Mr. Morton and his policy memos (and their probable unwillingness to excersise conscientious compassion), as well as the resistance of some within USCIS to Mr. Mayorkas' commitment to the rule of law, the stakeholder community must apply its own leverage.  Here are a few things insiders and outsiders can and should do:

1. What Get's Measured and Rewarded Gets Done.  ICE must take steps to collect metrics on requests for prosecutorial discretion and individual ICE officer decisions.  The agency must make sure that it receives sufficient raw data to determine whether decisions on discretion align with ICE's national enforcement priorities.  For officers who persist in repeatedly routing objectively deserving cases to the immigration courts rather than to deferred action status, appropriate warnings and discipline should ensue.  Those, however, who instead apply the PD policy within its spirit and letter should receive ICE's approbation and career promotion. 
2. The Sunlight Brand of Disinfectant. DREAM Act supporters and others with favorable immigration equities should mount a grass-roots campaign to pressure ICE to publish meaningful data on the agency's actual exercise of prosecutorial discretion or enforcement.  To make this happen, community-based organizations (CBOs) should campaign to encourage individuals requesting prosecutorial discretion to waive personal privacy over key data fields that correspond with the worthy and adverse factors in their individual cases. If such waivers are coupled with the requesting parties' insistence that the decisions be released, then CBOs, the public and the media would know whether or not the PD policy is working. Congress can also make sure through its oversight function that reliable data is made available for all to see.
3. USCIS Must Issue Its Own PD memos. ICE holds no monopoly on discretion.  As legacy INS Commissioner, Doris Meissner, made clear in 2000, immigration adjudicators also have power to show leniency in deserving cases.  Mr. Mayorkas should formally instruct all USCIS officials that they too will be held accountable if they waste precious resources issuing burdensome requests for evidence and notices of intention to revoke or deny petitions or applications where a wise exercise of discretion under existing USCIS regulations would otherwise fairly resolve the case.  There should be no more spitting-on-the-sidewalk rulings placing otherwise law-abiding foreign citizens "out-of-status" who seek immigration benefits. A fairly administered PD policy could create immigration miracle cures that allow USCIS to forgive minor visa missteps.
4. You Get What You Pay For. Immigration notarios and unlicensed consultants (notwithstanding the commendable federal campaign to eradicate them) will no doubt continue to harm unrepresented immigrants by claiming that prosecutorial discretion is the new way to obtain work permission. Because there is no government form to request PD, however, the myriad immigration form-preparer outfits cannot legally represent persons seeking PD.  Only "accredited representatives" and lawyers in good standing may do so.  The business and nonprofit communities should therefore provide funding to lawyers (in compliance with ethics rules) so that well-documented and deserving PD requests with a good chance of success are submitted. Employers and labor unions who have tussled of late over the Obama Administration's "silent raid" policy should instead cooperate and identify/assist loyal and deserving workers with legal-fee-subsidized PD requests. 
5. Oppose Hypocrisy.  PD is not "back-door amnesty." No doubt House Judiciary Committee Chair Lamar Smith dislikes eating the words he wrote in 1999: "The principle of prosecutorial discretion is well established."  He also knows that the votes are not there to roll back smart enforcement or override an assured Presidential veto of any such measure.  Don't let Rep. Smith and his ilk get away with any false claims or ill-advised policy reversals.
6. Oppose Hate.  Immigration restrictionists are not pleased with the PD memos and will do whatever they can to attack any discernible trend to exercise discretion favorably.  The antidote to hate is the telling of truthful narratives by deserving persons who are allowed through PD to pursue, however tentatively, the American Dream. So, stakeholders, tell the truthful stories of honest people striving for a chance to make it in America and allow prosecutorial discretion to flourish. 

* * *

At least until our politicians begin to act like leaders who value country over power, let us hope that the new memos and the new direction signaled by DHS allow a meaningful chance for American justice to prevail against the insensate mob.