Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

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

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

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

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

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

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

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

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

* * *

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

[Blogger's note: 

Dear Readers: I promise that this post is indeed about immigration and the quadrennial election on Tuesday.   Please read to the end, beyond the meandering yet relevant introduction, to see the connection.]

Just over four years ago, David Foster Wallace, a gifted, troubled writer of wide acclaim, took his life. Fans of his writing, myself included, have marveled at his intelligence, wit and humanity.  Reading Foster Wallace is an exercise in mental gymnastics and focused attention that pays bountiful dividends. 

Thirty-seven years ago, another writer and deep thinker, Rod Serling, who gave us the Twilight Zone television series, lost his life to heart failure while likewise still in his prime.  Gene Roddenberry, futurist and creator of Star Trek, could have been describing Foster Wallace when he lauded Serling thusly: "No one could know Serling, or view or read his work, without recognizing his deep affection for humanity . . . and his determination to enlarge our horizons by giving us a better understanding of ourselves."

Serling's introduction to his show -- epitomizing the man himself -- is forever a part of American culture:  

You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!

I thought about the parallels between the two writers this week when I stumbled on a Twitter post that led me to Foster Wallace's 2005 commencement address at Kenyon College. Here are excerpts from his talk about the real value of a college education, the ability to distinguish, depending on the degree of our committment to "attention" (Foster Wallace's take) or "imagination" (Serling's formulation), the autonomic from the conscious thoughts that come to mind while experiencing life's prosaic events. 

Foster Wallace illustrates his point as he describes a mundane, seemingly "boring" wait at a grocery checkout line, disrupted by the outburst of a frazzled mother yelling at her boisterous child:

[If] you're aware enough to give yourself a choice, you can choose to look differently at this fat, dead-eyed, over-made-up lady who just screamed at her kid in the checkout line. Maybe she's not usually like this. Maybe she's been up three straight nights holding the hand of a husband who is dying of bone cancer. Or maybe this very lady is the low-wage clerk at the motor vehicle department, who just yesterday helped your spouse resolve a horrific, infuriating, red-tape problem through some small act of bureaucratic kindness. . . .

[The] so-called real world will not discourage you from operating on your default settings, because the so-called real world of men and money and power hums merrily along in a pool of fear and anger and frustration and craving and worship of self. Our own present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom. The freedom all to be lords of our tiny skull-sized kingdoms, alone at the center of all creation. This kind of freedom has much to recommend it. But of course there are all different kinds of freedom, and the kind that is most precious you will not hear much talk about . . . in the great outside world of wanting and achieving. . . . The really important kind of freedom involves attention and awareness and discipline, and being able truly to care about other people and to sacrifice for them over and over in myriad petty, unsexy ways every day.

That is real freedom. That is being educated, and understanding how to think. The alternative is unconsciousness, the default setting, the rat race, the constant gnawing sense of having had, and lost, some infinite thing. . . .

[If] you really learn how to pay attention, then you will know there are other options. It will actually be within your power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.

Just as serendipity triggered by social media led me to think of Foster Wallace, and then to Serling, it led me to my friend and immigration-law colleague, Paul Parsons, who this week offered an inspiring Facebook post to show "why being a U.S. immigration lawyer can be the greatest job in the world":

Last Friday we received our first two Deferred Action for Childhood Arrivals (DACA) approvals, and one of those clients sent this uplifting message today:

I just wanted to take another opportunity to thank you all for your help. I do not think I will ever be able to explain with words or emotions how immensely happy and grateful I am. For the first time in my life, I have a sense of belonging in the country that has raised me. My life has not been easy. I have had my fair shares of bumps and bruises along the way, but [life] is not supposed to be easy.

I know you all take pride in the work you do, because there are not many people that can say their job involves giving people the opportunity for a better future. You give hope to those who might have felt hopeless. You all can go home with the satisfaction of knowing you helped somebody, in many cases an entire family.

There are memories of things, events, and people that I will never forget, some good and some bad. Now I have one more good memory to add and you all will be part of it. Keep up the good work because there are many others like me waiting for the same opportunity.

. . . You are in the business of changing [lives] for the better, thank you again for making my life one of those. There is a saying that goes “Before you have a story you need to have a storm”. Well the storm has just past and the story is now only beginning.

As Americans vote for our leaders this week, I hope that we use both our attention and our imagination; that we remember our origin as a nation of immigrants; that we recall the wonders of immigrant innovation and the resulting benefits we enjoy; and that we call to mind our "power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down."  

I hope as we enter the "other . . . dimension" of the voting booth, "a dimension not only of sight and sound but of mind," that we are not entranced into reflexive thinking about "the so-called real world of men and money and power [which] hums merrily along in a pool of fear and anger and frustration and craving and worship of self." Although our "present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom," I hope we remember that elections trigger consequences, and that precious lives and futures depend on our choices.

I also hope we acknowledge that America needs people, and more people, like Paul Parson's client, as well as the remarkable contributors whose lives are poignantly revealed in Green Card Stories, just as much as we need dedicated public servants who help "resolve horrific, infuriating, red-tape problem[s] through some small act of bureaucratic kindness." 

In short, I hope we choose leaders who are likely to welcome rather than reject our nation's courageous and deserving immigrants.

[Blogger's Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici's angst, as I noted in "The Distressed Bearer of Bad Immigration Tidings."

There are of course so many immigration stories, as I noted in my post, "Telling Immigration Stories," which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book -- Green Card Stories -- which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici's quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole ("Nici") Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated - in Spanish - that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment -- to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits - and I was afraid of having my blood drawn again - so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

Last week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth -- Americans in all but the eyes of the law -- who support enactment of the DREAM Act. 

Publicly proclaiming one's unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its "Guide to ‘Coming Out’ for Undocumented Youth," revealing to others that you live in this country without legal status can range from "easy to very hard" depending on the way it's done. An act in defiance of governmental authority, "coming out" can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial.  Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows.  Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC). 

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3).  This is a risky proposition.  It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office -- a unit of U.S. Customs and Border Protection -- which must approve it.  If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.  

The guide, quite correctly however, cautions DREAMers: 

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

The E4FC, also laudably, provides links to a free, online service for DREAMers to obtain a preliminary assessment of whether legal remedies may exist in a particular individual's unique situation, while offering the admonition:

This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.  

I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice.  For legal advice in each individual's case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

1. Build Your Tribe.  No DREAMer should face the federal government alone.  Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though government officials may deny that publicity has any effect on their actions, publicity helps.  Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."
2. Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways.  It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues.  It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least at a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States.  As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled."  Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold.  If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission.  Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant.  See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
3. Seek Lawful Nonimmigrant Status without leaving the United States.  Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories.  As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established.  Extraordinary circumstances are decided on a case-by-case basis.  As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place.  INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum.  Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.   
4. Apply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low.  According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD.  If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program."   Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."  Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:

The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:

(A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

* * *

To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism.  So be it.  My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won. 

Rather, this is where your tribe and the tribes of all the DREAMers must spring into action.  Mount a campaign to persuade USCIS to embrace these approaches in individual cases.  Present the most worthy and compelling cases first.  Refrain from filing cases with little hope for success.  Publicize the outcomes of the successes and failures.  Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. 

The DREAMers, after all, are the innocents.  They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them.  Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.  

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek.  Instead, come out, come out, wherever you are.   

Many thoughts rushed through my mind as I read the heartening headline to a press release issued January 19 by the American Immigration Council ("U.S. Citizenship and Immigration Services Takes Steps to Improve Noncitizens’ Access to Legal Counsel"). 

What did USCIS do to improve access to lawyers?  Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record?  Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present?  Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?

Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind: 

1. The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome.  Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . .  for an act of kindness."
2. USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections,  "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job." 

The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers.  While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.

The prior policy, reflected in the Adjudicators Field Manual (AFM), provided: 

Chapter 12 Attorneys and Other Representatives.

12.1     [Reserved]
12.2     [Reserved]
12.3     [Reserved]
12.4     [Reserved]
12.5     [Reserved] . . .

15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel: 

• Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.
• The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .
• Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)

The interim policy guidance substituted the foregoing with this new instruction:

The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . . .

Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.

An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .

The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)

Note that under the former AFM provision a lawyer "may advise his client(s) on points of law". 

This express statement of the lawyer's role is inexplicably omitted from the new guidance.  Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."  

The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers.  Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained.  Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:

• when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;
• when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;
• when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).

The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable."  I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.

The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:

All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.

Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.

As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

• beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);
• Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;
• the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and
• the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.

The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.

As a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients. 

Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits.