Congress returns this week to Washington. Vituperation in lieu of legislative action will soon begin. The media kerfuffle over the timing of the Obama-Jobs speech enraged most citizen observers. Meantime, pundits are asking about the content of the President's speech:  Will he go large to appease dispirited Progressives?  Or, will he propose modest measures that "the Left [won't] understand" in the hope of winning bipartisan support. 

American politicians and special interests seem to have forgotten the "vigorous virtues [of self-reliance, personal responsibility, industriousness and a passion for freedom]," as David Brooks, op-ed columnist for the New York Times, observes. Brooks argues, convincingly, that as a result of this forgetfulness (I would call it blind and callous indifference) a "specter [is] haunting American politics: national decline."

The descent, however, is not inevitable.  It can be reversed.  A largely unseen, silent, law-abiding yet shackled group within our midst embodies all of the vigorous virtues. They are the sojourners from abroad who are yoked to the constricting terms and conditions of a U.S. employer's work visa petition. These hard-working souls are prohibited by law and dubious agency interpretations from using their ideas, talents, capital and energy to start companies and hire American workers.

Fortunately, no act of Congress is required to unleash these innovators, entrepreneurs and job creators and empower them to work their magic. 

The White House already knows it possesses the authority through executive action in immigration matters.  The Administration's recalibration of its immigration enforcement priorities has evoked little public outcry.  Disinformation, however, is spreading but failing to gain much traction.  The "Backdoor Amnesty" dog has no legs and won't hunt.

If unauthorized immigrants with positive equities warrant legitimate administrative relief, as they clearly do, why not reward the more deserving foreign citizens who have patiently waited and played by the rules?  

The President should therefore continue trying to jump start job-creation and allow the next generation of Apples, Googles and as yet unimagined supercompanies to take root in American soil and thrive. The White House's early steps "to Promote Startup Enterprises and Spur Job Creation" have been criticized, however, in this blog and elsewhere, as overly narrow and unhelpful. These missteps are not failures.  They are merely invitations to persist, as the iconic American innovator, Thomas Edison, reminds us ("I have not failed. I've just found 10,000 ways that won't work").

Here then are my suggestions to President Obama for administrative reform of the legal immigration system, as presented to attendees at an outstanding event convened on August 31 in Los Angeles by January Contreras, the USCIS Ombudsman ("Listening Session to Explore Small and Start-Up Business Immigration Issues"):

• Instruct U.S. Citizenship and Immigration Services (USCIS) to rescind the January 8, 2010 "Neufeld Memorandum" on employer-employee relationships and replace it with a regulation expressly allowing immigration self-sponsorship by owner-entrepreneurs in a broad array of work visa categories for employment on company premises and at customer sites.
• Instruct USCIS and the State Department to issue -- on an expedited basis -- replacement or initial regulations interpreting the following laws in the expansive and job-creating spirit that Congress intended: The Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998, and the American Competitiveness in the Twenty-First Century Act of 2000. These regulations should, e.g., broaden eligibility for all categories of the L-1 Intracompany Transferee visa, particularly for start-up operations, function managers and specialized knowledge personnel.
• Instruct USCIS to focus on improving the quality of adjudications by improving the corps of adjudicators who make employment-based immigration decisions:
  • Impose stricter hiring requirements, including the minimum of a relevant bachelor's degree (if it takes that to receive an H-1B visa, the same should apply to grant one), strong writing and analytical skills.
  • Cause the Small Business Administration to provide training to adjudicators on the characteristics, contributions and challenges of small businesses and startups.
  • Review performance metrics and institute sanctions for improper issuance of Requests for Evidence, Notices of Intent to Deny and Revocation notices, while rewarding positive behaviors.
• Instruct USCIS to grant nonimmigrants in lawful immigration status the benefits of “parole in place” and open-market work authorization upon submission of proof that they will open a business, buy a home, hire U.S. workers or devise an innovative technology, good or service.
• Instruct USCIS to allow beneficiaries of approved employment- or family-based immigrant visa petitions whose place in the visa queue is backlogged to apply for adjustment of status (thereby entitling them to open-market work permits until they reach the front of the visa line and can receive green card approval).
• Instruct USCIS to allow Premium Processing of employment-based Administrative Appeals Office appeals and all Motions to Reopen or Reconsider along with the tolling of unlawful presence penalties and the grant of employment authorization during the pendency of non-frivolous filings.
• Instruct the Labor Department to add entrepreneurs and investors to the pre-certified Schedule A labor certification exemption, and allow an entity owned by such individuals to self-sponsor for green card status.
• Instruct USCIS to publicize its 2008 Notice prohibiting internal retaliation against small businesses, define “retaliation” broadly and pursue violations aggressively.
• Instruct USCIS to eliminate the Directorate, Fraud Detection and National Security (FDNS), and instruct U.S. Immigration and Customs Enforcement (ICE) to exercise all investigative and enforcement functions involving alleged immigration benefits fraud and immigration-related national security concerns.
• Instruct ICE to investigate only those small business violations based on articulable and reasonable cause that a violation of the INA has occurred. Stop the guilty until proven innocent approach currently in use. 
• Instruct USCIS to appoint an Associate Director who reports directly to the Director and who is solely responsible for promoting and facilitating the grant of employment based immigration benefits and reporting actions by USCIS personnel that impede, impair or deny the grant of such benefits to deserving parties. This Associate Director would also have authority to intervene under the Homeland Security Act when the State Department takes actions that unreasonably interfere with or deny immigration benefits to startups and small businesses.
• Require strict compliance by all immigration agencies with the notice-and-comment requirements of the Administrative Procedure Act and the small-business-impact analysis required under the Regulatory Flexibility Act, and phase out the practice of issuing guidance by policy memorandum.
• Instruct and empower the Small Business Administration’s Office of Advocacy to review and recommend changes to DHS, DOL and DOS rules that adversely affect job creation, entrepreneurship, investment and innovation by small businesses and start-ups.

As we await the President's address to a joint session of Congress, many anticipate that at least one proposal will be to rebuild our nation's existing infrastructure -- the roads, bridges, waterways, and rails.  Let's hope he also includes legitimate administrative fixes to our creaking and crotchety LEGAL immigration infrastructure.  American citizens looking for jobs deserve nothing less. 

I am writing to seek your assistance on behalf of several dozen clients of my firm. As you know, a recent Board of Immigration Appeals decision, In re Perez Vargas (23 I&N Dec 829 (BIA 2005), held that Immigration Judges have no authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), after the alien’s change in jobs or employers. The Board stated that “ it is incumbent upon the DHS to determine whether the respondent's visa petition remains valid pursuant to section 204(j) of the Act” but offered no practical guidance as to how to actually obtain this determination.

Under INA §204(j) and the American Competitiveness in the 21st Century Act (“AC21”), an applicant for employment based adjustment of status based on an immigrant petition shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. I trust that you are aware that USCIS officers routinely make determinations on this issue in adjudicating clients' 485 applications throughout the country. Quite frankly, although our firm advises clients conservatively on this issue, in practice such adjudications have been extremely straightforward.

My request is that you consider, as soon as possible, implementing a procedure whereby clients in proceedings, seeking employment based adjustments before IJ's, can continue to utilize section 204(j) of the INA in light of the BIA's decision in Perez Vargas. As you know, over five years have passed and there are still no regulations implementing "AC21". Memos issued by USCIS have been most helpful, but to date have not specifically addressed the Court adjudications.

I have several suggestions, but believe that most practitioners would be willing to accept ANY procedure which will allow these applications to be considered. My suggestions include:

1) Providing a procedure for requesting an advisory opinion from the Service Center which adjudicated the original I-140. 2) Providing a procedure for the filing of a "new" I-140 for the new employment. 3) Providing a procedure for the administrative closure of the pending court case while the case is transferred to the local district office for adjudication of the 204(j) issue (similar to the current procedure in place for I-130's filed on behalf of Respondents in proceedings.)

I can tell you that the vast majority of our clients seek to utilize section 204(j) to adjust for compelling reasons; I would venture to say that they these reasons mirror the policy concerns that led Congress to pass this law in the first place. For example, one of our clients was forced to change employers because she was suffering physical and sexual abuse at the hands of her employer. Another clients' case "disappeared" on remand to the Board for over 3 years and in another case, the Employer insisted on paying only the prevailing wage of $4.21 despite the fact that that wage applied to a case originally filed in the early 80's. The client simply could not support his wife and child on such a salary and was forced to seek similar employment elsewhere.

Re: End the Government’s Immigration Bias against America’s Small Businesses

Dear Mr. Khatri:

This is the third in a series of open letters outlining suggested changes in the practices of United States Citizenship & Immigration Services (USCIS). My letters to you are intended to put a flashlight on the behavior of USCIS – an agency that all too often remains mired in the worst practices of legacy INS. I write this time to ask that you examine and remedy several practices at the USCIS Regional Service Centers (RSCs) that hurt America’s entrepreneurs and small businesses.

This third letter asks you to intervene and cause USCIS to halt its unannounced practice of applying different, more-demanding, and wholly unlawful standards of eligibility for immigration benefits to America’s small businesses than the agency applies to large companies.

(To view this letter in its entirety click here)

Letter 1 Letter 2 Letter 3