Ever since the people of Minnesota elected Al Franken their U.S. senator, there's been a hole in my comedic heart. The good Senator doesn't keep counsel with me, but I've discerned that he's made a personal vow to never again offer a hint of his former incarnation as one of the nation's most hilarious comedians and sketch comedy artists.
But since last Thursday, I have been consoled, although not comedically. That's when I was reminded of his famous role on Saturday Night Live as the "caring nurturer" and "member of several 12-step programs," Stuart Smalley.
I thought then of Stuart's famous tag line, and tweaked it because of what Sen. Franklin did. He clearly showed that he's still more than "good enough . . . [and] smart enough," and that "doggone it [immigration reform advocates really] like [him]."
While nonetheless sticking to his vow of steadfast unfunniness, he persuaded his colleagues on the Senate Judiciary Committee to adopt by voice vote an amendment (Franken 4) to the Gang of Eight's comprehensive immigration reform (CIR) bill, S. 744. If CIR is enacted with Franken 4 included, it would establish within U.S. Citizenship and Immigration Services (USCIS) an "Office of the Small Business and Employee Advocate" (the SBE Advocate), whose purpose would be to "assist small businesses [firms with 49 or fewer employees] and individuals in complying with the [Form I-9 (employment-eligibility-verification) requirements" of the immigration laws, "including the resolution of conflicts arising in the course of attempted compliance with such requirements."
Unlike the bully-pulpit authority of the Ombudsman, however, the SBE Advocate would be authorized to issue an "Assistance Order" if any employer (not just a small business) or an individual has suffered or will likely suffer a "significant hardship" relating to I-9 compliance. The SBE Advocate can also consider "significant hardship" more favorably to the small business or individual if USCIS does not follow its own "applicable published administrative guidance" and require the Secretary of Homeland Security under the terms of an Assistance Order:
to cease any action, take any action, or refrain from taking any action, with respect to the small business or individual under the I-9 provisions of the immigration laws;
to determine whether any employee is or is not authorized to work in the United States; or
to abate any penalty under such laws that the SBE Advocate determines is inappropriate or excessive.
So, all in all, I'm pleased with Sen. Franken and his Minnesota niceness; but I still miss Stuart Smalley. Although mollified by Franken 4, but still unable to fill that comedic hole in my heart, I searched the web to find out what morphed Stuart into Senator Franken. Lo and behold I think I've found it. It was obviously his encounter with erstwhile presidential candidate and inventor of the internet, Al Gore, that turned Stuart into a politico:
[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
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.
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.
Frugality, something second nature to our colonial forebears, is a trait we Americans seem to have forgotten. We are profligate in our material acquisitions and in their disposition. (Witness the growing mountains of toxic electronic waste that are almost as hard to be rid of as spent nuclear fuel.) Saving for a rainy day is not the meme it once was.
Similarly, in the immigration ecosphere, federal officials are just as wasteful of finite resources. Over many years, administrators at U.S. Citizenship and Immigration Services and the State Department's Visa Office have bungled the distribution of a most precious commodity under their charge -- the annual allocation of immigrant visas. Unlike material waste, however, immigrant-visa quota numbers evaporate without a trace rather than linger in the environment. Every September 30, all unused immigrant visas for that fiscal year disappear.
Moreover, unless Congress intervenes, nothing can be done to recapture a green card lost because immigration bureaucrats gave it to the wrong person or otherwise failed to make it available in time to a deserving would-be immigrant.
Unfortunately, "courts are not time machines" capable of undoing immigration-agency mistakes, as the Ninth Circuit Court of Appeals ruled last week in Li v. Kerry. The three judges deciding the case found themselves powerless to help a group of plaintiffs born in China who claimed they were the victims of improper green card allocation by USCIS and the State Department.
Although these agencies reportedly violated a law requiring the conferral of immigrant visas on a first-come, first-served basis, they instead gave green cards due the plaintiffs to other foreign citizens. The judges' response: Too bad, too sad -- for Congress created no penalty or remedy that the courts could apply when immigration officials, however often, misallocate or waste green cards. As Judge Reinhardt noted in his concurrence:
Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas. . . . [A]ccording to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China. These visas—numbering over 2,300—would have permitted applicants from China to live and work in this country as legal permanent residents and to start on a path to United States citizenship at the time intended by Congress. Instead, the government erroneously gave these visas to individuals from other countries, many of whom had been waiting far less time for the same type of visa than their Chinese counterparts. . . .
[W]hat is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it. Although we dismiss Plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result.
If courts can't fix the problem, then our elected leaders, having claimed repeatedly to be ultra-concerned about the interests of law-abiding immigrants who have played by the rules and patiently waited in the green-card line, must act.
The solution is not just for Congress to recapture lost green cards, as it did twice before in 2000 and 2005 when passing the American Competitiveness in the Twenty-First Century Act and the REAL ID Act, and as the President has just suggested ("The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas . . . ").
As part of comprehensive immigration reform, Congress should enact a law providing that unused quota-limited immigrant and nonimmigrant visas in any fiscal year should automatically roll over for use in later years. The law should also grant courts the power to craft equitable remedies for persons like the plaintiffs in Li v. Kerry, short-changed by erroneous actions or omissions of immigration bureaucrats, without taking away vested visa benefits already conferred on others.
This new law ought to be a no-brainer. It grants not a single extra visa beyond the quota set by Congress. Rather, it reaffirms that we are not just a nation of immigrants but a frugal people as well.
The purpose of the [Immigration and Nationality Act is] to prevent an influx of aliens which the economy of individual localities [cannot] absorb. . . . Entrepreneurs do not compete as skilled laborers. The activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist.
In addition, a shoeleather-avoidant "Virtual March for Immigration Reform," dubbed the "March for Innovation," is set for a day this spring in order "to ensure that the broad immigration bills being considered in Congress include provisions to boost innovation and entrepreneurship, and . . . to seize the moment and get immigration reform passed."
While we obsess on the need to invite more immigrant entrepreneurs, why is there no comparable fixation on the importance of welcoming entrepreneurship's kissing cousin, creativity?
We acknowledge the creativity of knowledge workers, yet we fail to see the urgency of freely inviting members of the creative classes, our free-lance artists, writers, journalists, poets, painters, inspirational speakers, filmmakers, bloggers, videographers, performing artists, multi-media stylists and other creativity entrepreneurs. As the artist, Konishi, convinced the court, the "activities of each entrepreneur are generally unique to his own enterprise, often requiring a special balance of skill, courage, intuition and knowledge. . . . The same can be said of the activities of an artist."
Regrettably for America, however, our immigration laws are just as broken and dysfunctional when applied to creatives as to entrepreneurs. Foreign artists, even if they possess "extraordinary ability," or manifest their artistry in "culturally unique" ways, must still be tied to an established U.S. agent or an employer. They must also present a "consultation" from a peer group (usually a labor union that extorts a protectionist fee to confirm for the benefit of Homeland Security that its guild members' would accept the foreign artist into the fold on payment of union dues). Similar restrictions apply to media free-lancers who must present journalistic credentials and a contract with a U.S. company even if they propose to enter the U.S. to offer or produce creatively presented information or education.
Surprisingly, although we recognize the compelling need to eliminate immigration barriers for noncitizen entrepreneurs, we ignore the job-creating qualities of foreign artists, even though both groups share Steve Jobs' remarkable insight into the creative process -- one that likewise motivates many immigrants to embark for America:
If you want to live your life in a creative way, as an artist, you have to not look back too much. You have to be willing to take whatever you’ve done and whoever you were and throw them away. The more the outside world tries to reinforce an image of you, the harder it is to continue to be an artist, which is why a lot of times, artists have to say, “Bye. I have to go. I’m going crazy and I’m getting out of here.”
Artists and creatives are everywhere, yet America mostly spurns them. Our legislators and the Obama Administration, just like the commissars of the old Soviet Union, must ultimately wake up to the reality that the Federales have no special talent for picking winners, and that planned economies, more often than not, tend to overlook the budding artist and the possibly math-phobic virtuoso.
Let us also therefore revise our immigration laws to welcome these promising, early-stage artistic strangers even before they find an audience. With fair and open-hearted screening processes we surely can craft a way to identify creatives offering the potential to spawn new art forms, new industries and new jobs.
Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)
With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?
CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary. Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.
Why did the form change?
The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:
- The old form “expired.”
- The expiration gave USCIS an opportunity to implement improvements to the form.
- Improvements (according to USCIS) include:
- Adding “helpful” fields such as the employee e-mail address and telephone number
- Revising Section 1 to make it “easier to read and understand”
- Adding an area for a 3D barcode to “promote the modernization of USCIS forms”
- Giving employers more space
- Making the instructions clearer and easier to understand
Whether this was truly the most opportune time to make changes to the form is highly questionable. Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now. Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date? USCIS doesn't say.
Did USCIS adequately respond to public comments?
Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments. While this suggests that USCIS actually read the comments, the agency's response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form. The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.)
The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions. The List of Acceptable Documents still occupies a single page. Aside from formatting and stylistic changes, there are also substantive changes:
The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.
Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
Confirmation that P.O. Boxes are not acceptable.
A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
The addition of instructions for minors and disabled employees.
In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
New fields have been added for employees to record telephone numbers and e-mail addresses. These fields are optional. The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name).
Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form. This relates to CBP’s plans for automation of the I-94 card. Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data. Others are instructed to write “N/A” in these fields.
The signature box for the employee has been improved to prevent employees from signing outside of the box.
In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.” While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
“Alien #” has been changed to “Alien Registration Number/USCIS Number.” For many, this causes confusion. Let us make it clear: the numbers are the same, but some government-issued documents use different terms to refer to the same number.
A 3D barcode box has been added to the form. This is a mysterious box, as it is unclear what the government plans to do with it. All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
Additional dedicated fields for recording “extra” List A documents have been added. These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards. They may cause confusion, however, for others. It is still not clear which document should be recorded first, second, or third.
The employer’s attestation statement has been changed somewhat. It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes. Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”
What should employers do?
USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.
With that somewhat clunky guidance, we suggest that employers do the following:
Consider waiting to use the new form until you take time to:
Read and digest the revised M-274 Handbook for Employers, available here.
Update your company policies and protocols to reflect changes to the form.
Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them.
Anticipate questions and issues that may arise.
Be ready to fix the foreseeable mistakes that are likely to arise.
Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.
* * *
Sen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.
Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.
"U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts."
Nothing of substance has changed since I offered that post last August, save for a groundbreaking election that reversed years of Republican opposition and Democratic indifference, leading to a bipartisan effort to reform the immigration laws comprehensively.
While federal legislators and the Obama Administration are putting in place new scaffolding for immigration reform, the foundation remains broken and shaky. A path to citizenship, enhanced border security, disincentives to illegal entry and employment, and adequate future flows of legal workers are all well and good. But the superstructure of the new immigration system will topple and the temptation to enter illegally or overstay will return if the basic approach to justice, fairness and due process is not dramatically transformed.
Reforms of the immigration justice system could conceivably be narrow or wide-ranging. A necessary, if partial, solution -- just a first step -- would reform the appellate process within U.S. Citizenship and Immigration Services (USCIS). This agency countenances a woefully unjust appellate body, the Administrative Appeals Office (AAO), that reviews decisions of USCIS field offices and regional service centers denying requests for immigration benefits submitted by American and foreign citizens and U.S. employers.
As I've noted recently, the AAO “is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.” The AAO, however, is only part of the problem; reforms to the system of administrative justice at USCIS must be holistic and comprehensive.
Administrative reform (which Congress should enact into law rather than trust the agency to promulgate) must begin with a change to the USCIS rules which now limit the types of parties (a) who are permitted to appear before the agency and (b) the even smaller population of persons and organizations allowed to appeal an adverse decision. Moreover, the initial decision by a USCIS adjudicator must include an articulation of the evidence submitted and a detailed ruling on each of the legal issues raised.
Real justice reforms in the immigration arena would produce efficiencies, cost savings, improved access to justice, and beneficial changes to the way binding legal precedents are decided. As detailed at length in a February 27, 2013 New York Law Journal article, "Appealing Alternatives: Immigration Justice System Re-Imagined," by Ted J. Chiappari and me, Congress should establish a single Federal Immigration Court with full powers under Article I of the Constitution to hear appeals of all immigration-related administrative decisions rendered by the several agencies and departments in Washington.
Such reforms would also upgrade the professionalism and commitment to zealous advocacy of the immigration bar (whether in private practice or government service), while making the law more understandable and accessible to the public and the growing numbers of lawyers whose substantive expertise is other than immigration but who laudably engage in providing pro bono immigration legal services to individuals and non-profits.
Modeled after the Federal Bankruptcy Court, the proposed Federal Immigration Court would allow judges to develop the necessary expertise in all areas of immigration law. It would also preclude the announcement by the federal agencies and departments of policy by administrative ruling rather than by the promulgation of proposed rules under the Administrative Procedure Act, which offers the public prior notice and the opportunity to comment before any immigration regulation would be made final.
So let's cut to the chase. Here is the essential kernel of thought to digest from the introduction and conclusion of the cited New York Law Journal article:
If, as author Robert Sherrill maintained in his 1970 book, Military Justice is to Justice as Military Music is to Music, then immigration justice in 21st Century America is as melodious as an atonal, off-pitch cacophony. The forms and forums for truth-seeking and dispute resolution under the U.S. immigration system are wide-ranging, largely counter-intuitive and often too dysfunctional to mete out true justice. . . .
[I]mmigration justice today is unmelodious and painful to sit through. With a new Immigration Court as orchestral director, however, the several administrative agencies and immigration stakeholders sitting in musicians’ chairs could render a tour de force ensemble production, a command performance to delight Lady Justice and all citizens, foreign and domestic alike, who care deeply for her continued health and well-being.
Winston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform. Instead he was commenting on the Allies' post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:
This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most. The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.
What's the connection? Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners. Given much less, if any, attention, however, is whether the government's immigration bureaucracy can competently manage, regulate and enforce all these laws. Are the immigration bureaucrats, judges and police up to the task?
To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that "go from good to great":
. . . start not with "where" but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.
I submit -- as I've argued elsewhere and often in this blog -- that:
The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system ("boarding the right people onto the bus");
The heel-draggers and naysayers among the immigration bureaucracy, the cultists of "No," the feather-bedding careerists, and the power-mongers -- all must be exited ("getting the wrong people off the bus"); and, especially important,
Our immigration leadership must be deployed strategically and intelligently ("putting them in the right seats on the bus").
So what's this got to do with the SEC's civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.
The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters. The agency's professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy. Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America's goods and services.
The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. -- U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively -- have no special expertise in assessing legitimate or illegitimate business practices.
If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives: The StartUp Visa Act and the Startup Act 2.0. These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.
The StartUp Visa Act asks DHS to decide if "a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested" at least $100,000 on behalf of a "qualified immigrant entrepreneur . . . whose commercial activities" in two years will "create not fewer than 5 new full-time jobs in the United States," and "raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue."
Similarly, the Startup Act 2.0 expects DHS to assess whether a "qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . . at least 2 full-time employees . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . . during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5 full-time employees . . ."
I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS's mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.
Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.
If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS's immigration inspectors and State's consular officers determine the question whether the individual investor or family member is or is not admissible to the United States. In other words, USCIS's role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.
For this to occur, however, Congress must really think big. It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.
Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, "you may say that I'm a dreamer, but I'm not the only one." For as Winston Churchill also said:
We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.
Steadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:
Why don't they just get into line like everyone else?
Why don't they wait their turn?
Why don't they just follow the law?
Why should we reward lawbreakers who disrespect our laws?
Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?
All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than enduring extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.
[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.
The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:
["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.
To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:
The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.
As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:
Instead of dying in the desert, they might just die waiting to become permanent residents.
Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system:
[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works?
As President Obama has said: "Today we have an immigration system that is out of date and badly broken."
[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient?
A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.
The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.
No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government.(Emphasis added.)
According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:
As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].
The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.
The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)
The situation of getting "in line" is even more challenging than David Simmons suggests. As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:
There are multiple lines, not just one;
Unless you have a family or employer sponsor, there is no line whatsoever available;
It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".
The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out. The "line" flouts rather than upholds the rule of law. It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.
We didn't always act this way. Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:
The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the illegals who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.
The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.
The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"):
The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.
The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.
Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation. We need to create an immigration people-mover in place of the static "line."
I was escorted to the woodshed on January 15, a very public woodshed, and deservedly so. Alejandro (Ali) Mayorkas, the Director of U.S. Citizenship and Immigration Services (USCIS), politely took me to task at a Public Engagement during the Q & A session when I raised two points. One involves the subject of a future post. The other -- today's topic -- challenged an aspect of the agency's program for DREAMers known as Deferred Action for Childhood Arrivals (DACA).
As noted below, I criticized USCIS's stricter eligibility requirements for DACA recipients than other foreign citizens present in the U.S. who wish to travel abroad and be allowed back into the country. Mr. Mayorkas rejected my criticism (as also discussed below), but then offered one of his own.
He noted that in my recent blog post, "The 2012 Nation of Immigrators Awards - The IMMIs," USCIS received the "Not Especially Nimble" IMMI for its lack of agility on matters of employment-based immigration. Mr. Mayorkas suggested that if nimbleness is the measure of performance, then glaring by its omission was my failure to mention the speed with which USCIS introduced the DACA program -- a scant two months from President Obama's Rose Garden announcement.
Ali Mayorkas is right and I was wrong. In lightning speed for a federal agency, USCIS launched DACA and, on its first day of implementation, was prepared to act on all requests from qualified applicants. Rather than just wagging a finger at the slow pace of USCIS action on business-related immigration, I should also have tipped my hat to the phenomenally acrobatic DACA roll-out, for it showed what the agency's people can do when they roll up their sleeves and swing into action, notwithstanding naysayers like me. For this, I offer sincere "parole di scuse" (words of apology, in Italian).
But there is another species of DACA-related "parole" for which I offer no "scuse." This is a form of foreign-travel-and-reentry authorization known in immigration parlance as "parole." Unlike the use of that word in the criminal law context, however, immigration parole has nothing to do with conviction of a crime.
Rather, the discretionary power to grant parole arises under Immigration and Nationality Act (INA) § 212(d)(5)(A). By statute, it is the power to allow a foreign citizen into the United States "temporarily under such conditions as [formerly, the Attorney General, but now, USCIS, as delegate of the Homeland Security Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit . . ."
Parole is a grant of permission to travel to the U.S. and be granted entry in lieu of presenting a visa or overcoming or waiving a ground of visa ineligibility. It comes in four flavors:
Humanitarian Parole (available to persons outside the U.S. who seek letters of travel permission to present to an airlines or common carrier and entry to the U.S., usually for emergent reasons),
Public Interest Parole (available to persons outside the U.S. who come for a reason the government believes is in the public interest, e.g., to testify at a criminal trial),
Advance Parole (available to persons inside the U.S. who wish to travel abroad and be reasonably assured of being allowed back in) and
Parole-in-Place (an administrative mechanism permitting an individual in the U.S., often a member of the U.S. military or a relative, to overcome an obstacle to adjusting status here and being awarded a green card).
During the Q & A portion of the January 15 Public Engagement, a member of the audience identifying himself as a DREAMer who'd been granted DACA designation asked why USCIS required DACA recipients seeking advance parole to provide compelling humanitarian evidence. (For details, see Travel Requirements and Restrictions.) He noted that many DREAMers have been separated from family abroad for many years and just wanted to visit them and then return here.
Mr. Mayorkas responded that parole is an extraordinary remedy requiring powerful evidence of an emergent nature.
When my turn came, I challenged that assertion, and suggested that DACA grantees should be treated no differently than applicants for adjustment of status seeking advance parole while their green card applications remained in process. Adjustment applicants seeking parole need only cite a reason, or perhaps no reason at all, other than a desire to travel.
Besides diplomatically escorting me into the woodshed for my sin-by-omission grant of the IMMI award to USCIS, Mr. Mayorkas also disagreed emphatically on the grounds for parole, stating that the agency's eligibility criteria for "Humanitarian Parole" was well established by precedent decisions and judicial case law. Then, he moved on to the many other questioners.
Had time permitted (as it now does), I would have responded that Mr. Mayorkas was conflating Advance Parole and Humanitarian Parole. A glance at the instructions to the parole application (Form I-131), shows that persons outside the U.S. must establish that they seek to enter the U.S. "for emergent humanitarian reasons" (Humanitarian Parole) but those already in the U.S. applying for adjustment of status must show that you they seek to travel abroad "for emergent personal or bona fide business reasons" (Advance Parole) and then return to await the outcome of their green card application.
Although the instructions on the Advance Parole application require a showing of "emergent personal or bona fide business reasons," immigration practitioners and historians of the immigration process know that current USCIS practice is to accept any personal reason for foreign travel offered by an adjustment applicant. No proof of "emergen[cy]" is now required because the agency found long ago that when such evidence was demanded, applicants flooded the agency's offices with such evidence, personnel resources were diverted substantially from other tasks, and some number of deserving applicants departed the building crestfallen because their reason was not found sufficiently emergent, while others left gleefully for the opposite reason. Any reason now will do.
But you say, DACA beneficiaries are out-of-status immigrants while adjustment applicants must show proof that they maintained lawful immigration status. Certainly, one would think, USCIS is right in differentiating between the two groups. Not really.
While it makes sense to insist on compelling humanitarian reasons to let someone outside come to the U.S., it is hard to fathom a reason to require no such evidence of one (largely) faultless group of similarly situated persons in the U.S. (adjustment applicants) and yet require it of another entirely innocent group residing here (DACA recipients).
Perhaps the real reason has less to do with adherence to old case law on Humanitarian Parole, and more to do with a recent decision of the Board of Immigration Appeals (BIA) in Matter of Arrabally and Yerrabelly. There, the BIA held that an adjustment applicant's departure from the U.S. on a grant of advance parole does not trigger the three- or ten-year "unlawful presence" bar on reentry that usually applies to persons who stay more than six months or one year beyond the period granted by the government.
The significance of Arrabally and Yerrabelly is that once a person is paroled back into the U.S., most prior failures to maintain status are purged and the person is adjustment-of-status eligible through the usual family- and employment-based sponsorship avenues, as my scholarly colleagues, Messrs. Endelman and Mehta, explain. The BIA's reasoning in Arrabally and Yerrabelly would seem to apply not just to adjustment applicants but to DACA grantees as well. This is the conclusion reportedly reached by USCIS's Chief Counsel, Stephen Legomsky, according to this tweet of Ben Winograd, Staff Attorney at the American Immigration Council.
Maybe the real pragmatic and political reason to be inferred from the strict DACA rules on Advance Parole is the fear that entry on parole will facilitate the mass legalization of DREAMers through the usual adjustment process -- a backdoor "amnesty" to those opposing a path to citizenship for the undocumented.
Back to the Public Engagement: I also suggested that the denial of equal treatment to DACA beneficiaries may be a violation of Equal Protection. Mr. Mayorkas rightly noted that Equal Protection is a principle of constitutional dimension with strict requirements not necessarily applicable in all situations of disparate treatment. Yet, in another context during the Public Engagement (involving the need for written rather than telephonic communications between the bar and USCIS personnel), he noted that he is a big believer in people being on an equal footing or level playing field (and that therefore adjudicator/attorney oral exchanges are not allowed because lawyers can be overbearing).
While denial of Advance Parole to DACA beneficiaries who want to visit Grandma in the old country (unless she is certified by a doctor as at death's door) may not rise to the level of an Equal Protection violation, it surely undermines the principle of an equal footing and leveling of the playing field that the Director espouses. I therefore hope he and his agency reconsiders and -- when definitive requirements are published -- issues the same easily satisfied Advance Parole eligibility criteria for DACA designees as now exists for adjustment applicants.
As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.
Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).
The 2012 IMMI Awardees
Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:
Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.
Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:
[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.
Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals"). Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.
So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.
No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied": The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).
Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status. Nolan notes:
The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.
Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values). Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics. Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration. Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."
Taxing Non-Solutions. The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions." There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.
Well, thats a wrap for our 2012 IMMI awardees. The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.
Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama. Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:
Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.
With the Obama Administration and lawmakers in both parties promising to fix our dysfunctional immigration system, it's time for a reality-based understanding of global migration and a fresh choice of words.
As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:
Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent.
Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.
Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency. We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.
1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to
▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.
2: from another country :foreign
▪ alien residents
3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy
4: from somewhere other than the planet Earth
▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.
When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:
§ 101(a) Definitions
As used in this Act-- . . .
(3) The term "alien" means any person not a citizen or national of the United States.
Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."
But times and phrasings have changed. We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians. So, "aliens" -- the word -- must go.
We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity. Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.
If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto":
America need not surrender its sovereignty. It need not open the borders for all to enter. It must make hard choices, yet do so with respect for the dignity of all. As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":
We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . .
We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . .
We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .
To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .
When the rights of migrants are denied the rights of citizens are at risk.
Dignity has no nationality.
On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:
We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.
Let's start by banishing bullying words, hate speech and statutory epithets. Let's stop the name-calling and start the welcoming.
Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world.
While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky. We have posted a "road closed" sign when we should be cleaning off the welcome mat.
Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who've too often espoused an inhospitable "culture of no."
America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge's promise of justice and liberty for all. Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:
Be more respectful and stop treating visa applicants like suspects and liars.Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants. Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures. In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers. Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, "Ugly American" consular behaviors are a turn-off to those whom we would welcome.
Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation. When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated "third-degree" style of border enforcement must give way to the rule of law and enhanced due process protections.
Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions. Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-"tribunal" that has failed to fulfill its professed mission. It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending. It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard.
Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor's Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.
Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security's Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.
Reassign Agency Roles. The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants. FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor's Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as "labor certification." Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists. Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.
Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and -- through remittances sent back home -- in the exporting nation as well. Why then should there be a quota on economic growth? The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration. Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics. Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes. The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low. So, why have a quota on "smart people" (as business leader and philanthropist Bill Gates has asked)?
Establish uniform privileges across all work visa categories. There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited. If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories. There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return. Nor is it logical that H-1B visa holders have "portability" of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges. And the mother of all illogical immigration notions -- the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven -- should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).
Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents. Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system. Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination. Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators.
Promote entrepreneurship and investment. Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits. It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements. It should allow for the creation of a Founders or Start-Up Visa. It should confer immigration benefits on investors in residential or commercial real estate. It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.
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These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers.
While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.
With the elasticity of a yoga master, former stalwarts for comprehensive immigration reform (CIR) in the Senate, who had later pivoted to the Tea-Party right to survive reelection, including Orrin Hatch (who's "willing to listen" on CIR), Lindsay Graham (who wants the poison pill of Birthright Citizenship added to CIR) and John McCain (who has moved from "complete the danged fence" to "support[ing]" CIR), are now bowing in "Downward Dog" to the popular will.
Sensing the prospect of irrelevance (an "angry white guy" problem) and perhaps extinction, much like the Beach Boys, whose fans -- according to Bill Maher -- "are dying" out, Republicans now are bending quite flexibly in an about-face "evolution" on CIR, including support for a path to citizenship, even if dubbed "amnesty."
Post-election discussions of strategy among family- and employment-based immigration stakeholders have ranged from the taking of baby steps in the lame duck session to more fundamental reforms in the next Congressional term. Although in a different political environment I've recognized the CIR-piecemeal approach of politics as the art of the possible ("Timing is Everything for Hungry Immigration Reformers"), I think the country has shifted tectonically in its embrace of CIR, as confirmed by exit polls revealing a 65% preference among all voters for granting unauthorized immigrant workers "a chance at legal status."
As with the Fiscal Cliff and the imminent increase of revenue (through elimination of the Bush tax cuts) and the automatic spending cuts (demanded by Sequestration), so too with immigration. President Obama holds the upper hand, and Republicans can be made to stand tall like a skier in Dancer's Pose or to fall in the new American yoga of immigration reform. His Administration's exercise of executive power through DACA -- a cost-free contribution to his reelection -- is but one of many examples of "pen-stroking" actions he can take to change the system, preferably with, but if necessary, without, Congressional cooperation on legislation.
At least by 1602 with the chartering of the Dutch East India Company, and perhaps as early as the 1300s with the formation of the first colleganza, a rudimentary joint-stock company set up in Venice to share the cost of a trade expedition, human beings and corporations have cohabited the earth.
Although the shared habitation of human and juridical beings has never been entirely peaceful, governments have recognized the countervailing benefits of authorizing associations of people to incorporate fictitious legal entities. When corporate rights are recognized and liabilities limited, governments perceive it more likely that profits will be generated and workers hired than through riskier sole proprietorships and partnerships.
Governments can also control the behavior of companies, as Arizona has done in enacting a statute mandating enrollment in E-Verify, the Department of Homeland Security’s employment-eligibility verification database – a law the Supreme Court upheld in U.S. Chamber of Commerce v. Whiting.
To be sure, the legislatively-recognized corporate form at times provides shelter from legal storms while leaving sentient members of the species, homo sapiens, unprotected. For example, the constitutional rights of free association and speech – when applied to corporations – spawn consequences that repulse most ordinary citizens, such as the harmful flood released by the Supreme Court of anonymous corporate donations that fund Super-PAC campaign ads through its ironically titled decision, Citizens United v. Federal Election Commission.
In the immigration sphere, bureaucrats in the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) often refuse to accept the established rule-of-law principle that companies are to be treated as distinct from their individual owners. Although the Obama Administration claims as its official policy enthusiastic support for small-business entrepreneurship, these agencies have adopted regulations or policies at cross purposes that make it nearly impossible for the sole owner of a corporation to qualify through that entity for an employment-based work visa or green card.
The DOL’s Tomfoolery. The DOL has enshrined in its regulations requirements protecting the labor certification process from seemingly sinister “[a]lien influence and control over [a] job opportunity.” These regulations mandate the submission of evidence envisioned in an administrative law case, Matter of Modular Container Systems, Inc., 89-INA-288 (BALCA 1991). A decision rendered by a panel of civil servants with law degrees known as the Board of Alien Labor Certification Appeals (BALCA), Modular Container Systems made it almost impossible for a corporate entity owned, say 10% or more, by a foreign citizen to sponsor that individual’s labor certification application:
We hold . . . that if the alien or close family members have a substantial ownership interest in the sponsoring employer, the burden is on the employer to establish that employment of the alien is not tantamount to self-employment, and therefore a per se bar to labor certification.
BALCA therefore clearly ignored the venerable Anglo-American legal principle that a corporation is distinct from its owners since the panel ruled that the employee of a corporation is not to be treated as such but rather as engaging in activity “tantamount to self-employment.”
The DOL regulations, while claiming to accept Modular Container Systems, ignored the corporate form in a different way, namely, by establishing an irrefutable presumption of “bad faith.” This proposition holds that no job opportunity could be considered “bona fide” under the labor-certification recruitment process if a foreign citizen sponsored by a corporate employer for a green card (or a family member) holds a material percentage of stock in the corporate sponsor or otherwise could influence the company in determining the qualifications of U.S. citizen job applicants. While this principle may seem logical at first blush, it ignores the other-worldly fictions (as I’ve shown here, here, here, here, here and there) that are part-and-parcel of the DOL’s bass-ackward labor-market testing procedures.
Inherent in the DOL’s rule precluding working-owner labor certification is the unproven assumption that an individual shareholder is more likely than a corporate entity to commit fraud. The lengthy list of prominent corporate frauds and other corporate scandals, however, belies the proposition.
USCIS’s Three-Card Monty. USCIS, the component within the Department of Homeland Security charged with granting or refusing employment-based immigration benefits, likewise flouts the corporate form whenever it wishes. Yet its misfeasance is worse than that of the DOL.
Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship?
A12. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary. (Emphasis added.)
Unfortunately, an off-message adjudicator at the USCIS California Service Center disputes the concept embraced by the agency's headquarters that the creation of a higher authority with the right of control over the H-1B worker will allow a petitioning corporation to demonstrate that a working owner is in a valid employer-employee relationship with the entity. In this decision, the CSC adjudicator ignored the evidence that a limited liability company (LLC), owned equally by the H-1B beneficiary and another member, was controlled by its managers rather than its members. The adjudicator determined that the members' shared theoretical authority to remove the managers negated an employer-employee relationship.
Ironically, if the entity were a corporation with a board of directors and a sole shareholder as the working owner, USCIS headquarters appears ready, based on the FAQ, to find an employer-employee relationship and approve the H-1B petition, even though a 100% shareholder could fire the board just as easily as sole or joint members of an LLC could remove the managers.
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This, sadly, is what happens when immigration bureaucrats create irrebuttable presumptions of bad faith by working owners or float new and unwarranted interpretations that disregard settled law dating back centuries. Corporations – though they are not people – possess enforceable legal rights. Ignoring the distinction between a corporate entity and its owners does nothing to promote the just administration of the immigration laws, hampers job creation and entrepreneurship, and persuades an increasingly cynical public that the agencies make up seat-of-the-pants "law" on the fly.
Immigration has been dubbed the third rail of American politics, along with Social Security, Medicare, gun control, and a variety of other hot-button issues. To me, it's more like a downed power line snaking low across the ground and electrocuting whomever fails to give it respectful attention. As the eyes of the nation turn to the first Presidential debate this Wednesday, will immigration supercharge the colloquy or -- as in years past -- be wholly ignored or disregarded as annoying static electricity?
Governor Romney, your immigration advisor, Kris Kobach, has supported laws which reportedly have caused economic harm to states and localities adopting them. What immigration measures would you adopt to spur their economies?
President Obama, your Secretary of Homeland Security has instructed Immigration and Customs Enforcement to treat LGBT couples as "family relationships" in removal proceedings, and your Justice Department no longer defends the Defense of Marriage Act. Will you issue a regulation or executive order in your second term that authorizes the approval of same-sex, marriage-based immigrant visa petitions?
President Obama, why are 31-year-old and older DREAMers ineligible to file for DACA benefits?
Whatever the outcome of the debates and the November election, maybe all this electrifying talk about immigration is simply the wrong metaphor. Americans seem far less troubled about immigration, according to a recent report from the Pew Research Center for the People & the Press:
Immigration is . . . less of a focus in 2012. In [our] new survey, 41% view the issue of immigration as very important – the lowest of 12 issues tested – compared with 52% in August 2008.
Maybe the best debate questions should therefore be posed to each of them:
What specific actions will you take to cattle-prod Congress into enacting comprehensive immigration reform?
Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen. While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.
TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple: Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn. With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).
That Was the Week That Was came reverberatingly to mind with the news of the last seven days.
Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.
Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":
Congress has spread a table laden with reheated immigration delicacies, while still engaging in the usual posturing, pretend friendships and verbal fisticuffs.
In a spirit of convivial bipartisanship, the House on September 13 passed by a vote of 402-3 legislation the Senate had approved in August, S.3245 ("A bill to extend by 3 years the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program"). Presumably, it will land on the President's signing desk before the September 30 sunset of the four programs.
Positioning has also begun in the House over competing Democratic and Republican versions of a STEM jobs act that would give green cards to highly-educated math, engineering, tech and science graduates of U.S. universities. The primary difference in approach is over whether to provide STEM green cards by eliminating the 55,000 Diversity Visa lottery (the GOP proposal). As explained by Rep. Luis V. Gutierrez (D-IL), the Democrats want to vote on "a clean STEM increase . . . without doing damage to other parts of our legal immigration system." Given the GOP's House majority, expect the Republican version to be approved soon and sent to the Senate where it will face an uncertain fate.
After next week, Congress will likely go dark until after the November election as each party campaigns for hegemony in the executive and legislative branches. A lame duck session will likely follow. Perhaps then winners and losers will at last put country before party on immigration and a host of other issues. Maybe legislators whose careers are ending through a loss at the ballot box or retirement -- with nothing to lose -- will grow spines. Perhaps the losing side will become more pliant as demographic changes cause them to wake up and smell a new brand of java. It's happened before with such major lame-duck legislation as the Immigration Act of 1990, which passed on November 29, 1990.
If there is to be an immigration meal, it must be piecemeal. If immigration supporters cannot have a multi-course feast at a single sitdown dinner, then tapas eaten seriatim will more than satisfy the hungry reformers' appetites.
The challenge will be to avoid modestly beneficial compromises that add to complexity and include something bad for everyone, and instead forge good deals that foster our bedrock immigration values of family unity, economic prosperity, and refuge for the persecuted.
If Mitt Romney wins, perhaps the best we can hope for is a Nixon-to-China moment on immigration reform, with the scales tipped in favor of employment-based visas and heavier-than-Obama enforcement (if that's even possible). More immigration hope and change can be foreseen if President Obama carries the day, and the Dems maintain control of the Senate while making gains in the House. Perhaps anti-filibuster reforms early in the new Congressional term (as explained procedurally here and here) will be the secret door to comprehensive immigration reform.
Wonks, stakeholders and, of course, citizens: Stay tuned.
The Democratic Convention in Charlotte ended last week. The media has now turned to measuring and marveling at President Obama's post-convention bounce despite weak Labor Department data revealing persistent joblessness.
An historic moment occurred with a convention address in Charlotte by an undocumented immigrant, Benita Veliz, class valedictorian and DREAMer extraordinaire, whose brief remarks Dan Stein of the anti-immigration hate group, FAIR, predictably assailed as “nothing more than a celebration of lawlessness.”
Commentators contrasted Republican Marco Rubio and Democrat Julian Castro (“To Mr. Rubio, Hispanics are refugees from foreign oppression, who want government to let them alone. . . . In contrast, . . . Mr. Castro . . . sees government as an essential enabler of ethnic assimilation and success”). And insiders, perhaps unwittingly, assured full employment for dentists by their vigorous teeth-gnashing over the irreconcilable differences between the parties on immigration policy. The only item of apparent common ground is the issuance of quick green cards for STEM graduates. (See Immigration Impact's platform analysis here, and AILA's take on the same topic here [AILA InfoNet Doc. No. 12090541, membership required].)
Given the parties' chasmic differences, is comprehensive immigration reform (CIR) still a bridge to nowhere? Perhaps not. A convention segment last week on POTUS (Politics of the United States), the satellite radio station, entitled "Hispanic Voices," offered a plausible route to CIR:
Latino voters turn out in large numbers;
Obama is reelected, but one Congressional chamber remains under GOP control;
Some Republicans -- at last seeing a desolate future because the demographic tide has washed away so much of their base -- want the contentious issue of immigration behind them;
Obama offers the GOP a choice of legislative compromise or more executive orders on immigration that whittle down the undocumented population by creating administrative avenues for relief;
Even if Latinos flock to the polls, and the "Hispanic-Voices" scenario begins to materialize, CIR will be no cakewalk.
Democratic versions of CIR have favored more exacting worker protections in the H-1B and L-1 categories and more frequent audits of employers than the business community may be willing to tolerate. The allocation of visa quotas for H-1B jobs and family-versus-business green cards -- with family unity getting the lion's share over employment-based slots -- may create fissures in the CIR coalition. There remains contention over the Draconian 1996 smack-downs of due-process protections for immigrants, a bone of T-Rex proportions in an era where even the protection of abused immigrant women is the sticking point in the current fight over renewing the Violence Against Women Act. And almost no one is talking about sweeping changes that would make the system more user-friendly, rational and simple -- a task that would require a kind of robust country-first statesmanship that, alas, has been AWOL for many years.
Maybe the parties can start building compromises on the business-immigration side, with solid assurances that other key elements of CIR will get their due as negotiations succeed on the low-hanging fruit; or maybe not.
[Blogger's note: Tomorrow, August 15, 2012, is perhaps as momentous to DREAMers as D-Day, June 6, 1944, was to The Greatest Generation. The invasion of Normandy marked the end of World War II in Europe and the fall of a tyrannical Nazi regime that made mincemeat of the rule of law.
Conversely, doors that have been legally shut to persons solely by virtue of their status are now to be opened a tad, as Julia Preston of The New York Times notes in today's edition. She reports on the Obama Administration's temporary clemency program, Deferred Action for Childhood Arrivals (DACA), which may lead to the grant of employment authorization for youthful entrants to America found worthy of discretionary de-escalation of enforcement by U.S. Citizenship and Immigration Services (USCIS):
The work permit young immigrants can receive with the deferral opens many doors that have been firmly shut. They can obtain valid Social Security numbers and apply for driver’s licenses, professional certificates and financial aid for college.
Thus, just like those for whom the Allied invasion of Normandy launched a new life, one transformed from the status of a nonperson to that of a free member of society, DACA stands as a tiny step in the direction of reversing the application of perverse laws. In this case the perversion of laws are found in America's Immigration and Nationality Act, a statute chockablock with befuddling provisions that punish innocent children for the mistakes of their parents.
When it takes the government almost 100 pages to tussle internally over the fine points of a discretionary policy, the question arises whether a DACA applicant should be represented by legal counsel. Recently, in a YouTube video, two federal lawmakers, Senator Dick Durbin and Representative Luis Gutierrez, usually immigration-reform stalwarts, said a lawyer's help was unnecessary. Curiously, the link now reflects that "[this] video has been removed by the user."
My guest columnist, Karin Wolman, agrees that a lawyer's counsel and representation is necessary in DACA cases (as do I). I recall the mess created by the legacy immigration bureaucracy, Immigration and Naturalization Service, when it tried to interpret and implement a comparable change in policy, the 1986 legalization program, a misguided agency effort that spawned decades of litigation. So, DREAMers, don't take a chance. Even if you think your case is straightforward, get good referrals, and talk to a competent lawyer who regularly practices immigration law. Your life as a nonperson will end and your civil rights will be recognized only if you do DACA right.]
Durbin & Gutierrez Put DREAMers at Risk
By Karin Wolman
Senator Dick Durbin and Representative Luis Gutierrez released a video message to the DREAMers on August 6 that is one of the most irresponsible and dangerous public messages from a voice of authority in living memory. It is a deep disgrace that supposed champions and co-sponsors of the DREAM Act would advise young people who are eligible for Deferred Action for Childhood Arrivals, "Do Not Hire a Lawyer." Yet Sen. Durbin said those words, doing a huge disservice to the very vulnerable class of people they are ostensibly trying to help.
These elected representatives perpetuate a dangerous source of confusion between unscrupulous "notarios" who engage in the unauthorized practice of law, and licensed, trained attorneys who are subject to ethical rules and have the ability to advise DREAMers properly on the process and potential consequences of applying for Deferred Action for Childhood Arrivals.
An experienced immigration lawyer who has carefully reviewed the applicant's background and documents can ensure that DREAMers file applications which will have the best possible chance of success. This is why Senator Durbin's patently false claim that "Virtually everyone will be able to go through this process without a lawyer," is so disturbing. Perhaps he has already forgotten that the Deferred Action application process includes no right of appeal, and permits no motions to reopen. This is a one-shot opportunity. Applicants must get it right on the first try, or else they face a discretionary denial that is final and cannot be reviewed.
Perhaps Sen. Durbin and Rep. Gutierrez have also forgotten that both USCIS and ICE have extremely poor track records with respect to granting any forms of discretionary relief to applicants who are unrepresented by counsel. The memos of June 2011 from ICE Director John Morton authorized broad use of prosecutorial discretion for those already in proceedings who have no criminal convictions, but the rate at which such relief has been granted in immigration courts is less than 2%. Self-represented applicants who misunderstand any of the Deferred Action criteria and thus fail to interpret their own eligibility correctly, or who get the standard right but provide documentation that USCIS regards as insufficient, or who believe that the information they provide will remain confidential, may be placing themselves and their families at risk of deportation. These are some of the key reasons why it is so very important for DREAMers seeking Deferred Action for Childhood Arrivals to consult with a knowledgeable immigration attorney or legal service organization, and why the message from Messrs. Durbin & Gutierrez will do real harm.
[Blogger's post- postscript]
My last blog post, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:
I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me.
I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.
I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.
My post above, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:
I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me.
I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.
I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.
[Blogger's Note: This week's guest column is by Jennifer Oltarsh, an immigration lawyer practicing in Manhattan. She writes about how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.]
Immigration Law -- Moving away from Individual Rights
By Jennifer Oltarsh
Immigration laws are increasingly more complex. When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.
Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects very poorly on this country. These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system. Many of these laws have ultimately proved to be an embarrassment. A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed. Under this law all Chinese were banned from immigrating to the United States and to naturalize. Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902. This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II. 130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.
In 1996 two laws were passed with the goal to deprive judicial review and discretion. The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review. Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation. As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well. As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.
This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy. The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA. The law is based on the false premise that we need mass detention and deportation to keep dangerous "criminal aliens" off our streets. In reality immigrants are less likely to commit crimes than native-born Americans. Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses. In the 15 years since IIRIRA's passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained. Taxpayers pay for these detentions. The detention include thousands of immigrants and permanent residents who pose no threat to the community. It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.
We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety. Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!
The failure to take individual circumstances into account has always resulted in untold human costs. We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society.
It's been a momentous, startling and exasperating two weeks. The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.
Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come. Here, then, are what pleases and what remains lodged in my craw.
The Arizona Ruling
The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families.
Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
The Health-Care Decision
The word "immigration" came up but once in the opinion -- a discussion of Congress's relative authority under its constitutional powers to tax and to regulate commerce:
[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)
National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration -- the scope of comparative rights to health care afforded to legal and undocumented immigrants.
At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.
The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.
The Montana Slap Down
This decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United. Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.
The EB-5 Engagement with Economists
Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.
Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.
Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.
Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.")
Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.
My view, which I shared with USCIS leadership, is this:
With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States.
* * *
As you can see, it's been a long and exhausting two weeks. I need a vacation! Guest posts (well-written and edgy) are welcome.
The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doeprovided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.
It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:
A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper.
Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:
The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million.
Are they up to the job?
The challenge will be daunting. No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.
Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred?
Here's what should be done:
ICE and USCIS should publish regulations and OMB should approve them on an expedited basis. Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment. As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement." Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.
USCIS should use the EAD application process as the platform for deferred action requests. USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history). By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications. USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification. Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon. Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators. If needed, USCIS can also hire and train more adjudicators -- assuming that $380 per EAD application is sufficient. If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort). Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here."
Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR. Like a balloon held under water, CIR must eventually emerge. Possibly ephemeral deferred action status and evanescent work permits are insufficient. They are revocable, and offer no path to citizenship and no route to full integration into American society. The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows. We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide."
A week earlier, on the other side of the globe, hedge funds and institutional investors following the IT consulting industry in India read "Access Denied," a report co-authored by the CLSA U and this blogger for clients of Credit Lyonnais Securities (Asia) "to help fund managers understand the latest industry trends, investment theories and macro developments that impact the markets and sectors in which they invest."
Ironically, the same questions monopolized the ACIP's panel discussions and corridor conversations, while also garnering the attention of CLSA U's clients:
Why has the L-1B visa for persons with "specialized knowledge" -- a category readily available to "Intracompany Transferees" since 1970 -- suddenly become virtually unattainable if the foreign citizen (especially if coming from India) will be stationed at a consulting customer's worksite?
Why does an Administration that claims to be a friend of job-creating businesses cause projects to be delayed or cancelled, contracts to be breached and American job opportunities that would have been created to become so much collateral damage?
The war's drone attacks have increased dramatically since last year (although early casualties have been inflicted since at least 2008 when the USCIS Administrative Appeals Office issued its supposedly "non-precedent" GST decision, which offered eager adjudicators a pretext to shoot down the expansive interpretation of specialized knowledge in place since Immigration Act of 1990 and, in effect, extralegally reserved the L-1B category exclusively to persons with "unique knowledge".
Director Mayorkas -- who I lauded recently in this blog -- addressed the ACIP's audience, promising that draft guidance (allowing public comment before becoming final) would be released "any day." In response to a question I posed expressing concern over the immigration agency's historic "antipathy toward business," he denied that a war was underway, or that any anti-business attitude prevailed among adjudicators.
“I have not found an institutional antipathy towards business or to any particular community,” he said in response to an audience member's question regarding the level of support USCIS will give to explicitly pro-business policies. “What I have seen is interpretations of law that don't necessarily understand sometimes the way business works and the challenges that businesses face and what the purpose of the particular visa category is.” Source: Elliott Dube, Reporter, Bureau of National Affairs.
As we await the promised L-1B guidance on specialized knowledge, insiders report that USCIS may buckle under the weight of this war of letters and try to restrict the category notwithstanding any relevant change in law or regulation since 1990. They suggest that the agency might try to find dry gunpowder in the L-1 Visa Reform Act of 2004 to shoot down the broad definition of specialized knowledge.
That law, however, offers USCIS no basis to restrict specialized knowledge; it merely prevents the stationing of an L-1B worker primarily at a worksite owned or controlled by another entity where either (a) the worksite entity controls the work of the petitioner's employee; or (b) the placement is “essentially an arrangement to provide labor for hire” for the worksite entity rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
The first part of the change duplicates existing law. Under the doctrine of "deemed employment," if the worksite entity were to control the individual's work while knowing that it had not petitioned USCIS to employ a foreign worker, the act of deemed employment would violate the Immigration Reform and Control Act of 1986. The second part of the 2004 change is also duplicative. A foreign individual who participated in “an arrangement to provide [the worksite entity with] labor for hire” would not meet the definition of specialized knowledge and thus could never acquire an L-1B visa.
As USCIS recognized in its implementing guidance, nothing in the L-1 Visa Reform Act of 2004 changed the definition of specialized knowledge:
[The] alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(D) . . . .
So, perched in our bunkers waiting for this war's next wave -- a battle for talent, a battle to enable projects that will create jobs for Americans -- anxious non-belligerents ask, will it be bombs away or bombs put away?
89-9 Processing and Review of Visa Denials Partially implemented. Recommends that the Department of State implement changes in its procedures for review of visa applications at United States consulates abroad. The recommended changes include permitting the assistance of attorneys, increased explanation of the basis for denials, making public advisory opinions of the Visa Office, and studying the development of an administrative appeals process for visa denials. The Recommendation was transmitted to the Secretary of State and to relevant Congressional committees. In 1990, the ABA adopted a resolution supporting most elements of this recommendation [p. 56]. In 1990, the Legal Adviser of the State Department indicated, in a letter to the Chairman, that the Department was considering implementing specified parts of the Recommendation but would likely not initiate a study of the implementation of administrative appeals. In 1992, H.R. 5173 was introduced to establish a Board of Visa Appeals in the State Department. In 1993, the State Department issued a cable emphasizing the need to give explanations of the reasons for visa denials, and providing additional information in cases where an advisory opinion is being sought. (Italics in original.)
If ACUS approves the recommendation to fix the immigration removal system, that will surely change the national dialogue. Although the reincarnated ACUS hasn't yet tackled comprehensive immigration reform, this public-private partnership will deflate the arguments of immigration hardliners who oppose CRI and just hate it that border crossings are down. By showing how the system can be made more efficient, less costly and more just -- meaning that people who really ought not be here are removed quickly and cheaply, while those with equity are allowed to reclaim their quest for the American Dream -- ACUS will help force the opponents of reform to face the inevitable need to fix the two other legs of the CRI stool (the undocumented who are here and future flows of those whom we need).
Among the other ACUS proposals for consideration on June 16 is one that likewise addresses immigration dysfunctionality. As the Federal Regulations Advisor Blog describes it, the proposal would "Improv[e] Coordination of Related Agency Responsibilities:
The Committee on Collaborative Governance makes recommendations on the perceived problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. In reviewing the report by Jody Freeman (Harvard) and Jim Rossi (Florida State), agencies will need first to determine their jurisdiction, an issue of large concern by itself.
So I'm delighted that ACUS is back in the immigration sandbox. Although the cynics might say that ACUS builds castles in the sand, I'm with many American forebears who would urge ACUS to continue striving. These, I fancy, would include the age-defiant Satchel Paige in the quote above and Henry David Thoreau, whom (for the sake of maintaining my sandbox metaphor) I paraphrase thusly: "If you have built castles in the [sand], your work need not be lost; that is where they should be. Now put the foundations under them."
I worry a lot about the future facing America's young adults. Saddled with Dickensian levels of college and grad-school debt, largely unable to find opportunities in their preferred careers, our young fear that they'll be relegated to work in low-paid, dead-end jobs. They and their parents are rightly concerned that the middle class is disappearing, the gulf between the ultra-rich and the poor is growing, and citizens coming of age today may never achieve the American Dream of economic progress.
The country's political, labor and business leaders seem to think the solution lies in restoring our nation's former prominence in manufacturing:
At the Second Annual Conference on the Renaissance of American Manufacturing held in Washington on March 27, speakers from the Obama administration, the Mitt Romney and Rick Santorum presidential campaigns, Republican and Democratic senators, CEOs, and representatives from labor, think tanks and trade associations all agreed: the renewal of American manufacturing should be a top economic priority.
I'm not persuaded. Don't get me wrong, this native Detroiter was glad when the Obama Administration stepped in to save the U.S. auto industry. Despite the protests of a certain "Son of Detroit," the de facto GOP nominee for president, who would have "Let Detroit Go Bankrupt," and now derides the auto bailout as "crony capitalism," maintaining a base level of domestic manufacturing is an important element of our national security.
[If] you look at America’s metropolitan areas, it’s clear that manufacturing-oriented places are relatively poor. The wealthy clusters in the United States are built around things like software, biotechnology and medical devices, higher education, finance, and business services. Places like California, Minneapolis, Seattle, and the Northeast corridor are far richer than the factory-oriented Rust Belt and Southeast.
Rather than overemphasize the rebuilding of its industrial base, America should play to its true strengths. We are the "crazy ones" who "think different", the dreamers (and DREAMers), the visionaries and innovative problem-solvers. Although we've fallen behind in the STEM fields, and must therefore refocus our emphasis on math and the sciences, we are blessed as a nation with an abundance of creative savants who color outside the lines. Our technology dazzles and transforms the world as Hollywood entertains it.
These strengths illustrate the fundamental economic principle of comparative advantage -- do only what you do best and let others do their own best thing. It works domestically, for example, when companies make the "buy or build" decision and choose to focus on core competencies. It would work as well in the global economy if trade were truly free and fair, protectionism were eliminated, and guarantees of minimum labor standards and trade dislocation payments were universally achieved.
If America played to its strengths, our leaders would promote basic research and development, and generally decline to let government pick winners and losers. They would recognize that service industries today account for almost three-fourths of all American jobs, and that the upside potential for better-paying jobs lies more in services than in manufacturing.
Similarly, The New York Times' Catherine Rampell reported last week:
In the United States, services increasingly dominate the economy. Employment in this sector has risen steadily since the 1960s, with 70 percent of Americans now working in service industries. And America already exports more services than any other country in the world, even more than the next two competitors combined. In 2011, that amounted to $612 billion exported in services, up 10.1 percent from 2009, and up 136 percent since 1991.
Still, there is great untapped potential for more, since all of these exports are being sold from a tiny share of all the American companies that could participate in the global marketplace.
Steel protectionism is another culprit. Our would-be trading partners have seen America (the leading proponent of free trade) as behaving hypocritically when President George W. Bush imposed tariffs on imported steel in 2002 and again when Congress enacted and President Obama signed the American Recovery and Relief Act in 2009 (with its "Buy American" requirements to purchase iron, steel, and manufactured goods for use in public construction and public works projects).
Global trade in steel and farm products are important to be sure. Lowering these trade barriers globally or regionally (while providing trade adjustment assistance and retraining for displaced workers) would be beneficial. It would allow American consumers to purchase more goods at lower cost. The real promise of American prosperity lies, however, not so much in eliminating barriers to trading tangible commodities, but rather in exploiting our lead in the international trade for services.
The Times'Catherine Rampell in sleuthing out the cause for global restraints on trade in services concludes her article by identifying the prime culprit:
Perhaps the most basic constraint is not abroad but here in the United States, which has relatively tight immigration controls. Services often require workers to travel freely across borders. Asking India to allow American consultants to enter and leave Delhi at will is difficult if the United States cannot — or, more accurately, will not — reciprocate. Economists acknowledge concerns about freer trade displacing some American workers. But they say the United States would nonetheless have a net gain in jobs if borders everywhere were more open.
“We need to have a visa policy that allows businesses to operate efficiently at home and abroad, and that allows all professionals to be able to move back and forth between corporate offices,” said Jeffrey J. Schott, a former trade negotiator and now senior fellow at the Peterson Institute. “If we don’t, why would anyone else?”
If demography is destiny, the U.S. economy may be in the midst of a decades-long slowdown. The U.S. labor force is growing at about half the rate it was 20 years ago; according to recent projections by the Bureau of Labor Statistics, it will continue to expand at a slightly lower pace through 2020. . . .
“In the end, what an economy is depends upon how many bodies you have,” said Anthony Carnevale, an economist and director of the Georgetown University Center on Education and the Workforce.
Carnevale added that if the diagnosis for what ails the economy is the size and quality of the workforce, that may be good news, at least compared to theory that the biggest problem is foreign competition. “To the extent this is a domestic demographic problem, it’s more in our control,” he said. “We can’t blame the Chinese for the quality and quantity of our domestic labor force.”
Indeed, America's domestic demographic problem is in our control.
The U.S. will only correct its trade imbalances, redouble the nation's sizable lead in the global trade for services, and create high-paying U.S. jobs for present and future generations, by modernizing our creaky, crotchety immigration laws.
At President Obama’s signing ceremony for the JOBS Act last week, White House guests slapped high fives with bipartisan glee. They came to the Rose Garden to help “Jumpstart Our Business Startups,” as the new law’s title optimistically promises to do. With pen in hand, the President joined in the merriment, observing that it’s not about blather but action:
One of the great things about America is that we are a nation of doers -- not just talkers, but doers. We think big. We take risks. And we believe that anyone with a solid plan and a willingness to work hard can turn even the most improbable idea into a successful business. So ours is a legacy of Edisons and Graham Bells, Fords and Boeings, of Googles and of Twitters. This is a country that’s always been on the cutting edge. And the reason is that America has always had the most daring entrepreneurs in the world. . . . [M]aybe one of them or one of the folks in the audience here today will be the next Bill Gates or Steve Jobs or Mark Zuckerberg. And one of them may be the next entrepreneur to turn a big idea into an entire new industry. That’s the promise of America. That’s what this country is all about.
With an eye to November and an 11% approval rating, members of the House and Senate are trying at last to rebrand themselves as a “done-something” Congress. Would it were so with the DREAM Act or with urgently needed reforms to our antiquated system of legal immigration whose last major enactment occurred in 1990. Regrettably, when it comes to immigration, the American people get claptrap not high fives.
Taken together, these reports sound a clarion call for immediate legislative action on legal immigration.
As the Bush-McLarty report proposed:
The Task Force recommends that the United States tackle head-on the growing competition for skilled immigrants from other countries and make the goal of attracting such immigrants a central component of its immigration policy. For decades, the primary goal has been to ration admission; in the future, recruiting the immigrants it wants must be the highest priority.
The Rice-Klein study on education reform and national security concurs:
Too many schools have failed to provide young citizens with the tools they need to contribute to U.S. competitiveness. This, coupled with an immigration system in need of reform, poses real threats to the prospects of citizens, constrains the growth of the U.S. talent pool, and limits innovation and economic competitiveness.
The Iowa senator worries that “flooding the employment market with foreign workers when high-skilled Americans are seeking jobs at unprecedented levels, just doesn't square with improving the home-team advantage, let alone fostering a level playing field.”
Even more worrisome to Sen. Grassley are immigration fraudsters who steal jobs from Americans. He sees them everywhere, much like the young boy, Cole Sear, in the 1999 film, The Sixth Sense, who sees dead people all around:
Cole Sear (played by Haley Joel Osment): I see dead people.
Malcolm Crowe (played by Bruce Willis): In your dreams? [Cole shakes his head no]
Malcolm Crowe: While you're awake? [Cole nods]
Malcolm Crowe: Dead people like, in graves? In coffins?
Cole Sear: Walking around like regular people. They don't see each other. They only see what they want to see. They don't know they're dead.
Malcolm Crowe: How often do you see them?
Cole Sear: All the time. They're everywhere.
Sen. Grassley wants to place even more rigid controls on the H-1B visa (for Specialty Occupation Workers) and the L-1 visa (for Intracompany Transferees). The senator would inflate the wages that U.S. employers must pay skilled foreign workers (even though the law of supply and demand is producing that result already without an act of Congress), require feckless labor market testing of workers in occupations with low unemployment rates, and give even more authority to the Labor Department to send disruptive auditors to the worksites to investigate the supposedly ever-present fraud that he perceives.
And as Congress dawdles on legal immigration, Sen. Grassley has been a one-man lightning rod, jolting the immigration agencies under the W and Obama administrations and intimidating them so that they jump to his bidding.
Not content to engage in officious intermeddling with an Executive Branch immigration agency, Sen. Grassley has also been busy tasering the Department of Homeland Security (DHS) Inspector General (IG) into issuing breathless reports based on unscientific measurements that unpersuasively document "evidence" of perceived fraud (links available here, here and here). It's not as if the IG has nothing to do; rather, he should be spending more time investigating DHS's internal operations.
We can electrify and fortify our borders, and send in the immigration drones and detectives, but we still need law-abiding sojourners and immigrants to reinvigorate our economy and uplift our people.
As much as NationOfImmigrators assails the wrongdoing of the immigration agencies, this blogger knows nonetheless that they are peopled mostly with patriots trying to do the right thing (as a USCIS Service Center Director correctly reminded me last week and as the USCIS’s Fiscal Year 2011 Highlights Report confirms).
They make mistakes, to be sure, and engage in insincere Washingtonian wordsmithing. Take for example the oft-repeated conceit that FDNS site visits are merely cleverly surprising methods to insure integrity in immigration petitions and are not law-enforcement actions subject to Fourth Amendment protections.
The veil’s been lifted on that falsehood, however, with the issuance of a March 30, 2012 federal court order in a Freedom of Information Act (FOIA) suit by the American Immigration Lawyers Association (AILA) against USCIS and DHS. AILA’s lawsuit seeks release of three USCIS documents, viz., its H-1B Benefits Fraud Compliance Assessment Report (BFCA), H-1B Petition Fraud Referral Sheet and H-1B Compliance Review Worksheet. Although the suit continues, the court generally affirmed for now USCIS’s assertion that its actions in refusing disclosure are justifiable under the FOIA exemption found at 5 U.S.C. § 552(b)(7)(E). This section protects records or information compiled for law enforcement purposes from disclosure “to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The agency relies on exemption 7E because the requested records, as USCIS’s own pleadings assert, have been “withheld to preserve the integrity and effectiveness of certain techniques and operations of current law enforcement significance.”
On what are these “techniques and operations of current law enforcement significance” based? The court’s order offer’s a tantalizing snippet:
The final page of the BFCA Report identifies several primary fraud or technical violation(s) indicators: (1) firms with 25 of fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies; (2) firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with annual gross income greater than $10 million; (3) firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years; (4) H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories; and (5) beneficiaries with only bachelor’s degrees had higher fraud or technical violation(s) rates than those with graduate degrees.
Ironically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree.
Clearly, USCIS and its FDNS unit are now running scared by Sen. Grassley’s gassy harrumphing, and see fraud where the President and most members of Congress, including the Senior Senator from Iowa, see opportunities for job creation.
One true believer in the power of immigration, Steve Case (former AOL founder and now venture capitalist), who was instrumental in gaining the votes for the JOBS Act, says, "[m]omentum begets momentum." Case now has set his sights on passing job-creating immigration laws before the November election (a controversial subject among some immigration proponents who believe that only a comprehensive solution, including remedies for the undocumented, will rectify America's immigration dysfunctions).
At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.
The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama's signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children.
The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin. Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of "all the hate" coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon's death. As the Washington Post reported, President Obama said:
I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.
Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America. He recalled an indomitable father who lost his livelihood and property in Castro's Cuba and yet built a new business in faraway California. He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.
Love of children, however, only goes so far within the Beltway. Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do." These under-age advocates, however, didn't rely solely on the heart and soul. Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America.
Their petitions, though politely received, seemed mostly to fall on deaf ears. The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November's election.
Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful. I challenged him, noting that none of the members of ICE's union, constituting the bulk of ICE's 7000-person workforce -- have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, "I'm a deportation officer, not a discretion officer." Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.
Worse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer's well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit -- the opportunity to vegetate in America, like a bromeliad, on thin air.
Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director. Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.
If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin. He must also explain what "every parent in America should be able to understand" and show "why it is absolutely imperative" that we not waste our DREAMers' young lives.
The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum. The point system should feature a two-way override. ICE should have discretion where warranted to overturn a presumptive "yes," and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive "no." This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience.
The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action. In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.
* * *
As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "life, liberty and the pursuit of happiness" as cited by the junior high students who last week urged passage of the DREAM Act. America's seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week ("The Founders' Immigration Policy"), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had "appealed to [the British people's] native justice and magnanimity" to reverse the "usurpations" of King George III, but nonetheless they "have been deaf to the voice of justice."
Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice. If you could adopt more children, they should look like our DREAMers.
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.
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).
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."
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.
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.
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.
Surprising as it may be to Italian-American youth of today, with a Cuomo as governor of New York and a Scalia and an Alito as Supreme Court justices, this kid of 1950s' Detroit hated his Italian name and resented his father for having conferred it. "Angelo Alfredo Paparelli" was too much ethnicity to bear.
I'm not named "Angelo" because of my father's fondness for heavenly creatures, nor was I given the middle moniker "Alfredo" for his love of a certain pasta sauce. Under the Italian naming tradition of primogenitore, my name was predestined. The first-born male would take the first name of the paternal grandfather as the newborn's first name, and the first name of the father as his middle name; and that was that.
I hated my name, not for any dislike of Italy, but because I yearned to be accepted as an American, just like the Nelsons and Cleavers on TV. My supposed TV role model, alas, was Private Dino Paparelli of the depressingly-titled You'll Never Get Richseries (later known as The Phil Silvers Show), with the dim-witted Dino as one member of a crew of conniving Army motor-pool conscripts who regularly hoodwinked their WASPish officers.
I remember precisely when my name went from personal abhorrence to appreciation. The scene: Cass Tech High School, near Downtown Detroit, during auditions for TheSolidGold Cadillac. When the director called my name to audition, a beautiful blonde senior named Barbara exclaimed: "Angelo Paparelli! What a wonderful name!"
I didn't get the part, but I had a more valuable epiphany. My name could be Ishkabibble or Geronimo -- it didn't matter. I was just as American as former Michigan Governor G. Mennen Williams, who had a house in Grosse Pointe, and the Boyd and Williams families of Black Americans in my neighborhood; no more or less American than the Poles of Hamtramck, the Mexicans who lived near Briggs (now Tiger) Stadium, the Jews of Oak Park, the Arabs of Dearborn, or the lesbians who frequented the bar around the corner. This epiphany probably had something, at least subliminally, to do with my becoming an immigration lawyer.
Once ensconced in my chosen vocation, I learned, however, that immigration law is not ecumenical. I discovered that until 1952, non-whites could never become citizens (although native-born Blacks were Americans from day one under the 14th Amendment's birthright citizenship clause). As my colleague Prof. Kevin R. Johnson notes in "THE 'NEW' CIVIL RIGHTS: IS THE 'NEW' BIRMINGHAM THE SAME AS THE 'OLD' BIRMINGHAM?," a paper he'll discuss with me at a Chapman University Sociology conference next week:
During the post-Civil War period, the largest groups of immigrants affected by the whiteness prerequisite for citizenship came from Asia. Asian immigrants perpetually were denied the opportunity to naturalize and become U.S. citizens (and thus were perpetually disenfranchised from the political process). [FN]
[FN] See, e.g., Ozawa v. United States, 260 U.S. 178, 190 (1922) (finding that Japanese immigrant was not eligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (same for immigrant from India).
Over the years, I've seen the immigration color and national-origin barriers resurface repeatedly. If you're a Cuban and arrive at Florida's shores, we release you to family, let you stay and give you a green card under the Cuban Adjustment Act; not so, if you're a Haitian.
In the late 1980s, if you sought an L-1B work visa from the UK or France to work for a car company, you were in like a swoosh; but if you hailed from Japan and were destined for a job in the auto industry, the U.S. Consulate in Osaka persuaded INS that an extralegal moratorium on L-1B issuance was necessary.
Even though Congress remains in suspended animation until November's elections, immediate corrections are nevertheless possible. The Obama Administration can help eliminate these unlawful barriers. A simple but emphatic executive order would do the trick.
The President should declare that -- unless affirmatively mandated by law -- the federal immigration agencies shall:
Judge people seeking immigration benefits or relief from removal as individuals, based on the merit or demerit of their factual and legal circumstances.
Refrain from profiling people by color or national origin.
Apply neutrally phrased legislation even-handedly, without regard to any personal agenda of the adjudicator to serve as an unappointed line of defense against an influx of applicants from a particular country or with a certain complexion.
The President's order should require the Secretaries of State, Labor, Justice and DHS to produce a formal plan in 90 days to investigate and eliminate racial and national-origin profiling, discipline or dismiss any immigration officials who are found to have engaged in prohibited profiling, and publish periodic progress reports. Under the order, claims of racial or national-origin profiling should be jointly investigated and violations enforced by the DHS Office of Civil Rights and Civil Liberties and the Justice department's Civil Rights Division.
As I write this blog, urging one more measure to make America a truly welcoming country, I sense my father is smiling from the grave. He (very likely) and I (absolutely) are chuckling as we recall Mark Twain's wisdom:
When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years.
By the way, for those of you who've met me and are wondering why I have Americanized the pronunciation of my name, sounding out the letter "a" like the "BAA" of bleating sheep, just ask Antonio Mendoza in this classic Saturday Night Live sketch:
President Barack Obama has professed a new strategy of impatience. With the economy still in malaise, and the unemployment outlook only a tad improved, the White House has begun to implement a reelection gambit entitled, "We Can’t Wait." The waiting is not for Godot, but rather for a moribund Congress to pass his largely ignored proposal, the American Jobs Act:
Without a doubt, the most urgent challenge that we face right now is getting our economy to grow faster and to create more jobs…. we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.
In an effort to jumpstart the economy, the approach taps his exclusive authority over federal departments to craft executive orders. Hoping to avoid the fate of Jimmy Carter, a one-term Democrat who also faced malaise, Mr. Obama’s first foray into economy-goosing executive orders has involved housing, education and veterans’ affairs. His more recent jobs-focused directives have begun (albeit too timidly and slowly in the authors’ view) to address administrative reforms to America’s system of legal immigration.
As this article will show, an assertive President Obama, with his eyes transfixed on the reelection prize, can do much more to improve our immigration regulations and agency practices, which the President oversees through the Departments of Homeland Security, State, Justice and Labor. With presidential orders on legal immigration, he can recharge the economy in countless ways while protecting American jobs and creating hundreds of thousands of new ones.
Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware than tangible solutions.
With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun.
Will these concepts really make a difference? Or are they merely pheromones to attract progressive, young or Hispanic voters in November?
Consider how much has been said but so little done:
Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons. So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ. But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China. Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls. Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S." It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."
Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.
Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation.
Usually, the intention to publish a rule is no cause for huzzahs. But this Notice of Intent is different. It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file "provisional waiver" applications in the U.S. rather than abroad.
Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act. Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).
The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage.
The first article is based on a "40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security." The article, citing the IG's draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that "they have been pressured to approve questionable cases, sometimes 'against their will.'” The IG does not identify any wrong-doers by name. Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red "APPROVED" rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed "get to yes" campaign.
The Daily's initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to "get to yes". None of the 75% of adjudicators who disputed the claims of pressure to say "yes" is quoted in the article, only private lawyers who nonetheless believed that "officers are just looking for reasons to deny a case". The accompanying photo and the "RUBBER STAMP" headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS. The reporter, moreover, presumes that the griping adjudicators actually know the immigration law -- even though precious few adjudicators are lawyers.
I wrote this email to the reporter with a caption, "Much more to the story than you've published," offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG's draft report. Her answer: "We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup." Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) -- the source of the original complaint to Senator Grassley -- is not a high priority.
The Daily's second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if "a visiting scholar of geography from Mongolia," petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post.
Although the second article notes the IG's reported belief that her "efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file. Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability. On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators' decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning. In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.
Indignant at the charges, Rep. Smith told The Daily:
“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”
(This is the same Rep. Smith who -- in most un-Republican fashion -- has cozied up to the ICE officer's labor union, which "so far [has] not allowed its members to participate in the training" required to exercise prosecutorial discretion properly when enforcing the immigration laws.)
President Obama had a macho moment this week when he suggested, rhetorically, a poll of ghosts. "Ask Osama Bin Laden" and the "22 out of 30 top al-Qaeda leaders who've been taken off the field," he proposed, "whether I engage in appeasement." The storied bugaboo of foreign-policy appeasement, best typified by the flaccidity of British Prime Minister Neville Chamberlain in the face of Nazi aggression, was the GOP charge that the President debunked so handily.
Would that he were so forceful against Republicans on the immigration front, where a foreign policy challenge morphs into a domestic concern, one that starts at both the water's edge and the nation's earthly boundary. This time his use of drones and boots on the ground to fortify and defend America's borders successfully has produced nothing but a failed effort at GOP appeasement.
Presidential swagger would be more impressive if he used his clout to circumvent GOP-erected gridlock in Congress. Imagine if he decided to eschew drones and troops and went low tech. Imagine if he looked back among the weapons of his and every American boy's childhood and pulled out his lowly pea shooter. Rather than appease, he could shoot peas -- fresh green orbs of power in the form of executive orders that he alone propels from the White House.
No more appeasement but fusillades of executive (made-to-) order peas that would sprout the jobs he so desperately needs created pronto to save his presidency.
Some might argue that he's already begun the effort by authorizing ICE and USCIS to exercise prosecutorial discretion (PD) more frequently in favor of leniency for low level immigration violators. But that effort has yet to fire off enough salvos to hit the target. It would be better to accelerate PD reviews, expand them to include all the unauthorized among us rather than the current triage of only 300,000 deportation cases, begun as a timid six-week pilot project in Denver. Moreover, he should order the agencies to grant the formal status of "deferred action" (which includes the right to a work permit) rather than just PD (which merely prolongs the individual's agony by preventing them from progressing in their lives and pursuits, but only allowing them to wait to the unknown day when the grim deporter returns for them).
He could also aim his shots at the legal immigration system. Nothing but his own policy of GOP immigration-appeasement prevents him. He seems to understand the concept, as his "We Can't Wait" campaign addresses housing, student loans, energy efficiency and health care. There are gobs of jobs he could create if he turned his sights to tweaking the employment-based immigration laws, as I suggest in this post, "Executive Craftsmanship: Job Creation through Existing Immigration Laws," and video:
Why is President Obama so un-macho on immigration? Alas, maybe he's just too wim-pea.
The recent CNN GOP debate on foreign policy surprised many for what it included and excluded. Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America. The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:
"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."
However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs. It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America. Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade. Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad. Or so the theory goes.
In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset. Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work.
Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge. None of these choices attract, magnetically or otherwise. An extended stay at Club Fed is not desirable. Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.
As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:
Politicians skirmishing for debating points will not solve our immigration dysfunctions. The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn. We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane. Are we ready to be biometrically identified in a digital dossier to get a job?
Europe is at a tipping point. Will the European Union be dashed on Greek or Italian shores. Will France follow Greece and Italy in losing the esteem of bondholders? Will the EU revert to an Uncommon Market and again suffer its historic curse, a mash-up of competing and warring states whose citizens must proffer passports to cross borders and each time frequent the local moneychangers to buy or sell.
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. . . . Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.
America, however, learned the value of consistency in its infancy, first from Ben Franklin on signing the Declaration of Independence ("We must all hang together, or assuredly we shall all hang separately") and then in drafting a national constitution after the failure of the Articles of Confederation. Latin scholars and law students are taught consistency in the principle of stare decisiset non quieta movere: "to stand by decisions and not disturb the undisturbed."
Judging from the surfeit of GOP presidential debates, the party of Lincoln is not too sure about consistency's value. Inconstancy is not solely a character trait of multiple-personality Mitt, the likely consensus nominee. Rather, it informs each Republican candidate for the presidency of the 50 "united" states who, irreconcilably, proclaims the national freedom to bear arms yet encourages the states to go their separate ways on abortion and immigration.
So when is consistency a virtue and when is it foolish? In matters migrational, consistency is virtuous when it leads to predictable and uniformly equitable results, when it achieves harmony and a general perception of even-handedness among stakeholders. It is folly when mistakes, consistently arising, are not recognized as such or are left to fester uncorrected.
The scheduling of merits hearings in removal cases should not take four years in Chicago and considerably less, sometimes mere months, in other U.S. cities (another AILA SF factoid). U.S. citizen spouses who enter the U.S. under the Visa Waiver program should not be welcomed with a green card throughout California, except in San Diego where the local field office facilitates their expedited removal (yet one more data point from AILA conference speakers). A nationwide policy of prosecutorial discretion should be applied consistently to like cases nationwide, but regrettably they are not, as Julia Preston of The New York Times reports today ("Deportations Under New U.S. Policy Are Inconsistent").
Intellectually disingenuous nitpickery, moreover, should not be allowed to override the principle of consistency: If USCIS on five occasions recognizes an O-1 nonimmigrant as a person of extraordinary ability he or she should not be denied a first preference extraordinary-ability green card when the legal requirements to be classified as "extraordinary" are identical.
Consistency creates what we lawyers call a "reliance interest." Inconsistency in the rule of law creates unreliable, unpredictable chaos and loss of confidence in the future -- precisely the worst outcomes when economies worldwide are foundering. As Google's CEO, Eric Schmidt said at a November 12 White House press briefing: "What business needs is predictability." So too do the American people, and the would-be Americans who seek uniformly interpreted and consistently applied decisions in like requests for immigration benefits.
Worse still is the foolish inconsistency practiced by the most ghoulish hobgoblins, the guardians of our immigration adjudications -- the distracted Executive Branch, the blind or indifferent overseers in Congress and the respective Secretaries and headquarters officials of the U.S. Departments of Homeland Security, State, Justice, Labor and Commerce -- who countenance the pervasiveness of their charges' deviant decisions. Whether the problem is caused by overlooked insubordination below or deliberate insouciance above, immigration inconsistency is terrifying this Nation of Immigrators.
DHS solicitude for the safety of the deported is commendable. But why does it not also extend to more deserving Mexican citizens who, as the parents and spouses of U.S. citizens, may be eligible to receive green cards? Why is it official U.S. policy that these immigrant visa applicants are permitted to appear for their mandatory visa interview only at the U.S. consulate in this city of blood lust?
The problem is not a small one. The consulate in Juarez is "the largest issuer of [U.S.] immigrant visas in the world," according to the U.S. Government Accountability Office. Neither is the waiting time trivial. The U.S. Citizenship and Immigration Services Ombudsman reports that half of the Mexican citizens seeking U.S. immigrant visas who require a waiver of inadmissibility, usually on a showing of extreme hardship to a U.S. citizen spouse or parent, must wait up to 12 months for a decision in their case. Since a wait of even one day in Juarez may make the applicant a sitting duck for cartel violence, a year-long wait is simply unconscionable. Worse yet, as explained below, if a waiver application is denied, the family separation may be for ten years or more.
This deadly form of Juarez red rover arises primarily from a failed experiment in 1996 at the instigation of Representative Lamar Smith -- now Chairman of the House Judiciary Committee -- who championed the "unlawful presence" bar to reentry that became part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The bar in most cases involves a decade-long ban on readmission to the U.S. (unless an extreme-hardship waiver is granted) for persons who entered illegally or overstayed the time period granted by the government. The ten-year bar (like IIRAIRA's three-year and permanent bans on returning) is triggered only after the overstayer or EWI (one who "enters without inspection") has left the United States. Thus, what might otherwise be a one- or two-day game of consular Russian Roulette in Juarez (as immigrant visa and waiver processing are completed) becomes a one- or ten-year-long exposure to cartel carnage for the 50% of extreme-hardship waiver applicants who are not granted expedited review or are denied a waiver.
This form of collective punishment is anti-family and can send ripple effects throughout American communities, from home foreclosures to an increase in single parent households. It is a drastic penalty to impose considering unlawful presence in the U.S. is a civil violation that has gone largely unenforced for many years. It also discourages families from participating in the legal immigration process due to the risk of a potentially devastating separation. After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy.
Although IIRAIRA and the administrative time required in the waiver adjudication process might seem to mandate this result, existing executive authority to administer the immigration laws readily allows for a suitable fix (until Congress can be persuaded to repeal the unlawful presence bars). Here are various actions the Obama Administration could take to solve the problem:
Grant "parole in place" and expand the "technical-reasons" or no-fault-of-the-applicant forgiveness provision of Immigration and Nationality Act § 245(c) to allow persons otherwise required to attend an immigrant visa interview in Juarez to apply for their green cards through the adjustment of status process. This is the best option for non-willful overstays and Dream Act kids who EWI'd because the unlawful-presence bar would not be triggered and extreme-hardship waiver adjudication would be unnecessary since the applicant would not leave the United States; or
Adopt a policy to confer extreme-hardship waivers within the U.S. before the consular interview to all non-criminal Mexican applicants based on the dangerous conditions in Mexico and the overriding equity of the family relationship to a U.S. citizen relative. This is similar to an old Immigration and Naturalization Service Operations Instruction and a precedent decision, Matter of Cavazos, which allowed comparable applicants to obtain green cards through adjustment of status despite inadmissibility; or
Shut down the U.S. consulate in Juarez until conditions in the city are safe. (The State Department did close the Juarez post for a few days after two consular employees were killed last year.) State should instead designate alternative consular posts after negotiating with one or more friendly and safer countries to allow Mexican applicants eligible to apply for a hardship waiver to enter for the purpose of attending the consular interview. This approach would be modeled after the "stateside criteria" and "third-country processing" arrangements with Canada and other nations in the 1980s for Iranians and other foreign nationals who could not travel to their country of citizenship or last residence because of the unavailability of consular facilities there. It would require an agreement with the host countries to assure the readmission of any denied applicants through the grant of advance parole to reenter. Denied visa applicants given advance parole and readmitted to the U.S. would then be eligible under current law for adjustment of status, if USCIS granted an extreme hardship waiver, or for prosecutorial discretion, if the waiver were denied.
As these options show, seemingly mandatory legislative procedures that lead to immigration deaths only appear necessary if the Administration is unwilling to look under the hood of the immigration laws to find more compassionate and life-saving alternatives. End the immigration deaths in Juarez NOW.
The dog days of August are behind us, yet the economic doldrums persist. Unemployment remains unchanged and unacceptably high at 9.1%. The White House forecasts that it will stay there through the New Year and then likely drop only a tenth of a percentage point for all of 2012.
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").
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 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.
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 think that . . . there's no doubt about the seriousness of the problem . . . We have a cancer--within, close to the Presidency, that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself.
Perhaps only slightly less virulent than the Watergate variety, a cancer is spreading within U.S. Citizenship and Immigration Services (USCIS). The malignancy began with the persistent refusal of U.S. Immigration and Customs Enforcement (ICE) to fulfill its Congressionally appointed police mission under the Homeland Security Act (HSA). Beginning in 2003 ICE routinely turned a deaf ear to the pleas of USCIS adjudicators to pursue suspected immigration-benefits fraud. Frustrated that fraudsters were going unpunished, USCIS similarly ignored the HSA and created a unit, now elevated to a Directorate, known as Fraud Detection and National Security (FDNS).
Afflicted with selective amnesia, however, Congress failed to rebuke ICE or USCIS for crossing the prescribed lines. Instead, federal lawmakers fueled the mission-creep by larding FDNS with anti-fraud fees paid by businesses seeking immigration benefits for H-1B and L-1 workers. The result has been that FDNS, staffed with 700 officers and an untolled number of private investigators, has conducted tens of thousands of "site visits" at business organizations and religious institutions throughout the country.
Congress has been told by FDNS that there is a bunch of fraud, so Congress is asking for the proof. [Headquarters] HQ FDNS is asking the field to find the fraud so it can be shown to Congress. And I sense HQ FDNS’ frustration with the field because we aren’t finding it…. Some of the leadership personnel have never been adjudicators, so they are completely out of touch with reality.
So why, then, do I liken the activities of FDNS to a spreading cancer? Here goes:
Free Radicals. FDNS, like the free radicals that damage healthy organisms, takes aggressive actions without regard to the well-being of the functioning corpus politicus. FDNS has not published a notice in the Federal Register allowing public comment on how it conducts investigations of the H-1B and L-1 visa categories and has never undertaken a Regulatory Flexibility Act analysis to determine the impact of these investigations on small businesses.
Vulnerable Victims. FDNS through its unannounced site visits invades the premises of unsuspecting and unprepared petitioning organizations. These on-site interrogations, akin to fishing expeditions, are not based on probable cause that a violation of the immigration laws has occurred; nor are they supported by a judicial search warrant. FDNS provides no prior notice of the investigation to attorneys whom the agency knows are representing the sponsor or the foreign beneficiary. The records FDNS asks to inspect and the individuals it seeks to interrogate are often, quite legitimately, at other locations; yet the investigators do not allow an opportunity to summon the records or the persons or reconvene at a later date. Instead, its officers merely write a report that outlines "suspicious" circumstances.
Voracious Behavior. Like a spreading cancer, FDNS breaks down healthy structures. Its investigative techniques flout existing USCIS regulations which prescribe that if the agency desires additional information or testimony it must send a written request for evidence or schedule an interview at a USCIS office.
Toxic Effects. Like a cancer, the growing influence of FDNS is debilitating the adjudication process by impairing customer service, speed of adjudication, and predictability of outcome, as last year's internal revolt at the California Service Center and the ongoing opposition of USCIS adjudicators to headquarters policies reflect. FDNS has arrogated to itself a policing function, rightly the role of ICE under the HSA, that is at cross purposes, just like at the old bipolar INS, to the core function of USCIS -- the rendering of a decision, based on the evidence of record, to approve or deny a request for a particular immigration benefit.
Surgery and Radiation. While cancer as yet has not been cured, medical science often succeeds in causing a state of remission. Doctors typically do this by means of surgery and radiation. So too with FDNS. Congress or the President should excise this alien growth from the benefits-adjudication process. It should also apply irradiation prophylactics to prevent a recurrence of anti-fraud tumors within USCIS. To the degree that purgatives are required to remove harmful impurities and maintain the health and integrity of our U.S. immigration system, they should be exclusively of the ICE-y variety.
John Dean's words about Watergate and its cancerous effects could just as readily be applied to the pernicious behaviors of FDNS: "We have a cancer . . . that's growing. It's growing daily. It's compounding, it grows geometrically now because it compounds itself." Just as Watergate posed a threat to constitutional government, FDNS is dealing a body-blow to the Fourth Amendment's protection against "unreasonable searches and seizures." Cut it out.
[Blogger's note: Sincere thanks go to my colleague and friend, Karin Wolman, for giving me a writing respite during my summer vacation. Karin's latest guest post, like her prior ones, available here and here, critique USCIS policy changes that make it less likely that deserving workers, entrepreneurs and investors will receive the employment-based immigration benefits Congress intended in enacting the Immigration Act of 1990. As President George H. W. Bush predicted (incorrectly, it turns out) in his signing statement:
[The 1990 Act] will encourage the immigration of exceptionally talented people, such as scientists, engineers, and educators. Other provisions of [The 1990 Act] will promote the initiation of new business in rural areas and the investment of foreign capital in our economy.
As the National Journal recently reported in an article discussing the discovery of internal hacking of management emails occurring at the USCIS Texas Service Center, "'insider threats '" continue to threaten the initiatives of USCIS leadership. The National Journal's piece focused on technology and security threats from agency insiders. I suggested in a recent post, however, that perhaps the greater threat to progress in embracing the President's pro-jobs and innovation agenda is adjudicator resistance and internal insubordination. Karin Wolman's post below also highlights the type of internal resistance to change that is emblematic of the dysfunctions of government authorities in the immigration ecosphere.]
Guest Post: USCIS Entrepreneur Initiatives - Do They Really Help?
By Karin Wolman
The most important thing to know about the DHS Press Release and press conferenceof August 2, 2011 on Initiatives to Promote Startup Enterprises and Spur Job Creation, the published USCIS Fact Sheet of the same title of August 3, 2011, the USCIS FAQ Regarding Entrepreneurs and the Employment-Based Second Preference, and the related Entrepreneurs Stakeholder Engagement conference call of August 11, is that all these initiatives are largely window-dressing, despite excited coverage in the Wall Street Journal. They represent no substantive changes in the Service's occasionally contorted interpretations of the law.
For all the lip service to the Administration's laudable goals of helping entrepreneurs spur the growth of new businesses, for now, USCIS is not changing any of its interpretations of law. The Service is not in any way relaxing its insistence on the US sponsoring company having to demonstrate a “right to control” the foreign worker, and offers no policy guidance loosening the Service’s unduly restrictive definition of who can considered an “employee” under the Immigration & Nationality Act, per a Donald Neufeld memorandum of January 8, 2010, ("the Neufeld memo") - which does not have the force of law, nor even regulation - nor will they instruct officers to restrict that memo and its definitions to the H-1B context. There is no policy guidance loosening the Service’s narrow, literal-minded geographic reading of the phrase “national in scope,” with respect to job creation as a benefit to the United States under the EB-2 National Interest Waiver. There is no promise of a path for E-2 Treaty Investors to transition to permanent residence. In fact, these initiatives for entrepreneurs herald no real increase in the availability of anytype of visas for employee-owners or owner-directors, either of foreign-owned startups under the H-1B or O-1 visa category, or E-2, or EB-2 green cards for entrepreneurs under the National Interest Waiver, or for director-owners of privately held multinational companies under the L-1A or multinational manager or executive visas.
The attitude embodied in the January 2010 Neufeld memo is an obsession with a “right to control” the H1B worker, a single factor weighted far more heavily than all other factors combined. It has prompted a relentless drive among adjudicators to pierce the corporate veil at will, and to start by assuming that all owner-beneficiary scenarios are somehow “fraudulent.” Its treatment of any employee with an ownership stake as ˜not a real employee’ is deeply damaging to all manner of entrepreneurial businesses seeking visa benefits for their workers.
The Neufeld memo on its face does not apply to the O-1 visa, nor to L-1 or multinational manager immigrant visas “ those categories were never intended to be unavailable to owners who happen to be employees of the US business - but the Service has become enamored of applying its new, narrow definition of “employee” across all visa categories. To date, USCIS offers no concrete authority for combating persistent misapplication of the “right to control” standard at the individual case level, except for a non-binding suggestion that it may be possible for an owner-employee to demonstrate “control” over his or her employment by a Board of Directors.
The Neufeld memo has spread throughout all areas of employment-based visa adjudications, encouraging adjudicators to zealously apply a restrictive interpretation of the “employer-employee” relationship drawn from the Dardenand Clackamas cases. These cases on which the Service relies for its definition of “employee” did not involve immigration law at all; they related to the definitions of “employee” with regard to eligibility for ERISA pension benefits and to applicability of access requirements under the Americans with Disabilities Act. In relying on those cherry-picked Supreme court decisions, USCIS elected to ignore an array of long-standing precedents providing guidance on the definitions of the employer-employee relationship that were specific to immigration law, and which had been followed by the agency for decades, as well as more recent Supreme Court case law. The legal deficiencies in the Neufeld memo and its strained definition of “employee” are numerous, but they are laid out in magnificent detail in the American Immigration Lawyers Association memo to the director and chief counsel of USCIS of January 26, 2010, so I will not attempt to recreate or paraphrase those arguments here (the AILA memois 24 pages long). This paragraph is intended as a mere CliffsNotesÂ®-style summary of some major flaws in the Neufeld memo, for those unfamiliar with its contents and AILA’s response.
When asked during the August 11 Stakeholder Engagement call on Entrepreneurs if there will be any attempt to clarify or limit application of the Neufeld memo to H-1B adjudications, Service representatives ignored the question and offered no response. However, during the California Service Center Stakeholder Engagement call of Wednesday, August 10, USCIS representatives explicitly said that the Entrepreneur initiatives do not represent any substantive changes in USCIS interpretation of the law, regulations, and applicable legal standards. They intend to stand by their current interpretation of who can be an “employer” under the Immigration & Nationality Act, tacitly acknowledging that they have no plans to scale back inappropriate mission creep of the Neufeld memo into the realm of O-1s, L-1s, and beyond.
The definition of “employee” urged by the Neufeld memo is based on a factually false assumption that owner-directors seek to start a business in the US for the main purpose of getting themselves a visa, rather than to realize a business goal. It contradicts decades of specific, on-point guidance in precedent cases acknowledging the difference between a company and an individual; but most importantly, it seeks to disallow visa eligibility for entrepreneurs on every scale. The notion that if a worker has an ownership stake in a business, then any visa petition by that business on the worker’s behalf is a fraud, is not just an erroneous premise: it is inherently hostile to a broad array of new and startup-phase businesses, small businesses, privately-held multinationals, companies with partnership or employee-shareholder models for growth, and any company in which a foreign national has a hand in funding, starting or expanding the US business. As a matter of visa policy, this is economic suicide.
At the very moment in our history when the U.S. economy most desperately needs the services of those individuals willing to put their own money, as well as their time, effort, skills and intellectual capital, into starting and growing US companies, USCIS adjudicators are dreaming up an ever-expanding universe of reasons to say 'no’ based on the size and age of a business and on the “right to control” the foreign worker. USCIS agency leadership has admitted it has no plans to rein them in, and does not even intend to issue guidance explicitly limiting application of the Neufeld memo or its definition of who is an “employee” to H-1B adjudications, which was its ostensible purpose when published. This makes their well-publicized “entrepreneur” initiatives ring hollow.
So, what could USCIS do to offer concrete improvements? Without making any changes to the statute or the regulations, USCIS could enhance visa opportunities for entrepreneurs and owner-directors by retracting some of its more onerous and tortured interpretations of law. Here are a few good places to start:
A) withdraw the Neufeld memo,
Or, at the very least,
B) issue an H-1B policy memo and officer retraining, limiting application of the Neufeld memo and the “right to control” definition of an employer-employee relationship to H-1B adjudications, and clarify that this narrow definition does not apply to O-1s, to L-1s, or to multinational managers;
C) issue an EB-2 policy memo and officer retraining on the second prong of NYSDOT for National Interest Waivers, noting that creation of a substantial number of jobs for US workers in even one location could be deemed to offer significant prospective benefit to national interests of the United States, if, for example, those jobs are in manufacturing, or in industries that have suffered significant layoffs in the past two years in the state or region where the business is located, or in industries where the US has lost significant market share to foreign competitors. Each of those provide a real, substantial benefit to our nation that could be documented with quantitative evidence.
 Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 (1992)
 Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003)
 Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980), Matter of Allan Gee, Inc., 17 I&N Dec. 296 (Acting Reg. Comm. 1979), and Matter of M--, 8 I&N Dec. 24 (BIA 1958, AG 1958)
 Raymond D. Yates, M.D.,P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S. Ct. 1330 (2004)
"Youth! There is nothing like youth. The middle-aged are mortgaged to Life. The old are in Life's lumber-room. But youth is the Lord of Life. Youth has a kingdom waiting for it."
Oscar Wilde, British author.
"Violence among young people ... is an aspect of their desire to create. They don't know how to use their energy creatively so they do the opposite and destroy."
Anthony Burgess, British author.
"Hey. Don't ever let somebody tell you... You can't do something. You got a dream ... You gotta protect it. People can't do somethin' themselves, they wanna tell you you can't do it. If you want somethin', go get it. Period."
Chris Gardner, American author.
Britons are aghast at the rampage, looting and destruction witnessed on the streets of London and other English cities this past week. Politicians have cut short their normally sacrosanct August holidays in the Tuscan sun to return to an emergency session of Parliament. British Bobbies are chided for standing by as youthful looters took their sweet time to find just the right mobile phones, pairs of running shoes and assorted Bling to swipe, not with credit cards but five-finger discounts.
The soul-searching and blame-gaming has begun in a country that knows, indeed invented, the Importance of Being Earnest. One of the most insightful analyses I've seen is Guatam Malkani's "Britain burns the colour of 'A Clockwork Orange," which compares the recent nocturnal uprisings to the 1962 Anthony Burgess novel and "its depiction of a lawless Britain, where the police command neither confidence nor deference and residents live in fear of feral youth". Malkani, a journalist with the Financial Times, notes the self-destruction that is "more dystopian than even nihilism" in these British rioters:
[The] first buildings and cars to burn in London were not in the resented districts of the rich, but those in the perpetrators' own communities. So not only was there no discernible political agenda to improve their lot (save for a few fleeting material possessions), the rioters were actually destroying their own.
I can't help but contrast these self-destructive behaviors with the inspiring and courageous actions of America's DREAMers, "a group of approximately 65,000 youth . . [who] are smeared with an inherited title, an illegal immigrant." Just compare their sentiments here and here with the behaviors on display across the Atlantic. If you do, you'll see that Chris Gardner's quote above originating from his memoir, The Pursuit of Happyness, is found among the DREAMers' "Inspirational Quotes," not as a justification to take what is not owned, in the manner of dystopic Brits, but to quest for what one justifiably deserves.
Yes, the British are justifiably alarmed by their riotous youth. We Americans, however, should be appalled by our uncivilized adults, who spout platitudes about the rule of law yet deny our American DREAMers the chance to live out their aspirations in laudable and lawful ways. Whose shame is worse?
Oscar Wilde had it right. The last line of his quote, which I omitted from the excerpt above, could well be referring to the American adults who dash DREAMs: "Every one is born a king, and most people die in exile."
These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).
These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders.
I've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference. Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 and Tyranny of Sloth #3).
The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth.
It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies. We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan and featuring a "cast of millions") and we know how it ends:
Scene 1: Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
Scene 2: INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
As economic opportunities appear to diminish in the United States, global mobility management has become the hottest trend in migration.
In the globalized world, executives, entrepreneurs, investors and talented workers are voting with their feet and moving to places where economic opportunities entice. (For background, see my recently published article, "Global Mobility Management - A Primer for Chief Legal Officers and HR Executives," co-authored with in-house counsel, Mareza Estevez of Cognizant Technology Solutions, and Peter Schiron, Jr., of Deloitte LLP, available in British and American English.)
One way I follow trends in global mobility is by using Twitter and other social media, gushing fonts of useful information often hidden within torrents of dreck and dross. (An enlightened writer, Maria Popova, who maintains a website called Brain Pickings, considers the thoughtful filtering of valuable Twitter content as a new form of creative authorship, dubbed "content curation." I riffed recently with Ted Chiappari on Popova's theme in a curation of our own, a découpage depicting developments in U.S. employer sanctions entitled "Informational Abundance and Scarcity in Immigration Worksite Enforcement.")
Developments in global mobility are seen, for example, in a recent social media thread spotlighting a new amendment, effective shortly, to the immigration laws of the United Arab Emirates. The UAE will soon allow investors of at least Dh 1 Million (a bit more than U.S.$ 272,000) in real estate to receive residence visas for thee years instead of the current six-month period of stay. The visa change "is expected to help revive the depressed real estate market, which is looking at a huge over-supply in the coming months," according to a local report. Already, Dubai shares and UAE property values have increased. The Emirates' real estate investor category will reportedly make life easier for holders of this visa, "such as [when] applying for a local driving [license], [and] personal loans and getting admission to schools."
The new UAE investor visa came to mind as I reflected on two recent business and family trips to Detroit, my hometown, where I spent my fondly remembered childhood on the gritty streets of its inner city (near Gratiot and Mack Avenues). Sadly to me, however, my boyhood home of the 1950s-1960s, and virtually all of the structures on the block where I lived (save for a since-erected CVS pharmacy), were long ago demolished. A city with a population that peaked at about 1.8 million in the 1950s, Detroit last year numbered just over 700,000 inhabitants, and contributed to Michigan's sad distinction as the only state to have "suffered an overall population decline between 2000 and 2010."
Some in the city are making plans to relocate residents and to group homes together, that is, to "shrink," as the New York Times phrased it in an April, 2011 story. Others are trying new ways to put the economic mojo back in Motown, as the Wall St. Journal and Forbes reported recently. As a letter writer commenting on the Wall St. Journal piece observed, however:
A city's real strength is its people: entrepreneurs who can imagine, hard workers who can produce, creative types who can inspire and families who can build. People came to Detroit for one reason: jobs. People will return for the same reason. Figure out how to create these jobs, and the rest will follow.
Michigan's Republican governor will soon make a major speech in Detroit on "Immigration and Michigan." I have no idea what he will say. Presumably, it will be on "Global Michigan," an effort by the "Michigan Department of Civil Rights and the Michigan Economic Development Corporation to find new ways to encourage more highly educated immigrants . . . to come to Michigan to work and live," beyond merely the "cool factor" luring the adventurous, young and artsy to Detroit.
If I were ghostwriting his talk, I'd suggest that he urge the Obama Administration to amend existing U.S. Citizenship and Immigration Services regulations to establish a new category of employment authorization (the power to grant work permits inherently rests within the Executive Branch, and numerous administrations before this incumbent have long exercised that authority).
This initiative could be modeled after the much heralded U.S. Department of Education program, Race to the Top, and dubbed the "Race to the EAD" (Employment Authorization Document). It would allow states like Michigan to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs as well as state-recommended recipients of deferred action -- after careful screening for security and criminal risks -- to obtain a renewable EAD in reasonable increments (say, two or three years at a time).
The chosen Race to the EAD projects would be periodically reviewed by government auditors in order to determine the extent to which EAD holders as a group have meaningfully followed through on their commitments and thereby contributed to economic growth, thus entitling them to receive EAD renewals.
A state whose proposal is federally approved in the Race to the EAD program, as I envision it, would likely be very attractive to foreign citizens because it would not only allow for work permits based on investments and entrepreneurial activities but make life easier for the EAD holder when "applying for a local driving [license], personal loans and . . . admission to schools," much like the UAE property investor category.
I've blogged before on this topic, but I'm clearly not the first to conceive it. Financial reporter, Ezra Klein, of the Washington Post was an early espouser as was the State of Utah with its new guest worker program that, to be sure, will require a federal waiver. Earlier still, the Race to the EAD concept is essentially a modern-day variation on a previous federal inducement to take down roots and prosper through property improvement and investment, America's Homestead Act.
A more recent precedent also comes to mind. Despite vehement protests from the right, President Obama took bold steps to save the domestic auto industry, and thereby help a cluster of states, including Michigan, preserve and create numerous jobs. Candidate Romney's non-credible protestations notwithstanding, U.S. auto companies in Michigan and other states are now on the mend and beginning to prosper. A similar demonstration of executive chutzpah in launching, by regulation, a Race to the EAD program, would likewise spawn a virtuous cycle of rebirth and revitalization in my downtrodden hometown and many other job-starved communities throughout America.
The sage of the current age, Wikipedia, defines the term "nonmaleficence" -- from the Latin primum non nocere -- as a principle of medical ethics, one that in my view is equally applicable to the immigration sphere. The princple holds that "given an existing problem, it may be better not to do something, or even to do nothing, than to risk causing more harm than good." Nonmaleficence comes to mind with the recurrence of an old controversy (largely out of public view) which, if its proponents win the day, could badly batter America's economy at a time when too many of our citizens are still reeling from the crash of 2008.
The fight involves a "gallimaufry of foreign citizens" whom I listed in a 2000 article, "The Incredible Rightness of B-ing," including "truck drivers, tailors, computer professionals, missionaries, household workers, trainees, medical students, yachting crews, executives, seminar attendees, investors, athletes, corporate directors, plaintiffs, defendants, and expert witnesses."
They are not characters in search of an author, like the "lost souls in the Pirandello play." No, the members of this motley crew are all categorized as "business visitors" under U.S. immigration regulations and State Department guidance. Together with tourists, these soujourners from abroad comprise the "B" visitor visa category, and are also admitted as entrants to the U.S. with the designations "WB" (Waiver Business) and "WT" (Waiver Tourist) under the Visa Waiver Permanent Program.
In the 21st Century's first decade, however, visa hassles, security screens, faraway locations for consular interviews and other government-induced frustrations, have dissuaded legions of foreign visitors from coming to the U.S. and thus caused the loss to our economy of more than a half trillion dollars and 441,000 jobs, according to a Feb. 2010 report by Oxford Economics and the U.S. Travel Association ("The Lost Decade: The High Costs of America’s Failure to Compete for International Travel"). The problem continues in the second decade, as recent cyberspace postings (here, here, and here) attest.
Now Sen. Charles Grassley, a legislator on a vendetta to restrict legal immigration, has taken a swipe at a highly useful subcategory of business visitor, known in the arcane argot of immigration as the "B-1 in lieu of H-1" ("BiloH," for short). In a letter to Secretaries Clinton and Napolitano (of State and Homeland Security, respectively), Sen. Grassley insists that the BiloH be eliminated as a lawful means of entry to the United States. To understand his gripe, readers should first consider the longstanding interpretation of the BiloH here originating from the legacy agency, Immigration and Naturalization Service (INS), or this helpful explanation from the U.S. Embassy (Mumbai):
Any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:
* Hold the equivalent of a U.S. bachelor’s degree
* Plan to perform H-1B-caliber work or training
* Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.
* The task can be accomplished in a short period of time.
Sen. Grassley voices concern, based on unproven allegations yet to be litigated, that the BiloH is being "abused" by multinationals to circumvent "the annual caps and prevailing wage requirements of the H-1B visa program" while "defy[ing] the intent of Congress."
For newcomers to immigration, the labor protections of the H-1B visa category to which the Senator refers were first introduced with the enactment of the Immigration Act of 1990 (IMMACT) -- a law that made no change to the visitor classifications or to the preexisting BiloH subcategory. As readers of this blog know, the H-1B category for workers in specialty occupations holding at least a bachelor's degree or the equivalent involves a convuluted process that only a bureacrat or pol could love. In the years since 1990, the annual H-1B numerical quota has run out early several times, and businesses had to give up on otherwise lucrative projects because qualified workers with the needed education and skills could not be found domestically or imported until the next year's quota allotment.
In 1993, however, INS and the State Department tried to eliminate the BiloH and impose added restrictions on visitor visas, 58 Fed. Reg. 58982 (proposed November 5, 1993), 58 Fed. Reg. 40024 (proposed July 26, 1993). Their proposals faced a storm of opposition and were never finalized. Those opposed to eliminating the BiloH challenged the agencies' assertion, now resurrected by Sen. Grassley, that in passing new requirements on the H-1B in IMMACT, Congress must have intended (albeit silently) to eliminate the BiloH.
Opponents, including this blogger, argued at the time that Congress must have wanted the BiloH to continue in use. We maintained that the BiloH acts as a safety valve in situations where there is no U.S. job of an enduring nature to fill -- just a short term project that will go away before long. This is in keeping with the agencies' view of the business visitor classification as a temporary "catch-all" category covering a wide array of commercial activities that are no threat to U.S. workers.
The U.S. Supreme Court freed a herd of immigration "elephants [hiding] in a mousehole" on May 26. That's when five Justices used a four-word exception to the Immigration Reform and Control Act of 1986 (IRCA) -- an act which, among its extensive provisions, banned the employment of foreign citizens whom the employer knows lack work permission -- to trample the immigration landscape. The majority ruled, based on the exception, that IRCA is not the final or sole word on the extent of punishment for unauthorized employment.
Relying on an IRCA exception for "licensing and similar laws," the 5-3 majority decided that Arizona may use the threat to revoke a business license as a means to punish AZ employers for the unauthorized hiring of foreigners and to require all the state's public and private employers to enroll in the Feds' E-Verify online work-clearance database.
Among the dissenters, Justice Sonia Sotomayor challenged the use of this squib of an IRCA exception as a means for the majority to undermine the "carefully constructed [and] uniform federal scheme for determining [unauthorized employment]." She cited an earlier case which observed that Congress "does not . . . hide elephants in mouseholes." (Ironically and perhaps poetically just, all of the Justices in the majority had been appointed by presidents of the Republican party, whose avatar is the pachyderm.)
1. Expect that mandatory E-Verify will spread to more states. As shown in this link, states are all over the map on their divergent requirements concerning E-Verify. Some -- like AZ, SC and MS -- require it of all employers. Others limit it to public entities and state contractors. The Supreme Court's decision essentially green lights the states to regulate facets of immigration compliance that fall within traditional state police powers. The only requirement is that the state law find a connection to the broad police power over licensing. In essence, what was largely an exclusively federal domain, will now expand -- with the Court's blessing -- into the inner workings of most businesses. Expect state and city micro-management of immigration to the Nth degree.
2. Expect some states to require E-Verify use as to current workers. As many states rush to enact laws mandating E-Verify, it would not be surprising if one or more extend its scope. Except for certain federal contractors and subs, E-Verify may not now be used to verify the work eligibility of current employees. While the extension of E-Verify at the state level to current workers would technically violate the terms of the E-Verify Memorandum of Understanding that employers must sign, such a stretch would not be a surprise. Consider Utah's recent legislation which adopted a guest worker program notwithstanding that -- at least until the Whiting decision -- the authorization to grant work permission had been seen as exclusively a federal power. Note as well that Florida's governor has issued an executive order expressly encouraging the state's employers to use E-Verify to check the work status of current employees.
3. Expect higher rates of discrimination claims. The dissenters in Whiting predict that employers will follow the path of seemingly least resistance by becoming hyper-vigilant in inspecting job applicants' documents of identity and work eligibility while finding subtle or overt ways to resist hiring persons who look or sound foreign or demanding to see specific documents or more documents than legally required. Although the majority noted that such discriminatory acts are already prohibited at the federal level, the likelihood is that the immigration agency charged with antidiscrimination prosecution and enforcement will be understaffed and short on resources to deal with the anticipated flood of complaints of unfair or illegal practices.
4. Expect more court battles over the extraterritorial reach of state immigration laws. What happens when poorly phrased state immigration laws come into contact with multi-state employers? Must a multi-state employer use E-Verify only as to its AZ new hires, or does AZ's E-Verify law require that company to use the online system as to new employees nationwide? What will courts decide if a company chartered in AZ loses its license to do business in that state, and as a result, is disqualified to maintain its licenses to engage in business in other states? These are but a few of the foreseeable claims likely to congest the state and federal courts as state immigration laws proliferate after Whiting.
5. Expect a public backlash over state enforcement of the immigration laws. The devastating tornadoes in Missouri and Alabama likely caused the loss or destruction of many U.S. citizens' documents of identity and work permission. When such citizens try to pick up their lives by moving to other states (where mandatory E-verify is in force), how will they prove their right to work? Such citizens are not likely to go gently or quietly into the good night. They will scream to high heaven, and the media will listen and publicize their complaints. Other citizens, though not facing the effects of natural calamities, will likewise be erroneously rejected by E-Verify, as the National Immigration Law Center predicted last April in testimony before Congress. They too will rise in protest if denied employment to which they are entitled with jobs already hard enough to find in the current economy.
6. Expect some states to back away from immigration enforcement and instead seek federal waivers for immigration benefits. Just yesterday, Republican Gov. Rick Snyder of Michigan, perhaps signalling a trend in the opposite direction, expressed his opposition to an AZ-style immigration enforcement bill, noting that it would be "divisive" and bad for business. As noted above and at length in this blog before, Utah has passed legislation creating a guest worker visa program (that will require a Federal waiver).
7. Expect that states will seek more snitch visas or favorable discretion for stool pigeons from the federal government. The "S" visa category (what we in the trade call the Snitch Visa) allows any state or local law enforcement official to seek special immigration benefits, including a work permit, to allow a foreign citizen to participate as a witness in a criminal prosecution. Federal immigration authorities can also exercise prosecutorial discretion and grant work permission at the request of a state or local police agency or prosecutor. In states where immigration policing is a high priority, just as with the justly maligned Secure Communities program, criminal prosecutions under state immigration laws will likely generate requests for special privileges and leniency to foreign workers who agree to rat out alleged immigration violations of their employers.
8. Expect a battle royal in Congress over mandatory federal E-Verify. The business and pro-immigrant communities will not take lying down the likely GOP push to make E-Verify mandatory for all employers nationally. While this push, if enacted, would take the wind out of the states' sails, opposition to the move would point to the persistently high rates of false positives and negatives in E-Verify and the budget busting consequences of a national mandate.
9. Expect busier days ahead for immigration lawyers. Notwithstanding that the demand for H-1B visas this year has been underwhelming, lawyers practicing immigration law have reason to be hopeful that business will pick up. The already mind-boggling complexity of federal immigration law will become more complicated, perhaps by a factor of 50, as the states get into the act. This quantum leap doesn't take into account the cities and regional governments that may have politicians, even now, planning a Barletta-like push for fame and higher office by espousing "mouse-that-roared" immigration ordinances.
10. Expect that Congress or the President will act. Before we reach the point of proliferating and conflicting 50-state and countless-municipal "solutions" to America's dysfunctional immigration laws, this blogger -- always a glass-half-full type -- envisions that statesman-like behavior or public outcries will cause action at the federal level to end the nonsense. Businesses cannot function, and lawfully-authorized American citizens and residents cannot find jobs, if we balkanize our immigration polcies. I say, fingers crossed, that cooler heads will prevail.
President Obama has put on a good show lately about the need for the populace to rise up and pressure the GOP to enact comprehensive immigration reform. He urges citizens to begin "a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America’s 21st century economy." With the White House claiming that "he can’t do it alone," he asks you and me to host roundtables that will "help bring the debate to your community."
Were it not for the Republicans who keep moving the goal posts on border security, he claimed on May 10 in El Paso, we'd be able, together, to devise the grand solution that fixes our nation's wholly dysfunctional immigration system:
We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done. But even though we’ve answered these concerns, I’ve got to say I suspect there are still going to be some who are trying to move the goal posts on us one more time. . . . they said we needed to triple the Border Patrol. Or now they’re going to say we need to quadruple the Border Patrol. Or they’ll want a higher fence. Maybe they’ll need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics.
Some may be moved by his crocodile tears to swallow the notion that his hands are tied. I have a few words in response: Balderdash. Bunkum. Hogwash. Fiddle-faddle.
Either this president is not the analytical, data-gathering, cooly-decisive and valiant leader portrayed by the media, particularly since the takedown of Osama Bid Laden, or, he is playing politics with people's lives and "America’s 21st century economy." There's no need to repeat previous posts (here, here, here, here, here and there) on his broad executive authority to ameliorate the traumas endured by DREAMers and the other undocumented among us.
The simple fact, known all too well by immigration insiders but rarely reported, is that President Obama could vastly improve America's competitiveness and stop the flight of foreign talent back to their homelands by reversing or recalibrating several administrative rules or rulings that have long thrown foreign entrepreneurs into the moat with the immigration alligators.
Here are some things that President Obama could accomplish immediately, solely by executive action, to allow existing America's immigration laws to help create jobs:
Restore L-1A Function-Manager Eligibility. The Immigration Act of 1990 (IMMACT) allows managers of essential corporate functions to qualify for an L-1A work visa (for intracompany transferees) and a first preference green card (for multinational managers). Before IMMACT, only managers of personnel could be granted these benefits. USCIS routinely denies function-manager requests by claiming that the person does not manage the particular function but primarily performs the function. This interpretation has rendered the function-manager category a dead letter. Congress had no need to create the function manager classification in IMMACT if subordinate personnel were to be required to perform the function (so that the function manager could manage it) since a people-manager category already existed. To offer a simple example, a corporate controller under the current USCIS interpretation cannot qualify as a function manager unless the person manages other people -- something that controllers rarely do. The President can easily remedy this mistaken interpretation by instructing USCIS that managers of key corporate components and functions are eligible for function-manager designation even if the individual also performs the function. This would allow foreign entrepreneurs to create new U.S. businesses and start creating jobs for U.S. workers right away.
Restore L-1B Specialized-Knowledge Eligibility. The USCIS Office of Public Outreach got an earful of criticism last week from stakeholders urging the agency to revert to longstanding interpretations of eligibility for an L-1B intracompany transferee visa under the specialized knowledge subcategory. In the teleconference, callers explained that the L-1B had been properly interpreted for decades until 2008 when a non-precedent decision of the USCIS Administrative Appeals Office without warning dramatically restricted its interpretation of L-1B specialized knowledge. Here too, the President could swiftly help foreign entrepreneurs create American jobs by restoring their longstanding ability to send key workers with specialized knowledge to the United States.
Expand Schedule A to include “special-merit” foreign citizens. The Department of Labor (DOL) under its Schedule A regulation has long allowed persons whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. Schedule A now includes registered nurses, physical therapists and persons of exceptional ability. Back in 2002, AILA asked the DOL but the agency refused to expand Schedule A by allowing "special-merit" foreign citizens to immigrate. AILA made this request because the normal labor market rules deprive a wide array of worthy aliens of any opportunity for PERM labor certification. Individuals in the unwelcome category include investors, entrepreneurs and working owners, and foreign-born employees who are “so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien”. Under orders from the President, the expanded use of Schedule A for these special-merit foreign citizens would allow fair consideration of deserving cases that have had little or no access to labor certification under the current system.
Allow the filing (but not the approval) of green card applications before the visa quota is open. Today, because of quota backlogs and an unfair allocation system, a person born in India holding a university degree, whose employer's immigrant visa petition has been approved, may have to wait as much as 20 years before being allowed just to file a green card (adjustment of status) application. The wait is only marginally less for those born in China. During that time, the person's spouse and working-age children ordinarily cannot work, and the children are at risk of "aging-out" -- reaching age 21 and thus losing green-card eligibility. What's worse, if the foreign worker loses his job in the meantime, the whole immigration sponsorship process (if the family involved has the stomach to pursue it) must go back to square one. As much as America may otherwise be attractive to foreign entrepreneurs and key workers, no sane person would find the risk and limitations of these waiting periods enticing. In a New York minute, if he were so inclined, President Obama could make the wait more tolerable. All he'd need to do is instruct USCIS to accept for filing adjustment applications for the beneficiaries of approved immigrant visa petitions and issue a rule freezing the dependent children's age as of the date of filing the green card application. This way, in the interim until the quota is current, the spouse and working-age children could work or study, and the foreign employee would not be tempted to give up on America, return home and compete against us.
[O]ur laws discourage [foreign students educated in the U.S.] from using those skills to start a business or a new industry here in the United States. Instead of training entrepreneurs to stay here, we train them to create jobs for our competition. That makes no sense. In a global marketplace, we need all the talent we can attract, all the talent we can get to stay here to start businesses -- not just to benefit those individuals, but because their contribution will benefit all Americans.
Look at Intel, look at Google, look at Yahoo, look at eBay. All those great American companies, all the jobs they've created, everything that has helped us take leadership in the high-tech industry, every one of those was founded by, guess who, an immigrant. (Applause.)
So we don’t want the next Intel or the next Google to be created in China or India. We want those companies and jobs to take root here. (Applause.) Bill Gates gets this. He knows a little something about the high-tech industry. He said, “The United States will find it far more difficult to maintain its competitive edge if it excludes those who are able and willing to help us compete.”
So immigration is not just the right thing to do. It’s smart for our economy. It’s smart for our economy. (Applause.) And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.
Why does the President wait for Congress to act when he has his executive pen in his pocket? Why should immediate job creation be held hostage to Washingtonian impasse, when the job-eating immigration alligators under his control can be easily restrained? I'm no politico, but it's politics, I suppose.
Our government leaders often ignore elementary rules of ecology and economics when trying to grapple with America’s immigration problems.
Ecology teaches that a system cannot thrive or long function if inputs far outnumber outputs. When rainwater enters the Mississippi in a volume that exceeds the river’s carrying capacity, levees are breached, adjacent lands are flooded, and people are devastated.
Economics teaches that because we live in a world of scarce and finite resources, a more or less functioning system of resource allocation will perforce arise. Not every one of the world’s inhabitants can sport a watch made of gold when this precious metal breaches the $1,500 per ounce price point, as has occurred recently. Thus, some mode of gold-watch allocation (be it capitalism, communism, despotism or another form of wealth transfer) will inevitably surface. The same or a similar system inevitably develops to allocate food, water, clean air and the real necessities of life.
Consider then the interplay of ecology and economics as the Federal Government tries, but mostly fails, to deport foreign citizens whom Congress has declared, in a very long list, are undesirable. The process is broken and dysfunctional because ecology is ignored (many more persons are brought before immigration judges and ordered deported than actually forced to leave) and economics is given short shrift (deportation resources are not targeted to first remove the most dangerous or vile offenders).
Deportation system breakdown, like success, has multiple fathers:
A multitude of reasons to require leaving. The grounds for deportation (or "removal," as it is technically known) range widely. Included are evildoers (such as terrorists and human predators), economic migrants (if they are without proper papers), and the unlucky or merely careless (the unfortunate, if capable, souls who are fired from a job for which a work visa had been issued; those who’ve unwittingly exceeded their required departure date by even just a day or a week; or, persons whose request for permission to stay longer than initially planned has been denied).
Too many ticket printers. Multiple officials within various units of the Department of Homeland Security (DHS) exercise authority to start the deportation process by issuing a Notice to Appear (NTA) at a removal hearing before an immigration judge (IJ). These include the Border Patrol, within Customs and Border Protection (CBP), adjudicators employed by U.S. Citizenship and Immigration Services (USCIS), and the deportation police at Immigration and Customs Enforcement (ICE). Surprisingly, with CBP, USCIS and ICE all issuing NTAs, there are no published statistics, by issuing authority, on the numbers or percentage of newly opened immigration cases destined to appear before the immigration courts. This is a case of the left hand, the right hand and the other right hand not knowing what their counterparts are doing.
No bouncers. DHS has not established an orderly and intelligently-designed system to determine the integrity and propriety of each NTA that has been issued. No designated official systematically decides which NTAs should or must be filed with the immigration court, and which ought be held in abeyance or disposed of in one of several non-judicial ways. (Almost every NTA, although styled as a "notice to appear" before a judge, contains no courtroom and date certain for the convening of a removal hearing. Instead, the document states factual allegations and legal grounds for removal and tells the person receiving it that the date and place of hearing will be announced in a future notice.) The system as presently operated requires no formal screening of NTAs to determine whether each is legally justified and sufficiently serious to warrant a hearing before a judge, potential incarceration, appellate review, and actually-enforced removal from this country. Clearly, some NTAs should be rejected. Why schedule an IJ hearing for a more-than-six-months, less-than-a-year overstay who can avoid the blotch of removal and a three-year-bar to reentry by complying with an administrative order of voluntary departure? Why waste an IJ’s time if the obvious resolution is to let time pass and await the individual’s turn in the green-card queue?
No ushers. Only a finite number of NTAs can be processed to the point of actually removing the person to his or her country of origin. This is not just an example of the theoretical principle of prosecutorial discretion. It is a rational system of ecological management (refraining from flooding the system beyond its carrying capacity) and economic realism (allocating scarce resources of money, time and energy to process only the most compelling cases for actual removal).
Too few referees with too little power. Without appointing more IJs (and providing other required resources, like courtrooms, detention facilities, interpreters, law clerks, etc.) the over-issuance and over-filing of NTAs with the courts create the reality of assembly-line (in)justice and the illusion that the removal laws are carried out. Either the IJs should be given more authority to terminate proceedings where NTAs are improvidently issued or grounds for relief from removal are best handled outside the immigration courts, or, Congress must allocate sufficient judicial resources to accommodate the flood of NTAs.
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Our federal lawmakers and the Obama Administration need to be told by Progressives, Tea Partiers, frugal independents and traditional partisans that the innumerable NTAs and outstanding but unfulfilled orders of removal flooding our deportation system mock both the duty to make and execute the laws faithfully, and proven principles of ecology and economics. We simply cannot and should not deport everyone for whom a technical ground of deportation can be cited. Some we should allow to stay, because they exemplify our values and their presence enriches us. Others who are really bad must go. A wise polity knows and acts on the difference.
On the first day of the second quarter of 2011, I fell for a joke. As the Urban Dictionary (definition #2) would word it, I was "punk'd"! I didn't merely fall for just any immigration-related ersatz news item (like the passage of the CIRAF bill reported by my colleagues in ABIL), I breathlessly embraced as the truth an emailed report I quote below and forwarded it to an immigration reporter for a prominent newspaper, asking if the reporter would like a quote from me on this "big news."
Written by an author who knows immigration parlance and the real names and titles of immigration agency officials, the disinformation that gulled me was this:
April 1, 2011
Washington, DC - U.S. Citizenship and Immigration Services (USCIS) announced today relief for tens of thousands of people caught in long waits for immigrant visa availability. USCIS Director Alejandro Mayorkas said in a statement "These people have been living in a state of limbo in the United States for too long."
This program is initially going to be targeted at immigrants who have an approved "I-140 Immigrant Petition for Alien Worker" filed on their behalf, but cannot receive permanent residence because of backlogs in immigrant visa availability. The new "Conditional Resident" status will be extended to such individuals who have had approved petitions filed on their behalf, and who have waited at least one year for availability of an immigrant visa. The Conditional Resident status will extend the same rights as Lawful Permanent Residence with two conditions: 1) Status will be extended for periods of 3 years, renewable indefinitely, and 2) Status will conditional on an immigrant visa not being available to the holder. Once an immigrant visa is available, the Conditional Residence will automatically be converted to Lawful Permanent Residence without further application being required by the immigrant.
James McCament, Chief of the Office of Legislative Affairs indicated that this change will take place by an administrative rule change, and that a Notice of Proposed Rulemaking (NPRM) should be published with the details of the proposed new status within the next 30 days. After a comment period, the new rule will take effect 60 days after publication in the Federal Register.
Similarly, recent immigration news -- regrettably, 100% reality-based -- suggested an April Foolsy, all-too-incredible quality.
On the enforcement front, a former Assistant Chief Counsel of U.S. Immigration and Customs Enforcement (ICE), Constantine Peter Kallas, perhaps wishing that he were merely a fictional character in an April Fool's prank, received a 17-year sentence and a $297,000 fine following his conviction "for taking bribes to help immigrants fill out false paperwork to remain legally in the country."
Although Secretary Napolitano maintained that DREAM-Act-eligible students are not a priority enforcement target, neither explained why the extraordinary executive remedy of "parole in place" was used on a blanket basis as recently as in the last 12 months (with nary a peep from Congress) to help foreign citizens of the Commonwealth of the Northern Mariana Islands who just as innocently as the DREAMers violated the immigration laws. Nor did the President explain (despite his claim of thinking about jobs upon rising in the morning and retiring in the evening) why he has not endorsed the Startup Visa Act, a bill that a knowledgeable staffer for Republican Senator Richard Lugar predicted has "almost no chance of passage" unless the White House supports it.
Foreign workers are receiving H-1B visas to work as fashion models, dancers and as chefs, photographers and social workers . . . There is nothing wrong with those occupations, but I’m not sure that foreign fashion models and pastry chefs are as crucial to our success in the global economy as are computer scientists . . .
On the hustings, at "a conservative conference last week organized by immigration hardliner Rep. Steve King . . . several possible GOP candidates present (Mississippi Gov. Haley Barbour, former House Speaker Newt Gingrich, even Rep. Michele Bachmann (R-Minn.)) didn't want to talk about immigration. Perhaps, the GOP is at last smelling the Hispanic java, demographically speaking.
Given these verisimilitudinous developments, I hope readers will forgive me for my (hopefully fleeting) naïveté. After all, if Rip Van Winkle had not fallen asleep and then awakened during the Revolutionary War era, but had instead slumbered at about the middle of the last century and awakened today, he too would have concluded that nothing whatsoever changes about the U.S. immigration system, a broken process that perpetually "draw[s] . . . borders with pens that split lives like an ax."
Ever since studying Constitutional Law years ago, I've never really resolved in my mind the tension between federal supremacy and states rights. Most days, I see the need for national uniformity of law and lean toward federal power. At other times, I appreciate the benefit of sensitivity to local conditions and the wisdom of allowing the states to serve as 50 laboratories to develop what I hope might be enlightened solutions to daunting problems.
The federalism/states-rights conundrum surfaced again in the Twitterscape, this time with a thoughtful blog post by "Chakazoid" -- a likewise unidentified inhabitant of the virtual world -- who wrote, "My Crazy Theory on Immigration." Chazkazoid, an apparently precocious college student, wondered aloud why Georgia, in trying to outdo Arizona, proposed a Jim Crow anti-immigrant bill that suddenly became "more lenient" (his supposition: "to protect the agriculture industry").
I've viewed these state excrescences as affronts to federalism, and suggested as much to euandus, by noting that having "50 state versions of immigration laws would be as dysfunctional as were the Articles of Confederation." My hope has been that the U.S. Supreme Court in the already-argued case of U.S. Chamber of Commerce v. Candaleria, will scuttle Arizona's efforts to neuter the federal preemption doctrine by attempting to regulate immigration. After reading the transcript of oral argument in Candaleria, however, I've become less hopeful that preemption will prevail.
The prospect that the states might be given free reign to legislate in the immigration domain chills my spine like an icicle. (It would be a mess for all of us if we were required to carry internal passports and get visas to go from state to state. And, yikes, how would I ever learn 50 state immigration codes?)
Then I read an op-ed by Jason L. Riley in the March 5 Wall Street Journal, "Utah Seeks a Better Way on Illegal Immigration," that gave me cause for modest hope. Utah state Senator Curtis Bramble, a Republican from Provo, has sponsored a bill with a good chance for passage that would do what has long stymied the federal Congress. Sen. Bramble's bill would permit undocumented immigrants in the state who've passed a criminal background check to pay a fine of up to $2,500 and apply to the Utah Department of Workforce Services for a temporary work permit. The bill, assigned number 288 (as amended), is premised on the Utah Compact. The Compact rests on five principles:
FEDERAL SOLUTIONS Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries. We urge Utah’s congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.
LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.
FAMILIES Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.
ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.
A FREE SOCIETY Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.
A leading proponent of Utah Bill 288, Natalie Gochnour, Chief Economist for the Salt Lake Chamber of Commerce, explained her support to Riley in his Wall Street Journal op-ed:
Utah has a growing economy that's ready and able to put people to work. Our business leaders are saying, 'Let's not diminish our labor supply. Let's not reduce our customer base. Let's not raise business costs. Let's not detract from outside investment, convention business [and] tourism.'
Of course, to be effectual, Utah's guest worker program would likely need a federal waiver (unless Candaleria is decided in Arizona's favor). Existing precedent for the delegation of authority over immigration benefits already exists with the federal government's Conrad 30 program, which allows each state to sponsor physicians for waiver of the two-year, home-country residence requirement of the J-1 Exchange Visitor visa category. (Utah, by the way, is not alone in proposing that states mobilize to gain the ability to issue internal work visas, as Ezra Klein of The Washington Post has argued persuasively.)
While Utah moves forward on a humane and pragmatic state-level strategy, Chakazoid, ever the optimist, still harbors hope for a federal solution:
Whatever the underlying issue for the slow progress on immigration, I have faith that we will come to our senses. We should be more welcoming to immigrants from every country and find a way to once and for all deal with the 12 million illegal immigrants already here. The solution should be pragmatic, involve a comprehensive reform, and benefit our economy, along with a bipartisan effort. We may sit here and play the blame game, as congress has been doing for the past decade, but it is this very game in which America is losing.
For my part, I see less reason for optimism. I join in the "stinging rebuke" leveled in the March issue of Arizona Attorney by my former partner and recently-retired Chief Counsel of USCIS, Roxana Bacon, who candidly decried the "legislative irresponsibility and the lack of executive leadership" of official Washington in the passage below (emphasis mine):
Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation, drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership, anyone?
The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action. Indifference, anyone?
. . . [USCIS] stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statements or practical field directives that would move us forward. Timidity, anyone?
However, not everyone stood down. CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history. . . . When advocacy groups questioned this 180-degree pivot from the campaign, they were told that no reform would be politically feasible until the anti-immigrant politicians were convinced that this Administration was tough on immigration. The groups who hijacked the immigration conversation will never be appeased. Not a good strategy. . . . [Reform] by increased enforcement was hardly the campaign promise. Duplicity, anyone?
Roxie Bacon likewise looks to the states "as the most logical and invested laboratories to sort through the complications inherent in deciding what a vital and secure immigration law should look like," not to mention the courts, "emboldened advocates, who stand up to meanness and indifference in the face of human suffering and need, and [to] inventive lawyers representing them."
It's not too late for the Federales in DC to renounce their "collective ostriching," as Roxie describes their posturing. Perhaps now, with the economy in rebound, unemployment finally less than 9%, and the states at the ramparts poised to usurp the federal role in immigration policy, our pusillanimous "leaders" in Washington will at last take pragmatic and humane steps to pass comprehensive reform, or at least grant Utah and other states the right to fix our dysfunctional system.
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POSTSCRIPT In a hectic day and night of amendments and maneuvers, the Utah legislature passed two immigration-related measures that together comprise comprehensive immigration reform at the state level. One of these, HB 116, creates a Utah guest worker immigration program. The other, HB 497, is said to focus on serious crimes. The federalism/states-rights tension continues.
The grandson of Italian immigrants, Angelo Paparelli is recognized by his peers and the public as a scholar and leader in immigration law and a passionate advocate for the rights of immigrants, U.S. citizens, and organizations petitioning for immigration benefits...
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