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.

Three years ago the Council on Foreign Relations (CFR) issued a bipartisan report and recommendations on U.S. immigration policy, the work of a task force study led by Florida Governor Jeb Bush and Thomas F. "Mack" McLarty III, former White House Chief of Staff to President Clinton. Last month, another bipartisan CFR task force, this one headed by Condoleezza Rice, former Secretary of State under the second President Bush, and Joel Klein, ex-Chancellor of the New York City education department and Counsel in the Clinton White House, issued its study and suggestions to improve U.S. national security by reforming education.

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 epicenter of the logjam on immigration bipartisanship – at least in the Senate – is Iowa Republican, Chuck Grassley.  Although he voted “Yea” on the bill that became the JOBS Act, Sen. Grassley is an immigration obstructionist, seemingly blind to the links between employment-based visas, U.S. prosperity and job creation for our citizens.

Despite passage in the house by a 389 to 15 vote margin, he has held up a vote on the Fairness for High-Skilled Immigrants Act — a bill that would eliminate the per-country caps on employment-based immigrants and thus allow foreign workers born in China, India and other quota-backlogged countries to obtain a green card more quickly. Sen. Grassley has also blockaded a proposal pushed by fellow Republican Senator, Scott Brown, which would give Irish citizens parity with Australians in receiving E-3 visas.

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.

Under pressure from Sen. Grassley, U.S. Citizenship and Immigration Services (USCIS) and the Department of State have denied and revoked visas and work petitions, while sending ever larger legions of immigration gumshoes from the USCIS Fraud Detection and National Security Directorate (FDNS) on unannounced and repeated visits to worksites around the country.

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.

No knowledgeable observer would deny the existence of immigration fraud. I see its victims often among the immigrants who seek my counsel after having been bamboozled not just by a few unscrupulous lawyers but also by the larger ranks of incompetent and dangerous consultants and notarios – a population still coddled by the Labor Department even though USCIS, quite laudably, has mounted a campaign against them. And of course, some percentage of employers will bend or break or simply misunderstand the befuddling “rules” that the immigration agencies have written (or failed to write) in response to the existing crazy-quilt of laws passed by Congress since at least the 1950s. Despite the massive aggrandizement of law-enforcement resources to guard the immigration system since September 11, little evidence exists to show that visa fraud is widespread or that it occurs at any greater rate than in other federal programs.

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.

The solution is to debunk the notion that American job losses are caused by increased legal immigration; rather, as the National Foundation for American Policy has shown, more employment-based immigration creates more jobs for U.S. workers.  

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).

Perhaps with the help of Steve Case and other business leaders, Sen. Grassley may yet be persuaded to spend less time calling the President “stupid” and, instead let his love of job-creating startups push him to transform his antipathy into appreciation for employment-based, legal immigration reform.  

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 Rich series (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 The Solid Gold 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).

Indeed, it was not until 1965 that the National Origins Formula, which effectively barred Asians from immigrating, was abolished with the passage of the Hart-Celler Act. 

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.

Today, if you were born in Mexico, China or India, you face decades of waiting for your date with immigration destiny -- your green card priority date.  Although this may change with enactment of a bill enjoying bipartisan support -- The Fairness for High Skilled Immigrants Act -- nothing will happen to eliminate this disparate treatment by place of birth until a certain senator from the Cornhusker State lifts his hold on the legislation. And Osaka Redux: The U.S. consular posts in India and the latter-day INS, USCIS, now have been unmasked as inexplicably denying a much larger percentage of L-1B visas and petitions for Indian citizens, while those from Europe sail through.

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:

“Damn with faint praise, assent with civil leer And, without sneering, teach the rest to sneer" ~ Alexander Pope, poet, satirist, and translator, “Epistle to Dr Arbuthnot”

I hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice. 

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.   

There are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose.  Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen").  Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition" and "Immigration Reform with the Stroke of a Pen").

When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity.  The first Tuesday in November is fast approaching.  Time waits for no President.

At least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again. 

Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”

My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software.  The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration."  Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures. 

In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition.  Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.

Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants.  More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan. 

Oh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years.  Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers. 

Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States: 

• They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals.  (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
• They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past. 
• They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance. 
• They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers. 
• They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
• They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
• They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
• They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.

Indian angst over discriminatory U.S. immigration policies is neither apocryphal nor paranoid. As Stuart Anderson of the National Foundation for American Policy recently reported.  Citing State Department data, his research reveals that "[t]he number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011 while L-1s "issued in the rest of the world rose by 15 percent." I share the inference that Mr. Anderson, former INS Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner, drew from this wide divergence in L-1 approval rates:

This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.

My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:

India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.

No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India:

India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .

Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.

The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":

On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].

The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August.  As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:

The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].

While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai.  India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States.  The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants.  The official explanation for this change is phrased in a way that would make George Orwell smirk: 

This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]

I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way.  Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.

With the President's supporters pleading for action, Barack Obama at last has pivoted to jobs.  "Pass this bill [the American Jobs Act]" has become his oft-shouted mantra. Surprisingly, however, career bureaucrats within the Departments of State and Homeland Security apparently haven't read his September 8 speech to Congress and instead are taking affirmative steps to prevent job creation.  Examples of this misbehavior are abundant across all work visa categories, as this blog has shown. 

For the sake of illustration, however, let's get granular and consider the latest trends in visa refusals for a single category, the L-1B  "intracompany transferee" visa, available to workers within a global firm possessing "specialized knowledge."

The problem has become especially acute with the recent flood of L-1B petition and visa denials involving citizens of India, thus raising the concern that the Indian refusals may be founded on unlawful bias, such as citizenship status, national origin, or race discrimination, or, upon the counterintuitive Congressional and media claims that the inbound dispatch of L-1 workers contributes to the claimed offshoring of jobs. 

American businesses count on L-1B workers to design and develop innovative products, fulfill contracts and manage important projects on which U.S. jobs for American workers depend.  With global competition accelerating, a significant delay in granting L-1B visa benefits to a deserving candidate, such as by a consular officer's unexplained return of an approved petition to USCIS for readjudication, a burdensome, boilerplate USCIS request for additional evidence, or an outright denial by either agency -- any one or all of these actions can lead to the loss of American jobs to employees of our competitors abroad.   

For those unfamiliar with this nonimmigrant category, the L-1B intracompany transferee classification, together with the L-1A for executives and managers, has been around since 1970.  The L-1B allows a U.S.-based business to transfer workers from the employ of a foreign affiliate that is under at least 50% common ownership or control with the U.S. petitioner in the combined global enterprise.  The visa applicant must have been employed for at least one year abroad by a foreign affiliate out of the last three years, performing in a job involving specialized knowledge, and must seek to work for a related entity in the U.S. in a like capacity. Individual petitions for L-1B visa classification are submitted to U.S. Citizenship and Immigration Services (USCIS), Regional Service Centers (RSCs), which forwards their petition approvals to a U.S. consulate or embassy abroad where the consul interviews the L-1B visa applicant.  Consular officers also interview "blanket" L-1 visa applicants from larger companies to determine whether either of the alternative definitions of specialized knowledge apply and an L-1B visa should be issued.

A few years back, larger global enterprises could instruct their candidates (specialized-knowledge professionals with a relevant college degree) to apply directly at a U.S. consular post abroad under an approved blanket L-1 petition as long as he or she had gained only six months' worth of specialized knowledge, rather than the one year minimum required now, which in either case is still a comparatively brief period required by statute. 

The term "specialized knowledge" has had a tortuous and tortured history within the legacy immigration agencies.  The trend as late as 1988 had been to interpret the term very strictly, culminating in a case, Matter of Sandoz Crop Protection Corp., which equated specialized knowledge with a level significantly above even "proprietary" or "patented" knowledge:

The petitioner's proprietary interest must be such that the knowledge required is clearly different from that held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.

A petitioner's ownership of patented products and processes or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must be a key person with materially different knowledge and expertise which are critical for performance of the job duties; which are critical to, and relate exclusively to, the petitioner's proprietary interest; and which are protected from disclosure through patent, copyright, or company policy.

Later that year, however, a policy memorandum from legacy Immigration and Naturalization Service (INS), clarified that this interpretation of specialized knowledge was “more restrictive than Congress or the [INS] intended" and instructed adjudicators to apply the new clarification so that the L-1B would be "more flexible and useful to international businesses": 

The problem stems from using a too literal definition of the term "proprietary knowledge" wherein the knowledge must relate exclusively to or be unique to the employer's business operation. Using this narrow interpretation of proprietary knowledge excludes numerous employees of international companies who were intended by Congress to be accommodated under the L classification.

Since the passage of the Immigration Act of 1990 (IMMACT 90), "specialized knowledge" has required (consistently with the 1988 INS clarification) either "special knowledge possessed by [the applicant] of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets," or "an advanced level of knowledge or expertise in the organization's processes and procedures."

In addition, in the preamble to the proposed regulations implementing IMMACT 90, the former INS acknowledged that “the intent of [IMMACT 90] as it relates to the L classification was to broaden its utility for international companies." Two INS Headquarters memos, in 1994 and 2003, and a 1994 State Department cable to the post in Madras (now Chennai), India reaffirmed the IMMACT 90 expansion of L-1B specialized knowledge. The 1994 State Department cable is significant because -- as shown below -- the very same Visa Office and consular post are at the epicenter of unlawful, revisionist and newly restrictive interpretations of specialized knowledge: 

Consuls should satisfy themselves that the applicant possesses knowledge that is not general knowledge held commonly throughout the industry but is truly specialized. The [Visa Office] notes this should not be construed to mean that an individual's expertise must be narrowly held within the company. The fact that the knowledge is held widely within the sending entity does not preclude it from being specialized.

With respect to the issues of remuneration of L-1 employees, there is no requirement (as for H-1Bs) that an individual be paid the prevailing wage. [Consular officers] must be satisfied that the applicant will not become a public charge. Beyond that, it does not appear to [the State Department's Visa Office] that the applicant's compensation may be addressed by [Consular officers].

Nothing of legal substance has changed since the IMMACT 90 Congress legislated an expansive interpretation of the specialized knowledge eligibility criteria, save for rogue (and now off-message) actions to restrict L-1B approvals, especially if the applicant is an Indian citizen. 

The trouble began in earnest with a 2004 Visa Office cable described as "clearly of greatest significance to the Indian Posts," and then with the USCIS Administrative Appeals Office (AAO), which published a 2008 non-precedent case involving an Indian software engineer, followed by USCIS adjudicators at the RSCs who have relied on that case to issue unwarranted L-1B RFEs and petition refusals, and by January, 2011 changes of heart by the State Department's Visa Office (relying on the same AAO case) and the consular posts in India.

More recently, however, the USCIS Office of Public Engagement (OPE), responding commendably to stakeholder concerns, held a May 12, 2011 Listening Session on the L-1B category.  The OPE's notes understate the intensity of complaints voiced during the call: 

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law. . . .

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

If the USCIS has indeed offered "additional guidance and training to USCIS officers adjudicating L-1B petitions," the lessons have not been learned.  Job destruction by way of L-1B denials at the RSCs continues unabated, notwithstanding the President's jobs campaign.  The same can be said of the consular posts in India where, especially since March, employers and immigration lawyers have witnessed a steady increase in unwarranted L-1B refusals. 

Applicants have reported that interviews -- lasting but a few minutes -- are perfunctory, supporting documents are ignored.  Consular officers are prejudging the case (often filling in the L-1B visa refusal notice at the start of the interview), and concluding that any passing reference to a company other than the petitioner warrants the unjustified conclusion that the knowledge must not be specialized. Moreover, notwithstanding the 1994 State Department cable, consuls are asking irrelevant questions about wages paid, while disregarding the value of supplemental stipends for housing, food and travel in the U.S., and ignoring the instruction that specialized knowledge may be held widely within the foreign affiliate ("[the] fact that the knowledge is held widely within the sending entity does not preclude it from being specialized").

The State Department defends its high Indian refusal rate by suggesting that the posts in India receive more L-1B applications and approve more L-1B visas than any other U.S. consulates or embassies worldwide.  Neither State nor USCIS has explained, however, why "specialized knowledge" is simply far more difficult to establish for citizens of India than for nationals of any other country, and why an outdated set of L-1B eligibility standards applies much more to Indians than to other visa applicants.

In the absence of clear answers by State or USCIS to these apparently discriminatory and unlawful practices adversely affecting Indian applicants and their petitioning U.S. employers, the task of revealing the truth and redressing wrongs must turn to another government agency or the media.  Within the federal government, the Department of Homeland Security's Office of Civil Rights and Civil Liberties (OCRCL) is endowed with explicit legal authority to investigate.  All that is required to initiate an OCRCL investigation is for disadvantaged parties to file a well-documented complaint alleging that invidious discrimination has occurred or that the cherished, constitutionally-derived (5th Amendment) civil liberty -- due process of law -- has been violated. 

While some Indian L-1B aspirants may pray to the "Visa God," they and others can also seek and hopefully receive more immediate relief by pursuing the OCRCL's decidedly terrestrial solution. 

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.

As even the most confirmed Luddite would be forced to admit, globalization has transformed the U.S. economy since 1993.  Thus, the importance of facilitating the entry of business visitors is even more important today than in decades past.  Regrettably, however, the State Department has responded to Sen. Grassley by rolling over.  Joseph E. Macmanus, State's Acting Assistant Secretary for Legislative Affairs, in a letter, replied that State is working with the Department of Homeland Security (DHS) to "remove . . . or substantially modify . . . [the BiloH]," but this "may require Federal Register notice."

No kidding that Federal Register notice would be required.  But not just notice; how about an opportunity to comment, as well?  We've seen this pattern all too often before.  Sen. Grassley complains about a perceived abuse and the agencies cower in fear and obsequiousness -- without regard to the facts, or the legal merits of his asserted concern. If State and DHS can't stand the heat then perhaps a cabinet-level Department with a mandate to espouse immigration and thereby promote our economic interests should utter the nonmaleficence principle in plain English:  "If it ain't broke, don't fix it." 

The attention given the Obama Administration's expanded use of aerial drones (of late in Pakistan, Yemen and Libya, at the U.S. border, and perhaps over other points unknown) to bombard unsuspecting targets and predictably, if not wilfully, cause civilian casulaties, may have distracted from other important meanings of the word.  Webster's Dictionary defines "drone" in four distinct ways:

1 : a stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen

2 : one that lives on the labors of others : PARASITE

3 : an unmanned aircraft or ship guided by remote control

4 : DRUDGE . . .

Surprisingly, all four definitions, literally or figuratively, apply to recent action of the Department of State in unleashing a veritable arsenal of consular drones into the immigrationsphere on April 27. The DOS's surreptitious bomb droppings involve a far-reaching final rule issued without the usual forewarning of published notice and the opportunity for public comment as contemplated under the Administrative Procedures Act (APA).  Claiming that the rule is exempt from APA formalities, State (with signoff by Janice Jacobs, Assistant Secretary for Consular Affairs) proclaimed by ipse dixit a regulation expanding the authority of American consular officers to revoke U.S. visas previously issued to foreign citizens.

Typical Paparelli hyperbole, you might say, associating pilotless bombers that kill and maim with a dry rule published in the Federal Register.  Let's see.

Visa officers -- of both genders --- are mated to, and serve and service, the hive that is State (definition 1), although admittedly they are not "stingless," as I'll soon show. Their unwarranted visa refusals and revocations suck out the lifeblood of family unity and entrepreneurship that nourishes this Nation of Immigrants (definition 2). Too often thoughtlessly, they do the bidding of distant masters at State and Homeland Security, and are therefore reliably compliant in a Disney animatronic sense (definition 3).  And their work is unrlenting drudgery, given that State allows them just minutes to decide the destiny of visa applicants, no less decisively than a set of fast-closing subway doors determined the alternative fates of the characters in the 1998 film Sliding Doors (definition 4).

I've railed before, quite often and at length, about the harm to American families and firms caused by the unregulated power of U.S. consular officials to deny visa applications of deserving foreign citizens (to review my prior rants, the curious need only type the words "visa refusals" in the search box to the right). Still, this new drone attack is insidious in several ways:

1. Whimsy's Silent Death Knell. The final rule allows immigrant and nonimmigrant visa revocations in the consular officer's (potentially whimsical) discretion, whereas the prior regulations (see the IV rule and the NIV rule) made the decision purely one involving straightforward findings, of fact and and under law, that the applicant was not or is no longer eligible for the visa. Presumably, the new regulation supplants State's Foreign Affairs Manual (FAM) provision denying consular officers the "authority to revoke a visa based on a suspected ineligibility, or based on derogatory information that is insufficient to support an ineligibility finding."  Previously, consular officers had no power (only State had the authority) to decide so-called "prudential revocations" which according to the current version of the FAM, "simply reflect that, after visa issuance, information surfaced that has called into question the subject’s continued eligibility for a visa."
2. Shut My Mouth. The final rule removes any express opportunity for the applicant or his/her attorney to present evidence to confirm that the inividual is legally entitled to keep the visa under immigration law.  Instead, the new rule provides that consular officer "consider . . . information related to whether a visa holder is eligible for the visa." 
3. No Chance to Scream. Nothing in the final rule requires the consular officer to allow the applicant or counsel to inspect and rebut "derogatory information unknown to the applicant," unlike the USCIS regulation, 8 CFR § Sec. 103.2(b)(16), which grants this customary due process protection.
4. Shoot First, Ask Questions Later. The final rule creates an illusory "provisional revocation" process that is indistinguishable from an unconditional revocation, namely, the immediate nullification of the visa for use in traveling to the United States. The former regulations required the consular officer, if practicable, to issue a notice of proposed revocation and thereby allowed an opportunity for rebuttal or reconsideration before the actual revocation took place.
5. Queen Mother Bee, May I? The new rule relieves the consular officer of the duty in several types of cases to seek State's prior permission in the form of an Advisory Opinion.  Now a consular officer, without hesitation or consent, can uncap and click the visa revocation button and fire off a drone.  
6. 'Tain't Fair. Consular officers now have authority under the final rule to revoke a visa even if the visa holder is already in the United States -- an action that heretofore only State could do under the present version of the FAM. Under Immigration and Nationality Act § 221(i), a consular revocation cannot be reviewed by any court except in limited circumstances during a removal (deportation) hearing. Thus, a consular decision, perhap made on incorrect information and without notice to the visa holder or a rebuttal opportunity, transforms an otherwise law-abiding foreign citizen into a deportable alien whose only remedies are to be hauled before an immigration judge or hop on the first flight back home.

Even before State's fait accompli drone attack, the DOS recognized and forewarned consular officers to "be alert to the political [and] public relations . . . consequences that can follow a visa revocation," noting in the FAM that the "revocation of the visa of a public official or prominent local or international person can have immediate and long-term repercussions on our political relationships with foreign powers and on our public diplomacy goals in a foreign state." Apparently, visa revocations involving lesser known foreign figures are of inconsequential concern to the Department.

I'll end my droning with a suggestion to State: 

If you care about our nation's image in the world and the soft skills of diplomacy, as you oft proclaim, withdraw this silly and pernicious rule. Contrary to your bald assertions in the preface to the rule, your release of immigration drones will inevitably trigger "adverse effects on competition, employment, investment, productivity, innovation, [and] the ability of United States-based companies to compete with foreign based companies in domestic and import markets."  Your rule also raises the prospect that families of "little people" -- to snatch a phrase from the "Queen [Bee] of Mean," Leona Helmsley -- will be torn apart by your improvidently released drone attack on fair play and simple justice. 

With your actions as added martial fodder, is it any wonder that Superman is renouncing his U.S. citizenship because he cannot in good conscience continue to link truth and justice to the American way?