French philosopher and aphorist, François-Marie Arouet, better known by his nom de plume, Voltaire, wrote in Italian that "Il meglio è l'inimico del bene [the perfect is the enemy of the good]."

The wisdom of this saying, championed by pragmatists everywhere, comes to mind upon reading a May 30, 2013 Policy Memorandum (PM) issued by the Department of Homeland Security component known as United States Citizenship and Immigration Services (USCIS).

The agency and its popular Director, Alejandro Mayorkas, must be commended for removing much of the entangling underbrush that has grown around the "Employment Creation" fifth preference immigrant visa category (EB-5) for an investor who places at risk either $500,000 or $1 million (depending on location) in a commercial venture projected to create at least 10 jobs for U.S. workers.

With the enthusiasm of a vigilant homeowner wielding a high-powered weed-whacker, USCIS's PM has obliterated many ambiguities and unanswered questions that had prevented the widely popular EB-5 investor program to reach its full potential.

In one document, USCIS offered a comprehensive set of interpretations that promises to allow the EB-5 category to flourish.  Gone are most of the lingering doubts about the viability of bridge financing, and the stultifying restrictions imposed by an overly granular application of multi-digit "NAICS" codes -- a numbering system known as the North American Industry Classification System that the U.S. Census Bureau uses to identify and monitor various types of business establishments.

Also welcome are clarifications concerning (a) the relative power of the states and USCIS to define Targeted Employment Areas or TEAs -- rural areas and areas with unemployment at or above 150% of the national unemployment rate; (b) the specific circumstances when USCIS-designated Regional Centers (public or private entities authorized to accept EB-5 funds and allow its foreign investors to count direct and indirect job creation in reaching the 10-jobs-per-investor minimum) may or must submit amended petitions in order to change business activities or location, or when prior favorable EB-5 determinations will be given "deference," i.e.,  binding effect; and (c) the very limited situations when a business plan that has been derailed by unforeseen changes might adversely affect the later USCIS decision whether to remove conditions on permanent residence.

Still, without striving for perfection, USCIS could have made the PM much better.  Here are my suggestions for EB-5 PM 2.0:

• Kill or reincorporate the past.  The latest PM takes a wishy-washy approach in dealing with several prior policy utterances, listed below:

The PM states: "Prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded."  Why allow ambiguities to linger?  USCIS should rescind all prior guidance and incorporate all extant EB-5 policies in a single document as THE EB-5 Policy. Having taken the weasely approach of allowing prior non-conflicting EB-5 policies to survive, the new PM merely begs the question and allows agency adjudicators, regional centers, individual investors and their lawyers to argue over the "extent" to which prior policies have been superseded or supplanted.  Enough with the arguing.  Make it clear in one document.   

• Republish the policy as a proposed or interim final rule in the Federal Register and allow notice and public comment.  The new PM says:

SCOPE: This PM is applicable to, and is binding on, all USCIS employees. * * *

VII. Use

This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

If USCIS were to pursue the admittedly slow procedure envisioned under the Administrative Procedure Act for publishing notice of a rule and the opportunity for the public to comment, none of the quoted verbiage, wiggle words no doubt drafted by the USCIS Office of Chief Counsel, would be necessary.  As welcome as the new PM is, and although it was preceded by a draft version on which the public was allowed to comment, USCIS never published the comments in the Federal Register (as would occur with a proposed or interim rule) and never explained why some comments were adopted and others eschewed.  Instead, the public and the courts are left to guess at whether the PM will actually be applied and be something on which the stakeholder community may rely.

• Make sure economists are not EB-5 adjudicators.  Last week at a public forum, Director Mayorkas waxed lyrical over a supposed innovation he heralded. Henceforth, EB-5 adjudications would be made not by Immigration Officers but by newly hired economists who, he surmises, are better equipped by education to tackle the complex business and economic issues that arise in EB-5 petitions.  From now on, USCIS would no longer adopt the "hire to train" approach, whereby an indivdual is brought into the agency without experience and then trained in adjudicating a variety of immigration-benefits petitions and applications.  Rather, here on out in the EB-5 context, according to Director Mayorkas,  the agency will pursue a "hire to the skill" strategy, one that means that the successful job applicant at USCIS will only be hired if s/he already possesses the requisite skill -- an approach much like that of private industry. While the "hire to the skill" concept has much to commend it, the particular skill USCIS requires is not that of an economist.  No, the skill in question is possessed by those with a legal education.  At bottom, the EB-5 -- although containing elements of economic theory -- is ultimately a legal determination made by the application of facts to law.  USCIS should instead offer positions at a level of GS-13 and above to persons with at least a juris doctorate, preferably with bar admission and the ethical testing that entails.  This is not forging a new path; rather, it is merely replicating the reorganization of an adjudication function as occurred when the USCIS Asylum Office was reconstituted with lawyers in place of multi-function general adjudicators.  Economists can be advisors but should never be USCIS adjudicators.
• Follow existing USCIS regulations in determining when a restructuring or reorganization creates a new EB-5 commercial enterprise. The EB-5 requires investment in a "new commercial enterprise" created, restructured or reorganized after the effective date of the law, November 29, 1990. On this point, the new PM states: 

The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R. § 204.6(h)(2). The facts of Matter of Soffici — where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel— were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm’r 1998) (“A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership.”). On the other hand, examples that could qualify as restructurings or reorganizations include a plan that converts a restaurant into a nightclub, or a plan that adds substantial crop production to an existing livestock farm.

The PM too narrowly defines a corporate restructuring or reorganization as only encompassing a change in the business model or plan. Instead, USCIS should adopt a customary corporate or tax law determination of when a reorganization or restructuring occurs as it did in its I-9 (employment-eligibility verification) rules at 8 C.F.R. § 274a.2(b)(1)(vii).  In that USCIS regulation an employer has the option of treating an individual as either a continuing or a newly hired employee if the worker "continues his or her employment with a related, successor, or reorganized employer" and the "employer . . . continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets . . ."  Thus, whenever a predecessor entity undergoes a change involving a corporate reorganization, merger, or sale of stock or assets, then the successor entity thereby created should be treated at the employer's option as a new commercial entity for EB-5 purposes.  If the "simple change in ownership" dictum of the legacy agency in Matter of Soffici is to the contrary, then USCIS should overrule it.  Sauce for the goose is sauce for the gander.

• No EB-5 adjudication without representation.  USCIS must allow every party in the EB-5 ecosystem with a valid legal interest to protect the right to counsel at no expense to the government in proceedings before the agency.  USCIS must not persist in perpetuating conflicts of interest (real or really possible) by barring the attorney for the regional center or the pooled-investment enterprise to advocate for the validity of his or her client's position when a foreign citizen submits a petition for EB-5 classification on Form I-526 or a petition for removal of conditions on Form I-829. Regional centers and pooled investment entities have their businesses and brands at stake with every I-526 and I-829 submitted, yet USCIS muzzles them and expects the investor-chosen lawyer to carry their water.  The SEC would never require businesses to risk their assets or reputations by relying on the investors' counsel to argue their interests.  Neither should USCIS.
• No unsigned EB-5 adjudications.  The new PM goes a long way toward greater transparency, but not quite far enough.  The history of the EB-5 program has been pock-marked by policy reversals and arbitrary rulings.  One measure of transparency is accountability.  A decisionmaker becomes accountable when adjudicator puts on one's product his or her name (or nom de plum, in recognition of the need for personal and/or homeland security).  There must be a way for the government (outside of USCIS), the public and the EB-5 stakeholder community to hold accountable any adjudicator who repeatedly flouts USCIS's EB-5 policy.  If it worked for Voltaire (née François-Marie Arouet), it should also work for USCIS adjudicators.
• It's time for Expedited Adjudication.  Quite a while back, USCIS indicated that it would adopt Premium Processing expedited service for at least some EB-5 adjudications. With the hiring rate still barely keeping up with population growth, the time for quick decisions across all categories of EB-5 petitions is NOW.
• It's time for coupling. There is no reason why the new PM did not announce a benefit that is presaged in S. 744, the comprehensive immigration reform bill awaiting floor debate in the Senate.  That bill, as amended by a change Senator Leahy proposed, would allow foreign citizens who submit EB-5 petitions to file, concurrently, corresponding applications for adjustment of status to conditional permanent resident.  Concurrent petition and adjustment filing has long been allowed by USCIS -- without the need for enabling legislation -- in the first three employment-based green card categories. USCIS should extend the same privilege to EB-5 petitioners and their immediate family members.  

* * *

The USCIS should be applauded for issuing a comprehensible and almost comprehensive PM.  The huzzahs will be louder still if and when it adopts additional measures, suggested above and by others, that would create conditions for the EB-5 program to blossom even more prodigiously in the years ahead.

While most of the nation fixated this week on black and brown American heroes in Cleveland, the attention of immigration advocates diverged.  They vacillated between delight with the imploding anti-immigration conservative movement and nail-biting over votes on a flood of amendments to the massive, bipartisan Gang of Eight bill in the Senate Judiciary Committee.

To be sure, there remain troubling questions about whether the current immigration system in America is inherently racist in its design, its effect or its enforcement, as this sometimes heated debate involving Unai Montes-Irueste, who writes for Politics 365, and immigration lawyers, Susan Pai and David Leopold, reveals:

Whatever the right answer (I could argue for all three positions), that debate will be left to historians if an enlightened form of comprehensive immigration reform (CIR) is enacted this year.  That won't happen, however, if the poison-pill pharmacists on the right are allowed to administer a deadly dose.  

Take for example, Sen. Ted Cruz (R. TX) who proposes a fatal amendment to bar any path to citizenship for the 11 million undocumented immigrants in the United States. Or consider the Downton Abbey amendment offered by Sen. Mike Lee (R. UT) which would allow Americans to hire the undocumented but only if they served (apparently only the 1%) as "cooks, waiters, butlers, housekeepers, governessess, maids, valets, baby sitters, janitors, laundresses, furnacemen, care-takers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use."

It's not only about preventing bad amendments but also preserving and improving on good ones.  Take for example an amendment that markedly improved on the Gang of 8 version which would merely have expanded the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Ombudsman to also cover U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).  Proposed by Sen. Mazie Hirono (D. HI) and passed by voice vote, Section 1114 of the CIR bill creates a new "Ombudsman for Immigration Related Concerns" with the power to:  

• receive and resolve complaints from individuals and employers and assist in resolving problems with the immigration components of the Department [of Homeland Security].
• conduct inspections of the facilities or contract facilities of the immigration components of the Department.  
• identify areas in which individuals and employers have problems in dealing with the immigration components of the Department.  
• determine whether an individual or employer is suffering or is about to suffer an immediate threat of adverse action as a result of the manner in which the immigration laws are being administered, and intervene as necessary.  
• propose changes in the administrative practices of the immigration components of the Department to mitigate [identified] problems . . .
• review, examine, and make recommendations regarding the immigration and enforcement policies, strategies, and programs of [CBP], [ICE], and [USCIS].
• monitor the [three agencies' compliance] with law, regulations, and policy. [and] 
• request the Inspector General of the Department of Homeland Security to conduct inspections, investigations, and audits.

Consider also various amendments not yet voted on which are proposed by Sen. Leahy (D. VT). One would modernize and make permanent the EB-5 regional center program for immigrant investors. Others would enact family-based immigration benefits for same-sex couples by way of the "Uniting American Families Act of 2013" and another measure would recognize for immigration purposes all marriages valid under the laws of any state or country, including same-sex nuptials.

Ponder as well the amendments long espoused by Sen. Chuck Grassley (R. IA) who would add the heavy hands of hamstringing regulations and enforcement to the H-1B and L-1 bill, in ways even worse than the bad ideas already in the G8 proposal.  These amendments (Grassley 57 to 67), along with the base bill, would stifle innovation not only in the tech industries but they would also essentially declare illegal the modern business practice of global sourcing of services on which so many American companies and customers rely.

The point of this post is not that revelry over the fall of xenophobes and eugenicists is wrong; rather, it is that celebrations of that sort are unaffordable luxuries. That wine is just too rich at this late hour.  

Advocates for enlightened CIR must instead keep eyes peeled on the Senate Judiciary Committee and its fast-and-furious consideration of amendments which will profoundly reshape in ways unforeseeable the rules for employment- and family-based immigration.  This week's action will focus on Title IV which would transform (in good and bad ways) many of the most heavily-used nonimmigrant visa categories and create new classifications whose contours will be decided in the coming weeks, perhaps as soon as Memorial Day. 

So save your gloating for another day.  Now, keep the Congressional feet to the fire. Let the word go out in Twitter feed and Facebook update, in radio/TV talk shows on cable, broadcast and satellite networks, in blog posts and letters to the editor.  Let calls overflow the capacity of the Capitol Switchboard.  We need a modernized immigration system that functions well; not one hampered by bureaucratic red tape and heavy-handed, guilty-until-proven-innocent enforcement. It must spur 21st Century innovation and job creation in the private sector. And it must be true to our bedrock values of family unity and refuge for the persecuted. From your mouths to the Senators' ears.

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. 

"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.

In all, I offer "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services," and welcome reader commentary.  These suggestions, if adopted, would improve the system of immigration justice, but they only nip at solutions. 

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.

[Blogger's note:  Today's guest column is by my colleague at Seyfarth Shaw, John Quill. Three abiding passions animate John -- love of family, sports (hockey in particular) and immigration law.  His passion for sports and frustration with U.S. immigration law's employer-sanctions enforcement regime combine today to bring us this insightful and wistful post.] 

The I-9 Audit Process is a Game

--

Alas, it is Football, not Soccer

By John Quill

My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football -- rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or "Football" to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems.  

• First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.”)  
• Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.

Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, or players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of NationOfImmigrators.com are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring complex regulations and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS's I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act's) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.”

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

None of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.  

Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.

[Blogger’s note:  Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman.  Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws.  Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]

A New Immigration Recipe:

Specialty Chefs Need a Dream Act Too!

By Nathan Waxman

A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws:  the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status. 

Fast forward eight years. Despite the economic doldrums, gastronomic diversity is here to stay.

• Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.
• Taquerias  increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.
• Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.
• Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country. 

So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?  

In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of  people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.

Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines. 

Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise,  to use such nonimmigrant visa categories as H-1B, E,  L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America's Heartland or in an  emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days. 

The four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.

A pioneering  authentic Thai restaurant in the Chicago area

A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern  suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).

Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current. 

Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged.  Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen.  They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of  § 245(i), or amendment of  § 212(a)(9) to provide realistic  opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time. 

An Armenian restaurant in a working-class New Jersey town

In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.

Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.

A pricey Mughlai tandoori restaurant in Manhattan’s East 50s

A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003.  A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog.  The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?

A Chinese restaurant in the northernmost county of Maine

Disclaimer:  I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification)  employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.

Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.  

While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.

* * *

In my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.

Will Congress come to our aid?

Will Congress rescue the many food aficionados among us with a Dream Act for restaurant workers?

And, while they’re at it, can they make it easier for the local repair shop to bring in a German mechanic to fix my European diesel?

Ultimately, tax-paying American employers who satisfy the Department of Labor’s test of labor market unavailability through the PERM process should be able to serve their constituents and communities by adding to their work force tax-paying employees earning the prevailing wage, whether at a restaurant, a car repair shop, or a foreign language school. 

[Blogger's note: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

Moreover, when corporations are formed abroad, and profits – though generated through domestic activities – are treated as having been earned outside the United States, federal tax coffers are less full than they otherwise might be.  This happens, for example, through the “age-old ruse” of a blind trust (another form of fictive legal entity) when money that might otherwise be subject to U.S. taxation is stashed in a Swiss or Cayman Islands entity, as a certain GOP Presidential candidate who believes that "[c]orporations are people, my friend," perhaps understands quite well. 

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. 

Rather than publish a proposed regulation and allow an opportunity for public comment, USCIS simply announces novel interpretations of requirements to establish an employer-employee relationship as a prerequisite to approving a work-visa petition.  USCIS's out-of-nowhere interpretations flout binding and well-settled legal precedents, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958).  These decisions uniformly recognized the distinction between a corporation and its shareholders, thereby allowing a foreign citizen to incorporate a business and legitimately use the entity to sponsor the individual's work visa or green card, activities praised and coveted in the business world as “immigrant entrepreneurship.” 

USCIS, however, in ostensive deference to the Obama Administration’s entrepreneurship initiatives, has claimed to espouse the cause of entrepreneurial job-creation with élan. It has created a much-vaunted “Entrepreneurs in Residence” program, and issued and twice amended an FAQ ("Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the 'Employee-Employer Relationship' in H-1B Petitions") showing how the agency promotes immigrant entrepreneurship.  Retreating a tad from its interpretations limiting the recognition of an employer-employee relationship, the agency's FAQ offers an encouraging workaround:

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.

* * *

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.

Andrew Jackson had his "Kitchen Cabinet," Franklin Roosevelt his "Brain Trust."   Seth Godin has his "Tribes," web-based "silos of interest." 

I've been a member of many tribes (as I write this I'm recalling my tattered T-shirt from my own and my adult daughter's Indian Princess days, many moons ago [click here to see the shirt]).

In the Googlean sense, immigration lawyers likewise have their "circles" (if a noun can become a verb, I guess it can be an adjective as well). We lawyers of the immigration arts congregate privately in many places including local bar associations, on IMMLOG (a practitioners' list serve run by Kevin Dixler) and IMMPROF (a list serve for professors of immigration law, hosted by Hiroshi Motomura), through the American Immigration lawyers Association (the national immigration bar), which has a New Members Division, a group for Senior Lawyers (known as the Silver Foxes, led by Ken Stern), and numerous AILA Interest Groups. There's even "Cool Immigration Lawyers," a private meeting place on Facebook "for cool immigration attorneys who think it is awesome to help people and to insist on justice for everyone."

My prime immigration tribe is the Alliance of Business Immigration Lawyers (ABIL).  It's expanded wonderfully over the last 10+ years since I founded it; but it still performs its original mission very well.  ABIL was established on the principle of "competitive empathy," the notion that although we operate in separate law firms, "none of us is as smart as all of us." I liken it to a 12-Step Group for battle-weary immigration practitioners who acknowledge we're "powerless" over the ever-crashing waves of change washing over our chosen field of law.

The most recent tsunami -- the Obama Administration's program of immigration enforcement abatement, known as DACA (Deferred Action for Childhood Arrivals) -- has flooded the immigration tribal counsel with challenges and questions since August 15 when U.S. Citizenship and Immigration Services (USCIS) released DACA forms, instructions and FAQs.  These include Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, Form I-765WS, a work-need worksheet, and a DACA web page with FAQ.

The challenges include concerns among DREAMers and immigration community-based organizations that lawyers may price-gouge to handle DACA cases, reflected recently by perhaps the most-famous DREAMer, Jose Antonio Vargas, who tweeted from @Joseiswriting on August 16: "I try to be positive, but there is a special place in hell for lawyers who take advantage of #DACA by overcharging, etc." (I tweeted back to Jose, who is my client: "[Jose]: Please don't jump to conclusions. You need to know the facts of the case to know if the fee is fair or foul."  He responded by kindly urging his Twitter followers to follow: "@angelopaparelli: a great lawyer who's been advising me and, in turn, keeping me sane. [T]hank you for the help and support!")

The flip side of this concern is the difficulty individual immigration lawyers have had setting an ethically proper and reasonable fee in a practice area where fixed, project-based fees are the norm. Outside observers without an institutional history of how immigration-benefits programs have been (mis)managed might naïvely assume that the task must not be too complex, just three forms, the I-821D, the work permit application and the corresponding worksheet to show economic need, supported by written proof of a few "simple" facts (entry to the U.S. before age 15, five-years of continuous presence as of June 15, 2012, presence in the country on that day, no older than 30, and no serious criminal history.)  They would be mistaken.

USCIS knows that Congress, the Media, the Presidential campaigns, and the pro- and anti-immigration interest groups will be watching closely to see whether the agency can handle the estimated 1.7 million youth potentially eligible for DACA, whether fraud will infect the program or be minimized, whether the agency will act with humanitarian compassion under law or ICE-like negativity in exercising prosecutorial discretion, and whether employers who help a DREAMer acknowledge physical presence and past or current employment in the U.S. will face investigation and enforcement actions by USCIS's Fraud Detection and National Security Directorate (FDNS) or by ICE.

The immigration bar, electronically-transmitting the 21st Century equivalent of tribal smoke signals over these last frenetic days, knows that immigration confusion and complexity will flourish like a Chia pet on growth hormones as USCIS's implementation of DACA unfolds. Witness the many unanswered issues and concerns that DACA has generated as reflected in the notes of the USCIS's DACA Public Engagement on August 14, provided courtesy of Sally Kinoshita, an immigration lawyer and Deputy Director at the Immigrant Legal Resource Center (ILRC), the ILRC's DACA Criminal Bars Chart, and postings of the American Immigration Council by its Legal Action Center (DACA Practice Advisory) and Immigration Policy Center (Deferred Action for Childhood Arrivals: A Q&A Guide [Updated]). 

Even the most mundane issues involve significant costs that clients or lawyers must bear unless answered soon.  Attorney Marty Rosenbluth, Executive Director at the North Carolina Immigrant Rights Project asks of Facebook's "Cool Immigration Lawyers":

I know that some questions USCIS/DHS/ICE will answer with "it depends on the totality of the circumstances", but I think we can get a clear answer to a few questions before we start filing hundreds of these things. If we go through all the trouble of tabbing the appendices, are they going to be stripped off so the documents can be scanned before the person who will be deciding actually reads it? We thought it would make the [applications] easy to follow, but if they are just going to be stripped off beforehand we won't bother.

Also, we were thinking of using color coding, but if the scans are [black & white] there is no point there either.

* * *

Thank goodness for immigration-lawyer tribes. Besides "help[ing] people and . . . insist[ing] on justice for everyone," while trying to keep our staffs paid and doors open, we also dedicate our time and talent to advise and represent DREAMers as they wade through DACA's treacherous waters. Were it not for these collegial tribes, many of us (probably myself included) would have thrown in the towel years ago, mirroring the fate of Murray Burns, the protagonist in Herb Gardner's A Thousand Clowns.

Played by Jason Robards in the classic 1965 film, Murray explains why he finally had had enough and quit his job as TV personality, Chuckles the Clown. While ordering a martini one evening after work, he was asked by the bartender if he wanted an onion or olive with it. Murray responds: "Gosh and golly, you betcha!"  We are not clownish robots with pens and swords. Our immigration tribes help remind us of who we are and why we do what we do.

[Blogger's postscript] 

Although I'd seen the film and loved it, I couldn't find the Chuckles the Clown quote on the internet except in stray chats and a web-published book, The Robot's Pen and Sword, by an unnamed author whose site is the source of the photo above.

[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. 

"[A] riddle, wrapped in a mystery, inside an enigma"  ~ Winston Churchill

The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939.  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.  Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.

If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items -- border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents.  It must also strive to simplify the law.  

Consider what should be a straightforward concept -- following the rules.  How does a noncitizen comply with the immigration laws?  What does it take to maintain legal immigration status?  Sadly, the answer is as clear as fracking fluid runoff.  

For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a "nonimmigrant") through the action of a third party, say a parent or spouse, a spouse's employer, a university official, or a lawyer, can "fail to maintain nonimmigrant status," be in a condition known as "unlawful presence" and "not [be] in a lawful nonimmigrant status" -- three phrases in law or regulation that often don't mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for "duration of status," a condition that carries no date-certain expiration. Go figure.) 

Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as "advance parole") and then reenter in order to await the grant of a green card under the adjustment of status process.  Such a person would not have maintained nonimmigrant status -- indeed would not have any legal status (because parole is not a status) -- and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.

Or, consider a foreign person with a U.S. work permit.  As I've noted in an earlier post about human levitation, you may have the right to work here but not to be here.

Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one's passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.  

Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened.  The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period.  Or s/he may be misled by the DMV which issues a driver's license with a validity period extending to the later end date on the clip-out I-94.  

Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person's immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal -- all because of confusion over the simple concept of maintaining legal immigration status.

If that's not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the "last action rule" in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The "rule" sounds simple enough: Whichever status was the last one granted ("the last action") controls the person's nonimmigrant status.  Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II). 

Still worse, if the immigration laws make it virtually impossible to know who's in legal status, they make it harder than a Rubik's Cube to figure out who's here illegally, as DREAM activist Prerna Lal explains in "It's More Complicated than Legal vs. Illegal," her open letter to Ruben Navarette -- which challenges his defense of the slur, "illegal immigrant."

If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed -- assuming that the immigration agency exercises its heart (which it occasionally does).  Still, it's a shame USCIS doesn't heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that "yield up meaning only grudgingly" to reveal "morsels of comprehension [which] must be pried from mollusks of jargon." 

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. Doe provided 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:

• Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives. 
• Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here, here, here, here, here and there), provided the legal justification. 
• 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:

Dismissing interruptions from an impudent, pull-up-the-gangplank journalist who immigrated from Ireland, and outcries from foes on the right (perhaps the most ironic from the author of the Bush torture memo assailing Obama's executive overreach), President Obama finally projected a modicum of courage. In a Rose Garden address, he announced that giving deferred action and work permits to DREAMers in the exercise of executive discretion is the "right thing to do."  

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." 

As Martin Luther King, Jr., the quintessential Dreamer, reminds us, "the arc of the moral universe is long but it bends toward justice."  Let's make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.

Render unto Caesar the things which are Caesar's ... 

Jesus of Nazareth, Matthew 22:21

I send greetings to all those observing Public Service Recognition Week 2012. Each day, our country benefits from the efforts of dedicated Federal, state, and local government employees who do their jobs with pride and passion. So many of these men and women work tirelessly on behalf of their fellow citizens to confront the challenges impacting our communities and our Nation. During Public Service Recognition Week, we recognize these committed civil servants and honor their efforts to ensure a brighter future for the next generation.

President Obama, May 4, 2012

As a debate on the right and left rages throughout the nation over the proper role of government, it is fitting that NationOfImmigrators take note of Public Service Recognition Week and salute the devoted public servants in the immigration ecosphere who honor their oaths of office and strive to accomplish justice, leavened with compassion.  

I do not speak of the dull, ill-trained, uninformed or indifferent, or those in the immigration corps who would dishonor themselves and their branch of government by rendering decisions based on personal motives such as an aversion to hard work, career advancement or the promotion of a political agenda not based on the rule of law but rather on the passions of the mob, the media, the Twittersphere or bullies in Congress. I've ranted about them enough before (here's a potpourri: "Immigration Indifference - The Adjudicator's Curse," "Ignorance of Immigration Reality," "Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders," "Immigration Governance Unmasked, "I Am Furious (Yellow) -- at USCIS and its AAO," "Has Immigration Fraud Really Gone Viral in the DOL PERM program?," "A Silent Bronx Cheer: Hillary to 'Streamline the Visa Process,'" "Immigration Heart on ICE: Why Does ICE Decide All, and Deny Most, Humanitarian Parole Requests?," and "A Cancer within the Immigration Agency").

Rendering unto these immigration Caesars suggests another meaning of the term, the turning of awful offal into "value-added" products (in this case by shaming them into good behavior or providing them with pink slips or incarceration, depending on the severity of their transgressions).

Instead, I render salutes to those who fulfill year-round the "New Year Resolutions for Immigration Officials": 

1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
2. I will not issue requests for evidence merely as a means of pushing a case off my desk.
3. I will decide cases promptly and remember that justice delayed is justice denied.
4. I will not judge the case by the size of the company or the nationality of the applicant.
5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

Every day, government officials face perplexing immigration decisions. Many more times than they are given credit, they apply the law justly and within its letter and spirit, using their hearts as well as their heads. Sometimes, they face improper external pressure.  Take for example, Alejandro "Ali" Mayorkas, the Director of United States Citizenship and Immigration Services (USCIS). He has justly won plaudits for enhancing public engagement and transparency.  

One day not too far off, I predict, he'll be lauded for finally rolling out -- after years of labored birth by a midwife known as Transformation --   the first release on May 22, 2012 of USCIS ELIS (electronic immigration system) which the agency promises will provide "improved customer service, shorter processing times, and enhanced adjudication tools to combat fraud and safeguard national security." As with version 1.0 of most software, "[r]eleasing the system in multiple phases will give USCIS the ability to continually enhance the user experience for both customers and [its] employees . . . [and] smooth the transition to electronic filing over time and retain a paper filing option for customers."

Meantime, he faces another pressing challenge. It comes in the form of a March 7, 2012 letter from two senior Senators who should know better, Chuck Grassley on the right (a perennial foe of enlightened immigration reform) and Dick Durbin on the left (ironically, a perennial champion of the Dream Act). 

Sens. Durbin and Grassley display a rare, though wrong-headed, bipartisanship in that they both view the H-1B (Specialty Occupation Worker) and L-1 (Intracompany Transferee) work-visa categories as vehicles for fraud and discrimination (although a majority in Congress has never agreed in sufficient numbers to enact the duo's oft-reintroduced proposals). More recently, their animosity toward the L-1 has caused them (without regard to actual law) to quote liberally from a wayward 2008 non-precedent Administrative Appeals Office decision that trounced on legislative and rulemaking history to restrict drastically eligibility for "specialized knowledge" L-1B classification.

Based on Mr. Mayorkas' repeated public pronouncements confirming that the L-1B worker need not be a "key employee" and that her knowledge need not be "closely held" among employees of the affiliate abroad, the stakeholder community anticipates that new L-1B guidance from USCIS which he has promised to issue will reaffirm the expansive interpretation of specialized knowledge that existed from 1990 until the 2008.  That is the year when the AAO issued its L-1B atrocity, only to be plagiarized in 2011 by a copycat killer -- a State Department cable that turned the L-1B into a dead horse.  Although I never bet on the trotters, I wager that a revitalized team of stallions leading the L-1B chariot will soon race into the immigration coliseum a la Ben Hur with Ali Mayorkas at the reins in the role immortalized by Charlton Heston.  But, Ali, watch out for the opposition's spiked wheels!

[Bloggers Note:  This post is authored jointly by Brandon Meyer and Angelo A. Paparelli] 

Some scandals raise eyebrows; others cause real economic harm.  The one we're about to reveal -- known as "tenant occupancy" -- does both.  It makes the GSA's Las Vegas cavorting pale in comparison. (Immigration lawyer alert:  For those with prurient interests [you know who you are], "tenant occupancy" is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)

Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department's immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America's immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA”) have typically been honored in the breach and ignored in the observance.

Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS's spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.

Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB).  Instead, the agency posts proposals on USCIS.gov.  Each mode of public notice allows for stakeholder comment and engagement.  But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS's web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.

Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.  

Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November's elections.  In particular, we speak of the EB-5 employment-creation investor green card program. Section 11033 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how a group of long-unresolved investor cases would be decided.

Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final. 

Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.

What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on "hold" at the headquarters level while "issues" remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.

Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.

For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds.  This is presumably the new expertise that USCIS's "newly-hired economists and business analysts" would bring to the analysis of job-counting methodology. 

The 2002 EB-5 legislation, however, already provides the proper analytical framework.  In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note): 

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)

Thus, Congress dictated that "general predictions" on "jobs . . . created directly or indirectly as a result of [EB-5] capital investments" should suffice.  So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?

Lawyers and petitioners who've filed Regional Center applications containing tenant-occupancy calculation methods soon found out.  Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs”), symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.

Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol. 

Although USCIS's RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.

The agency's RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”

These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.

If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)

USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration's own statements acknowledging that counting jobs is not an exact science but instead requires "crude" measures that involve admittedly inexact presumptions.  See, e.g., "Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009," Executive Office of The President Council Of Economic Advisers, May, 2009. 

The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).

Will USCIS announce its intention to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)?  Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS's lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA's OIG has done of that agency's Vegas escapades)?  Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA's mind reader to find out.

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:

Ever since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines.  The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself:  "I hate [bleep]ing immigration law!"

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
2. Distinguish boilerplate from customized text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case which declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, your resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.

The historian said to the venture capitalist, "Let's drop the pious baloney," as each sought the highest office in the land. No, this post is not the set-up to a joke, except perhaps a nod to the risible circular firing squad that the GOP presidential candidates have formed. 

And it's not about a sliced and packaged meat sausage, more accurately termed "bologna," a carnal creation of indeterminate provenance defined by federal law.  Nor is it about "holy baloney," a line from Haunted Honeymoon, a long-forgotten 1986 film.

Rather, the reverential  "baloney" of which I blog is that unhealthful mixture concocted behind closed doors in legislative and administrative abattoirs, the one that comes to mind with the unverified quote attributed to Bismarck ("If you like laws and sausages, you should never watch either one being made").

In particular, this post is about the multiple pages of sanctimonious hogwash (summarized here), served up last week by the Homeland Security Department's Office of Inspector General ("The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers"). This is apparently the same report as the draft version selectively excerpted for sensational effect by The Daily, critiqued last week on this blog ("Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders"). 

In essence, the IG reports that:

• "Immigration law is complex, and USCIS administers benefits of great value."
• "Benefit fraud detection is challenging and has always created difficulties for federal agencies. . . . Threats to the immigration benefit system have not abated. In the 2012 DHS Appropriations Bill, the House of Representatives described recent attempted terrorist attacks on the United States as 'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes.'"
• Immigration adjudicators, now dubbed "immigration service officers" (ISOs), and immigration fraud detection officers (IOs) don't have sufficient opportunity to exchange views and work together.  They should rub elbows more often, and ISOs need more fraud-detection training.
• Half of the annual performance evaluation of ISOs is based on the adjudicator's demonstrated ability to detect and report suspected immigration fraud and national-security threats (the other half is based on the quality of adjudications).  Still, pressure (whether self-imposed or from USCIS) to produce decisions in volume persists and adversely affects fraud detection and adjudication quality.
• USCIS guidance on when to request additional evidence is confusing.
• Some ISOs perceive that USCIS supervisors and managers interfere with or overrule their decisions or reassign cases to more approving adjudicators.
• There must be validity to these ISO concerns because the USCIS Administrative Appeals Office (AAO) "frequently supports the ISO's decision on appeal," as the AAO did in a case involving a former USCIS Chief Counsel who intervened on an O-1 extraordinary-ability-alien petition submitted by the University of Arizona. 
• The IG is concerned "with those cases where [Office of USCIS Chief Counsel (OCC)] leaders may create pressure on the adjudications process so that improper approvals are or could be made." Thus, the IG believes that "[s]ome limitation on OCC’s ability to affect the adjudications process is necessary."
• The IG also worries that outside immigration lawyers may improperly influence USCIS management to pressure ISOs into approving undeserving cases or those where fraud is suspected. "ISOs and managers in some USCIS offices said that efforts to undercut some denial decisions waste USCIS resources and send an implicit message to approve petitions and eliminate outside complaints. We were informed that special treatment remains prevalent. . . . An ISO said that the American Immigration Lawyers Association 'owns' USCIS. USCIS is aware of this perception . . ." 
• "USCIS has yet to find an effective balance between its interaction with the public, especially immigration attorneys, and the need to protect the integrity of the adjudications process. This is a dilemma, because many people have an interest in USCIS decisions, and public comment is vital to the regulatory process. USCIS should strive to recognize the differences between legitimate public opinions about its processes and requests to change individual case decisions. Those who gain a special review of their case essentially receive a second adjudication without having to file an appeal."
• The current standard of proof to establish immigration-benefits eligibility -- a preponderance of the evidence -- does not sufficiently achieve the DHS mission of preventing fraud. "To further protect the immigration system, Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions. . . . A relatively low standard of proof does not account for all societal interests involved in the issuance of immigration benefits. "  

Just like most baloney, the IG's report is encased in a superficial shell, a shiny plastic wrap that presents its contents in the most favorable light. To understand the redolent bolognese features of the IG's report, however, readers should first recall key components from the tool kit for spotting falsehood offered by the late Carl Sagan in "The Fine Art of Baloney Detection":  

• Wherever possible there must be independent confirmation of the facts
• Encourage substantive debate on the evidence by knowledgeable proponents of all points of view.
• Arguments from authority carry little weight.
• Spin more than one hypothesis - don't simply run with the first idea that caught your fancy.
• Try not to get overly attached to a hypothesis just because it's yours.
• Quantify, wherever possible.

The IG report fails on all of Sagan's points. It begins with a flawed premise, namely, that Congress (other than merely the instigator of the report, Sen. Charles Grassley) is very worried about lapses at USCIS in detecting fraud.  Rather the IG falsely premises the supposed Congressional concern about anti-fraud failings within USCIS by citing to a House report that referred solely to failures at U.S. consular posts and embassies abroad.  Here is the full quote from House Report 112-091 pp. 50-51 cited by the IG in referring to "'ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes'":

The Committee provides $32,489,000 for the ICE Visa Security Program, an increase of $3,000,000 above the amount requested. This program places ICE investigators overseas to review visa applications from high-risk countries and populations and to uncover ties to extremist or criminal groups. Recent attempted terrorist attacks on the United States have highlighted the ongoing efforts by extremists to infiltrate our country through the exploitation of legitimate travel and immigration processes. The Committee believes that expanding the program to additional countries will reduce fraud and security risks in the issuance of visas and thereby reduce terrorist travel to the United States and international criminal activity. The Committee directs ICE to provide a classified briefing no later than November 1, 2011, on how it will utilize these additional funds to expand the program. (Bolding added.)

Clearly, the House was worried about the Underwear Bomber and other applicants abroad seeking U.S. visas, and the IG has been caught with its pants down.

The IG also erred when it extrapolated from a very small sample of USCIS employees, 147 managers and staff, and received 256 responses to an online survey.  As AILA President Eleanor Pelta has noted:

[This is a] total of 403 employees out of an 18,000 person workforce, or about 2 percent. Of that two percent, 63 individuals expressed a concern about pressure to approve cases. That is fewer than 25% of the individuals who responded to the online survey, and .03% of the total population of individuals who process applications for benefits for USCIS. I’m not a statistics expert, of course, but to my untrained eye this just doesn’t seem to be a valid sample size from which one could draw any useful conclusions whatsoever. To paraphrase something my mother might say, “From this you can make a report?”

Aside from problems with the small sample size, the survey questionnaire was drafted in a manner that made it impossible to draw meaningful conclusions.  It poses compound questions that conflate legal ineligibility for an immigration benefit with concerns over suspected fraud:

Have you personally ever been asked by management or a supervisor to ignore established policy or pressured to approve applications for benefits that should have been denied based on the Adjudicator Field Manual, other USCIS policy documents, or fraud/ineligibility concerns? (Bolding added.)

The IG readily acknowledged that inferences drawn from its findings may be unjustified:

[The] testimonial evidence that our interviewees provided may not be views shared by other employees. Quotations from our interviews and survey responses reflect the views and personal experiences of individuals, not necessarily the experience of most ISOs across the United States. . . . General employee concerns about the impact of production pressure on the quality of an ISO’s decisions do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats. No ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats to the United States.

Although the IG report was limited to internal sources, investigators apparently did not interview anyone at the USCIS Office of the Ombudsman, the DHS unit "created by Congress in the Homeland Security Act of 2002 to help individuals and employers who need to resolve a problem with [USCIS] and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS (although the IG snagged data from various Ombudsman's reports).

Also absent from the IG report is any recognition that the benefits made available by Congress  to eligible petitioners and applicants under the legal immigration system provide innumerable opportunities of tremendous value to America. The IG also seems oblivious to the harm that an adjudication system rewarded by a 50% focus on fraud will cause, having forgotten the wisdom of Abraham Maslow ("If the only tool you have is a hammer, you tend to see every problem as a nail.")

In addition, the IG assumes without investigation or evidence that ISOs know the immigration law (even though few are lawyers), that the AAO knows the immigration law (even though not all are lawyers), that the training provided to ISOs on substantive immigration law is adequate, or that outside lawyers and other stakeholders who bring problems to the attention of USCIS management are improperly pressuring ISOs to reverse their decisions.  It may be that these efforts are nothing more than quality assurance opportunities, or teachable moments. 

To its credit, the leadership at USCIS challenged the IG report on several grounds.  The most significant challenge goes to the heart of the IG's ill-conceived concern about perceived pressure on ISOs:

The manner in which USCIS handles or addresses a stakeholder inquiry or complaint depends on the nature and complexity of the incoming information. Some inquiries are very straightforward and can be addressed quickly with readily available information. However, other inquiries or complaints are more complex and may involve allegations of case mishandling, inconsistency in USCIS decisions, or violations of privacy and civil rights or civil liberties. In such instances, USCIS’s review of the incoming information could lead to a substantive review of any decision associated with the allegation. While the adjudicator involved may subjectively perceive a request to review a decision as putting undue pressure to ensure a certain outcome, such is not the intention of the request. Rather, USCIS’s responsibility is to ensure that the decision was correct and that the allegations are addressed. . . . USCIS does not perceive any pervasive or systemic problem along the lines implied . . . (Bolding added.)

Surprisingly, however, the IG does not address the very specific areas of Sen. Grassley's concern when commissioning the report:

Please specifically review whether the leadership changes and internal managerial rotations made at the California Service Center in July/August 2010 led to pressure to approve more cases. Please review communication between Service Center Operations leadership and California Service Center leadership to determine if there was support, or lack of support, for addressing fraud and what, if anything, changed in July/August 2010.

While the IG report does review the action of the former USCIS Chief Counsel, without naming Roxana Bacon, it merely presumes, as noted, that she must have been wrong because the AAO affirmed the adjudicator in the University of Arizona O-1 case.  Roxie Bacon, however, offered me a very different and revealing analysis of that matter:

The CSC [California Service Center] which had run autonomously for so long was especially alarmed with efforts to formulate and adopt centralized standards and true accountability/transparency for the adjudications. Nowhere are guidelines and adjudicatory tools more needed than in the complex, difficult and subjective review of "O" petitions. The leadership at CSC threw up every type of defense to do things as they chose. . . . The U of A case, the inquiry of which came from DHS' central office staff, was a great example of the perils of having non-experts try to assess a case that had so many elements needing a good tool kit. And of course as we know a spirited disagreement about what the tools could and should be is healthy . . . 

Roxie's assessment, notwithstanding the AAO's apparent affirmance of the O-1 denial, is supported by a federal appellate court ruling, not cited by the IG, which rebuked both the AAO and the California Service Center in ruling on the proper standards of determining eligibility in a case involving the EB1-1 extraordinary-ability immigrant-visa analogue to the O-1 category. The Ninth Circuit Court of Appeals in Kazarian v. U.S. Citizenship and Immigration Services, Case No. 07-56774, filed September 4, 2009, amended March 4, 2010, recently determined that the CSC and the AAO “may not unilaterally impose a novel evidentiary requirement” without support in the Immigration and Nationality Act or agency regulations, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). Love Korean Church (at footnote 7) extended this principle to requests for evidence:

It is of course true that "[i]n appropriate cases, [USCIS] may request appropriate additional evidence relating to [the statutory] eligibility . . . of the [petitioning] organization, the alien, or the affiliated organization." 8 C.F.R. § 204.5(m)(3)(iv). This provision, however, does not authorize [USCIS] to impose, as it did here, additional threshold requirements that are "plainly erroneous or inconsistent with the regulation[s]." Bassiri [v. Xerox Corp.], 463 F.3d [927, 930] (9th Cir. 2006) (internal quotation marks and citation omitted).”

If the IG really wants to be fully responsive to Sen. Grassley and can the baloney, it should reopen its investigation, conduct a statistically valid review, and solicit the observations of external stakeholders, for as Carl Sagan observed:

Finding the occasional straw of truth awash in a great ocean of confusion and bamboozle requires intelligence, vigilance, dedication and courage. But if we don't practice these tough habits of thought, we cannot hope to solve the truly serious problems that face us -- and we risk becoming a nation of suckers, up for grabs by the next charlatan who comes along.

We are a Nation of Immigrators, not a nation of suckers.

[Blogger's Note:  Today's post comes to us courtesy of my colleague, Brandon Meyer, a prolific writer whose analysis and commentary cover a wide array of immigration law topics.   Brandon offers a spirited post on a troubling aspect of the EB-5 employment-creation immigrant investor green card category. Thanks to him for having allowed me to be in top holiday spirits, undiverted from the season's pleasing diversions by the labor of love that is www.nationofimmigrators.com.]

What Are We Paying for? 

USCIS and the I-526 Exemplar Process

By Brandon Meyer 

[Author's Prescript]: In the spirit of fairness and open dialogue, I contacted the Community Relations Department of the California Service Center prior to publication to elicit their comment.  No reply was received. 

USCIS Director Alejandro Mayorkas deserves credit for trying to bring meaningful procedural and operational reforms to USCIS in general and to the EB-5 program specifically.  He has pushed for regulatory clarity, consistency of adjudications, and most notably, the introduction of premium processing for EB-5 petitions.  However, the Director’s hard work and good will are in danger of being wasted by his own organization.  A salient example of how the Director’s own agency actively undermines his initiatives is brought to the fore when considering the sham that is the I-526 exemplar process. 

USCIS Propaganda: 

The concept of the I-526 exemplar petition was introduced by the December 11, 2009 memo on “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38) (the “Neufeld Memo”).[1] 

The theory behind allowing qualifying Regional Center projects to file so-called “Exemplar Petitions” was to improve overall EB-5 processing.  If a project submitted a sample I-526 petition for prior USCIS review and the project did not materially change over time, then the subsequent I-526 petitions were supposed to be processed in a more consistent manner.  At first, exemplar processing was a courtesy provided free by USCIS.  An exemplar was filed and eventually USCIS would issue an approval notice.  Since there was no fee for an exemplar, USCIS did not issue an I-797 receipt notice upon filing.[2] 

Something changed around Fall 2010.  My office filed an I-526 exemplar petition in October 2010, just prior to the implementation of Form I-924 and the attendant $6,230.00 filing fee.  We received an I-797 receipt notice based on this exemplar filing in which the filing was deemed an amendment to the Regional Center’s designation.  Legally, this was not correct.  The exemplar filing neither asked for an expansion of the Regional Center’s area of geographic scope, nor was the filing asking for the addition of a new industrial focus.  The filing was simply requesting pre-approval of a new project in an area where the Regional Center was already established and in an industry for which it was likewise already approved.  So why was this exemplar classified as an amendment?  USCIS was gearing up for the money grab. 

In the intervening two years since the Neufeld Memo appeared, USCIS has said time and again that the exemplar process was meant to improve the adjudication of subsequently filed I-526 petitions. 

The Reality: 

Apologies to the late Edwin Starr and his classic 1969 anti-war song, “War,” but paraphrasing his lyrics provides us with a clear picture of the reality of the I-924 exemplar process as applied by USCIS.[3] 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!  Say it again!” 

            “Your Exemplar.  What is it good for?” 

            “Absolutely nothing!” 

It has become painfully obvious, despite Director Mayorkas’ public comments and USCIS written guidance to the contrary, that USCIS has no intention of honoring its numerous promises to give deference to an I-526 exemplar approval.  EB-5 stakeholders continue to receive Requests for Evidence (“RFEs”) for I-526 petitions based on approved exemplar petitions where there was no change to the project.  The RFEs are questioning aspects of the EB-5 projects, aspects that were reviewed (or were supposed to have been reviewed) during the exemplar process.  So why was the project good enough during the exemplar process, but now magically deficient when serving as the basis of an I-526 petition?  Did USCIS just cash the $6,230 check, put the filing on the shelf for months, then pick it up and send an approval without reviewing it? 

So why is USCIS issuing RFEs for I-526 petitions for project-related questions vetted and approved during the exemplar process?  The Neufeld memo quoted above states on page four: 

“A previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.”[4] 

The reasons outlined for not giving an exemplar approval deference are fair enough.  However, none of the RFEs for I-526 petitions based on an approved exemplar make of these assertions, nor has the exemplar petition approval been reopened for any of these reasons.  Therefore, USCIS is not following its own guidance. Is this intentional or does the left hand not know what the right hand is doing? 

During the September 2010 EB-5 stakeholders meeting held at the California Service Center, USCIS officials told the audience that stakeholders were going to be happy with the November 2010 introduction of Form I-924, with its $6,230.00 filing fee, as well as the increase in the Form I-526 filing fee to $1,500.00.  How could this be, I asked?  The answer I received was that these astronomical fees would allow USCIS to raise headcount by hiring more adjudicators and more specialist business analysts and economists.  The logical outcome, of course, would be that not only would sluggish, slothful, or glacial processing times remarkably improve, but the quality of adjudications would also improve and become more consistent!  “What could be better?”  “How could you not like these fees?”  “We’re giving you want you want!” 

Well, I was skeptical about this bright-future propaganda that was being force-fed on the EB-5 stakeholder community then, and the events of the past 15 months have confirmed my initial pessimism.  Processing times have not budged one bit.  It still takes USCIS eight months to process an I-526 petition.[5] The quality and consistency of EB-5 adjudication has not improved either.  Stakeholders regularly receive RFEs for specious reasons based on shaky reasoning.  Thus, if these high fees were the solution to the problem of slow and inconsistent processing, the solution has failed. 

During the November 2011 AILA California Chapters Conference, my San Diego AILA colleague Kimberly Roubidoux noted wistfully that when she began her career in immigration law, H-1Bs cost $85.00 and were adjudicated in three weeks by the Vermont Service Center.[6]  Today, H-1Bs can cost up to $3,550.00 in filing fees and the Vermont Service Center now needs four months to make a decision on an H-1B.[7]  Yes, folks, you are paying 41 times more to get something 5 ½ times slower.  Now that’s value. 

As we know, USCIS is mostly funded by user fees and the agency must periodically justify to the U.S. Congress that its fees are appropriate.  Yet, as fees increase across the board, service fails to improve.  How can USCIS continue to justify its fees? Sadly, I would be willing to surmise that USCIS could raise I-526 filing fees to $5,000.00 and I-924 filing fees to $25,000.00 and we would still fail to see any the benefits promised by USCIS during the September 2010 EB-5 stakeholders meeting. 

Yet, despite the failure of increased fees to improve EB-5 processing times and service, Director Mayorkas wishes to implement premium processing for certain Form I-924 applications and possibly certain Form I-526 petitions.  The Director’s rationale is sensible and worthy of support.  Job creation and investment are often on hold while the Forms I-924 and I-526 remain stuck for almost a year each in the bowels of the USCIS California Service Center.  However, Director Mayorkas unfortunately misses the point.  Fees at any level would fail to solve the problem.  The problem is the perverse incentives that USCIS faces when trying to fund its own operations. 

I generally do not subscribe to conspiracy theories.  Conspiracy theories are best left to people who can spends weeks at a time camping out in parks and public squares, protesting whatever it is they’re protesting (these people would benefit immensely from the job creating stimulus of a functional EB-5 program). I will nonetheless offer my own conspiracy theory.  EB-5 stakeholders have noticed an upswing in EB-5 related RFEs (although USCIS would probably dispute this assertion, they always do until the true numbers eventually leak out) and another slow down in processing times that coincides with the Director’s initial announcement that he wished to introduce premium processing into EB-5.  Coincidence?  I don’t think so. 

Another factor driving this upsurge in EB-5 RFEs is also too coincidental to be anything but deliberate.  As referenced above, the EB-5 unit has seen an upsurge in headcount funded by these skyrocketing fees.  The RFEs that question the basis of exemplar approvals tend to be focused on the business plans and economic studies included as part of the approved exemplar petition.  Therefore, I surmise this trend is also intentional as a way for USCIS to justify expanding its headcount in this area, under the “look, just look at these bad business plans and economic studies.  Good thing we hired all these people.  Let’s give ourselves a pat on the back for our foresight.” 

For years, the EB-5 stakeholder community has had to listen to a series of unconvincing excuses as to why premium processing was inappropriate for EB-5.  “Impossible.”  “EB-5s are too complex.”  “We can’t guarantee that we can process in 15 days.”  And my favorite, usually offered in a dismissive manner, “nothing is a priority if everything is a priority.” 

By pushing premium processing, Director Mayorkas, knowingly or otherwise, is offering a direct challenge to these years of accumulated dismissals of the idea that premium processing could work for EB-5. 

Therefore, my conspiracy theory is that this upsurge in EB-5 related RFEs and a slow down in processing times is part of a deliberate bureaucratic counterattack to delay and hopefully kill off Mr. Mayorkas' EB-5 premium processing idea once and for all.  How sad would that be?  While USCIS career bureaucrats protect their turf and reputations, job creation and investment in the U.S. remain stalled.  Yes, indeed.  The American people are being held hostage.  USCIS can hire as many “Entrepreneurs in Residence,” and bring in as many business process consultants as they want.  The underlying problem will not change. 

Don’t get me wrong.  Obtaining an exemplar approval is not entirely useless.  It continues to serve as a mechanism for new projects affiliating with existing Regional Centers to show that USCIS recognizes this affiliation.  With the Regional Center marketplace becoming more crowded and fake Regional Center projects popping up from time to time, an exemplar approval can be useful in marketing to show potential investors that the project is real.  However, providing Regional Center projects with marketing credibility was not, and should not be the intention of the exemplar process. 

While the theory behind the exemplar process is exemplary, the reality of the situation has become an absolute joke, a shameless money grab.  So the next time you feel like filing an exemplar and paying the $6,230 I-924 filing fee, do something more useful with that money.  Put the money pile in a fireplace and light it on fire. You’ll get more out of it, such as keeping warm on a cold winter’s night or possibly toasting some marshmallows if you're motivated. 

Brandon Meyer is Principal of Meyer Law Group, a full service immigration law firm with offices in Stamford, CT and Solana Beach, CA.  His e-mail address is Brandon@meyerlawgroup.us.

[1] “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38), December 11, 2009.

[2] I asked the question during the March 2010 stakeholders outreach session, “well, if you won’t issue an I-797, how do we know you have the filing and are working on it?”  The answer I received was something to the effect of “trust us.”

[3] See http://en.wikipedia.org/wiki/Edwin_Starr, last accessed December 21, 2011.

[4] 2009 Neufeld Memo, page 4.

[5] See the latest California Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37645, last accessed December 21, 2011.

[6] The principal blogger of www.nationofimmigrators.com, Angelo Paparelli, was also a panelist during Kimberly’s reminiscences.

[7] See the latest Vermont Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37649, last accessed December 21, 2011.

Who really wields power in Washington?  The December 3rd opening sketch of Saturday Night Live, featuring Fred Armisen as a chastened President Obama, offered an answer to the question. 

SNL's Obama shared his insight, gained over the last three years, that the presidency is not truly a powerful post, but merely a "ceremonial position . . . a majestic figurehead." Disabused of any pretensions of strength and influence, he groused that the President is not even among the top five power players, and well behind Grover Norquist, Oprah Winfrey and Tyler Perry.

Real-life House Republicans, however, see power inordinately vested in mostly anonymous bureaucrats. Last week, GOP stalwarts (along with a smattering of Democrats) approved two bills (whose enactment is improbable) that would drastically curtail the rulemaking authority of Executive-Branch agencies. 

Another Republican, perhaps America's highest paid historian, Newt Gingrich, suggested that immigration power -- the authority to pick the lucky individuals who can stay in the U.S. and identify the forlorn others who must leave -- should be vested in community boards, fashioned after the Selective-Service-System citizen boards of World War II vintage.  Given the difficulty of mustering jury panels, it's hard to see how Gingrich's boards might ever be staffed, unless the government were to hire the unemployed (something Newt would no doubt view as anathema).

Others, such as Yale law professor, Peter Schuck, have suggested that Adam Smith's invisible hand manipulate the levers of power, proposing that America "experiment with . . . new ways to improve visa allocation . . . [whereby the] government could auction some visas to the highest bidders."  Similar bunkum, which I have suggested would "amount . . . to a latter-day slave auction," has been proposed by Pia Orrenius, a research officer at the Federal Reserve Bank of Dallas, and Madeline Zavodny, a professor of economics at Agnes Scott College.

A more serious suggestion of how the federal government should exercise power appeared in this weekend's Wall St. Journal in an Op-Ed ("Starting Over with Regulation [-] Why are government rules so complex? A guide to a radically simpler system"). The editorial's author, attorney Philip Howard, chairs the nonpartisan government-reform group, Common Good, which has posted a longer version of his Op-Ed. Howard proposes that the arcane minutia of "bureaucratic detail could be scrapped, and law would become understandable again."  He suggests that the "focus would shift from complicated rules to desired results: clean air, safe food, honest business."

I'm not sure I agree with Howard's proposal, but one thing he says strikes me as having the accuracy of a drone missile: 

The standard objection to such a simplified system is that people would take advantage of the leeway: Companies would ignore their obligations, and bureaucrats would abuse their powers. The only answer to these fears is accountability. There's no need to trust business: Give inspectors presumptive authority to decide whether or not a business is meeting its regulatory obligations. Nor do we need to trust officials. The system would need to include ways to overrule regulators who are unreasonable and to fire them if they consistently show bad judgment. (Bolding added.)

Under today's immigration procedures, however, there is no way for the public to pressure the administrative agencies to fire immigration adjudicators (power-wielders) who "consistently show bad judgment."  Whether from within the USCIS Administrative Appeals Office, the Regional Service Centers, or U.S. consulates or embassies abroad, power is exercised anonymously.  In the case of USCIS, decisions denying benefits are putatively "issued" in the name of the boss of the particular unit.  The particular decision-maker is almost never identified.  While consular officers deny visas in face-to-face fashion (albeit with officer and visa applicant separated by bullet-proof glass), the refusing officers' names are not revealed. 

I recognize, to be sure, the dangers that some immigration adjudicators might face if their identities were known. But just as in the recent debate in the New York Times ("Anonymity and Incivility on the Internet"), some degree of transparency and accountability is necessary if bad behavior is to be prevented and rogue officers disciplined. 

Perhaps, an official governmentally-maintained but secret registry of immigration adjudicator noms de plume can be established. I think that if someone must put one's own name on the decisions he or she makes, then the legal scholarship, application of law to facts, reasoning and justice of each decision will inevitably improve.  At the very least, the public would be able to spot the bad apples (through the good offices of reporting agencies such as Transactional Records Access Clearinghouse -- a data-distribution service of Syracuse University -- which has long provided information on decisions of individual immigration judges).  With metrics on trends of mistaken adjudications, the public could pressure the immigration agencies to re-educate wayward power-wielders, or if unrepentant, demand their removal (from the job, not the country).   

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.

Many dysfunctions within the immigration ecospace are disturbing, but some make my blood boil.  The conniption that brought me to this Howard Beale moment erupted after I belatedly read a Forbes online article, published last April, by Osha Gray Davis ("A Death in Juarez: How U.S. Immigration Policy Is Tearing American Families Apart"). The Forbes piece reported on two people murdered in the Mexican border town of Ciudad Juarez and countless others living there in fear (just across from El Paso, ironically, one of America's safest cities) while waiting for the completion of snails-pace immigrant visa procedures at the U.S. consulate.    

Sadly, Americans by now may be inured to the everyday nature of the drug cartels' killing fields in Mexico, particularly in Juarez.  Last year, 15,000 people were slaughtered in Mexico -- the direct or collateral damage from the drug wars. Juarez, with over 3,000 killings a year, has earned a macabre distinction as Mexico's Murder Capital.  Just this month, two U.S. citizens, a mother and son from Kansas, died there when assault-rifle fire sprayed their SUV.

The situation has become so dire that even the Department of Homeland Security recognizes the importance of returning deportees to the interior of Mexico, far from Juarez, in order to "safeguard" the "the health, dignity, and well-being of undocumented migrants during the repatriation process."

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.

As a 2011 law review article ("The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad") argues persuasively, the "choice" facing U.S.-citizen spouses, parents and children of either separation from a loved one for up to ten years (if the waiver is refused) or relocation of the family to a narco-state (my wording) is a Morton's fork on which no one should ever be forcibly skewered:

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. 

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 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").

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

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

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

[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 Darden[1] and Clackamas[2] 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[3], as well as more recent Supreme Court case law[4]. 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 CliffsNotes®-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.

[1] Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 (1992)

[2] Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003)

[3] 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)

[4] Raymond D. Yates, M.D.,P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S. Ct. 1330 (2004)

As the debt-ceiling crisis causes America to plunge headlong into the lemming-led abyss of a credit default, Congress and the country are reminded of a timeless truth. "Money is better than poverty, if only for financial reasons."

In these parlous times, our nation is regularly compared to the nearly deadbeat country of Greece, which tried recently but unsuccessfully to sell off some of its sovereign assets. Fortunately for the U.S., however, the sale of our national patrimony is not imminent.  Mount Rushmore, Old Faithful and Lady Liberty are safe, at least for now. Still, America clearly needs more revenue.  With pledge-bound Republicans and Tea Partiers having taken tax increases off the table (except when labeled as immigration user fees), the prospect of near-term levies on the domestic population are virtually nil. 

Not surprisingly, the Senate Judiciary Committee, Subcommittee on Immigration, Refugees and Border Security, will hold a hearing July 26, 2011 on “The Economic Imperative for Enacting Immigration Reform” -- something I've argued in a a slew of blog posts over many years.

Maybe, just possibly, perhaps, cross the fingers, our financial desparation will at last cause a tripartisan immigration consensus to emerge.  Even though comprehensive immigration reform (including a path to lawful status for the undocumented) seems a non-starter at present, one revenue-generating reform to the legal immigration system may be the graspable piece of fruit hanging low to the ground.

As a patriotic American, a 35+ year immigration lawyer and former tax attorney, who has learned a few things about exceptionally affluent foreigners, I offer a royalty-free, open-source concept for the Committee to consider. 

Enter our deus ex machina: A worthy and viable revenue-raising immigration reform -- The $$$ Visa. My proposal for the $$$ Visa is based on fundamental truths about super-rich foreign nationals:

1. They enjoy and will pay for special privileges;
2. They don't like unpleasant surprises;
3. They consider themselves VIPs who deserve red-carpet treatment;
4. They usually don't want to immigrate because green card status entails U.S. taxation of their worldwide assets and an exit tax for long term residents who later leave America for good;
5. They create a passel of jobs by hiring minions of lawyers, accountants, financial advisers, chauffuers, interior decorators, designers, stylists, household workers and security personnel who perform for them an array of quotidian tasks (look up family offices here);
6. They seek safety, security and predictability;
7. They are fearful of political risks and want to hedge their bets with safe lodging in America as a backup plan;
8. They have gobs of disposable income; and
9. They are lured to America by its many enticements.

I therefore propose that the $$$ Visa be established as a revenue-raising, jobs-creating vehicle that would permit the ultra-wealthy to help us by helping themselves.  Here are the attributes of the $$$ Visa:

1. For a nonrefundable filing fee of $1 million made payable to the U.S. Treasury, U.S. consular officers abroad and U.S. Citizenship and Immigration Services (USCIS) officers in the U.S. would grant a qualifying foreign citizen, together with his or her spouse and minor children, a $$$ Visa or corresponding $$$ nonimmigrant status, with the visa valid for up to five years on a multiple-entry basis, and each change or extension of status, and each admission period to the U.S. under the visa, granted in two-year increments.
2. Neither U.S. consular officers nor USCIS adjudicators would be authorized to delay $$$ Visa issuance by the need to investigate whether the money so paid came from lawful funds. Instead, the Treasury Department under its current "government-wide multisource financial intelligence and analysis network," known as FinCEN, would establish by regulation the procedure to issue a "certificate of financial eligibility (CFE)."  As an inducement to lift the veil on bank secrecy and encourage federal tax compliance, the federal government would make expedited and streamlined CFE issuance available to citizens of countries that have enacted IRS-approved "Know Your Customer" laws (although nationals of other countries could still qualify for the CFE through more routine and likely slower procedures).
3. A small portion of the revenues generated from the $$$ Visa would be used to establish a red-carpeted VIP lane at U.S. ports of entry.  It's the least we can do to thank them for their contributions to deficit reduction.
4. All of the usual immigration screening procedures would apply to applicants for the $$$ Visa.  No drug cartel chief, terrorist with money, pedophile or other personae non grata could enter on this visa.
5. IRS tax residency rules will stay the same and apply to $$$ Visa holders who remain in the U.S. for periods that satisfy the "physical-presence" test.  Thus, $$$ Visa holders who remain in the U.S. for comparatively short periods would still be classified as nonresidents for income tax purposes while those who stay here longer would be taxed as residents and thereby subject their worldwide income to U.S. taxation.
6. Renewals of $$$ Visas for the same validity period as the original grant would be allowed in the U.S. or abroad at an American consular post for another nonrefundable payment to the U.S. Treasury of $1 million.
7. The $$$ Visa would provide no path to U.S. citizenship, although such visa holders would still be eligible to attain green card status and to naturalize through other existing legal avenues. Thus, no one could claim that we are selling citizenship.       

Critics would likely charge that we are showing preference to the wealthy and privileged.  Not so.  The U.S. already grants immigration benefits to many individuals of typically modest means, such as battered spouses, victims of human trafficking, asylees, refugees, students on scholarships, lottery winners and a host of temporary workers paid down-to-earth salaries. The $$$ Visa would merely level the polo field. 

After all, America, we can easily entice the ultra-wealthy to come to our country by citing our very own famous quotesmith, Mike Hammer, who said: "There are no pockets in a shroud."  Or, Congress, as the author of the quote at the start of this post reminds us: "Take the money and run!"

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.   

* * *

[Blogger's note:  The photo above is of the Groeschel Building.  The corner store in the building was a barbershop where I got my hair cut by Joe Messina, a buzz cut in the summer, a bit longer the rest of the year.  Photo source: Detroit: The History and Future of the Motor City, maintained by University of Michigan Sociology Professor, Reynolds Farley.]

I'm no fan of the U.S. Department of State's policies and actions in the immigration space.  State's approach, as manifested by the behavior of U.S. consular officers and the apparatchiks within the Visa Office at the Bureau of Consular Affairs, too often comes off as a mix of treacly haughtiness and callous indifference.

These Ugly American attributes are the foreseeable consequence of the grant of unbridled power. Straight-shooters call this power "consular absolutism" while the decorous dub it "consular nonreviewability." First established as a temporary, war-time measure in 1918 and then incorporated into current law by a McCarthy-era Congress that overrode President Truman's veto in 1952, the power of a single consular officer to determine the facts and refuse a U.S. visa cannot be overruled; not by the courts, the Attorney General, the Secretary of State or the President.

To be sure, sometimes State does the right thing.  Kudos to Hillary Clinton for using the immigration law to promote U.S. foreign policy objectives, as she did recently in allowing consuls to grant Iranian students multiple-entry two year visas, thereby supporting the Iranian people over their goverment. At other times, however, State stumbles and the hopes of countless innocent folks crash. Consider, for example, State's recent flubbing of the visa lottery selection process. Other pratfalls happen all too often, none more noticeably than missteps advertised in a much-watched State online resource, the Visa Bulletin.  Obscure to most Americans, the Bulletin tells watchfully waiting immigrants and their sponsors (American families and firms) how much or little, if at all, the "cut-off date" on the immigrant visa (green card) quota will move forward in the next month. 

The movement of the immigrant visa quota is less a math formula than a guesstimate.  A well-intentioned and competent State Department official analyzes reports of immigrant visa usage by consular officers (this is the easy, mathematical part), then grapples with the hard part -- the unpredictable flows of green-card issuance data from U.S. Citizenship and Immigration Services (USCIS) -- and then tries to estimate the rate and volume of future USCIS grants of green cards (adjustments of status, or AOS).  The problem is that AOS grants are approved at several locations (the USCIS regional service centers and field offices and the courtrooms of the DOJ's Immigration Judges). 

Although Congress contemplates a FIFO (first-in, first-out) quota system under Immigration and Nationality Act §203(e), seasoned observers have reason to believe that what really happens behind the scenes at USCIS is much more of a catch-as-catch-can system. AOS files are housed and distributed helter-skelter in a USCIS salt-mine storage facility in the midwest, regional service centers, ICE attorney file cabinets or shopping carts wheeled between immigration courtrooms, and USCIS field offices.  Although a recent lawsuit and motion for preliminary injunction in Seattle federal court challenging the immigrant visa (IV) quota allocation system failed, apparently for reasons urged by the government, this has not stopped ever-louder public complaints.

In recent years, the quotas dramatically and unexpectedly moved backward (retrogressed) twice  -- in 2007 under the employment-based immigrant visa categories, and in January this year under the family categories -- thus adding years more to the wait.  Although this might please the anti-immigration crowd that crows about the supposed honor of doing things legally by "waiting in line" (while silently celebrating that law-abiding immigrants are kept out), it hurts American interests.  American families are needlessly separated and the ability of U.S.businesses to compete on the global stage is hamstrung, while immigrant innovations that might have been are needlessly delayed or never happen.

Much of this harm could be avoided or lessened by President Obama, and virtually all of it could be eliminated by a willing, America-first Congress.

The President could take a lesson from Disneyland and the airlines -- businesses that know something about people waiting in lines.  These businesses know that opportunities for profit and reduction of complaints can arise even while customers wait (see Disney's techniques here and here; see airlines' approaches here).

• For intending immigrants waiting abroad, President Obama could remind State and its consular corps that wannabe green card holders, despite their desire to immigrate, are still eligible under law for all manner of nonimmigrant visas, and should be granted such status liberally in deserving cases.  I'm not talking about the misnomer that many immigration agencies and uninformed immigration lawyers call "dual intent" visas, as they refer to the H-1B and L-1 temporary categories (which are more accurately described as intent-irrelevant classifications).  No I'm referring to the true dual-intent categories, such as business visitors, tourists, students, exchange visitors and trainees).  The courts and immigration precedent decisions have long ago recognized that a visa applicant or nonimmigrant entrant can have a short-term intention to enter the U.S. presently, yet harbor the desire and intent to attain green card status when and if the law and the factual circumstances so permit, as long as the individual's overriding intention is to be law-abiding.  If the person, by prior conduct in compliance with immigration law and compelling ties abroad, has an intention to immigration in the future but no intention to break the law by overstaying the period of admission or violating immigration status, then s/he has legitimate dual intent (see cases cited, FN 51).
• The President could also tighten the reigns on the State Department by instructing the Secretary of Homeland Security to exert the superior authority granted her over immigration matters abroad under the Homeland Security Act, thereby cabining any rogue behavior by State's consular officers. 
• For law-abiding nonimmigrants in the U.S., he could -- as I noted in my last post -- take executive actions that would allow early filing (but not accelerated approval) of green card applications by persons with approved immigrant visa petitions (which would allow international travel and continuing employment permission) and administratively freeze the age of minor children as of the date AOS is filed. 

Our feckless Congress -- if they truly cared about American jobs, competitiveness and deficit reduction more than political posturing and electioneering -- could also make worthy changes in our national interests:

• Congress could also accomplish legislatively all of the outcomes noted above that concurrently fall within the authority of the President.
• Congress could set an example to other countries by putting reasonable procedural due process constraints on consular officers and allowing at least meaningful administrative review and a clear right to in-person legal counsel at visa interviews and administrative hearings.
• Congress could reap significant revenue by allowing quota line-jumping for a hefty premium fee. You may say this would be unAmerican, but we already allow premium processing at USCIS and provide wealthy investors with faster access to green cards (EB-5 visas) and nonimmigrant visas (E-2 and L-1A) by tendering legal tender.  We live in a capitalist state where theatres, sports teams and concert venues sell premium seats, airlines have first class cabins, and as Ernest Hemingway astutely observed in a misquote of an F. Scott Fitzgerald line: (Fitzgerald: "The rich are different than you and me." Hemingway: "Yes, they have more money.")

If you doubt the wisdom of better customer service for immigrants, consider the following excerpt from an unsolicited email I received from a foreign citizen (whose identity will not be revealed) in response to a three-part teleconference series I'm moderating next week (Illuminating the Dark Ages: Disturbing Trends and Pleasing Solutions in Employment Based Immigration):

I tried to get some help from 11 lawyers. Not a single one accepted. One told me that being in the US was a "privilege" and not a "right". Another one warned me about any action that could irritate the immigration service. The others just answered - when they answered - by one sentence: you have no possibility because there is still two years before your priority date.

As of today, I am still struggling. Why? Because:

- I want to get back to my career

- I want to achieve a degree at the University

- I want to open a business

- I want to buy my apartment

- I have hired 15 American citizens since I am a manager in my company and I think I am not a charge for anybody in the U.S.

But as you guess, I am the only one to believe that I will succeed.

I will conclude my message here, I thought that this story could be an illustration of the precarity of people like me, and I want to mention than I had never felt such a climate of rejection, suspicion and even in some cases, hostility, until this past few months. I had always felt very happy to live in the U.S. Today, the situation has created a daily anxiety, fear for the future and feeling that I am not welcome anymore.

Thank you for your reading. 

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.

* * *

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.

[Blogger's note:  Today's post is written by my colleague and friend, Karin Wolman.  Karin's latest guest post,  like her last one, available here, critiques USCIS policy changes that adversely affect the use of the O-1 visa category by artists and entertainers.  When her last post was published on this blog, I was soon contacted by a senior USCIS official who expressed discomfiture and disappointment from the repurcussions her post caused for the agency.  Let's see how the USCIS responds this time.  I'm happy to give an agency spokesperson equal time on this blog to reply. ]   

Based on public outcry from the arts community and the immigration bar, US Citizenship & Immigration Services has sought to engage stakeholders in a dialogue in order to understand why their policy memorandum of November 2009 regarding agents serving as O-1 petitioners  was not well received, and why their ongoing, ever-narrower “clarifications” reinterpreting the regulations are so unpopular with the industries that rely on the O-1 visa. In short, that memo has substantively changed the interpretation of existing law and regulations, and it added new requirements not supported by the regulation, even though the regulations themselves have not been amended nor revised since adoption of the O-1 Final Rule in 1994. As a consequence, the landscape for O-1 visa sponsorship has changed dramatically.

The most recent opportunity for stakeholder feedback on Agent-as-Petitioner issues was provided by the USCIS Office of Public Engagement in a stakeholder teleconference on March 24, 2011. Some questions were answered, many remain unanswered. Speakers intimated that forthcoming answers in an as-yet unpublished Executive Summary may be even more unpopular and may further destabilize industries already facing serious economic challenges. The most alarming reinterpretation suggested was that USCIS may start to consider O-1 performers to have violated status if they have accepted any new engagements with any “employer” not named in the original petition, even though the regulation at 8 CFR 214.2(o)(2)(iv)(D) explicitly says, “In the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition.” If USCIS pursues the suggested interpretation, it will upset almost two decades of settled practice, and would render nearly every O-1 actor, dancer, musician and singer out of status when they seek to extend stay, renew their visa or file for a change or adjustment of status.

The crux of the difficulty is the Service’s insistence on trying to create formulaic and rigid rules for a visa classification whose primary usefulness has been its flexibility, and has highly subjective legal standards, which have allowed individual adjudicators to apply their real-world knowledge and common sense. The consistency so dearly cherished and sought after by agency hobgoblins has led to “clarifications” and “interpretations” that turn long-established agency practice on its head, and destroy well-settled expectations in the professional communities that rely most heavily on the O-1.

Briefly, an “agent” in the O-1 visa context may be a US entity formally in business as an agent or business manager, e.g. providing artist representation; or it may be one among several prospective US employers/presenters/entities that wish to engage the services of the beneficiary (“Agent performing the function of an employer”), or it may be an unrelated party in the US that has a tax identification number and is authorized by the employers/presenters/entities that wish to engage the services of the beneficiary to serve as their agent -solely for the limited purpose of filing a visa petition to facilitate these engagements. 

As indicated by the preceding paragraph, many problems in USCIS attempts to achieve consistency in interpreting the O-1 regulations stem from use of the words “employer” or “employment.”  Those words often do not accurately characterize how work is done in fields of endeavor for which the O-1 visa is used. Although they get paid, most professional athletes in non-team solo sports, most fine artists and performing artists do not usually work in an employer-employee relationship. This is not rare, arcane knowledge: many Americans know when they go to the movies that the actors are not salaried employees of the film studio, but get a flat fee per film, or union scale rates for the time worked. When they buy a CD, they know that Lady Gaga is not an employee of the record label. When they watch a pro golf tournament, they know that Tiger Woods doesn’t have a boss. Apparently, USCIS has distanced itself from common sense understanding of how these industries work, and adjudicators are being asked to set aside their real-world knowledge and apply formulaic standards of “employment” to industries where an employer-employee relationship is not the norm. This is particularly sad and disturbing because the fact that there are many types of work in the arts and entertainment that do not fit the traditional employer-employee model was a foundational reason for the creation of the O and P visa categories in 1991.

The Service’s attempts to characterize all working relationships as “employment” have done considerable damage to the O-1 visa category already, and appear likely to do more, particularly in the context of O-1 petitions by an agent.

Requirements for a petition by an agent now include:

1)      A written itinerary of confirmed engagements, including dates, addresses, rates of pay, etc.;

2)      Contracts between employers/presenters and the foreign beneficiary;

3)      Written consent for the agent to serve as visa petitioner from all other employers/presenters listed on the itinerary;*

4)      Contract or summary of oral agreement between agent & foreign beneficiary.

Requirements 1, 2 and 4 are contained in the O-1 regulations exactly as they have existed since the Final Rule published in 1994, although interpretations of the regulations have changed considerably in the past three years. The written consent requirement is not authorized by regulation (lawyers call this ultra vires), and it creates another burdensome addition to the growing ream of paperwork required for artist sponsorship. Form I-129, until recently 4 pages, has mushroomed to 7 pages; the O/P Supplement, previously only 1 page, is now 2 pages. The thinking behind this agent-consent requirement is foggy at best. When the agent- petitioner already has to provide the contracts for each engagement, what is gained by also requiring a separate document from each presenterconsenting to the agent’s service as visa petitioner?  Does USCIS really think the agent could otherwise have obtained the contract details by stealth, without the consent and cooperation of each presenter?

Neither O-1 regulations nor the November 2009 policy memo require the contracts between employers and beneficiary to be signed – a good thing, as that would effectively kill off the possibility of any foreign artists touring in the US, since lead time for signed contracts inthe performing arts is extremely short. Indeed, as long as all the material terms of agreement are spelled out at least roughly - type of work to be performed, where and when, for what compensation – and if there is as yet no formal written contract, the version of the agreement furnished with a visa petition may be a brief Summary of Oral Agreement laying out all these terms, but it need not be not signed by either party.

However, an O-1 petitioner must also obtain advisory opinions from the relevant labor unions in any field where there is one, and this covers all the performing arts. The number of unions that must be consulted depends on the type(s) of work offered in the US. Some unions have more stringent requirements than USCIS. Notably, O-1 petitions involving aliens of extraordinary achievement in film and television must always include at least two union consultations – one from a labor organization, such as the Screen Actors Guild or the American Federation of Television & Radio Artists, and one from a management organization, the Alliance of Motion Picture & Television Producers.  AMPTP requires all contracts or deal memos to be signed, effectively ratcheting up the documentation standard.

With regard to the itinerary and supporting contracts, for a while (in late 2009 and early 2010) USCIS was automatically sending a Request for Evidence in any O-1 petition where there was a gap in the proffered itinerary of 45 days or more. That practice and policy was formally withdrawn per a USCIS memorandum of July 2010, but adjudicators retain broad discretion to request additional evidence in support of the petition validity dates requested. Their discretion is now being used not only to inquire about gaps in the itinerary, or where the end date of the period requested is any later than the end of the last documented engagement, but also to challenge the very nature of the proposed tour itinerary as a single “event.” Adjudicators apparently now have discretion to truncate the requested validity period at some arbitrary point in mid-itinerary chosen by the adjudicator, not by the agent or tour manager. What one hand gives, the other takes away.

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 issue arose again this week in an offhand reply I Tweeted to an anonymous, conservative-leaning polymath, who carries the Twitter name "euandus," in response to his blog post (with identity still masked) entitled, "Immigration and Federalism in the U.S.: Should States like Arisona (sic) Participate?"   

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. 

* * *

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. 

[Blogger's Note: This blog on dysfunctionality in the world of U.S. immigration law and policy welcomes principled and thoughtful commentary by guest writers. Today's guest post is by Karin Wolman, a highly regarded New York immigration lawyer with an expertise in immigration issues affecting artists, entertainers and the venues where they perform.]

U.S. Citizenship and Immigration Services (USCIS) has released an October 7, 2009 News Release that will shake up the world of arts and entertainment. The Release outlines new ground rules for O and P visa petitioners that will require every presenter on a single U.S. tour for a foreign performing artist to file separate visa petitions, with separate filing fees. (O-1 visas are for individual aliens of extraordinary ability, P-1 visas are for internationally-recognized entertainment groups, and P-3 visas are for artists coming to the U.S. to perform in a culturally unique art form.)

Traditionally, regional theaters and non-profit venues in the U.S. have pooled their limited resources, making it financially possible without breaking the season budget on one show to present important works by foreign artists to American audiences. The way this has worked until now is that one presenting theater or venue on the tour, sometimes a co-producer with the artist, would file a single visa petition for the foreign artist as the “employer” for the first stop on the tour, and as an “agent” for all the dates and venues with other U.S. employers. This one visa petition would cover every show on the U.S. tour, with evidence including the artist’s contracts with all the other U.S. presenters, and the other presenters would help defray other costs of the tour.

Except now, the USCIS is claiming the regulations never allowed that (but they have, and they do). The USCIS News Release claims that unless the initial presenting venue that would normally file one petition for a whole tour is “in business as an agent,” and has its own contracts with each of the other presenters as a “client,” every presenter must file its own petition.

That’s right, the immigration service has decided that now is the time to dig deeper into the pockets of arts organizations, already drained by the economic crisis, to demand duplicative filing fees, and illegally re-write the rules in an informal document that blatantly contradicts current regulations.

The unsigned agency Release, which does not have the force of regulation, vaporizes a part of the existing regulations without actually going through the publication, notice and comment procedures required to change the regulations. It ratchets up filing fees at a time when the arts community can least afford them, by requiring separate petitions in a common situation previously covered by a single petition.

The Release also adds a new evidentiary requirement, found nowhere in existing USCIS regulations:

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished by agent-Employer A submitting all of the [customarily] required evidence . . ., as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

Both this added evidentiary requirement, and the USCIS claim that any employer acting as an agent on behalf of other employers must also be “in business as an agent,” contradict the plain language and intent of the regulation at 8 CFR § 214.2(o)(2)(iv)(E), which states in part:

A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

Most tellingly, the regulation then divides into subsections - (E)(1) applies to ”An agent performing the function of an employer,” (E)(2) applies to, “A person or company in business as an agent, ” and (E)(3) applies to “A foreign employer, who through a U.S. agent, files a petition.” The plain language of the regulation belies the claim that an agent performing the function of an employer must also be “in business as an agent.”

To see the impact of the Release, let’s look at a not untypical fictional example:

Alba the Amazing is a Spanish aerialist/flamenco dancer/poet whose mixed-media performance art is the hottest show in Europe. Alba has earned rave reviews in 15 countries. An American theatre, the Cottage CoProducing Company, commissions a new original work and invites Alba to give the opening performances of their 2009-2010 season, for three shows in mid-November 2009. Alba books additional U.S. gigs following this premiere, for three shows each with Petite Presenter,The Tiny Theatre and the Avant-Garde Arena, running through January 2010. These three entities are small regional non-profit theatres, and are depending on Alba’s ticket sales to help maintain their subscriber base through this winter. All three were named as additional stops on Alba’s U.S. tour in the O-1 visa petition filed by the Cottage CoProducing Company, filed last week, with copies of Alba’s contracts with each presenter. The Cottage CoProducing Company is not in business as an agent, the other three presenters are not its clients, and they do not have separate contracts with Cottage CoProducing Company. The USCIS Release indicates that this petition will be approved only for the December shows at Cottage CoProducing Company, the subsequent dates will be refused, and the other three theatres will each be required to file a separate petition, incurring thousands of dollars in costs that exceed their budget.

The existing regulation explicitly permits the filing of “agent” petitions by one employer for other employers, so long as the contract between agent and foreign entertainer or artist is formalized. It does not state that one employer acting on behalf of itself and other employers must show that it is in business as an agent, nor does it require contracts between one employer and other employers. Through this informal, unsigned Release, USCIS is attempting to invalidate 8 CFR § 214.2(o)(2)(iv)(E)(1) and the second half of paragraph 8 CFR § 214.2(o)(2)(iv)(E), without amending the regulations or allowing any public comment.

Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast.

Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.