President Trump’s October 9, 2019 overtures landed as music to the ears of many grizzled immigration lawyers who persistently suffer battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

The songs of TAFCAEA and IAGD,  resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:

  • publish clear guidance rules that spell out permissible and prohibited conduct by regulated parties;
  • eliminate instances of “unfair surprise” so that members of the public (the regulated community) are not blindsided by unforeseen changes in how the agencies interpret federal laws;
  • place any purportedly binding agency rules not published in the Federal Register (known as sub-regulatory guidance) into an indexed and searchable section of each agency’s website (or else, the “rules” go away); and
  • soon announce rules of procedure governing administrative inspections and then be held accountable to comply with the published ground rules.

The media, with few exceptions, have given scant attention to TAFCAEA and IAGD.  See, e.g., “New Trump Orders: Guidance Should Be A Shield, Not A Sword,” by Susan E. Dudley, and “Trump Orders Limit Effect of Agency Guidance on Industry,” by a team of Bloomberg Law reporters.

Yet these early commentaries offered nothing on the foreseeable impact the new orders will have on the federal immigration bureaucracy.   Basking in joyful reverie, I ruminated about how the several U.S.  immigration agencies would respond to these new executive-branch constraints.

Must Federal immigration agencies sing in harmony with TAFCAEA and IAGD?

Reading the new executive orders more closely, I heard a discordant note, one that caused my high-flying heart to skip a beat.  TAFCAEA, at § 11(d)(1), and IAGD, at § 7(d)(1), contain identically-worded exclusions that seem to foreclose any change to the many heavy-handed immigration-agency practices decried repeatedly in this blog (e.g., here, here, and here):

[Nothing] in this order shall apply . . . to any action that pertains to foreign or military affairs, or to a national security or homeland security function of the United States (other than procurement actions and actions involving the import or export of non-defense articles and services)(emphasis added).

For heaven’s sake, I thought, immigration inherently involves foreign affairs and national- and homeland-security functions of the United States.  Hence, I feared, the Departments of State and Homeland Security would hasten to assert that TAFCAEA and IAGD in no way inhibit State’s and DHS’s standard operating procedures where interpretations change on the fly, and in so changing, routinely (and unfairly) surprise individuals and organizations petitioning for immigration benefits with new and ever-more-stringent eligibility criteria.

But then a phrase caught my eye, the exception to the exclusion provisions noting that TAFCAEA and IAGD would still apply to “the import . . . of . . . non-defense . . . services.”  What might the importation of non-defense services cover?  A keyword search of the Immigration and Nationality Act (“INA”) quickly homed in on two sections:

  • INA §§ 214(c)(1) and 218, requiring employers seeking to “import” a noncitizen to be employed under the H, L, O and P visa categories to submit a petition and obtain agency approval before a consular officer can issue a temporary work visa; and
  • INA §§ 212(a) and 278, rendering inadmissible and penalizing any noncitizen seeking to “import” foreign nationals for prostitution or other immoral purposes.

It’s hard to divine the unexplained rationale and import of the “import” exception, and I won’t tarry here with speculation.  At bottom, it seems clear, however, that the INA treats as synonymous the importation of services with the importing of people.  This suggests that TAFCAEA and IAGD should at least cover agency actions with respect to several nonimmigrant visa categories, including the H-1B (specialty occupation workers), H-2A (agricultural workers), H-2B (non-agricultural workers), H-3 (trainees), L-1 (intracompany transferees), O-1 (persons of extraordinary ability), P-1A (internationally recognized athletes), P-1B (members of an internationally recognized entertainment group), P-2 (performers or groups performing under a reciprocal exchange program), and P-3 (artists or entertainers in a culturally unique program).  For my money, that’s a heckuva lot of newly-established procedural due process of law.

It remains to be seen whether, for the sake of consistency of process, USCIS will extend the importation-of-services principle to other petition-based temporary visas, such as the E-1 and E-2 (treaty traders and investors), E-3 (Australian specialty workers), Q-1 (cultural trainees), R-1 (religious workers) and TN (workers under the North American Free Trade Agreement), and possibly also to employment-based immigrant visa petitions.

What do TAFCAEA and IAGD require?

As due process enthusiasts, immigration lawyers welcome the new lyrical pronouncements from the pen of our president (all with emphasis added):

  • The rule of law requires transparency. . . . . No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.  . . .  Agencies shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose. (TAFCAEA, § 1)
  • Guidance documents may not be used to impose new standards of conduct on persons outside the executive branch except as expressly authorized by law or as expressly incorporated into a contract. When an agency takes an administrative enforcement action, [or] engages in adjudication  . . . it must establish a violation of law by applying statutes or regulations.  The agency may not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of applicable statutes or regulations.  When an agency uses a guidance document to state the legal applicability of a statute or regulation, that document can do no more . . . than articulate the agency’s understanding of how a statute or regulation applies to particular circumstances.  (TAFCAEA, § 3)
  • When an agency takes an administrative enforcement action, [or] engages in adjudication, . . . it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise [, i.e., a lack of reasonable certainty or fair warning of what a legal standard administered by an agency requires.] (TAFCAEA, §§ 2 and 4)
  • [Agencies must] treat guidance documents as non-binding both in law and in practice[,] . . . take public input into account when appropriate in formulating guidance documents, and make guidance documents readily available to the public. Agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law . . . . (IAGD, § 1)
  • Within 120 days of the date of this order, each agency that conducts civil administrative inspections shall publish a rule of agency procedure governing such inspections, if such a rule does not already exist. Once published, an agency must conduct inspections of regulated parties in compliance with the rule. (TAFCAEA, § 7)

What will the impact of TAFCAEA and IAGD be on DHS, State and Labor?

TAFCAEA and IAGD haven’t been enacted on a clean slate.  On October 9,  President Trump made this clear:

Regulated parties must know in advance the rules by which the Federal Government will judge their actions.  The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., was enacted to provide that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.”  Morton v. Ruiz, 415 U.S. 199, 232 (1974). The Freedom of Information Act, America’s landmark transparency law, amended the APA to further advance this goal.  The Freedom of Information Act, as amended, now generally requires that agencies publish in the Federal Register their substantive rules of general applicability, statements of general policy, and interpretations of law that are generally applicable and both formulated and adopted by the agency (5 U.S.C. 552(a)(1)(D)).  The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy (5 U.S.C. 552(a)(1)).

Unfortunately, departments and agencies . . . in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA’s goals of promoting accountability and ensuring fairness.  (TAFCAEA, § 1)

It’s too soon to say just how the federal immigration agencies will react (and whether regulated parties might bring APA litigation challenges if the reactions fall short of the President’s commands in TAFCAEA and IAGD).  At a minimum, failing to take action to comply, the agencies should see their topsy-like interpretations and guidance memoranda (which are almost never published in a single place, let alone as regulations) become dead letters.

Each of the agencies publishes online resources, mostly in disparate locations.  USCIS publishes a policy manual, a redacted public version of its adjudicator’s field manual,  and numerous policy memoranda. The Labor Department publishes fact sheets, online job directories, and regulatory pronouncements.  The State Department publishes its Foreign Affairs Manual, a landing page for the Bureau of Consular Affairs, and many of State’s U.S. embassies and consulates publish procedures, interpretations, eligibility criteria, and policies, such as this one from the U.S. Embassy (London).  It also maintains an email inquiry service known as LegalNet.com for attorney queries on visa issues, but never publishes its advisory opinions to consular officers (which often will include legal interpretations which trump the otherwise applicable principle of consular nonreviewability).

IAGD, at § 3, would put an eventual end to this practice:

Within 120 days of the date on which the Office of Management and Budget . . . issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.

An even earlier outcome will be viewable on February 6, 2020.  That’s when USCIS’s illegally constituted unit known as the Fraud Detection and National Security (FDNS) Directorate, the Labor Department’s Wage and Hour Division (WHD), and U.S. Immigration and Customs Enforcement (ICE) – each of which conducts “conducts civil administrative inspections” – must “publish [their own] rule of agency procedure governing such inspections . . . and must conduct inspections of regulated parties in compliance with the rule.”  Thus, for example, when that happy day arrives, FDNS site visits into H and L visas, WHD audits of H-1B compliance with DOL’s Labor Condition Application regulations, and ICE I-9 inspections and F-1 site visits will at last operate under transparent procedures.

* * *

It’s nothing short of music to an immigration lawyer’s ears.

 

 

 

 

The legal cannabis business is spreading like weeds.  As several states and foreign countries have enacted laws decriminalizing or legalizing marijuana for medicinal or recreational use, a fresh rush of reefer madness has overtaken the business world.  Investments in the cannabis industry are now available as ETFs (Exchange Traded Funds), and marijuana startups are proliferating at every step along the supply chain.

Not to be a downer, but this blogger worries that many imbibers of high and heady times may not realize that engaging in, and even facilitating, the marijuana trade carries risks – not the least of which are the chockablock provisions of the Immigration and Nationality Act (INA) that portend bad trips aplenty.

Should you be worried about legal marijuana’s adverse consequences under federal immigration law?

Yes, of course, if you are a noncitizen:

  • residing anywhere in the U.S. who uses, shares (whether you do or don’t Bogart that joint), or sells marijuana in any form, whether psychoactive THC or only non-psychoactive CBD
  • residing abroad who used Mary Jane before it was legal in your home country, and you want to visit the U.S., work here, or apply for a green card
  • residing abroad hoping to get an E-2 or EB-5 investor visa who wants to invest in and start a business even only remotely involved in the weed trade (other than agricultural hemp [per new § 297A Agricultural Marketing Act of 1946, 7 U.S.C. 1621 et seq., Note: 7 U.S.C. 1639o, enacted through § 10113 of the 2018 Farm Bill])
  • residing anywhere who invests in cannabis businesses through purchases of mutual funds or individual stocks (whether publicly listed or privately sold)
  • married to a U.S. citizen who is petitioning for your “green card” status (lawful permanent residency) while owning a duplex (where you live together on one floor and s/he sells legal cannabis as a dispensary operator on the other)
  • practicing law in the U.S. on a green card or work visa whose clients want to engage in business as growers/producers, distributors/sellers, manufacturers/processors of legal cannabis

Yes, also be worried if you engage in business in the U.S. (whether or not in states where weed is legal for medical or recreational use), your business employs noncitizens, and, say, you:

  • are a property owner who rents land to a cannabis farmer or retail space to a marijuana dispensary
  • are a financial services company and your top employee, a U.S. green card holder, recommends investments in cannabis-industry businesses or approves a loan to start up or expand such a firm
  • are a cannabis grower or dispensary operator with a separate wholly-owned IT services subsidiary that manages your web site promoting marijuana sales
  • want to employ a research scientist to investigate potential products or services, or delivery systems, involving any form of cannabis (except agricultural hemp).

Why not just blow off your worries?

These fearsome consequences are not necessarily certain or inevitable, but the underlying fear is reasonable because cannabis (at least for now) remains a Schedule I Controlled Substance under federal law, even if only used for medical purposes.  Thus, the Justice Department cares not a whit that weed is legal in California, Canada and countless other jurisdictions.  Just ask Jesus Gabriel Navarro Guadarrama. On June 16, 2019 the Board of Immigration Appeals (BIA [an arm of the DOJ]) determined that his two convictions under Florida law for possession of 20 grams of marijuana warranted deportation (even though a single conviction for possessing 30 grams or less for personal use might have saved him from banishment).

Simply put, even though many states (foreign and domestic) see things otherwise, the Feds continue to enforce marijuana penalties under the immigration laws, be it MJ use, possession, or “trafficking.”  Indeed, under INA § 212(a)(2)(C)(i) the trafficking bar is so broad that it can trigger the deportation or refusal of admission of any noncitizen whom an immigration or consular officer merely has “reason to believe” has been “a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking [of marijuana] . . . or endeavored to do so.”

Immigration precedent decisions of the BIA, such as Matter of Davis, have defined illicit trafficking expansively:

Black’s Law Dictionary defines “traffic” as “[commerce]; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money.” Black’s Law Dictionary, 1340 (5th ed. 1979). “Trafficking” is in turn defined as: “Trading or dealing in certain goods and commonly used in connection with illegal narcotic sales.” Id. Essential to the term in this sense is its business or merchant nature, the trading or dealing of goods, although only a minimal degree of involvement may be sufficient under the precedents of this Board to characterize an activity as “trafficking” or a participant as a “trafficker.” . . .

Illicit” is defined as “not permitted or allowed; prohibited; unlawful; as an illicit trade.” Black’s Law Dictionary, supra, at 673. Giving effect to this plain meaning, the use of “illicit” in . . . the Immigration and Nationality Act simply refers to the illegality of the trafficking activity. (Emphasis added.)

What this means in the real world is that visas for working, visiting, studying, or immigrating here, may not be issued to persons using or possessing cannabis (see Vol. 9 of the State Department’s Foreign Affairs Manual [at 9 FAM 302.4-2(B)(1) and (2)].  It also means that merely “proliferating” the cannabis trade is verboten, and that even lawful permanent residents and the U.S. businesses that employ them can readily run afoul of the INA’s cannabis prohibitions and penalties.

How so? Consider these recent agency actions.

  • U.S. Customs and Border Protection (CBP) has announced, for example, that a “Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.” (Emphasis added.)
  • Similarly, U.S. Citizenship and Immigration Services (USCIS) has declared that “certain conduct involving marijuana . . . continues to constitute a conditional bar to [establishing good moral character] for naturalization eligibility, even where such activity is not a criminal offense under state law.”

According to USCIS, conduct making citizenship a pipe dream (for at least five years, possibly longer) extend to a variety of federal offenses which ”may include, but [are] not limited to, possession, manufacture or production, or distribution or dispensing of marijuana . . . For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws.” (Emphasis added; footnotes omitted.)

USCIS adds that a cannabis-related conviction is not required.  Merely making a binding admission to having participated, partaken or proliferated a forbidden act associated with the drug is enough to cause the loss of eligibility to naturalize.  Worse yet, the agency adds that “even if an applicant [for naturalization] does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.”

U.S. immigration laws make no distinction between psychoactive THC, medicinal CBD, or hemp, as this excerpt from the State Department’s Foreign Affairs Manual, 9 FAM 302.4-2(B)(1) and (2) (although arguably the species known as indica may be distinguishable from sativa):

For the purpose of these Notes, the term marijuana includes any of the various parts or products of the plant Cannabis Sativa L., such as bhang, ganga, charras, Indian hemp, dagga, hashish, and cannabis resin.

Just say no versus just say maybe (until Congress, the Administration or the Courts act)

These agency pronouncements arise against a flurry of legislative, executive and judicial actions which offer hope that the problem of conflicting MJ legality might eventually be ameliorated in one way or another:

  • H. R. 1595 – The Secure And Fair Enforcement Banking Act, which passed in the House, would prohibit federal banking regulators from penalizing banks that finance legitimate marijuana-related businesses, while its counterpart in the Senate, S. 1200, The SAFE Banking Act, awaits a vote.
  • H. R. 4390 and S. 2021 The Removing Marijuana from Deportable Offenses Act, not yet up for a vote, which, though laudable, would only provide that “any offenses involving the use, possession, or distribution of marijuana shall not be considered as grounds of inadmissibility.” In other words, these bills would not in express terms retroactively reverse the consequences for persons already ordered deported from the U.S. like the hapless Jesus Gabriel Navarro Guadarrama and innumerable others.
  • The Food and Drug Administration recently reopened the comment period on the potential rescheduling of marijuana so that it might no longer be classed as a Schedule I drug under international treaties.
  • The Drug Enforcement Administration announced in August that it is accelerating its review of applications by marijuana suppliers to provide the drug for research purposes (noting that in the last two years the agency has increased the number of registered researchers “by more than 40 percent from 384 in January 2017 to 542 in January 2019.” The DEA added, however, that “[before] making decisions on these pending applications, DEA intends to propose new regulations that will govern the marijuana growers program for scientific and medical research . . . [and] help ensure DEA can evaluate the applications under the applicable legal standard and conform the program to relevant laws.”
  • Meantime, the Second Circuit Court of Appeals on May 30 directed the DEA to reconsider its classification of cannabis as a Schedule I drug.

* * *

Inevitably, in this blogger’s view, the problem of adverse immigration consequences over cannabis will at some point blow away.  Until federal immigration authorities stop throwing the baby out with the bong water, however, countless noncitizens and the U.S. families and businesses who interact with them will fear the prospect of uncertain and uneven enforcement of America’s outdated immigration laws.

If the U.S.’s dysfunctional and baffling immigration laws were a bemusement park, one of the scariest rides would be that tottering roller-coaster, “Worksite Enforcement.”  The ride is rickety and showing its age (having been constructed long ago through the enactment of the Immigration Reform and Control Act of 1986 [IRCA]).  This law — like every good ride — was designed from the outset to push, pull and contort riders in opposing, vertiginous directions, prompting all to become excited and some to heave, as they continuously revolve around the Form I-9 (Employment Eligibility Verification).

The ride propels millions of U.S. employers and innumerable new hires in a circular journey during the first three days of the new employment relationship.  Employers on the ride are pushed by one group of carneys (the Homeland Security Investigations [HSI] of U.S. Immigration and Customs Enforcement [ICE], and U.S. Citizenship and Immigration Services [USCIS] in the Department of Homeland Security [DHS]) to confirm that all new hires and current employees with expiring work permission are okay to work in the United States. These carneys frighten employers on the ride by fining and sometimes criminally prosecuting those who know or should know that persons they employ lack work permission.

At the same time, other carneys (the Immigrant and Employee Rights [IER] Section of the Department of Justice [DOJ]) pull employers on the ride in the opposite direction — away from the temptation to discriminate against workers on the basis of citizenship status or national origin, or to engage in other unlawful practices.

Employees, prospective and current, must also spin on the I-9 unmerry-go-round.  Without the employer’s help or suggestion, workers must choose the original forms of ID from the dizzying I-9 Lists of Acceptable Documents to present to the employer in order to prove personal identity and the right to work.

No bemusement park would be complete without a haunted house — and I-9 Land does not disappoint.  It features a stomach-churning trolley ride known as the Social-Security Administration (SSA) No-Match Notice for employers who are dared or goaded to enter.  Last March, SSA pulled the canvas off this ride (having allowed it to go dark for several years after a history of complaints from far and wide).

Like every good haunted house, SSA starts the No-Match trolley with a surprise — a seemingly innocuous notice that alerts employers of a curious discrepancy.  SSA records, the agency notice states, contain data fields that are inexplicably different from the same information reported by the employer to the Internal Revenue Service (IRS).  The notice to employers states:

You reported X# employee names and Social Security numbers (SSN) on the Wage and Tax Statements (Forms W-2) for tax year xxxx that do not match our records. We need corrected information from you so that we can reconcile employer wage reports and credit your employees’ earnings to their Social Security records. It is important because these records can determine if someone is entitled to Social Security retirement, disability, and survivors benefits, and how much he or she can receive. If the information you report to us is incorrect, your employee may not get benefits he or she is due. There are a number of reasons why reported names and SSNs may not agree with our records, such as typographical error. (Bolding in original)

Witting or not, SSA lulls credulous employers into believing that this is an important but merely ministerial paperwork matter requiring simple correction:

IMPORTANT: This letter does not imply that you or your employee intentionally gave the government wrong information about the employee’s name or SSN. This letter does not address your employee’s work authorization or immigration status.

You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN or name does not match our records. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences. (Bolding in original)

SSA also helpfully (in the sense of the adage, “I’m from the government, and I’m here to help you”) offers dupable employers a sample notice to employees with discrepant payroll records, which soothingly reports:

According to Social Security, the information above does not match Social Security’s records. You should:

  • Check to see if the information above matches the name and Social Security Number on your social security card. If it does not match, please provide me with the exact information as it is shown on your Social Security card.
  • If the information above matches your card, please check with any local Social Security office to resolve the issue. Once resolved, please inform me of any changes. Go to www.ssa.gov or call 1-800-772- 1213 to find the office nearest you.

NOTE: This notice does not imply that you intentionally provided incorrect information about your name or Social Security Number, nor does this adversely affect your employment.

The No-Match ride quickly torments unsuspecting employers who follow this advice. No-Match notice recipients are in for a shock for there are terrors just around the bend:  A huge population of undocumented individuals in the U.S. workforce, estimated at about 7 million, the ready availability of fraudulent documents of identity and employment eligibility, the plague of identity theft, and the prevalence of imposters assuming the identities of actual U.S. citizens and green card holders, and the imminent 2020 deadline on Real ID driver’s licenses,.

Hapless employers on the No-Match ride, especially those in industries with historically high levels of unauthorized employment (such as hospitality, manufacturing, agriculture, food service), will soon discover that the SSA discrepancies — once brought to the attention of affected employees — are not satisfactorily or favorably resolved.

In some cases, the employees take no action, and the employer declines to follow up.    This is a perilous course because it raises the specter that if, as is foreseeable, the employee indeed lacks the right to work, then the carneys of HSI (once the relevant facts come to light) will likely accuse the employer of having had “constructive knowledge” of the individual’s unlawful employment under 8 CFR § 274a(1)(l)(1).  This USCIS regulation lists examples of “you should have known” constructive knowledge, including situations where an employer has “information available to it that would indicate that the alien is not authorized to work . . . ”

As I discussed in “To Know or Not to Know:  Immigration, Constructive Knowledge, and the Diligence That’s Due,” an employer’s receipt of a No-Match notice imposes on employers a duty to investigate and resolve, one way or another, the question of whether the affected employee is work-authorized in the United States.

No-Match notices pose a serious risk if they are ignored or treated perfunctorily.  Fines for the knowing and “should have known” employment of unauthorized workers are substantial, increasing periodically with inflation adjustments, and worse still, criminal sanctions can be imposed under the “harboring” laws, and a host of other federal pain points.

So how do employers get off the No-Match ride?  Painful as it may prove to be, they confront employees with the discrepancies in SSA and employee-reported information, and insist that, within a reasonable time, each notified worker takes steps to correct, by presenting credible evidence, what may be an unwitting error, or reaffirm identity and employment eligibility on the I-9, or else, face termination of employment.

Since averting one’s glance won’t suffice, employers may come to learn, frighteningly, that a large segment of their workforce is unauthorized, and must be terminated.  This is where immigration lawyers, acting as sherpas, are poised to help escort employers off the No-Match ride.   Seasoned immigration counsel can suggest reasonable steps to pursue, consistent with real business needs, so that disruptions and risks are kept to a minimum. For details, listen to the forthcoming webinar next week, or ask for the slide deck and recordings, presented by this blogger, and Seyfarth Shaw colleagues, Leon Rodriguez (USCIS Director under President Obama) and Dawn Lurie (I-9 practitioner extraordinaire).

At least one prominent immigration lawyer has pooh-poohed the notion that employers are under a duty to do anything more than alert affected employees that SSA has issued a No-Match notice and instruct them to fix it.  He points to DHS’s 2009 rescission (in the face of a preliminary injunction) of a safe harbor procedure for compliance with No-Match notices.  Don’t count on it.  The No-Match ride is more perilous than that.  Aside from the IRS penalties for providing inaccurate payroll reports, there is the haunting specter of the HSI carneys. Cue the words of Governor Ahnold in the Terminator (“Ahll be baack”).    As DHS reinforced in the 2009 rescission notice, despite the safe-harbor’s elimination, IRCA remains on the books and will be enforced:

[A] finding of constructive knowledge of unauthorized employment may be based on the totality of the circumstances. Employers remain liable where the totality of the circumstances establishes constructive knowledge that the employer knowingly hired or continued to employ unauthorized workers. An employer’s receipt of a No-Match letter and the nature of the employer’s response to the letter are only two factors that may be considered in determining the totality of the circumstances.  . . .

DHS acknowledges that receipt of the No-Match letter, without more, does not mean that the employee is not authorized to work or that the employee provided a fraudulent name or social security number. The discrepancy may be based upon a number of reasons unrelated to immigration status, such as clerical errors or employees’ name changes that may not have been reported to SSA. However, a No-Match letter may also be generated because the individual is unauthorized to work in the United States and provided fraudulent information to the employer at the time of hire.

In the same notice rescinding the safe-harbor process, DHS warned employers not to go overboard by discriminating against lawfully authorized workers who are dinged by a No-Match notice:

DHS acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the INA . . . That fact does not, however, warrant DHS changing its earlier position that receipt of a No-Match letter and an employer’s response to a No-Match letter, in the totality of the circumstances, may be used as evidence of a violation of the employment restrictions of the Immigration and Nationality Act. . . . Employers should not use No-Match letters, without more, as a basis for firing employees without resolution of the mis-match, and DHS has never countenanced such a practice.

Still the scariest part of the No-Match ride is that it can go on forever.  Confronted workers tagged by a No-Match notice who are rightly terminated simply take their seemingly genuine but imperfect documents, or procure a better, more convincing set, and move to a different unsuspecting employer in 2019 America where a sizzling, low-employment economy makes finding a job a snap.

Only Congress can fix this bemusement park, if and when it eventually comes to grips with the need for comprehensive immigration reform — legislative fixes that include some path to legal status for the undocumented and a foolproof system of employment eligibility verification.  Meantime, employers, hold tight, and endure the ride.

Much digital ink has already been spilled reporting on the phantom tide of undocumented migrants supposedly breaching our Southern border.  This article will address a different, but very-real immigration flood, and suggest ways U.S. employers, noncitizens, and their lawyers ought be emboldened to add to the deluge.

Ironically, it is about a dry subject – federal district court review of what immigration grievants claim are widespread, arbitrary, capricious and otherwise unlawful work-visa petitions and employment-based green card denials under Section 702 of  the Administrative Procedure Act,  5 U.S.C. § 702 (APA).  The agency triggering this agita is U.S. Citizenship and Immigration Services (USCIS), a component of the U.S. Department of Homeland Security (DHS). As immigration stakeholders are painfully aware, USCIS routinely flouts its own regulations, precedent immigration decisions, and the APA, all the while spurred on by the dog whistle of an executive order known as BAHA.

Although the focus here will be on USCIS’s rejections of employment-based immigration petitions, the same observations and strategies offered here readily apply as well to family-based requests for immigration benefits.  The ideas below may also help in litigating the practices formulated in Washington by the Bureau of Consular Affairs which have resulted in growing numbers of visa refusals premised unlawfully on BAHA (notwithstanding the execrable principle of consular nonreviewability).

Increasingly, with a fervor heretofore unknown, USCIS is denying petitions that seek new or extended grants of employment authorization for prospective and current knowledge workers, while – in especially galling fashion – reopening and revoking previous work approvals for incumbent employees. (Media articles have reported the phenomenon here, here, here, here, here, and here, while Members of the House are demanding data and documents on these troubling developments.)

The reasoning of the denials has regularly relied upon a “jurisprudence” alien to our Anglo-American legal heritage – MSU (Make Stuff Up) law. The most egregious and recurrent refusals have involved the H-1B visa category for workers in specialty occupations.  (USCIS recently offered its own analysis of why it often demands additional evidence when it is poised to deny H-1B visa petitions: “Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018 USCIS”).  As will be shown below, some of the most go-to grounds for H-1B petition denials are unanchored to statutory text, agency regulations and long-standing interpretive guidance can be found among the gamut of immigrant and nonimmigrant work visa classifications.

Old litigation wine in new bottles.

With mounting outrage, rebuked employers and noncitizen workers are channeling Howard Beale from the venerable film Network, and screaming, “We’re as mad as hell, and we’re not going to take this anymore!”  Just like the film, it is an old story with modern resonance – old, because the APA has been around since 1946, and foreign workers, American employers, and their immigration lawyers have been suing USCIS since its inception in 2003, and long before that, the APA defendant of choice was the legacy agency, Immigration and Naturalization Service (INS).

An OILy solution slip-sliding away.

No one likes to be sued, and fewer still relish losing.  The INS — then an agency in the U.S. Department of Justice (DOJ) — was no different.  INS commissioners of yore found that when APA actions challenging their agency’s immigration decisions were brought in the various federal district courts, the local Assistant U.S. Attorney (AUSAs) assigned to the case often pressured INS to surrender and settle by issuing to the plaintiff the approval notices they failed to secure through the usual immigration petition and application process.  AUSAs, INS perceived, much like most lawyers practicing in disparate legal fields, seemed genetically indisposed (pardon the imminent seafood puns) to pry open grimy immigration mollusks because they had more delectable fish to fry.  Why fuss and suss complicated immigration law issues when there were “sexier” antitrust, intellectual property, organized crime, and other more intellectually-stimulating, and career-enhancing cases to pursue or defend? — or so INS reasoned.

The result:  INS and DOJ built what they thought would be a better mousetrap in the hope that litigants in civil immigration suits would beat a path of retreat from the APA’s door.  Thus was born in DOJ the Office of Immigration Litigation (OIL), a cadre of federal lawyers steeped, nerdlike, in the immigration-law dark arts of benefits-denials and deportation.  Often, and sadly, the OILy strategy has worked.  The Feds could deploy overpowering resources that few immigration litigators of employment-based APA cases could muster.

Fast forward to 2019:  OIL attorneys simply cannot keep up quite as easily as before with the flood of immigration class actions and suits seeking to enjoin Executive Branch decisions to terminate Temporary Protected Status, DACA, and employment authorization for F-1 foreign students, and institute family-separation and child-imprisonment not to mention DOJ lawsuits asking federal courts to allow withholding of grant funds to sanctuary cities and states.  OIL’s docket will likely be overwhelmed still more with the anticipated onslaught of suits opposing the “national-emergency” border funding and property-confiscation orders issued last month. As of August, 2017, OIL employed a comparatively small team, comprised of approximately 250 attorneys and 60 support staff.

Unsurprisingly, the immigration-litigation DeLorean is already headed back to the future on an OIL-slicked road. Immigration lawyers across the country report recently that USCIS is often caving on newly-filed APA suits, often even before DOJ provides an answer to the complaint, as Bloomberg Law’s Laura Francis reports (“Businesses Challenging Visa Denials Seeing Early Successes”).

To be sure, some white flags of surrender may be waived strategically. USCIS has proposed (and is overdue) to issue BAHA-friendly H-1B regulations in the future.  Perhaps some court victories may be due to the agency’s desire to avoid federal court rulings that might restrict the agency from doing a full-BAHA rule in the near-term regulatory future.

Flood-the-zone immigration litigation.

Still, math is math, and resources are finite.  Just as DOJ cannot mint new immigration judges fast enough for the tsunami of respondents in removal proceedings, the likelihood is that OIL faces a recruiting challenge of its own, since experienced immigration litigators willing to side with the government  and defend restrictionist immigration policies are perhaps as rare as the chance of finding a snowball in Congress.

The message to employers, foreign workers, and their immigration attorneys who have received unjust USCIS denials is clear.  The APA is your friend.  It’s time to put on your big-boy and big-girl pants and go into federal court. (For those who need a little CLE loin-girding, AILA invites you to attend its 2019 Spring Federal Court Litigation Conference on March 12 in Chicago [and for early birds, I’ll be speaking at 8:05 AM with Diane M. Butler and Denyse Sabagh, on “Anticipating Suing The Government: “Game On!”].)

What you can learn there (or through self-study, or affiliation with an experienced immigration litigator) is that APA litigation challenging USCIS actions is often less taxing than the bet-the-company suits that capture headlines.  The Immigration and Nationality Act does not require exhaustion of administrative remedies before filing an APA action in Federal District Court.  As a result, the usual problems with appeals to the USCIS Administrative Appeals Office – delay, de novo review and the finding of new or additional grounds  to affirm the denial – can be avoided.  Moreover, except in rare circumstances, the APA does not allow the usual civil discovery methods of interrogatories, requests for admissions, and depositions; rather, the case is adjudicated on the administrative record of proceedings.  Better still, cases are resolved more quickly, by cross-motions for summary decision, or, by settlement (meaning your client gets its work visa or green card).

Head-fake litigation preparedness.

Even sweeter than causing the government to cave quickly, and issue an approval notice soon after the Federal District Court receives your APA lawsuit, is the act of instilling sufficient fear in the immigration adjudicator that he or she will be overturned or look bad for having issued an MSU denial in the first place.

Instilling fear requires effort. The visa petition or green card application (and any response to a USCIS request for additional evidence) must be accompanied by compelling evidence and be prepared so thoroughly and persuasively as to cause the USCIS adjudicator to believe that – if s/he denies the case – the next stop would be an APA challenge in Federal District Court where the adjudicator will be overturned, chided, embarrassed or otherwise placed in a bad light. While this does not mean that the employer or foreign worker must decide at the case preparation stage to sue USCIS, it should signify at least that the immigration lawyer will be well-positioned to persuade them that the suit should be filed.  In other words, shooting blanks too often, and signaling head fakes insincerely may reap diminishing returns over time.

Still, there are numerous opportunities for APA challenges to employment-based visa and green card denials.  Often, USCIS uses boilerplate references to assert legal propositions that are often incorrect or inapt in a particular case, and therefore legally vulnerable under an APA litigation challenge.  Here are a few examples:

  • Discrediting the opinions of experts. USCIS boilerplate text often cites Matter of V-K-, 24 I&N Dec. 500, n. 2 (BIA 2008) for the proposition that expert opinion testimony offering predictions of the anticipated contributions that noncitizens might make to the U.S. national interests or U.S. economy “does not purport to be evidence as to ‘fact’”), although the Board of immigration Appeals overruled that case in Matter of Z-Z-O-, 26 I&N Dec. 586, n. 2 (BIA 2015) with respect to the standard of review for predictive factual findings.  USCIS also is wont to cite Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010) to support “the USCIS’s conclusion that the ‘letters from physics professors attesting to [the petitioner’s] contributions in the field’ were insufficient was ‘consistent with the relevant regulatory language.’” The citation to Kazarian, however, is meaningless because the physics professors’ letters are not described or included in that case, thereby precluding meaningful analysis of the quoted sentence.
  • Claiming that H-1B petition does not correspond with the Labor Condition Application. USCIS often cites and quotes the following excerpt from U.S. Department of Labor regulations at 20 CFR § 655.705(b) as legal authority for decisions denying H-1B classification:

[The Department of Homeland Security (DHS)] accepts the employer’s petition (DHS [sic.] Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation . . ., and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1B visa classification. (Underlining and bolding added.)

Unfortunately for USCIS, the U.S Department of Labor (DOL) has described the highlighted text above as a “minor,” non-substantive update in the phrasing of its regulation.  The prior version of 20 CFR § 655.705(b) — effective until January 18, 2001 — differed materially in that it did not contain the “whether the petition is supported by an LCA which corresponds with the petition.”  See the December 20, 2000 Federal Register, the DOL in its preamble to the interim final rule explained its reasons for the wording change in the amended regulation, as follows:

Miscellaneous Matters. The Department has also made minor changes to the regulations . . .  [Several] places (e.g., §§ 655.700, 655.705, 655.715), have been revised to reflect the amendments made by the ACWIA and the October 2000 Amendments, and to reflect the current Departmental organizational structure. (65 Fed. Reg. 80110, 80202 (Dec. 20, 2000), Supplementary Information; bolding added).

Aside from according weight to the DOL’s non-substantive re-phrasing of 20 CFR § 655.705, USCIS also misinterprets the ambiguous “Corresponds with” sentence in the regulation.  Typically, USCIS’s H-1B denials unjustifiably change the phrase by imagining it to state instead that “the job title, DOL SOC Code and Wage Level selection process in the LCA must correspond with the job duties described by the employer in the H-1B petition or in an accompanying statement.”

This expansive restatement constitutes clear legal error. USCIS may not arrogate to itself the exclusive authority and justly-earned expertise of the DOL by pretending that the “Corresponds with” sentence somehow empowers an Immigration Officer to wade, without a lifesaver or any appreciable swimming ability, into the deep water of DOL prevailing-wage-determination procedures. Congress has conferred upon the DOL Secretary the exclusive authority and duty to certify an LCA unless it is incomplete or obviously inaccurate. See INA § 212(n)(1)(G)(final paragraph)(providing that an employer may not be prohibited from using “legitimate selection criteria” in a nondiscriminatory fashion if they are “relevant to the job,” and “normal or customary to the type of job involved”).

  • Relying upon novel adjudication procedures to make it harder for noncitizens to qualify as individuals of extraordinary ability in a particular field. USCIS relishes citing the Kazarian case, supra, to claim that even if a petitioner submits the minimum number of categories of acceptable qualitative evidence described in current regulations (e.g., three out of ten categories to qualify for the EB1-1 employment-based green card classification), the petition can still be denied in a so-called “final merits determination.” See the USCIS policy memorandum PM-602-0005.1 , adopted without benefit of compliance with the APA’s rulemaking requirement that the public be given notice and an opportunity to comment before an agency declares new legislative rules.  (For well-deserved criticism of this two-stage analysis, see the excellent blog post by my colleague, Cyrus Mehta, “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference.“)  What USCIS omits to state, however, is that INS published previously endeavored to comply with APA notice-and-comment rulemaking when it published a proposed rule in 1995 that, in effect, would have incorporated the two-stage “final merits determination” procedure into agency regulations.  See, INS Proposed Rule, “Employment-Based Immigrants,” 60 Federal Register 29771, 29780 (June 6, 1995), which stated:

204.5 Petitions for employment-based immigrants.

(i) * * *

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. Meeting three of the evidentiary standards listed in paragraph (i) (3) of this section is not dispositive of whether the beneficiary is an alien of extraordinary ability. The petitioner has the burden of proof to establish that he or she is an alien of extraordinary ability. (Emphasis added.)

Unfortunately for immigration adjudicators, INS and USCIS never incorporated the proposal into a final regulation. Tellingly, however, USCIS adopted the “comparable-evidence” text in the foregoing 1995 proposed rule when it promulgated a final rule. See 8 CFR § 204.5(h)(4)(“If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility”).

  • Requiring corroboration of all evidence and claiming that perceived inconsistencies, however immaterial, create doubt sufficient to deny employment-based petitions. USCIS loves to cite Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) for the proposition that “doubt cast on any aspect of the petitioner’s proof may . . . lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.”  The assertion of course seems reasonable on its face.  Regrettably, however, USCIS turns Matter of Ho on its head by claiming that all statements of fact submitted by a petitioner must be corroborated.  This mode of denial flatly contradicts the more recent precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), which held:

Even if the [USCIS adjudicator] has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place).

The Ho ploy of many a USCIS adjudicator also ignores the fact that every petitioner must sign an acknowledgement confirming that all evidence is submitted under penalty of perjury, and thus carries with it the real potential for criminal prosecution under a host of federal criminal penalties including 18 U.S.C. § 1001, making it unlawful for any person to knowingly make a false statement which is material and is made with regard to any matter within the jurisdiction of any department or agency of United States, and  18 U.S.C. § 1546(a), making it unlawful and punishing any person who under penalty of perjury knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact.

 * * *

If this article achieves anything, the hope is that employers, noncitizens, and their immigration lawyers who have been denied justice at USCIS should stop being so gosh-darned pusillanimous.  The shrinking violet should no longer be the flower that defines you.  Paraphrasing the much beloved, long departed immigration lawyer, Sam Williamson, father of an AILA past president and of a well-known inspirational speaker running for the Presidency in 2020, this author proclaims: “Sue the miscreants!”

 

 

 

 

 

 

 

 

 

 

 

 

[Blogger’s Note:  Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by  Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services (USCIS) pursues extralegal, pretextual grounds, far afield from its supposed expertise, to deny employment-based requests for immigration benefits. In the birthing process, this post generated a slew of exchanges by email between us, much of it involving a friendly dispute over the eventual title. Initially, I proposed, “USCIS ~ The ‘Expertly’ Inexpert Immigration Agency.” He parried with, “What Disclaimer? USCIS Ignores DOL Instructions Not To Use OOH for Legal Purposes.” I responded with the suggestion to add before “USCIS” in the title, “Sciolist” (“[one] who pretends to be knowledgeable and well informed”), or “Ultracrepidarian” (“one who is presumptuous and offers advice or opinions beyond one’s sphere of knowledge”). You get the point, we compromised. His genial if begrudging email acceptance expressed mild disappointment that the post below beats around the bush: “[While] I like your angle, my original intent was to be more direct and hard-hitting.  I may draft a separate one. The time for skirting around the edges is over.”  So stay tuned.]

What Disclaimer? ~ USCIS Ignores Labor Department Warning That the Occupational Outlook Handbook Never Be Used for Legal Purposes

By Angelo A. Paparelli and Gabriel Mozes

In our increasingly complex and specialized world, we all seek out experts — be they plumbers, arborists, fertility specialists, immigration lawyers, or other categories of seasoned practitioners. Why? Because getting the right result is important. True or not, experts are usually seen as having more than ordinary knowledge because they are credentialed through education, training, skill, long experience, or a mélange of these attributes.

Reliance on experts — most people generally assume — is preferable to taking a chance on an amateur. This assumption underlies a venerable judge-crafted principle of administrative law known as the deference principle, i.e., if the words in a statute are ambiguous, courts will ordinarily defer to an administrative agency’s interpretations of its own regulations administering the law.

The “principle of deference to administrative interpretations” – on its face – makes logical sense, as the U.S. Supreme Court recognized in its long-standing precedent decision, Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984)(Chevron). The principal rests on the hallowed concept of judicial restraint, and the recognition by the courts that whenever Congress enacts broadly applicable laws , it may also confer on relevant Executive Branch agencies the authority to interpret and implement what may later involve situations which Congress perhaps never anticipated:

[The deference principle applies whenever a] decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. Chevron, 467 US at 844. (Emphasis added.)

But what if a plumber, after merely skimming Arboriculture for Dummies, were to offer expert advice on how to cure diseased trees ? For a homeowner to defer to the plumber’s advice would be sheer folly.  Equally absurd would be if a seemingly infertile couple were to rely upon the guidance of an immigration lawyer expounding on advanced techniques of in vitro fertilization.

Unfortunately, however, ultracrepidarianism happens every business day at USCIS (the agency within the Department of Homeland Security charged with determining eligibility for such immigration benefits as work visas, travel permits, green cards, and naturalization). USCIS’s Immigration Service Officers (ISOs or simply, adjudicators) routinely offer ill-informed proclamations about immigration issues which Congress has rightly tasked the DOL to address and resolve.

Sadly, this has been going on for decades, not only in USCIS but also at its agency predecessor, Immigration and Naturalization Service (INS), where the former INS General Counsel cautioned INS that it had no authority to interfere with decisions by Department of Labor (DOL) that an employer had violated DOL H-1B (specialty-occupation visa) regulations, and therefore must be debarred by INS from sponsoring employment-based requests for immigration benefits.  See, INS GENCO Opinion, CO 212(n)P (April 12, 1994).

For years now, USCIS’s ISOs have blindly and lazily “borrowed” from the hard work, expertise, data repositories, research materials, and regulations of the DOL, a distinct federal department with specialized immigration-related domain knowledge, experience and training over such employment-related matters as job requirements, wages, and working conditions.

One class of the USCIS adjudicators’ favorite pontifications are the inferences they draw from the Occupational Outlook Handbook (OOH), a DOL Bureau of Labor Statistics (BLS) publication intended to provide the public with “career information on duties, education and training, pay, and outlook for hundreds of occupations.”

When penning decisions denying employment-based immigration benefits, USCIS adjudicators unfortunately are wont to wax poetic about statements in the OOH as if they were spouting “thou shalt nots” from the Decalogue. For example, in response to U.S. employer visa petitions seeking the okay to employ or continue employing H-1B workers in specialty occupations, USCIS officers routinely issue Requests for Additional Evidence (RFEs) stating that the agency “routinely consults the Department of Labor’s [OOH] for information about the duties and educational requirements of particular occupations.” USCIS then uses the OOH description for a particular job, say a Management Analyst, to argue that the position does not qualify for an H-1B under the “specialty occupation” standards at 8 CFR § 214.2(h)(4)(iii)(A). This is because ISOs interpret the OOH as saying that the job cannot be a specialty occupation since some employers are willing to hire persons with a bachelor’s or master’s degree in various academic majors, or that a small percentage of employers will accept someone with less than a baccalaureate degree.

The problem with the USCIS adjudicators’ wholesale lifting of OOH excerpts – which are often taken out of context or misquoted – is that ISOs completely disregard the BLS’s own published restrictions contained in its “Disclaimer” accompanying the OOH, which provides in relevant part:

[The] OOH provides a general, composite description of jobs and cannot be expected to reflect work situations in specific establishments or localities. The OOH, therefore, is not intended to, and should never, be used for any legal purpose. For example, the OOH should not be used as a guide for determining wages . . . BLS has no role in establishing educational . . . standards for any occupation. . . The education information in the OOH presents the typical requirements for entry into the given occupation and does not describe the education and training of those individuals already employed in the occupation. . . . [The] information in the OOH should not be used to determine if an applicant is qualified to enter a specific job in an occupation. (Emphasis added.)

Another illustration confirming USCIS adjudicators’ purloining of OOH excerpts is found in their common practice of rigidly relying on this publication when deciding whether long-delayed green card applicants can invoke the “job flexibility” benefits granted by Congress that permit workers to change jobs or employers without being required to go back to the end of the immigrant visa queue.  This “job-portability” law allows green card applicants to pursue career advancement despite USCIS or visa-quota backlogs of more than six months as long as the new job is in the “same or [a] similar occupational classification.” See, the USCIS Adjudicator’s Field Manual, Chapter 20.2(e), Note 5 (“ISOs may reference additional resources to determine whether [two] jobs are in the same or similar occupational classification(s), including, the DOL Bureau of Labor Statistics’ [OOH]”).

Unfortunately, USCIS adjudicators’ misbehavior in poaching from the DOL is not limited to the OOH. Yet another USCIS encroachment on DOL’s immigration turf involves reliance in the H-1B “Specialty Occupation” work visa category on an outdated “itinerary” requirement incorporated into agency regulations based on the immigration laws in existence in 1952, a rule intended to maintain agency oversight of the intra-U.S. meandering of athletes and entertainers (who have had their own visa categories, the O and P classifications, since 1990). Immigration litigator, Jonathan Wasden, in a tour de force complaint, ITServe Alliance v. USCIS, filed October 11, 2018 in the Federal District Court for the DC Circuit, calls out USCIS interloping in its recurrent attempts to define the H-1B “area of intended employment,” found in DOL regulations, even though USCIS only has statutory authority to determine if the job and the worker involve a specialty occupation.

Whatever the validity or benefit of the agency deference principle in other contexts, its application to the USCIS adjudicators’ mass appropriation and misapplication of DOL source materials must be stopped. USCIS must not be given Chevron deference when the DOL itself cautions that the OOH (1) should “never” be used “for any legal purpose,” (2) “should not be used to determine if an applicant is qualified to enter a specific job in an occupation,” and (3) “does not describe the education and training of those individuals already employed in the occupation.”

Simply put, the courts or Congress should take USCIS out of the business of pilfering and impersonating DOL expertise.

Last week, President Trump held an 81-minute press conference. He traversed wide-ranging territory, including his notions of procedural due process. Discussing the importance of fundamental fairness when trying to distinguish facts from falsehoods, he said:

PRES. TRUMP:

Somebody could come and say 30 years ago, 25 years ago, 10 years ago, 5 years ago, he did a horrible thing to me. He did this, he did that, he did that and, honestly, it’s a very dangerous period in our country. And it’s being perpetuated by some very evil people — some of them are Democrats, I must say — because some of them know that this is just a game that they’re playing. It’s a con game. It’s at the highest level. We’re talking about the United States Supreme Court. . . .

I’ve used much worse language in my life than “con job.” That’s like probably the nicest phrase I’ve ever used. I mean con job — it is. It’s a con job. You know confidence. It’s a confidence job, but they — it’s a con job by the Democrats. They know it.

Although clearly referring to recent charges of decades-old sexual wrongdoing against Supreme Court nominee, Judge Brett Kavanaugh, the president could have been discussing credibility determinations that arise every business day in our nation’s administrative tribunals that are euphemistically called immigration “courts.”  The hearings and proceedings in the immigration courts raise one of the highest of stakes, deportation (or as it’s technically termed, removal) from the United States, a process which the Supreme Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), described as “a drastic measure and at times the equivalent of banishment or exile,” and in Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), as a theft of liberty that “may result … in loss of both property and life, or of all that makes life worth living.”

Yet immigration hearings are all too often a con job — not necessarily for any lack of effort at fairness and truth-ferreting by the actual participants, the immigration judges, and the attorneys representing the federal government and the hapless noncitizen known as the “respondent” who must appear in person and respond to one or more allegations that s/he is in the U.S. unlawfully and thus deportable.  No, the unfairness is baked into the immigration court system; it’s a feature, not a bug.  It was willfully designed by a long-forgotten Congress to be structurally unfair, and intentionally to omit the essential requirement of procedural due process.  That is, that the fact-finder — the judge — must be independent and impartial, leaning neither in favor nor against one side or the other.  In immigration courts, however, the immigration judge and the “trial attorney,” or counsel for the government, are both Executive-Branch employees.   Immigration judges are Department of Justice lawyers appointed by the U.S. Attorney General.  Trial attorneys – who often later become immigration judges – are employed by the Department of Homeland Security and are part of U.S. Customs and Immigration Enforcement.

The Attorney General has the power to fire and remove immigration judges, or, on his unexplained whimsy, to punitively relocate them to hear cases at remote detention facilities in the U.S. hinterlands. As seen in recent months by the incumbent Attorney General Jeff Sessions, the AG has approved the imposition of work load production quotas on immigration judges, which inevitably will lead to even more abbreviated hearings, rushed oral and written decisions by immigration judges, and – all too often – reversible errors that must be rectified by the Board of Immigration Appeals and the federal appellate courts, including the Supreme Court.

The present AG has gone even further in advancing his activist agenda, e.g., on August 16 in Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018), by limiting the authority of immigration judges to find good cause to grant continuances, and on June 11, in Matter of A- B 27 I&N Dec. 316 (A.G. 2018), by taking away the power of immigration judges to find female victims of domestic violence abroad whom the foreign police will not or cannot protect as a social group deserving of protection under the asylum laws of the United States.

Indeed, the con job is even more atrocious because the power of the Attorney General in the Immigration and Nationality Act (INA) seems to have been inspired by no less a legal authority than Humpty Dumpty:

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

Alice in Wonderland,  by Lewis Carroll (Ch. 6)(italics in the original).

The “master” — according to INA § 103(a)(1)  — the arbiter of  the meaning of words carrying immigration-related legal consequences, at least for now, is the incumbent, AG Jeff Sessions:

The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling (emphasis added).

Many respected commissions, organizations and individuals have long assailed the systemic deficiencies that make our nation’s administrative system for procedural fairness in deportation proceedings unfair and ineffective (including, Kip T. Bollins, The President of the Federal Bar Association which has  proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center,  and Ashley Tabaddor, President of the National Association of Immigration Judges, in recent congressional testimony) – a broken and unjust process that by now can only be seen as a con job.

In 1981, Rev. Theodore M. Hesburgh, President of the University of Notre Dame, chaired the Select Commission on U.S. Immigration and Refugee Policy, which issued a 467-page report.  The report contained a recommendation (23 VII.C.I.) on the re-positioning of the immigration court from the Justice Department into an independent judicial tribunal:  “The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” The Commission explained its reasoning in Article 23 VII.C.I., page 248, entitled “Structure for Immigration Hearings and Appeals”:

The Select Commission is convinced of the need for a more equitable and efficient method of processing exclusion and deportation cases. Some Commissioners believe that the answer lies in the creation of a U.S. Immigration Board, with statutory independence from INS [Immigration and Naturalization Service] and the Attorney General, subject to the requirements of the Administrative Procedures Act. Such a mechanism, the Commission members argue, would also be an ideal body for adjudicating noncriminal actions taken against employers under an employer sanctions system. A majority of Commissioners, however, is of the view that such a solution would still suffer from many of the current administrative inadequacies. The institution of an Immigration Court under Article I of the U.S. Constitution, they believe, would result in more efficient and uniform processing of cases. . . .

The Immigration Court recommended by the Commission will include a trial division to hear and decide exclusion and deportation cases and an appellate division to correct hearing errors and permit definitive, nationally binding resolutions of exclusion and deportation cases.* The new court also offers the potential for introducing judicial uniformity into the review of denials of applications and petitions — matters that now occupy the attention of district courts around the country. The elimination of potential disparate rulings by courts of appeals should discourage further litigation. The Commission majority is also of the view that an Article I Immigration Court is more likely to attract outstanding adjudicators. Improvements in the caliber of personnel will enhance the quality of decisions and generally: eliminate any need for further review. Some Commissioners believe that if the Article I Court cannot be instituted for several years, interim measures should be taken to improve the competency of the existing INS.

*The remedy of Supreme Court review by petition for certiorari would remain available for the rare immigration case of great national importance; review of immigration decisions, by U.S. Courts of Appeals would be eliminated.

Congress should of course consider and debate the merits of the Commission’s sub-recommendations. (I would not eliminate the right of petition to the federal appeals courts for the very reason that many immigration rulings are of great national importance and the U.S. Supreme Court’s docket cannot accommodate them.) Still, the fundamental proposition urged by the Select Commission – to remove the immigration courts from the oversight of the Attorney General, and instead structure it as an Article I court – is supported by a multitude of contemporary stakeholders.

One leading voice is Hilarie Bass, President of the American Bar Association (ABA), who offered in her April 18, 2018 Statement submitted to the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration Committee, “Strengthening And Reforming America’s Immigration Court System,” the ABA’s compelling reasons:

[The ABA] determined that the Article I model presented the best option for meeting the goals and needs of the system. The Article I model is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government. Given these advantages, in our view, the Article I court model is the preferred option.

. . .  Removing the adjudication system from the Department of Justice, whose primary function is a law enforcement agency, is vital to assuaging concerns about fairness and the perception of fairness. As a wholly judicial body, an Article I court is likely to engender the greatest level of confidence in the results of adjudication.

An Article I court also should attract highly-qualified judicial candidates and help to further professionalize the immigration judiciary. History has shown the potential for the politicization of the hiring process and an inherent bias toward the hiring of current or former government employees. Removing the hiring function from the Department of Justice also may increase the diversity of the candidate pool. Providing for a set term of sufficient length, along with protections against removal without cause, will similarly protect decisional independence and make Article I judgeships more attractive. By attracting and selecting the highest quality lawyers as judges, an Article I court is more likely to produce well-reasoned decisions. Such decisions, as well as the handling of the proceedings in a professional manner, should improve the perception of the fairness and accuracy of the result. Perceived fairness, in turn, should lead to greater acceptance of the decision without the need to appeal to a higher tribunal. When appeals are taken, more articulate decisions should enable the reviewing body at each level to be more efficient in its review and decision-making and should result in fewer remands requesting additional explanations or fact-finding.

Unfortunately, Attorney General Sessions seems mired in a false equivalency, asserting that anyone opposing his views on immigration must ipso facto be a proponent of unregulated open borders. He made this clear recently in his remarks welcoming 44 new immigration judges, characterizing immigration lawyers not as officers of the court but as single-objective advocates (essentially as mouthpieces) who will do or say anything to win in immigration court:

Good lawyers, using all of their talents and skill, work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the [INA]. That is our most serious duty.

He said other disturbing things as well in addressing the new immigration judges:

You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently.

And, as the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.

This last provision gives me responsibility to ensure that our immigration system operates in an effective and efficient manner consistent with law enacted by Congress.  Many in this country take a different view. They object to any enforcement that works. They evidence an open borders philosophy. . . .

As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.

Your role requires great legal skill. Many of the cases present complex legal issues, but like anyone acting as a judge, you must manage your docket and support staff well.Cases must be moved to conclusion.

And as members of the Executive Branch, it is our duty to “take care that the laws be faithfully executed.” When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases.

As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.

To be sure, the world — indeed, the American people — should know what our rules are.  They should also know Lord that their ability to make the arduous journey to settle in America pursuing their opportunity under the facts in their case and our immigration laws to live out the American Dream will be decided by an impartial jurist in an independent tribunal. This is not our fathers’ immigration system. It cannot be learned by a three-year-old. Its laws should not be declared by any Attorney General. Congress must end this con job.

As hard to spot as a well-camouflaged Waldo or surreptitious Carmen San Diego, Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), is almost nowhere to be found. The exception – aside from mandatory appearances at congressional oversight hearings and the occasional press interview – is among the pols he deigns to address who staunchly oppose a functioning and welcoming legal immigration system, or who are sure there’s fraud in every request for immigration benefits.  In gatherings of that sort, he’s as ubiquitous as Zelig.

Regrettably, no Cissna sightings have been reported among immigration stakeholders who yearn for a just immigration system founded on due process, one that is simply functional, albeit with tolerable case processing backlogs that people and businesses can anticipate and act upon. Their importunings that he speak at their national conferences or meet with them in liaison discussions have been spurned or ignored (including my own).

Despite his public absences from all but his fawning admirers, Mr. Cissna has been busy. He’s occupied himself with the task of dismantling the legal immigration system. His machinations make omnipresent the fears, tears and dashed American dreams that this director and his antifraud minions engender every business day.

Unlike his many predecessors who rightly viewed themselves as leading and inspiring the primary federal agency tasked with deciding eligibility for legal immigration benefits and charged with protecting our country’s hallowed tradition as a nation of immigrants, Mr. Cissna has a new mission, one which — as the passing months confirm — demonstrates that he is apparently oblivious to the benefits that a reasonably functioning immigration system have long conferred on American citizens and the U.S. economy.

At a time when willing U.S. workers are few and jobs go begging, Mr. Cissna sees a zero-sum game where a job filled by an immigrant worker means one stolen from an American. Apparently, he is blind to the virtuous law of abundance, widely reported in scholarly research, where productive noncitizens create more and better jobs and higher standards of living in the homeland.

Mr. Cissna has been in situ long enough now to cause law-abiding noncitizens and their sponsors — American employers and close relatives — to tremble with understandable foreboding as they try to play by the rules and work within a heretofore roughly functioning system that he has caused to devolve into chaos and dystopia.

Balderdash, you say.  This blogger’s rants, you’re sure, are but the Cassandra cries of an embittered, hyperventilating immigration lawyer who can’t accept that no means no. Think so?  Let’s look at the evidence of Mr. Cissna’s baleful misdeeds:

  • Planning to Eliminate Spousal Work Permits. As recently as August 20, 2018, the Justice Department confirmed that USCIS is moving forward with rulemaking to eliminate the Obama Administration regulation, which I dub the “freedom-from-vegetating” rule that currently allows the spouses of H-1B specialty-occupation workers who are far advanced in the employment-based green card process to pursue independent careers. No less an authority than The Economist predicts that elimination of the regulation “will have a considerable social and economic cost, particularly for women.” Citing scholarly research, it notes:

Beyond the psychological and physical costs, taking away [the right of H-4 spouses on the path to a green card] to work is likely to reduce the economic returns of the H-1B programme itself.  . . .  [Researchers] found that restrictions on spousal employment were associated with financial concerns, lower satisfaction at work and lower overall life satisfaction—in turn significant factors in both worker employment and retention.  . . . If it is reversed, the most skilled migrant workers may go to jurisdictions with more generous policies. Reversing the programme will also directly remove skilled employees from the workforce. [Other researchers found that H-4 spouses] were employed at similar levels to immigrants with the same demographic and educational characteristics but who already have the legal right to a job, . . . 46% of the spouses would be working. In aggregate, they would be earning about $2.1 [billion].

  • Expanding “Public-Charge” Ban on Immigration Benefits. According to a leaked draft DHS regulation, DHS, presumably with the approval or acquiescence of Mr. Cissna, in tandem with similar actions by the State Department, will propose a rule change that rivals in malevolence the DHS family-separation policy and the caging of children apprehended at the border. If promulgated, the change would deny eligibility for an immigrant visa, green card through adjustment of status, nonimmigrant visas, and entry to the United States by broadening a statutory ground of inadmissibility for a noncitizen who is “likely at any time to become a public charge.” Even before promulgation, as reported here and here, these changes are already hurting law-abiding citizens, noncitizens, and lawful residents. According to the Henry J. Kaiser Family Foundation, these changes would:

[Allow] the federal government to take into account use of health, nutrition, and other non-cash programs when making public charge determinations, . . . [Thus,] use of these programs, including Medicaid, CHIP [the Children’s Health Insurance Program], and subsidies for [Affordable Care Act] Marketplace coverage, by an individual or family member, including a citizen child, could result in the federal government denying an individual a “green card” or adjustment to lawful permanent status or entry into the U.S. These changes would likely result in reduced participation in Medicaid, CHIP, Marketplace coverage, and other programs by immigrant families, including citizen children, even though they would remain eligible. . . .

If the public charge policy change leads to Medicaid/CHIP disenrollment rates ranging from 15% to 35%, an estimated 875,000 to 2 million citizen children with a noncitizen parent could drop Medicaid/CHIP coverage despite remaining eligible, and their uninsured rate would rise from 8% to between 14% and 22%. (Emphasis in original.)

  • Reviving A Formal Denaturalization Program. According to Columbia University History Professor, Mae Ngai, not since the McCarthy Era, some 75 years ago, has the federal government systematically tried to denaturalize citizens (other than alleged Nazi war criminals). The sense of permanence and acceptance that comes with naturalization is now replaced by a sense of vulnerability as Mr. Cissna has established a newly hired USCIS cadre of several dozen lawyers and immigration officers to examine circumstances warranting referral to the Justice Department to initiate proceedings to yank U.S. citizenship. It’s cold comfort to grizzled observers of bureaucracy that the first targets are individuals who naturalized despite having received prior orders of deportation, for once a program is authorized and financed, its mission and scope will inevitably expand.
  • Rescinding the Deference policy. For all prior administrations, immigration stakeholders could reasonably expect – based on a well-reasoned “Deference Memorandum” – that a time-limited grant of immigration benefits, once conferred by USCIS, would endure and be approved again if the employer, the job duties, and the work location remained the same. The Deference Memorandum was appropriately based on a long-established “presumption of regularity” of official government actions, as reaffirmed by the U.S. Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 US 402, 415 (1971) (decision of the Secretary of Transportation comes with a “presumption of regularity” concerning “the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”), and United States v. Chemical Foundation, 272 U. S. 1, 14-15 (1926)(“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”).  Resting on a thatch-work of nonsense, Mr. Cissna caused USCIS to repudiate this reliance interest ostensibly because accessing the agency’s own prior case files is just too hard. No more deference, he announces, despite the presumption of regularity and correctness of official acts that the U.S. Supreme Court has conferred on an agency’s prior decisions.  Instead, backlogs clog the constipated system by virtue of the Cissna-induced presumption of irregularity.  His adjudicators now take as a foregone conclusion the insulting notion that virtually all prior USCIS adjudicators were too incompetent, oblivious or gulled to have made the correct call on an immigration-benefits request.
  • Start-Stop, Assembly-Line Injustice.  Although USCIS regulations at 8 CFR § 103.2(b)(8)(iii) allow applicants and petitioners who’ve submitted cases to be given the chance to provide additional, preexisting evidence of legal eligibility, Mr. Cissna has okayed a policy that allows no second-chances in America, the land of second chances.  Rather, his adjudicators have recently been instructed to deny cases if the initial evidence submitted seems unconvincing, and issue a Notice to Appear (NTA) which summons the unfortunate “beneficiary” to come before an immigration judge for a removal (deportation) hearing.  Fortunately, that policy has been suspended, perhaps, as many prophesied, because USCIS’s draconian leaders belatedly realized that it had not yet devised a process to issue NTAs in volumes apace with their denial rates, and even if it had one, the deluged immigration court system, flooded with asylum applications of individuals and torn-apart families fleeing the strife and violence in Central America, would have no choice but to schedule these USCIS-referred cases for hearing in 2020 and beyond.
  • Extend and Expand Suspension of USCIS Premium Processing Expedite Service. For many employers, the ability to get a response from USCIS in 15 days for an extra $1,225 filing fee was a safety valve.  Premium Processing allowed firms and individuals to plan and execute alternative business and life strategies within a known timeframe if a submitted case were ultimately delayed or denied.  It also gave USCIS — a user-fee funded agency perennially starved of financial resources with virtually no appropriations from Congress — mucho extra moulah with which to hire more adjudicators and whittle away at their growing unexpedited backlogs.  Yet, ala Archie Bunker, USCIS deciders in the Cissna era are wont to prejudge people and businesses seeking legal immigration benefits as suspect classes, take unnecessary time to write up unconvincing and undeserved denial notices and NTAs, and quite foreseeably, cause both the expedite process and the “normal” system of adjudications to collapse under the weight of the agency’s ill-conceived follies. Unsurprisingly to immigration cognoscenti, USCIS recently announced that it will extend and expand its suspension of Premium Processing of H-1B visa petitions, while also proposing to increase the filing fee by 14.92 %, to $1,410.
  • BAHA Brouhaha.  Like Scrooge spouting “bah, humbug!” in the early scenes of A Christmas Carol, Mr. Cissna and his jaundiced adjudicators have dispirited many would-be revelers rejoicing in our current low-unemployment/high-stock-market economy.  As reported in an earlier post, USCIS has grossly expanded the modest instructions in BAHA, the Buy-American, Hire-American Executive Order (which did no more than ask for ideas on how to rework the H-1B program), and used it to assault all varieties of employment-based visas.  From his mentor, patron, and former employer, Sen. Chuck Grassley, Mr. Cissna has sought an “Attaboy” for his BAHA bad acts.  But from immigration stakeholders seeking a fair and workable immigration system, for his BAHA buildout, he’s received a full-throated “BOO.”

* * *

Now that Labor Day has marked the official run-up to the mid-term elections, immigration stakeholders await a message from the voting public and the results of exit polling.  Do Mr. Cissna’s actions warrant plaudits or plum tomatoes?  Time will tell.

The State of California won and lost bigly last July 4th. But what if the state’s biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized to conduct such investigations?

 Three Clear Victories for California

In the wins column, as I recently reported, Federal Judge John A. Mendez in U.S. v. California refused to enjoin two California laws and part of another — all enacted by the state to inhibit cooperation with U.S. Attorney General Jeff Sessions and the Justice Department in their mission to apprehend and deport thousands of undocumented California residents.

Still in full force and effect are:

Senate Bill (SB) 54, which prohibits California law enforcement authorities from sharing with federal immigration authorities a wide variety of information on all but the most dangerous or felonious noncitizens in state custody (including the detainee’s release date), and

AB 103 which directs the California Attorney General to review county, local, or private locked detention facilities housing noncitizens who are held within the state for civil violations of federal immigration laws, and report on the conditions of confinement at each facility, the due process and care accorded to detainees, and the circumstances leading to their apprehension and placement in the facility to the California legislature, Governor and the public by March 1, 2019.

Part of AB 450,  the “Immigrant Worker Protection Act” (IWPA), also escaped the federal court’s preliminary injunction, viz., those involving required employee-notification provisions. IWPA requires employers served with a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications):

(A) to disclose in writing, within 72 hours, to each current employee at the worksite and any labor union representing members there that U.S. Immigration & Customs Enforcement  (ICE) will be conducting I-9 inspection, and

(B) to follow-up any affected employee or authorized union rep – also within 72 hours of receiving any subsequent immigration enforcement agent’s notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records”

A Partial California Loss?

California appeared, however, to have suffered bigly with the Federal Court’s preliminary injunction barring much of IWPA. The temporarily stricken portions reflect the state’s attempt to make California workplaces mandatory safe zones, free of federal immigration intrusions, except where judicial warrants authorize entry to nonpublic worksite areas, or judicial or administrative subpoenas mandate access to employee records.

Unless the injunction is lifted, IWPA may no longer operate to bar employers in California from:

  • reverifying the employment eligibility of any current employee (unless required by federal law); and
  • voluntarily (a) granting immigration enforcement agents entry to any non-public areas of a worksite (unless the agents present a judicial warrant), or (b) allowing the agents to access, review, or obtain any employee records (unless the agents present an NOI, an administrative or judicial subpoena, or a judicial warrant requiring compliance)(the no-voluntary-access provisions).

Practical Effects on Employers in California. In real-world practice, however, IWPA’s enjoined sections have had little impact on federal immigration enforcement activities – except for one immigration enforcement agency, FDNS, whose unlawful provenance and frequent misbehavior have been little reported.

IWPA’s Reverification Ban. The ban on employer reverification of a current employee’s right to work in the U.S. could never have operated as the state intended because the exception (unless required by federal law) always

Federal Law Requires Reverification. The only practical and lawful reasons why an employer might be required or motivated to reverify employment eligibility would be if:

  • the employee had time-limited work permission which was about to expire, and the employer needed to complete Section 3 of the I-9 requiring reverification in order to confirm that the individual continue to be authorized for employment,
  • the employer decided to conduct a lawful, nondiscriminatory I-9 compliance audit,
  • an employer had constructive knowledge of suspicious circumstances that must be investigated in order to see whether or not a current employee in fact was authorized to work, or,
  • the employer lost, failed to fully complete, or never completed an I-9 for that worker.

Reverifying the employment eligibility of current employees is a continuing legal obligation.  This duty stems from Immigration and Nationality Act (INA) § 274A which imposes on employers the ongoing, affirmative obligation to refrain from continuing to employ a worker if the employer has “knowledge” (which by USCIS regulation may be actual or constructive knowledge) that the employee is not authorized to work in the United States. This continuing duty can only be fulfilled if the employer makes sure that it has a fully executed, and undoubtedly correct I-9 for the worker:

  • A fully executed I-9 requires the worker to declare his or her status (U.S. citizen, national, permanent resident [etc.], or a noncitizen holding temporary work authorization) in Section 1 of the I-9, and to select from the I-9 Lists of Acceptable Documents and present to the employer an original document or set of documents verifying identity and employment eligibility ; it also requires the employer examine the original(s) in the presence of the worker and then certify in Section 2 that the document(s) appear(s) to be genuine and relate to the employee. As long as the I-9 cannot be located, was never completed initially, or remains partially incomplete, it is not undoubtedly correct.
  • An undoubtedly correct I-9 is one as to which the employer has not become aware of any credible facts calling into question the right of a current employee to work in the United States.

The Injunction Barring IWPA’s No-Voluntary-Access Provisions Helps Only FDNS

The preliminary injunction prohibiting enforcement of IWPA’s no-voluntary-access provisions will have little practical consequence in most cases. Save for FDNS – a unit of USCIS, the immigration benefits-granting agency in the Department of Homeland Security (DHS) – federal immigration enforcement agencies (except in legally permissible situations) have mostly refrained from conduct likely to disturb, or intrude on, the rights of employees at California worksites. None of them but FDNS makes surprise visits and demands access to nonpublic areas of an employer’s worksite or to any employee records without first presenting a judicial order or other source of legal authority.

The primary federal immigration enforcement agencies – the Homeland Security Investigations (HSI) unit in ICE, the Justice Department’s Immigrant and Employee Rights section (IER), and the Labor Department’s immigration enforcers, the Wage and Hour Division (WHD) and the Office of Foreign Labor Certification (OFLC) – routinely provide written notice in advance and cite to binding legal authority authorizing them to inspect records, and, in some cases, interview employees (although often such interviews are conducted away from the business).

Therefore, the Judge Mendez’s preliminary injunction, for all practical purposes, leaves only FDNS’s investigators free to disrupt California worksites without benefit of legal formality. If the purpose of the IWPA is to avoid federal immigration intrusions at California worksites, and provide protection to undocumented workers in the state, then surely FDNS’ surprise workplace swoops cause disruptions, and frighten and intimidate both documented and undocumented workers on the premises.

In California (and for that matter, throughout the United States), FDNS officers always appear unannounced at businesses and demand that employers provide them with access to nonpublic worksite areas and access to specific employees, while proffering nothing more “official” than the enforcement agent’s business card.  As countless employers can confirm, FDNS agents claim they are there merely for a “site visit” in order to confirm the accuracy of statements made in an immigration form submitted to USCIS by an employer petitioning USCIS for an employment-based immigration benefit, such as a work visa or, an employment-based green card.  FDNS investigators have substantial leverage to induce an employer’s cooperation.  Failure to cooperate would ordinarily lead to a negative report by the investigator to and immigration service officer within USCIS.  That officer has the power to reopen a previously approved petition issue a notice of intention to revoke an approved work-visa petition, and notwithstanding any written evidence submitted by the employer, issue a revocation notice.  The revocation has the effect of requiring the employer to terminate the employment of the sponsored employee.  It also causes the employee and immediate family members to lose lawful immigration status, and be obliged to depart the United States unless an avenue exists to obtain a new authorization to remain.

FDNS’ innocuously-sounding “site visits” at employer locations in the United States, as the Ombudsman of USCIS recently confirmed in her 2018 Annual Report to Congress (p. 9), are of two types, “administrative site visits,” which have occurred continuously since 2004 (when what would become FDNS was initially known as the Fraud Detection and National Security Office), and “targeted” worksite visits under the new “Targeted Site Visit and Verification Program,” established in 2017.  (Both the Ombudsman’s 2018 report, and DHS in its December 16, 2014 Privacy Impact Assessment for FDNS (FDNS PIA) provide a wealth of additional data on the internal and external machinations of FDNS.)

FDNS – The Unauthorized Immigration Enforcers

Although it may shock the reader, FDNS officers have no legal authority to engage in immigration-related investigation and enforcement activities.  Their actions, and those of FDNS itself, clearly violate the express terms of the Homeland Security Act of 2002 (HSA), the statute that abolished the former Justice Department agency, the Immigration and Naturalization Service (INS), and established in newly-created DHS three immigration agencies, now known as ICE, USCIS, and U.S. Customs & Border Protection (CBP), each with distinct and separate statutory responsibilities.

This division of immigration authority resulted from a prior history of INS dysfunctions.  Long before the HSA came into effect, many INS critics had assailed its schizophrenic and contradictory missions, i.e., on one hand, to protect the border and deport unauthorized noncitizens, and on the other, in the same agency, to adjudicate (approve or deny) requests for immigration and naturalization “benefits.”  These benefits are wide-ranging – from the power to grant, change, or extend nonimmigrant visa status, award asylum status, or declare individuals as U.S. lawful permanent residents (green card holders), to the authority over determinations of U.S. citizenship through the naturalization process.

Contemporary criticisms of INS in the years leading to enactment of the HSA included Demetrios G. Papademetriou, T. Alexander Aleinikoff, & Deborah Waller Meyers, Reorganizing the U.S. Immigration Function: Toward a New Framework for Accountability (1998) (describing the need for a demarcation between immigration enforcement and immigration services), and “Reconcilable Differences? An Evaluation of Current INS Restructuring Proposals,” Demetrios G. Papademetriou and Deborah Waller Meyers, Migration Policy Institute, Policy Brief (June 2002) (analyzing two legislative and two Executive Branch INS-restructuring proposals proposals).

Given these several restructuring proposals, it is not surprising that the Senate report on S. 2452, a bill that would ultimately be meshed into the HSA, acknowledged that the bill’s proposed statutory “division of INS programs into ‘enforcement’ and ‘service’ components tracks an administrative reorganization plan that is already underway.”

In ultimately enacting the HSA, however, Congress deviated from S.  2452 by creating a new Department of Homeland Security to house the enforcement and service components of the former INS rather than follow the plan envisioned in the Senate bill (“the law enforcement pieces transferred from INS . . . would necessarily need to maintain close coordination with the service programs that would remain in the Justice Department”).  Nonetheless, the HSA maintains this clear separation of immigration enforcement and benefits functions.  (For a discussion of the further administrative restructuring that occurred after the HSA’s enactment, including the formation of USCIS, ICE, and CBP, see, David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements,” Migration Policy Institute, Insight, April, 2003, No. 1.)

A review of the HSA reveals the clear intention of Congress to separate into distinct agencies the inconsistent demands that had been placed on INS.

Specifically, HSA § 451(b) (“Transfer of Functions from [INS] Commissioner”) “transferred from the [INS] Commissioner to the Director of the Bureau of Citizenship and Immigration Services [now known as USCIS] the following functions . . .

“(1) Adjudications of immigrant visa petitions.

“(2) Adjudications of naturalization petitions.

“(3) Adjudications of asylum and refugee applications.

“(4) Adjudications performed at service centers.

“(5) All other adjudications performed by the [INS] immediately before the effective date specified in [the HSA].”  (Emphasis added.)

Another provision in the HSA, § 441, created two new DHS law enforcement agencies – now known as ICE and U.S. Customs & Border Protection (CBP) – and transferred to them the former INS authority over:

“(1) The Border Patrol program.

“(2) The detention and removal program.

“(3) The intelligence program.

“(4) The investigations program.

“(5) The inspections program.” (Emphasis added.)

Although HSA § 1502 granted the President the authority to reorganize the new DHS by submitting to Congress a plan of reorganization which “shall contain, consistent with this Act (emphasis added), such elements as the President deems appropriate,” another provision, HSA § 471, now codified at 6 USC § 291(b), expressly limited the president’s power to restructure DHS. It enacted the following “PROHIBITION [capitalization in original] [:]”

The authority provided by [HSA §] 1502 [codified at 6 USC § 542] may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other.  (Emphasis added.)

Despite the allocation of exclusive authority conferred on ICE and CBP over “investigations” in HSA § 441(1), and the prohibition in HSA § 471 against combining, joining, or consolidating functions, the first Secretary of DHS, Thomas Ridge, soon violated this prohibition. On June 5, 2003, he issued Department of Homeland Security Delegation Number: 0150.1, “Delegation to The Bureau of Citizenship and Immigration Services [BCIS], (Delegation)” in which he delegated to BCIS (now USCIS) the following power:

Authority to investigate alleged civil and criminal violations of the

immigration laws, including but not limited to alleged fraud with respect to

applications or determinations within the BCIS and make recommendations for

prosecutions, or other appropriate action when deemed advisable.  (Delegation § II-I; emphasis added).

The 2014 FDNS PIA, seeming to reflect conscious awareness of this HSA violation, tried to paper over the statutorily-prohibited authority over investigations and wordsmith a meaningless, hair-splitting distinction at footnote 3 (“USCIS [through FDNS] conducts administrative inquiries, ICE conducts criminal investigations”). USCIS is more candid and forthright, however, in its job announcements which place emphasis on the duties of investigation, prosecution and law enforcement as clearly as the image from a Blu-ray disc in this FDNS job description, Fraud Detection & National Security Directorate, District 13:

Responsibilities

  • . . .
  • Identify, articulate, and pursue suspected immigration benefit fraud, public safety, and national security concerns.
  • Conduct administrative investigations and site visits to obtain documents, conduct interviews, perform system checks, and make determinations regarding potential administrative and/or criminal violations.
  • Serve as a liaison to law enforcement and intelligence agencies and participate in inter-agency task forces and partner-agency investigations to combat fraud and deter and detect national security and public safety threats. . . .
  • Serve as an expert witness and represent USCIS in related court proceedings. (Emphasis added.)

USCIS obviously understands the difference between investigations and its normal bread-and-butter work of adjudications. Just compare the foregoing FDNS job announcement (which closes on October 8, 2018) with a contemporaneous USCIS Immigration Services Officer job description: 

Responsibilities

  • . . .
  • Grant or deny complex and highly sensitive applications and petitions for immigration benefits based on electronic or paper applications/petitions.
  • Research, interpret and apply appropriate statutes, regulations, and precedent decisions to make adjudicative decisions.
  • Interview applicants and petitioners to elicit statements, assess credibility, and analyze information to identify facts that form the basis for a decision concerning eligibility for immigration benefits.
  • Conduct security checks and provide assistance to Federal law enforcement agencies to identify individuals who are ineligible for immigration benefits due to national security, public safety, or other legal grounds.
  • Use electronic systems to provide verification of any number of established data points to make adjudicative decisions, determine appropriate level of adjudicative review, and update databases with appropriate information and decisions. (Emphasis added.)

Common dictionary definitions also make plain the distinction between investigations and adjudications:

The Cambridge Dictionary:

investigate

. . . to examine a crime, problem, statement, etc. carefully, especially to discover the truth:

Police are investigating allegations of corruption involving senior executives.

We are of course investigating how an error like this could have occurred. 

The Merriam-Webster Dictionary:

investigate. . .

: to observe or study by close examination and systematic inquiry

: to make a systematic examination; especially: to conduct an official inquiry

The Cambridge Dictionary:

adjudicate

. . .

​: to act as judge in a competition or argument, or to make a formal decision about something:

He was asked to adjudicate on the dispute.

He was called in to adjudicate a local land dispute.

The game was adjudicated a win for Black.

The Merriam-Webster Dictionary:

adjudicate

. . .

: to make an official decision about who is right in (a dispute): to settle judicially.

The school board will adjudicate claims made against teachers.

. . .

: to act as judge

The court can adjudicate on this dispute.

Despite the dictionary consensus, two colleagues, one, an FDNS officer at USCIS headquarters, and another, a former counsel to the Senate Judiciary Committee, have tried to suggest to me that this obvious HSA violation has been remedied by later congressional action. They point to a Conference Report to accompany H.R. 4567 [Report 108-774], “Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005” (Conference Report), which states:

BENEFIT FRAUD The conferees have agreed to the Administration’s request to increase the resources available for benefit fraud enforcement by decreasing the funds available to Immigration and Customs Enforcement (ICE) from the examinations fee account, and leaving those resources available to [USCIS], as proposed in the House report. These resources are to fund the Office of Fraud Detection and National Security (FDNS) Unit, as called for by the Government Accountability Office. The FDNS unit is responsible for developing, implementing, directing, and overseeing the joint [USCIS]-ICE antifraud initiative, and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting any immigration benefits. [USCIS] is to report by July 1, 2005, to the House and Senate Committees on Appropriations on the progress in implementing the joint anti-fraud initiative.  (Emphasis added.)

The simple retort to their argument is that no subsequent Congress can appropriate funds to a federal agency or component (here, FDNS) that has not been lawfully constituted by pre-existing or contemporaneous legislation, and whose very existence expressly contravenes the agency’s foundational enabling statute. See Congressional Research Service reports, “Overview of the Authorization [/] Appropriations Process,” by Bill Heniff, Jr., Analyst on Congress and the Legislative Process, November 26, 2012 (No. RS20371) (“Authorizing legislation  . . .  authorizes, implicitly or explicitly, the enactment of appropriations for an agency or program. . . . An appropriations measure provides budget authority to an agency for specified purposes.”), and “Authorization of Appropriations: Procedural and Legal Issues,” by James V. Saturno, Specialist on Congress and the Legislative Process, and Brian T. Yeh, Legislative Attorney, November 30, 2016 (No. R42098)(“ Under congressional rules, when making decisions about the funding of individual items or programs, . . . Congress may be constrained by the terms of previously enacted legislation” [emphasis added]).

Moreover, if FDNS already existed through authorizing legislation, why then would Rep. Bob Goodlatte, Chair of the House Judiciary, Homeland Security Education and the Workforce Committee – a former immigration lawyer before his election to Congress – have any reason or need to propose a bill, H. R. 2407, dubbed the “United States Citizenship and Immigration Services Authorization Act,” containing a seemingly superfluous Section 2 which would amend the HSA to include a new provision, HSA § 451(g)(“There is established within United States Citizenship and Immigration Services a Fraud Detection and National Security Directorate”)?

One can only infer that the chairman belatedly realized that FDNS had never been duly authorized (or this author can wistfully imagine that perhaps a supporter of FDNS directed Rep. Goodlatte to “A Cancer within the Immigration Agency,” in which I first assailed the unauthorized status of FDNS back in 2011).

 What’s in It for California?

Even if FDNS was never lawfully established, and indeed, if its existence as an immigration investigation and enforcement unit in USCIS violates HSA § 471 (the prohibition against combining, joining, or consolidating functions of the old INS), how does this help California resurrect IWPA’s no-voluntary-access provisions?

As I explained in a prior piece (“AB 450: California’s Law of Unintended Immigration Consequences”), the IWPA does not define the term “immigration enforcement agent.”

USCIS, however, clearly offers a broad regulatory definition (8 CFR § 1.2) of agency employees designated as “immigration officer[s].”  The definition includes immigration officials sporting these titles: “immigration enforcement agent, . . .  immigration agent (investigations), immigration enforcement agent, . . . investigator, . . . investigative assistant, and special agent.” (emphasis added).

Recall that in U.S. v. California, Judge Mendez declined to rule that the principle of federal primacy over immigration preempted IWPA’s no-voluntary-access provisions, ruling (at pp. 23-24) that the preemption cases cited by the DOJ did not “establish that Congress has expressly or impliedly” “authorized immigration officers to enter places of labor on employer consent  . . . [or authorized] immigration enforcement officers to wield authority coextensive with the Fourth Amendment.” Rather, the Court issued a preliminary injunction barring California’s enforcement of the no-voluntary-access sections of the IWPA because it determined that the federal government “is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine.” Finding California’s arguments unpersuasive, the Court held (at p. 26):

Given that immigration enforcement is the province of the Federal Government, it demands no stretch of reason to see that [IWPA’s no-voluntary-access provisions], in effect, target the operations of federal immigration enforcement. The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government. The law and facts clearly support [the Justice Department’s] claim as to these [provisions] and [the DOJ] is likely to succeed on the merits.

Implicit in the Court’s ruling, however, is the premise that in every case federal immigration enforcement authority is lawful, i.e., duly established by statute or regulation. As has been shown, this premise falls flat when evaluated in the context of an administrative or targeted worksite investigation by FDNS. To the contrary, FDNS’s purported authority violates the express prohibition in HSA § 471 against combining, joining, or consolidating the immigration enforcement and services functions of the former INS.

Thus, even though USCIS characterizes FDNS investigators as “immigration officers,” its regulations define this phrase to include immigration enforcement agents and immigration agents (investigations), and its job postings make abundantly clear that FDNS officers “[conduct] administrative investigations and site visits” in order to “make determinations regarding potential administrative and/or criminal violations (emphasis added).”

Therefore, as proceedings in U.S. v. California continue, consider whether the Federal Court’s interpretation of the term “immigration enforcement agent” in IWPA’s no-voluntary-access provisions might view the imposition on employers of a ban on FDNS access to nonpublic business premises and employee records in the absence of a subpoena as a proper exercise of the California legislature’s traditional police powers. After all, the Court recognized that “[when] Congress legislates in a field which the States have traditionally occupied, [Federal Courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress [citing Arizona v. United States, 567 U.S. 387, 400 (2012), which quoted Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(internal quotations omitted, and emphasis added)].”

The “clear and manifest purpose of Congress” in enacting HSA § 471 (a statute prohibiting any future re-amalgamation of the investigation and enforcement authority of legacy INS with that agency’s service and adjudicative functions) leads to no other conclusion than that FDNS is an unlawfully constituted investigative and enforcement arm of the benefits-adjudication agency, USCIS.  In addition, USCIS holds FDNS out in its job postings as an immigration investigations agency whose work product can lead to criminal prosecution of employers and employees.  For purposes of IWPA’s no-voluntary-access provisions, therefore, FDNS officers conducting site visits in California should be viewed as a “immigration enforcement agents.”  Accordingly, this writer urges the California Attorney General to file a motion for reconsideration of the Federal Court’s preliminary injunction and seek an order allowing IWPA’s no-voluntary-access provisions to continue in effect during the pendency of U.S. v. California.

What Might Happen Next?

Were the Court to release IWPA’s no-voluntary-access provisions from the constraints of the preliminary injunction, FDNS may or may not continue its site visit program without change.  USCIS, however, fearing that FDNS might be forever stripped of its fig leaf of apparent legal authority, may decide to revisit the agency’s admittedly-reasonable concern for benefits-program integrity.

No one can say how USCIS might respond.  Conceivably, the agency could:

  • Use its existing regulatory authority to conduct at its field offices in-person interviews of employer representatives and individual beneficiaries of immigration-benefits requests,
  • Propose to amend its regulations in compliance with the notice-and-comment procedures of the Administrative Procedure Act in order to create a procedural structure and approved protocols for site visits, that also comply with the HSA, perhaps modeled after its existing regulation on site visits to religious organizations under the R-1 nonimmigrant religious worker category, 8 CFR § 214.2(16)(describing the site visit as an “on-site inspection of the petitioning [religious] organization,” which “may include a tour of the organization’s facilities . . .”).
  • Modify its current approaches for gathering data and documentation through the issuance of requests for additional evidence, and the grant of opportunities to respond to USCIS notices of intention to deny a pending petition or to revoke an approved petition.
  • Decide to refrain from seeking a judicial subpoena or judicial enforcement of an administrative subpoena for access to nonpublic business premises or records until new authorizing legislation amending the HSA is enacted.

In addition, ICE, in conformity with the spirit and letter of the HSA, might at last see itself as obliged to take the laboring oar on immigration investigation and enforcement activities, and thereby essentially put FDNS out of the investigations and enforcement business.

It remains an open question, however, at a time when the hue and cry of “abolish ICE” is heard on the streets and in social-medialand, whether Congress will at last do its job and fix this dysfunctional mess of draconian and contradictory immigration laws by enacting common-sense, workable, and humanitarian immigration reforms that protect our borders, strengthen our economy, assure procedural due process, and promote our historic exceptionalism as a nation of immigrants.

The familiar lines were drawn.  Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges – all in an age-old constitutional battle of federal power versus states’ rights.

This time around, however, the roles were reversed.  Version 2018 is unlike the 1960s when extreme-right southern conservatives, claiming to champion states’ rights, defied but ultimately failed to stop federal efforts to protect civil rights.  This time, the state of California passed three statutes under its police powers with the avowed purpose of promoting public safety and protecting undocumented state residents against a determined army of newly-unshackled federal immigration enforcement officers. And this time, the state mostly won.

By enacting three new California laws – Assembly Bills, AB 103 and AB 450, and Senate Bill (SB) 54 – state legislators responded to aggressive federal immigration enforcement activities in the Golden State that they viewed as serious threats to community policing, public safety, and the state’s sizzling, low-unemployment economy.

AB 103 – effective June 27, 2017 – added  California Government Code § 12532, directing the state Attorney General to conduct a review and report on county, local, or private locked detention facilities housing noncitizens within the state for civil violations of federal immigration laws. The AG must review and issue a report to the California legislature, Governor and the public by March 1, 2019, and must address conditions of confinement at each facility, due process and care provided to detainees, and the circumstances leading to their apprehension and placement in the facility. To permit this review, AB 103 mandates that the AG be provided with access to each facility, detainees, officials, personnel, and records.

AB 450 – effective January 1, 2018 – the “Immigrant Worker Protection Act” (IWPA), as I wrote in an earlier blog post, “AB 450: California’s Law of Unintended Immigration Consequences” – prohibits California employers (on pain of civil fines) from voluntarily cooperating with federal immigration enforcement agents at the worksite unless cooperation is required by federal immigration law.  Specifically, IWPA prohibits California-based employers from:

  • voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant.
  • voluntarily allowing immigration enforcement agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications), an administrative or judicial subpoena, or a judicial warrant requiring compliance.
  • reverifying the employment eligibility of any current employee unless required by federal law.

IWPA also requires employers served with an I-9 NOI to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun, and notify any affected employee or authorized union rep – again within 72 hours of receiving any subsequent I-9 related federal notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records” (the AB 450 Notice requirements).

Senate Bill (SB) 54 – enacted October 05, 2017, and popularly titled the “California Sanctuary State Law”  – is a comprehensive statute which, among other things, prohibits California law enforcement authorities from sharing a wide variety of information on persons in state custody, including the release date of a detained noncitizen, and from transferring the individual to federal authorities unless he or she has been convicted of certain crimes or unless authorized by a judicial warrant or a judicial probable-cause determination.

Predictably, U.S. Attorney General Jefferson Beauregard Sessions III threw down the gauntlet.  The U.S. Justice Department filed a federal complaint in the Eastern District of California, requested a preliminary injunction, offered supporting declarations of senior officials in the State Department (Carl S. Risch) and DHS (Thomas D. Homan, Todd Hoffman and Rodney S. Scott).  DOJ attorneys argued to Federal Judge John A. Mendez that these new California laws unconstitutionally usurp federal supremacy and sovereignty over control of the nation’s borders. Not shrinking from the fight, California AG Becerra filed a formal opposition to the request for preliminary injunction, a motion to dismiss the suit, and a legal brief.

Ironically, on Independence Day, Judge Mendez issued his momentous, carefully considered decision (a 60-page whopper), ruling that:

  • No preliminary injunction would issue against AB 103, SB 54, and the AB 450 Notice requirements, requirements because they do not trench upon federal authority over immigration.
  • As for rest of AB 450, California authorities are preliminarily enjoined from:
    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees,
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite, or
    • allowing them to access, review, or obtain employee records.

Sounding a note of somber exasperation, Judge Mendez implored the two political branches to act:

This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

As noted in the Introduction to this Order, this case is about the proper application of constitutional principles to a specific factual situation. The Court reached its decision only after a careful and considered application of legal precedent. The Court did so without concern for any possible political consequences. It is a luxury, of course, that members of the other two branches of government do not share. But if there is going to be a long-term solution to the problems our country faces with respect to immigration policy. it can only come from our legislative and executive branches. It cannot and will not come from piecemeal opinions issued by the judicial branch. Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

U.S. v. California, Judge Mendez’s case, will continue to final judgment and injunctive orders.  Meantime, however, the federal/California square-off over immigration enforcement is only in the early rounds.  California has just shot additional volleys.

  • The latest California law, SB 785 – enacted with immediate effect on May 17, 2018 – prohibits the disclosure of an individual’s immigration status in open court, unless the party seeking to introduce it first persuades a judge in a private, in camera hearing, that such evidence is relevant and otherwise admissible. SB 785 was enacted in response to recent ICE arrests of immigrants in California courthouses, despite the March 2017 admonition of California Chief Justice, Tani Cantil-Sakauye, AG Sessions and then-Homeland Security Secretary John Kelly, reminding them that:

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.

  • In State of California, ex rel, Xavier Becerra v. Jefferson B.  Sessions, et al., the state filed a July 9, 2018 motion for summary judgment and legal brief, supported by 13 declarations, requesting a nationwide injunction against imposition of immigration enforcement conditions on federal grants for state and local law enforcement.  In a contemporaneous press release, AG Becerra’s office asserted that:

[The U.S. Justice Department has] unlawfully withheld California’s Community Oriented Policing Services (COPS) grant funds, which the State uses to support a task force that combats large-scale drug trafficking. California’s motion seeks to have the court enjoin the federal government’s unlawful conditions for all jurisdictions and compel the issuance of JAG funding to all eligible jurisdictions in the United States that have yet to receive it, as well as to restore COPS funding to California.

* * *

Although Congress apparently has no stomach for comprehensive immigration reform, despite the overwhelming popular view that reform is necessary, the judicial battle between the world’s first and fifth largest economies continues unabated.

“It became necessary to destroy the town to save it.”

~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.

US 1965 Stamp Celebrating the 750-Year Anniversary of the Magna Carta

I’ll admit I foolishly allowed myself to be misled. Despite almost 40 years of practicing immigration law, I didn’t anticipate the robustly revanchist re-grabbing of lost immigration territory and status, or the truly audacious intent and breadth of the April 18, 2017 “Presidential Executive Order on Buy American and Hire American (BAHA).”  As interpreted by officers adjudicating requests for immigration benefits at U.S. Citizenship and Immigration Services (USCIS), BAHA would “Make America Great Again” by taking us back to the pre-1965 days of racial and national origin discrimination, xenophobia, and jingoism, as was then embodied in America’s immigration laws.

Reading BAHA’s scant immigration provisions last April, I viewed it then as much a brouhaha about nothing. It merely called for inter-departmental proposals outlining potential administrative and legislative changes to the H-1B visa category that would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” and, “[consistently] with applicable law . . . [would] protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Since none of these proposals could come into existence without new legislation or new rulemaking under the Administrative Procedure Act (requiring a lengthy period of notice and an opportunity for stakeholder comment), I surmised that nothing much would change in the short-term.

To be sure, I noted BAHA’s ominous enforcement-minded tone (“it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad”). But it seemed to me that, given the long-standing “culture of no” and gamesmanship at USCIS, BAHA was merely a ritualistic shot against the bow signaling more of the same. Boy oh boy was I wrong. BAHA has apparently awakened USCIS immigration officers as if it were a dog whistle, a silent reveille alerting them loud and clear – just like their recently “unshackled” colleagues charged with immigration enforcement – that the cuffs are off. Since BAHA was issued, USCIS immigration officers seem to view themselves as henceforth free to apply even more “innovative” and superficially plausible, if extralegal and disingenuous, reasoning to deny work visa status and employment-based green cards at whimsy and will.

Many have reported on this trend. Miriam Jordan, New York Times immigration reporter, in a recent article, “Without New Laws or Walls, Trump Presses the Brake on Legal Immigration,” offers several examples of seemingly worthy cases delayed or denied since BAHA’s release. Reuters immigration columnist, Yeganeh Torbati, offers additional examples in “Trump administration red tape tangles up visas for skilled foreigners, data shows.” Distinguished immigration lawyer and scholar, Cyrus Mehta, offers a point-by-point  technical takedown of the multi-flavored yet flawed USCIS reasoning now on display in “Stopping H-1B Carnage,” and “H-1B Entry Level Wage Blues,” as do Mareza Estevez, Justin Storch, and this blogger in “H-1B Visas: Trends, Troubles & The Look Ahead,” a webinar presented by the Council for Global immigration and (linked with permission). Not surprisingly, the pain is spreading, a trend which Stephanie Saul describes in her New York Times article,  “As Flow of Foreign Students Wanes, U.S. Universities Feel the Sting.”

Even more up close and personal, Stanford MBA graduate and lawyer, Frida Yu, offers her own disheartening perspective in “Is Anyone Good Enough for an H-1B Visa?“:

Six months ago I won the lottery — the H-1B visa processing lottery for skilled foreign workers. I called my thrilled parents and celebrated with friends. I’m from northeastern China and have an M.B.A. from Stanford, and was planning to stay in Silicon Valley to help start a company based on a promising new technology to improve the use of data. I was overjoyed because, historically, being selected in the lottery was a near guarantee that an applicant could remain in this country at least three more years.

But at the end of July, I received the dreaded Request for Further Evidence from immigration authorities. I provided the extra information that United States Citizenship and Immigration Services asked for. In September, I got another request. I complied again. Finally, on Oct. 11, half a year after my celebration, I learned I had been denied a visa.

After earning law degrees in China and at Oxford, after having worked in Hong Kong as a lawyer at a top international firm, after coming to United States three years ago for an M.B.A. and graduating and joining a start-up, I was given just 60 days to leave the country. I have 17 days left.

But who’d a thunk that adjudicators would target for denial foreign workers currently in lawful visa status applying to continue working in the same job with the same employer? After all, doesn’t BAHA’s § 1(e) define “workers in the United States” and “United States workers” as described in 8 U.S.C. § 1182(n)(4)(E), to include not only green card holders, refugees, and asylees, but also authorized immigrants? And doesn’t BAHA’s § 1(c) define “petition beneficiaries” in a future-focused way as “aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program”? (Emphasis added.)

Well I was both naïve and unimaginative, given that a new, post-BAHA USCIS policy memo has apparently stripped all currently authorized nonimmigrant workers of their status as protected “U.S. workers” under § 1(e). See, USCIS Policy Memorandum PM-602-0151, October 23, 2017 (“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status”). In this policy memo, USCIS floated the spurious claim that its earlier 2004 and 2015 guidance (requiring that officers defer and approve, except in limited circumstances, all prior approvals of work-visa status as long as the job duties and employer remain the same) somehow shifted the burden of proof away from the individual and imposed it on the agency. This burden-of-proof argument rests on shaky terrain. Apparently, the effort is simply too much for USCIS, despite ever-escalating user fees “to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.”

In other words, USCIS now asserts that merely doing its job, i.e., by reviewing a nonimmigrant’s entire case history, somehow shifts the burden of proving eligibility to the agency. Not so. The statutory burden on the petitioner or applicant to establish visa eligibility remains the same. Rather the minimal duty imposed on USCIS is to retrieve the prior file and read it. If that is administratively burdensome, then a reasonable new policy would instead suggest to stakeholders that, if deference to a prior approval is desired, then the petitioning employer must include a copy of the prior submission and approval notice with each request for extension of status. Problem solved.

To tighten the screws even more, USCIS has released its 2018 regulatory agenda, which, if promulgated in final form, would apparently take steps to establish a point system to favor the most-skilled or highest-paid foreign workers, and raise the standard for eligibility as an H-1B worker in a specialty occupation – moves in step with BAHA, but entirely at odds with the H-1B provisions of the Immigration and Nationality Act and its legislative history. More draconian still are the changes to the H-1B visa category reportedly in the planning stage, possibly including restrictions on extensions of H-1B visa status beyond the standard maxout period of six years. Take a gander at “Trump considers big change to H-1B foreign tech worker visas,” as reported by the McClatchy Washington Bureau. This policy change, if true, would be the height of chutzpah because Congress enacted new exceptions to the usual six-year period of H-1B stay in the American Competitiveness in the 21st Century Act because of “lengthy adjudications” by the very same agency, USCIS, which had been unable to process its growing caseload in a timely manner (only in part due to visa-quota backlogs).

Notwithstanding these worrisome developments, and despite having been gulled before, I choose to toss cynicism to the wind, and hereby republish a few New Year resolutions for immigration officials to consider adopting:

  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.

As immigration officials ponder my tender offer, I urge each of them to recall the oath of office as a federal employee. In the oath each of them did “solemnly swear (or affirm) [to] support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . bear true faith and allegiance to the same; . . .  take this obligation freely, without any mental reservation or purpose of evasion; and . . . well and faithfully discharge the duties of the office on which [s/he is] about to enter.”

I thus implore immigration officials not to destroy America to save it. I ask them to recall that our cherished American heritage stems both from the rule of law, first embodied some 800-plus years ago in the Magna Carta, and from our cherished exceptionalism as a nation of immigrants. If immigration officials nevertheless persist in savaging decades of immigration law and policy, then I urge them to consider my intentionally nonviolent reference to the Urban Dictionary‘s definition of the Latin phrase, sic semper tyrannis, perhaps wrongly attributed to Brutus (but also uttered very unjustly by John Wilkes Booth):

sic semper tyrannis

Latin, translation: “Thus always to tyrants”, purportedly (but unlikely) uttered by Brutus at the assassination of Julius Caesar.

The phrase is meant to signify that tyrants will always be overthrown and removed from power.