[Blogger’s Note: Readers of this blog may know a little of my family background. Recently, however, the College of Labor and Employment Lawyers (CLEL) invited me to “Tell Us Your Story” for publication in the August 2023 edition of its monthly newsletter. So I’m sharing it here. It’s a story of serendipity, of how twists and turns lead to an unforeseen destiny.

By the way, the photo was taken about the time I began practicing immigration law in my hometown, Detroit, Michigan, circa 1979.]

Telling My Story — the Birth of An Immigration Lawyer

I grew up in Detroit’s inner city among immigrants from Poland and Italy, as well as African Americans, many of whom migrated with their families from the South. This gave me a sense of solidarity with society’s underdogs, persons who – against all odds – persevere and achieve their own versions of the American Dream. I attended an inner-city law school, Wayne State University, and thrived on a wide palette of courses, from constitutional law to real property, tax and international business transactions. Unbeknownst to me, my international business transactions professor submitted my paper on the extraterritorial reach of the U.S. securities law into a writing competition. No one was more surprised than I when my name was called as author of the winning article.  

I traveled to Europe during college summers (my uncle, a travel agent who had his own Italian radio hour, graciously saved a seat for me on his summer charter flights to Italy). My international travel bug, and surprising success in the international business transactions seminar, led me to join a small, well-regarded local firm where one of the partners practiced international business and tax law – with the notion that this would be a springboard to see the world. 

It didn’t pan out as I had planned; I found myself figuratively chained to my desk drafting contracts. This partner encouraged me, however, to become the firm’s immigration law resource, and offered me the chance to spend a week in Puerto Rico far from Detroit’s harsh winter to begin to learn the field at an immigration bar conference. The warmth of the Puerto Rican sun was matched only by the immigration lawyers whom I met there. They were largely happy, prosperous and thriving and they welcomed me into their midst. I’ve never looked back.

I moved in 1982 to Los Angeles where the prospect of practicing immigration law for a larger potential population of clients from around the world seemed brighter. Initial struggles and stumbles ultimately led me to join a large firm which wanted my immigration law expertise, followed by another large firm, and yet another (in between the last two firms, I started my own immigration boutique and grew it over 11 years to 15 lawyers).

Immigration law is a subcategory of labor and employment law, but with a twist. Rather than facing off against opposing parties, I help employers, their noncitizen employees and family members apply for and receive life-transforming benefits – a work visa, work permit, permanent residency and citizenship. They too are pursuing their own self-defined version of the American Dream. I get a lift and am still inspired now, as ever, over a career spanning 40+ years helping strivers thrive.

Last June I made another big career move. I joined Vialto Law (US) PLLC, an independently operated start-up firm affiliated with Vialto Partners, a $2.2 billion spinoff of PwC’s immigration, tax and global mobility practice groups. My mission is to grow the U.S. law firm in talent and clients who value the delivery of employee-friendly, technology-enhanced immigration legal services. 

I’m so lucky to have stumbled into immigration practice and am grateful to be the second management-side immigration lawyer elected as a Fellow of CLEL. (The first, desevedly so, is my friend and colleague, Mary Pivec.)

Many happy thoughts and feelings collided in my mind and heart as I read the June 23, 2023 decision of the Supreme Court in U.S. v. Texas.

Pleasant Surprise. Few would have imagined that a coalition of conservative and liberal justices would agree that federal immigration authorities are endowed with largely unreviewable discretion to overlook comparatively minor immigration offenses committed by otherwise law-abiding noncitizens as the authorities choose to focus scarce enforcement resources on bad actors who threaten our security and safety.

Rejecting the pleas of Texas and Louisiana, the majority held that the courts lack authority to intervene in “one discrete aspect of the executive power—namely, the Executive Branch’s traditional discretion over whether to take enforcement actions against violators of federal law.” The opinion cited a string of relevant cases:

The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States, 521 U. S. 898, 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong, 517 U. S. 456, 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo, 424 U. S. 1, 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’” (quoting U. S. Const., Art. II, §3)); see also United States v. Cox, 342 F. 2d 167, 171 (CA5 1965).

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”). (Emphasis added.)

Fond Nostalgia. In the immigration context, the principle of prosecutorial discretion first came to light when immigration authorities tried to deport John Lennon, and separate him from his beloved Yoko. A most clever immigration lawyer, Leon Wildes, discovered through resort to the Freedom of Information Act, the existence of a then-unknown “Nonpriority Program” — which now is understood as “prosecutorial discretion.”

Then a law professor, Shoba Sivaprasad Wadhia (now the Officer for Civil Rights and Civil Liberties within the Department of Homeland Security [DHS]), has recounted that history and the evolution of prosecutorial discretion. (For those who prefer a cinematic experience rather than text, here is a video in which Mr. Wildes describes the case, featuring clips from John and Paul.) So too have several administrative law professors confirmed the legal doctrine of prosecutorial discretion in their amici curiae brief to the Supreme Court in U.S. v. Texas. , as did then Director of U.S. Immigration and Customs Enforcement (ICE), John Morton, in a June 17, 2011 directive which cited numerous earlier agency decisions on point.

Enthusiasm and Excitement. More recent examples of prosecutorial discretion are the September 30, 2021 Memorandum of DHS Secretary Alejandro Mayorkas (the policy Texas and Louisiana unsuccessfully sought to overturn in U.S. v. Texas) which observed:

In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways. Numerous times over the years, and presently, bipartisan groups of leaders have recognized these noncitizens’ contributions to state and local communities and have tried to pass legislation that would provide a path to citizenship or other lawful status for the approximately 11 million undocumented noncitizens. The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.

We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it. (Emphasis added.)

Wonderment and Timidity. Will U.S. v. Texas prompt the Supreme Court ultimately to sustain the program for Dreamers known as Deferred Action for Childhood Arrivals (DACA) on substantive grounds? Will the case embolden the Biden Administration to ask Justice Department lawyers to reconsider the DOJ legal opinion suggesting that President Obama lacked the legal authority to create a new executive program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This blogger is not so courageous as to predict these things will happen; but, my fingers are crossed.

Curiosity. Another now-resurrected memorandum urging the thoughtful exercise of prosecutorial discretion followed the instruction of Secretary Mayorkas — an April 3, 2022 Memorandum of Kerry Doyle authorizing ICE trial attorneys to stipulate to the dismissal of removal proceedings where mitigating factors suggest that certain noncitizens are not enforcement priorities. The Doyle memorandum noted:

[Mitigating] factors may include, but are not limited to, whether the noncitizen is pregnant, postpartum, or nursing; whether the noncitizen is a lawful permanent resident (LPR) (particularly where LPR status was obtained many years ago and/or at a young age); whether the circumstances of a noncitizen’s arrest indicate an underlying discriminatory motive or retaliation for asserting their legal rights; whether the type of criminal conduct committed by a noncitizen has since been decriminalized; and the noncitizen’s status as a cooperating witness or confidential informant or other assistance sought from the noncitizen by, or provided by the noncitizen to, federal, state, local or tribal law enforcement, including labor and civil rights law enforcement agencies.

One strategy not yet widely discussed is for noncitizens whose removal proceedings have been terminated to apply for employment authorization under under 8 CFR § 274a.12(c)(14) which authorizes the issuance of a work permit to a noncitizen “who has been granted deferred action, an act of administrative convenience to the government that gives some cases lower priority, if the alien establishes an economic necessity for employment.” This may not be met with immediate approval but a denial would be considered final agency action and litigation brought under the Administrative Procedure Act could overturn the decision as arbitrary, capricious or otherwise unlawful. Perhaps, U.S. v. Texas may prompt such an outcome for the successfully litigious immigration lawyer. Fingers crossed.

Hope. Among the most interesting prospects to immigration lawyers outside of the deportation context is “adjudicative discretion,” a close cousin of prosecutorial discretion. Adjudicative discretion allows immigration officers to refrain from imposing penalties (such as by denying otherwise-approvable requests for immigration benefits), when extraordinary circumstances arise and a fault-free noncitizen falls out of legal status. This can happen when a work-authorized nonimmigrant is terminated for employment and cannot find a job during the 60-day grace period allowed by regulations, or when an applicant for admission to the U.S. is given a shortened period of admission, i.e., one that is shorter than the customarily authorized period of authorized stay, and unknowingly falls into a condition of unlawful presence and becomes subject to a 3- to 10- year bar on visa issuance and admission to the country.

These provisions are found in agency regulations, such as 8 CFR §§ 214.1(c)(4) and 248.1(b), which allow the restoration of lawful status the discretion of U. Citizenship and Immigration Services (USCIS) if a “failure to file before the period of previously authorized status expired . . . [where] the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and [USCIS] finds the delay commensurate with the circumstances.”

I co-authored an article on it long ago (“Imagining The Improbable: Extraordinary Immigration Solutions For The Hapless And Hopeless“) and blogged about it here (“Rendering unto the Immigration Caesars“) and here (“Immigration Good Behavior — a Riddle Riddled with Riddles“). Will USCIS officers infer from U.S. v. Texas that refraining from needlessly subjecting hapless out-of-status noncitizens to removal proceedings (where ICE trial attorneys may very well stipulate to dismissals of the cases) is an unwise use of scarce government resources and therefore increasingly exercise adjudicative discretion favorably? One can only hope.

* * *

Again, fingers crossed.

I came to this [position as U.S. Secretary of State] with two very basic propositions, and I’ve seen those propositions, I think, validated by the experience we’ve had over the last three years. One is that if the United States is not engaged, if we’re not leading, then one of two things [will happen]: either someone else is, and probably not in a way that advances our own interests and values; or no one is, and then you can have a vacuum that’s probably going to be filled by bad things before it’s filled by good things.

Secretary of State Anthony J. Blinken — July 28, 2023 — in a Conversation With Council on Foreign Relations President Richard Haass

Secretary Blinken’s words struck me as hollow and sadly ironic when considered in the light of a decision announced yesterday by Canada to lure noncitizen tech talent from the U.S. to Canada in order “to help businesses in Canada thrive in a competitive landscape.”

Canada has decided that it will establish “an open work permit stream for H-1B specialty occupation visa holders in the US to apply for a Canadian work permit, and study or work permit options for their accompanying family members . . .” The new immigration policy will also include “open work permits for up to five years for highly skilled workers in select in-demand occupations,” and establish a 14-day processing time. It seems laughable, were it not so sad, that the new Canadian strategy was launched at “Collision 2023!”

What does this say about America’s antiquated and beleaguered immigration system?

  • U.S. legislators and the several federal immigration agencies should blush with embarrassment. Our leaders have forgotten the timeless message of John F. Kennedy that they must be Profiles in Courage: that they must put the interests of the nation first and resist the pressure to be popular, get re-elected, or be distracted by the pressures of their constituency, party and interest groups.
  • If this is what a friendly nation with which we share a border does to our country, what will countries that are less friendly, indeed adversarial, do to eat our lunch? The outcome is foreseeable and grim, as Secretary Blinken observed, “probably not in a way that advances our own interests and values . . .”
  • How dystopian is the status quo, given that our nation and economy benefit tremendously from noncitizen students attending America’s colleges and universities, yet after we educate them we shoo them away to other nations with more welcoming immigration policies. According to NAFSA, the Association of International Educators, almost a “million international students at U.S. colleges and universities contributed $33.8 billion to the U.S. economy during the 2021-2022 academic year—up more than $5.5 billion (or 19%) compared to the prior academic year—and supported more than 335,000 jobs.”
  • What’s worse, there is no predicting how badly the U.S.’s broken immigration system will harm future generations of Americans in falling behind in the development of advanced technologies, such as AI. The National Foundation for American Policy paints a bleak picture if we lose this “brain-gain” population: “Immigrants have founded or cofounded nearly two-thirds (65% or 28 of 43) of the top AI companies in the United States, and 70% of full-time graduate students in fields related to artificial intelligence are international students . . . Seventy-seven percent of the leading U.S.-based AI companies were founded or cofounded by immigrants or the children of immigrants. Forty-two percent (18 of 43) of the top U.S.-based AI companies had a founder who came to America as an international student.”

It’s all too sad.

I’m thrilled to announce that I have become a partner in Vialto Law (US) PLLC (Vialto Law) – a U.S.-based immigration law firm that opened its doors in March.  Operating independently, Vialto Law is associated with Vialto Partners, the world’s largest, freestanding global mobility company, focused on disrupting and transforming the global mobility ecosystem. Vialto Partners is home to over 7,000 dedicated immigration, tax, HR and technology professionals supporting multinational organizations and their cross-border employees.

My immigration career has taken many turns and forms over the years. I’ve been blessed with great clients and colleagues, whether in a small-firm setting, my own immigration boutique firm, or in three large full-service law firms.

I’m confident that Vialto Law, along with the incomparable resources of the powerhouse that is Vialto Partners, will be that guide. The name “Vialto” is derived from “via” (the road) and “alto” (signaling altitude). I think of my new journey as one dedicated to helping clients take the high road to global mobility.

All along, the U.S. immigration system has been and remains a source of challenge and frustration. Multiple federal immigration agencies, sometimes cooperating, but more often at cross purposes, have too often laid insurmountable obstacles in the path of businesses, employees and families. Always – yet never more than now – there has been the need for a trusted guide.

Please let me know how we can help.

The famous line from Shakespeare — “The first thing we do is, let’s kill all the lawyers” (Dick the Butcher, Act IV, Scene II, Henry VI, Part II) — is interpreted in widely divergent ways. My handy AI assistant offers these examples:

  1. An expression of frustration with the legal system and the perceived corruption or incompetence of lawyers.
  2. A call for the dismantling of the legal system in order to create a more just society.
  3. A satirical comment on the way society often scapegoats lawyers for its problems.
  4. A reflection of the character’s desire for lawlessness and chaos, as the line is spoken by a character plotting a rebellion.
  5. A critique of the excessive power and influence that lawyers can have in society.

The line about “attorney-cide” came to me as I pondered how the federal courts and immigration agencies interact with lawyers. Although Section 292 of the Immigration and Nationality Act (INA) provides that a noncitizen in removal proceedings shall have a right to counsel “at no expense to the Government,” and regulations of U.S. Citizenship and Immigration Services (USCIS) at 8 C.F.R. § 292.1 authorize attorneys to represent noncitizens in a variety of immigration benefits requests, federal statutes and immigration officers often plant barriers that impede effective legal representation.
Consider these examples:

  • The Supreme Court will soon decide United States v. Hansen and interpret the scope of 8 U.S.C § 1324(a)(1)(A)(iv). This statute makes it a felony if any person “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” According to the Pew Research Center, there were 10.5 million unauthorized noncitizens in the U.S. in 2017, and few knowledgeable observers believe that the number has shrunk in the ensuing years. Unsurprisingly, unauthorized noncitizens often seek counsel from immigration lawyers. Will the lawyers be barred from informing them about several legal avenues that authorize relief from removal or lawful status if the Supreme Court decides Hansen to mean that by providing such guidance the lawyer is “encourage[ing] or induc[ing]” a noncitizen to reside in the U.S. “in violation of law”? Will the lawyer be prohibited from explaining the path to a green card through cancellation of removal or asylum, or about the avenue available to unauthorized workers who are victims of worksite exploitation? We’ll know once the Supreme Court decides Hansen.
  • There is no right to be represented in person by counsel at the border or a port of entry. As a practical matter, the State Department takes the same approach by allowing consular officers to decide if all visa interviews conducted by consular interviews be with counsel present. State provides in its Foreign Affairs Manual, at 9 FAM 602.1-2.b: “Whatever policies are set must be consistent and applied equally, either all attorneys at post must be permitted to attend consular interviews or none can.” Not surprisingly, virtually no consular posts allow attorneys to be present during consular interviews. The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) tried to change that by submitting a May 24, 2017 ““Petition for Rulemaking to Promulgate Regulations Governing Access to Counsel” (for which I served as a coauthor), as allowed by 5 U.S.C § 553(e) of the Administrative Procedure Act. Needless to say, the Trump Administration did not embrace the proposal. AILA and AIC should refresh the proposal based on intervening experiences and ask the Biden Administration to adopt it
  • USCIS has provided a method for electronic filing of applications to extend or change nonimmigrant status but only in situations where the noncitizen applicant “will not require legal or accredited representation at any point in your request.” What USCIS does not say is that noncitizen e-filers must comprehend and comply with 17 pages of dense text in the instructions to the application form, and that the form’s instructions are as binding as agency regulations.

Continue Reading Let’s Not Kill All the Lawyers — Removing Barriers to Effective Legal Representation in Immigration Matters

A recent Department of Justice press release announcing a $9,928,000 civil immigration settlement offers a cautionary note to U.S. employers. The facts are not fully detailed and case file is sealed, but the press release describes the settlement as resolving “allegations that between 2014 and 2019, [a U.S.-based employer] underpaid visa fees owed to the United States by acquiring inexpensive B-1 visas, rather than more expensive H-1B visas, in alleged violation of the False Claims Act.” The press release is accessible here.

The press release quotes an official with the Labor Department’s Office of Inspector General:

“When companies apply for work visas, they must follow the rules and pay appropriate fees, just like workers. We will continue to work with our law enforcement partners to vigorously pursue those who circumvent worker visa programs,” said Mathew Broadhurst, Special Agent in Charge, Southeast Region, U.S. Department of Labor, Office of Inspector General.”

Although the State Department’s Diplomatic Security Service was involved in the investigation, the press release does not explain how the settlement squares with a provision of State’s Foreign Affairs Manual, 9 FAM 402.1-3 (“Choice of Classification”) which states:

“Choice When More Than One Classification Possible: When it appears that an applicant can properly be classified under two or more nonimmigrant classifications, you must explain to the applicant the terms and requirements of each, including documentary requirements, maximum lengths of stay which may be authorized upon admission, and any other pertinent factors. You must then base the classification of the visa on the applicant’s stated preference.”

To be sure, employers should only facilitate visa applications in deserving cases based on the actual facts and the satisfaction of eligibility criteria for the particular visa category sought. Still, if employers are bound to sponsor a work visa based on the most expensive filing fees, then this author believes the immigration authorities should state this duty explicitly.

Talented artist and good friend, Pat Benincasa, recently invited me to join her in a session of her Filled to Capacity podcast. I hope you enjoy our discussion of All Things Immigration.

QUOTES

ANGELO:  “It’s helping people who were fleeing persecution from their home country. And boy, putting together an affidavit that describes someone’s life-threatening fears is far more meaningful than drafting a contract.”

ANGELO: “… I think we’ve forgotten our history and we don’t really make the connection… I mean, the founder of Intel was an immigrant, the founder of Apple computers was an immigrant. He was the son of a refugee… and I believe at least one of the two founders of Google was an immigrant. So you just name these companies and you see the tremendous wealth creation that there has been, but you don’t see that. It doesn’t register. And why it doesn’t register is a kind of selective perception, cultural or historic amnesia.”

ANGELO: “I believe that American exceptionalism, if that term is still to be used, derives from the constant replenishment of human capital, human ideas that come from elsewhere, where people who will do anything to sacrifice for their children’s betterment and work and contribute in ways that they push it to the level of human capacity…”

A Snitch in Time Saves How Many?  – Incentivizing Noncitizens to Report Employment Law Violations

“I generally avoid temptation unless I can’t resist it.”  ~ Mae West

The Biden Administration has long sought to incentivize noncitizens who suspect that an employer may be violating laws protecting worker rights to report perceived violations to federal authorities.  The Administration tried this early last year by including such incentives in the Senate and the House bills known as the “U.S. Citizenship Act of 2021.”  See, “Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill.”

Failing to muster sufficient votes for enactment, the Administration, through the Secretary of Homeland Security, Alejandro Mayorkas, issued on October 12, 2021 Policy Statement 065-06, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,” to the three federal immigration agencies within DHS.  One “important interest” to be fostered under the new worksite enforcement strategy is to “[increase] the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations.”

Policy Statement 065-06, by its terms, is motivated by the Feds’ desire that noncitizens, without fear of retaliation or personal endangerment, freely report “unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.”  It includes this element:

Develop agency plans . . .  [which] should, among other things, provide for the consideration of deferred action, continued presence, parole, and other available relief for noncitizens who are witnesses to, or victims of, abusive and exploitative labor practices. In addition, these plans should . . .  Ensure that noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution. (Emphasis added.)

To buttress this effort, Secretary Mayorkas included “Immediate Guidance” to the three immigration agencies within the Department to entertain requests by the Department of Labor (DOL) that “DHS consider whether to exercise prosecutorial discretion on a case-by-case basis for workers who are victims of, or witnesses to, workplace exploitation.”

This week, DOL seized upon the opportunity by issuing a July 6, 2022 FAQ outlining its “Process for Requesting Department of Labor Support for Requests to the Department of Homeland Security for Immigration-Related Prosecutorial Discretion During Labor Disputes.”  The new process invites “workers,” including “vulnerable workers who lack work authorization or sufficiently ‘portable’ immigration status,” to report “a labor dispute with my employer” and “request that DOL in the exercise of its discretion to submit a ‘Statement of DOL Interest’ in support of a request to DHS for immigration-related prosecutorial discretion.”

Among the forms of immigration relief cited by Secretary Mayorkas to tease out noncitizen reports of labor violations is “deferred action.”  DHS defines deferred action under 8 CFR §274a.12 (c)(14) as “an act of administrative convenience to the government which gives some cases lower priority.”  The carrot of deferred action is that it entitles a noncitizen to apply for and receive a work permit if s/he “establishes an economic necessity for employment.”  Another discretionary power highlighted in DHS Policy Statement 065-06 is parole (which would allow a noncitizen abroad to enter the U.S. , or if already here, to remain, and in both situations to obtain a work permit).  Still another instruction in Policy Statement 065-06 requires immigration officials to ensure “that noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution.”

The upshot of these developments is  a modern system of “bounty” hunting – the bounty being a work permit and a free pass to enter or remain in the U.S. and avoid deportation – privileges available to noncitizens who report to DOL, which then reports to DHS, perceived instances of “worker exploitation.”

The message to employers is clear: Behave and beware.  The message to noncitizens eyeing the bounty is equally clear: Don’t mess with the Feds unless you can put up or shut up.

My last blog post bewailed a notice in the Federal Register that seemed to give the immigration stakeholder community and the public only one day to comment on the practices and operations of U.S. Citizenship and Immigration Services (USCIS).  Well, lickety-split, USCIS has issued a correction. Now, comments are invited on 17 wide-ranging issues until May 19, 2021.  Don’t miss your chance to offer constructive criticism.

“Hell is paved with good intentions.” ~ Samuel Johnson

To its credit, United States Citizenship and Immigration Services (USCIS) – the beleaguered Department of Homeland Security (DHS) component charged with adjudicating requests for immigration benefits – is trying in earnest to improve. On April 18, 2021, the agency posted a notice (“Identifying Barriers Across [USCIS] Benefits and Services; Request for Public Input”). The notice set out 17 detailed questions on which members of the immigration stakeholder community and the general public might offer their insights.  This is welcome news. It demonstrates the sincerity of the agency in its desire to dig out from under the horrific degradation of our nation’s immigration programs wreaked by the 1,065 adverse actions of the Trump administration.

Unfortunately, the notice as published contained a glitch. The plan all along, as reflected in this early heads-up alert on soon-to-be-published notices in the Federal Register, was to allow public comment for a 30-day period.  Instead, the notice in final form provided only one day to comment.  It stated: “Written comments are requested on or before April 19, 2021. Late-filed comments will be considered to the extent practicable.”

This blogger is rooting for USCIS to succeed and believes the agency sincerely wants to improve. Great things are happening there. A talented, competent, non-partisan veteran, Tracy Renaud, is temporarily leading the agency. She has already set the tone by announcing that USCIS under the Biden Administration would welcome noncitizens with more inclusive appellations. Ms. Renaud is joined by the new USCIS Chief Counsel, Ashley Tabaddor, an inspiring leader and talented lawyer who most recently led the National Association of Immigration Judges in that union’s ongoing quest, with the ABA, AILA and many other organizations, to establish an Article I immigration court that would be independent of the Attorney General. They should soon be joined by Ur Jaddou, President Biden’s nominee to serve as the Director of USCIS.  She previously served as the agency’s Chief Counsel, Deputy Assistant Secretary in the State Department’s Bureau of Legislative Affairs, Chief Counsel to the House Subcommittee on Immigration and Border Security, Senior Counsel to Representative Zoe Lofgren, and most recently, as Director of DHS Watch for America’s Voice.  This impressive trio will no doubt be empowered and inspired by Alejandro Mayorkas, the former USCIS Director, who now serves as DHS Secretary.

With this auspicious assemblage of talent, USCIS can be forgiven for a misstep out of the gate.  Great things are set to happen.  But do re-open the comment period so that the public and immigration stakeholders have the full 30 days to offer their views.