For someone whose career had seemed in rocket-vectored ascendancy, Piers Morgan — famed British journalist, TV host, 2008 winner of Donald Trump’s Celebrity Apprentice, and 2006 season judge of America’s Got Talent — has encountered an implacable obstacle. The object reportedly in his way is so impenetrable that, even with help from CNN, Piers cannot pierce it.
As first reported in the New York Post, government approval of CNN’s U.S. work visa petition to allow Morgan to be the new host of Larry King Live has reputedly been delayed. Another journalist, Richard Adams, who blogs on U.S. politics and culture from the Guardian newspaper’s Washington DC bureau, summarized the apparent problem thusly:
The unstoppable force of Piers Morgan’s career has finally met an immovable object: the US Citizenship and Immigration Services. . . . The nature of the delay is unknown . . . [I]t comes at a time when immigration is a hot-button issue in US politics. . . . [Q]ualification for a US work visa is a long and often fraught process . . . US immigration authorities are famously unimpressed by celebrity, and a delay of several months is not uncommon in even the most straightforward cases.
I have no idea whether CNN, on behalf of Morgan, an author of eight books, and host of two BBC series (The Importance of Being Famous and The Dark Side of Fame with Piers Morgan), has not received swift visa-petition approval from USCIS. If USCIS is indeed the reason why Larry King will linger longer, then I speculate that perhaps Morgan’s multifarious career has been too much a moving target and King’s iconically idiosyncratic show too unique a form of entertainment for USCIS examiners to link together. Or maybe hosting a talk show is seen by USCIS as too different from judging a talent show, in the same way that the agency decided that “arguably one of the most famous baseball players in Korean history” was unqualified for a green card to serve as a baseball coach for the the Windy City’s White Sox team because his fame was solely as a player rather than as a coach. See, Lee v. Ziglar, 237 F. Supp.2d 914, 918 (N.D. Ill.2002).
The Post speculates that Morgan needs a “special visa,” while Blogger Adams suggests that Morgan has “options” available to him (“‘Individuals with Extraordinary Ability or Achievement in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field’ for which Piers would surely qualify”). At the same time, a TV.com staff writer — in a snarky slap to the immigration bar — asks: “Aren’t there people [Morgan] can hire to take care of that?”
I’m not ready to pass judgment on USCIS in d’Affaire Morgan (or to remain silent when uninformed outsiders unfairly slime immigration lawyers).
I note with satisfaction, however, that under the administration of Alejandro Mayorkas, USCIS Director, the agency has taken unprecedented steps to improve adjudication of EB-1 (Employment-Based First Preference) immigrant visas requiring regulatorily prescribed levels of extraordinary attainment. As Los Angeles Times reporter, Teresa Watanabe, reported recently, quoting the Director:
Mayorkas said he was determined to “get it right and get it fast.” “The community deserves consistency,” he said. “These are our customers, and we are committed to improving customer service.”
The latest example of the changes wrought by Director Mayorkas is an opportunity to allow the public to comment on interim guidance memorandums before they becomes effective in final form. This type of pre-effective-date chance to comment never happened before with the old INS or the pre-Mayorkas USCIS. The early-peek opportunity for comment allows the agency to withdraw with dignity intact from a position that stakeholders may show is contrary to law or legitimate business practices. For example, USCIS is now accepting comments on a guidance memo with a dry title but a topic of great significance to many prospective green-card applicants with high levels of accomplishment: “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions.”
This particular guidance memo arises from a debunking the agency received from the Ninth Circuit Federal Court of Appeals in Kazarian v. USCIS, 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774). The Court in Kazarian held that USCIS (in this case the Administrative Appeals Office) may not “unilaterally impose novel substantive or evidentiary requirements” without support in the Immigration and Nationality Act or agency regulations.
While Kazarian dealt with EB-1 (extraordinary ability or achievement) green-card eligibility criteria, the interim agency guidance cited extends this also to the EB-2 immigrant visa category for exceptional ability aliens. In my view, USCIS should have issued a guidance memorandum more broadly. Stakeholder feedback should have been issued on a guidance memorandum (which I’d be happy to craft upon request) entitled “Illegality of Unilaterally Imposing Novel Substantive or Evidentiary Requirements.”
Although the proposed title of my suggested USCIS memo is admittedly just as dry as those the agency issues, its scope is more important. The guidance memo I propose would cover all formal decisions (“adjudications”) that USCIS must make and not be limited solely to green-card grants or denials. It would apply to naturalization, asylum, work visa petitions, marriage petitions, investor petitions, battered spouse determinations, human trafficking and crime victims cases, waiver requests and more.
To be sure, Hollywood v. USCIS is a battle of great moment. Still, everyday supplicants who pay USCIS ever-steeper user fees deserve fair and prompt adjudications and the same equitable consideration as celebrities like Piers Morgan. I’m not saying that I’m happy that Morgan’s immigration case may have been delayed. But I will savor the last few pre-nostalgic months before Larry King retires his suspenders.