The dictionary defines the adjective, “passive-aggressive,” as “a type of behavior or personality characterized by indirect resistance to the demands of others and an avoidance of direct confrontation.”  That is an apt characterization describing how federal bureaucrats work their will in the immigration ecosphere.  The passive-aggressive behaviors show up in efforts by federal immigration officials to enlist and “deputize” third parties to enforce national immigration policies.  

The ploy plays out in a variety of contexts — from union-management relations to the interactions of corporate customers with their service providers, as well as to visa applicants trying to persuade American consular officials of not only their own eligibility to receive U.S. immigration benefits but also the worthiness of persons and firms petitioning on their behalf.

How so?  Consider these familiar scenarios:

Verifying Employment Eligibility. Union dues are the mother’s milk of organized labor. If workers cannot be hired or remain employed because they lack authorization to work in the United States, the union becomes less well nourished. In industries with historically high concentrations of unauthorized workers (say, manufacturing, hospitality, food service, construction, and janitorial services, among others), loss of dues payments from prospective members never hired (or current members terminated) for lack of work permission may force the union beyond suffering mere malnutrition to facing a life-threatening malady.

The federal government, however, has no statutory power to discourage unions from enrolling unauthorized workers as members. Its power rests with the Immigration Reform and Control Act which requires or allows various methods to determine employment eligibility and imposes burdens on employers to maintain proper records (the Form I-9 and, in some cases, digital records of immigration compliance contained in the E-Verify database) and refrain from (knowingly) hiring the undocumented.

Not surprisingly, federally induced immigration skirmishes between labor and management often ensue. Employers opt for strict compliance with the laws punishing unauthorized employment while unions urge on management only investigations that probe ever so lightly into questions of the union members’ identity and work eligibility. Either way, the immigration triangulation strategy is a winner for the bureaucrats. Probe too deeply and the employer faces charges of immigration-related employment discrimination from the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices or from state regulators and private litigants under laws such as those just passed in California. Be too blasé about following up on potential instances of unauthorized employment and U.S. Immigration and Customs Enforcement will use the constructive-knowledge principle to show that the employer — had it conducted a reasonable inquiry — would have learned that the workers in question were unauthorized, and thus, is liable for employing unauthorized individuals with knowledge that they lacked the right to work.

Contracting with Vendors. In 21st Century America, technological innovation and globalization have transformed the way goods are produced and services provided — a “duh!” statement of the highest order. Increasingly, American businesses are opting to “rent” rather than “buy” human capital; they prefer engaging third-party providers rather than hiring workers directly. This is not necessarily job-shopping or staff augmentation writ large. Rather, American corporate customers are finding it best to focus on their core competencies and to acquire from consultants, vendors and service providers a variety of sophisticated services which would otherwise be too costly or off-mission to develop internally.

Here too, the federal government has no statutory power under current immigration laws to regulate relations between private parties, in this case, between customers and vendors who legally contract for needed services.  Yet, immigration triangulation is the stratagem of bureaucratic choice.  The Labor Department insists that a contractor using employees in “H-1B” status (the visa category for workers in specialty occupations) to fulfill its contractual obligations to its customers must post paper notices or publish electronic notices on the customers’ premises or its intranet, and in some cases, must interrogate the customer about its layoff practices and plans under the “secondary non-displacement” obligation.  If the customer refuses to allow such intrusions, the government — if it has its way — would force the services vendor to breach its contract by pulling its H-1B employees from the customer’s job site.  Similarly, U.S. Citizenship and Immigration Services (a component of the Homeland Security Department), relying on dubious legal authority (just one of many infamous “Neufeld Memorandums”) often refuses to approve H-1B visa petitions submitted by law-abiding contractors unless their customers disclose confidential and proprietary information about the terms of the contract for services.

Demonstrating visa eligibility.  A new form of triangulating behavior has recently surfaced among U.S. consular officers. This ploy involves a disinclination to consider evidence of work-visa eligibility unless it comes directly and solely from the applicant’s mouth during a consular interview. While perhaps plausible at first blush, the new policy disregards the fact that certain “corporate facts” (e.g., strategic plans, proprietary information, financial conditions, contracts with third parties, etc.) are simply outside the ken of the visa applicant.  Until recently, however, consular officers routinely reviewed written submissions from petitioning employers seeking work visas for its foreign employees. Indeed, the State Department has long recognized the inability of a visa applicant to know and relay all of the corporate facts, and thus urged consular officers to make inquiry of the employer, as shown in this 1994 cable:

[C]onsular officers should note that in many cases involving third party contractors, the visa applicant may not be fully aware of the arrangements made by his/her employer and the contracting company. Therefore, when questions arise as to the exact nature of such arrangements, consular officers should make it a point to confer with the employer or of allowing the alien to bring the matter to the attention of the employer before making a finding of fact.

* * *

Is there a legal basis for these sorts of immigration triangulation? No. But power is as power does. Bullying is now seen — at least in America’s schools — as unacceptable behavior. Would that Congress reach the same conclusion with the bullying and passive-aggressive behaviors of America’s immigration bureaucrats.