Food Chopper.jpgThe times they are a-mournin’ for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation’s dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another, as Republicans in the House and outside the chamber say that even piecemeal solutions won’t occur before the current session ends, but may surface in 14 months.

Meanwhile, as the House fiddles and change-agents fuss, the “Great Chopper” that is America’s immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I’m not talking about the immigration-prison/deportation industrial complex which whirs at grotesquely efficient and fevered speeds — that topic is grist for another post.

Rather, today’s blog riffs on the theme of immigration inanity played out in my last post and in several others (“Immigration Good Behavior — a Riddle Riddled with Riddles,” “Immigration Absurdity: You Can Work Here But You Can’t Be Here,” and “Immigration Indifference – The Adjudicator’s Curse“). 

Today’s asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi of enacted legislation and promulgated regulations.  

Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S., and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application.

Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant — like his nonimmigrant cousin — is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation,  notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees. 

In the case of the green card applicant, immigration abandonment can lead — at best — to delay and squandered filing fees, and — at worst — to ineligibility.  The immigrant visa quota  may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status.  Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials.  

The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending.  To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:

Notice of Decision - Abandonment.PNGThe astute reader will have noted some whopping non sequiturs in the USCIS’s explanation.  Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant’s control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the “previously accorded nonimmigrant status.”  It may signify nothing more or less than a departure from the country.

What the USCIS’s immigration-abandonment ploy really reveals is an agency’s acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered.  Some would call that fraud.  It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute.

The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)].  This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her “unlawful presence (UP)” in the United States.  

UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security.  This statutory postponement or “tolling” of any period of UP is allowed in the following situation:   

Tolling for good cause.–

In the case of an alien who–

has been lawfully admitted or paroled into the United States,

has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and

has not been employed without authorization in the United States before or during the pendency of such application,

[then] the calculation of the period of [UP] time specified . . .  shall be tolled during the pendency of such application, but not to exceed 120 days.

When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do.  The consular officer must determine whether the change/extension of status application was in fact “nonfrivolous” in order for UP to be tolled.  

The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee).  Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed “nonfrivolous,” as that term is defined:  

To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien.

9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause 

* * *

So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS — the adjudicative arm of the Great Chopper — must be retooled.   The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment. 

Investigator.pngSamuel Herbert, Her Majesty’s Home Secretary from 1931-32 (the British equivalent of the U.S. Secretary of Homeland Security), could well have been speaking about two recent immigration-related events when he quipped that “bureaucracy” is “a difficulty for every solution.”

One is an October 30 Settlement Agreement between Indian It consulting giant, Infosys, and the U.S. Attorney for the Eastern District of Texas.  The other is an October 18 decision by U.S. federal district court judge, William J. Martini, involving the U.S. Department of Labor (DOL) and CAMO Technologies, a much smaller Indian IT consulting firm.  

Both reflect a victory, of sorts, for Indian IT firms over U.S. immigration bureaucrats and enforcement agents, and both shed light on the little-discussed crossroads where ambiguous immigration rules bisect the relations between corporate customers and their technology consultants.

The Infosys settlement involved a simple horse trade.  Infosys would pony up $34 million and admit paperwork violations of the Form I-9 (employment eligibility verification) rules while the U.S. Attorney would drop civil and criminal charges that the Tech firm — when placing its Indian employees at U.S. customer work sites — improperly used the B-1 business-visitor visa in lieu of the more costly, slow and burdensome H-1B visa category for professional workers in specialty occupations.

CAMO Technologies resolved a dispute with DOL over whether the company was merely negligent (the court so ruling) or willful or reckless in failing to confirm that its corporate customers had posted notices at their worksites that the consulting firm’s H-1B employees would be sited there.

Why did the U.S. Attorney drop civil and most criminal charges against Infosys when the prosecutor believed the company had engaged in widespread immigration fraud?  And why did Judge Martini throw a cold cocktail in the DOL’s face in refusing to debar CAMO from further use of the immigration laws to sponsor temporary workers and green-card aspirants?  

Technologies, Inc. 

The simple answer is that immigration laws are complex and the bureaucratic rules interpreting them are too often ambiguous or impractical and therefore difficult to honor or to prosecute.

In the Infosys matter, prosecutors probably could not prove that “coding and programming” tasks, which ordinarily require an H-1B work visa, would be unlawful if performed by a business visitor under the so-called BILOH (B-1 in lieu of H-1) subcategory. In CAMO Technologies, the DOL could not persuade the court of its contention that the failure to post notices announcing the placement of H-1B workers at customer sites violated the agency’s regulations.  CAMO maintained that the DOL regulations only required proof that the vendor had asked its customers to allow posting but that the customers refused.

The customer-vendor relationship is fraught with immigration perils for both parties, as I noted in two articles co-authored with Ted Chiappari,“New Corporate Procurement Strategy: Minimizing Immigration Risks From Service Providers,” New York Law Journal (June 29, 2009) and “Professional Employer Organizations and Uncharted Immigration Risks,” New York Law Journal (December, 2010). But despite the lack of clarity or business practicality from bureaucratically imposed visa mandates, employers and corporate vendors can take steps to avoid brand-damaging assaults by enforcement agents and costly probes by DOL investigators.  Here are four:

  1. Engage Outside Immigration Experts to Assess Your Risks. As part of its settlement, Infosys must hire external immigration experts and must submit more explicit business-visitor invitation letters to the State Department in order to minimize the recurrence of alleged immigration violations.  Moreover, Jay Palmer, the Infosys employee who blew the whistle on the alleged transgressions stands to receive 15% to 25% percent of the $34 million settlement under the False Claims Act.  Why incentivize employees to file charges of immigration wrongdoing and wait till these nasty prescriptions are shoved down your throats? Instead, corporate customers and their service providers should recognize that other companies are already under scrutiny.  Each party should therefore proactively engage outside immigration counsel to assess the risks and help avoid or minimize potential brand damage, disruption of key contracts, and havoc-wreaking consequences to business imperatives, not to mention government fines, debarment and criminal prosecution.  
  2. Try, together, to follow the rules. Most corporate customers are astonished to learn that the law of vendor relations often imposes immigration-law encumbrances — the obligation to post notices visible to their employees at the company’s worksite or on its intranet and to respond accurately when vendors ask if there have been any layoffs of the customer’s employees.  Yet, DOL rules are explicit.  All  employers who place H-1B workers at customer sites must post such notices and H-1B dependent employers must inquire about such layoffs and refrain from assigning their specialty-occupation workers to customer jobsites if the customer has laid off its own workers in similar jobs within 90 days before until 90 days after any subject layoffs.  While the posting obligation imposes no penalty on corporate customers under DOL H-1B regulations, the Immigration and Nationality Act (INA) does, as confirmed in this DOL presentation, “The Employment of Non-Immigrants on H-1B Visas” (slides 42-43). The INA provides for “Super Penalty” fines of $35,000 on customers and H-1B dependent vendors alike each time a prohibited layoff occurs. Whether customers are immune or directly exposed to their vendors’ H-1B liabilities, customers should cooperate to allow service providers to comply with immigration requirements. If the customer interferes or fails to cooperate, the vendor conceivably could claim that the customer impeded the vendor’s performance under the parties’ service agreement by blocking or rendering impossible the vendor’s compliance with immigration law.  Worse yet, the federal government could assert that the vendor and customer, both aware of their respective legal duties, willfully flouted them, and thus criminally conspired to employ “unauthorized” foreign workers.
  3. Where the immigration rules are ambiguous or unworkable, show good-faith efforts that substantially comply. As the Infosys and CAMO Technologies matters demonstrate, some government investigations and prosecutions can be defeated or their adverse effects diminished by pointing out flaws or uncertainties in the immigration rules or by trying to comply substantially with impractical or infeasible agency-concocted requirements. Perhaps a vendor could post electronic notices of H-1B placements on its public corporate web site, and merely post “routing” notices at customer locations directing persons to the vendor’s internet page where the legally required text is fully provided.  That may be seen by an administrative law judge or federal court as doing more than legally mandated and thus in substantial compliance with agency rules.  
  4. Where the immigration rules are downright unlawful, challenge them in court or be prepared to defend your behavior and legal interpretations if the government takes action. Camo Technologies persuaded Judge Martini to reverse the DOL’s ruling against the company.  Infosys presumably adopted a full-court press by mounting a campaign in the U.S. Attorney’s Office to demonstrate the weakness of the government’s legal position and in reminding local, state and federal government leaders that prosecution of this large Indian company could hurt jobs and the economy.  In simple terms, both companies fought back.  Corporate customers and consultants should copy maneuvers from this playbook.  The immigration rules of the road are mind-bendingly complex. Government prosecutors, unschooled in the arcana of immigration, must rely on immigration bureaucrats to teach them the law, the same agency employees who created and imposed the ambiguities and impracticalities that customers and contractors are expected to follow. 

* * *

As the battle continues for ever greater corporate efficiency and profitability, fueled by the innovations and bright ideas of the consulting industry, customers and vendors alike must recognize that their business objectives can be waylaid by zealous prosecutors and bureaucrats. Forewarned is forearmed. Don’t wait for the knock on the door.  Be ready to face “the difficulty for every solution.”

Visa Now Needed for U.S. Citizens to Enter the Beltway?

By Ted J. Chiappari and Angelo A. Paparelli*

 

Beltway Visa 2 .jpgShutting down the government for a couple weeks gave Congress time to turn to our immigration laws this month.  Reports have been leaked that at the top of Congress’s agenda is a proposal to introduce a visa requirement for US citizens to enter and reside in Washington, DC.

Dubbed the Beltway visa and assigned the letters “DC”, the proposed visa requirement has been praised by some as a rare expression of Congressional introspection and an acknowledgment that our elected officials have so alienated themselves from their constituencies that the District of Columbia deserves special status as its own sovereign jurisdiction within the United States.  Others have criticized the move as a political ploy to draw attention away from serious immigration reform.  Here are the contours of the proposed law:

Who is Eligible for the Beltway Visa?

An internal straw poll of current Members of Congress shows universal agreement that they will be eligible for the new visa without the need to do anything other than present their Congressional ID at ports of entry into the Beltway.  Most legislators also agree that lobbyists should qualify for the visa, but with some restrictions.  The proposal with the most traction is to adapt the current EB-5 investor visa category[i] to allow lobbyists meeting certain criteria to reside permanently in Washington, DC.   Lobbyists would have to invest at least $1 million in a pooled Congressional incumbents’ campaign fund and prove how the lobbyist’s investment will create at least 10 jobs for US workers. 

There is bitter dispute, however, about whether federal employees (other than Members of Congress) should be granted the DC visa.  Most likely, the increased fees and hiring limits on H-1B specialty occupation workers and L-1 intracompany transferee workers proposed in the recent Senate bill on comprehensive immigration reform (called S.744)[ii] will be adopted in modified form, requiring executive branch agencies to pay annual fees from $2,500 to $15,000 per federal employee and placing a cap on the number of workers an agency could employ in order to discourage the government from hiring.  Some Congressmen proposed adding a general provision to defund the judiciary entirely and indefinitely, but because of Constitutional concerns raised, Congress will most likely develop a more measured response to its concerns about judicial activism and intervention in immigration matters, perhaps by limiting the period of any activist judge’s authorized stay in DC status to three non-consecutive months per year. 

Impact on Current Residents of Washington, DC?

Spokesmen for Congressional members pressing for the new visa acknowledge that the proposal, if enacted, would render virtually all current residents of the District of Columbia “illegal” (or to use the preferred term among the Washington elite, sans papier, and deportable to one of the 50 States.  Various monetary fees have been discussed, ranging from $1,000 upwards, that residents could pay in order to obtain the new visa and remain in Washington, DC.  Concerns about mass deportation were summarily dismissed, however, with Congressmen emphasizing the importance of national security, fiscal responsibility and the rule of law.  Commuters from neighboring states would similarly be affected, but concerns about loss of talent precipitated by the new restriction and its economic impact were also dismissed.  Some Congressmen were adamant that there was plenty of talent already in Congress and no need to import any more.  One Senator conceded off the record that, with the government shut down, there really wasn’t all that much to do, so he didn’t see a problem.

There has been vigorous debate on how best to enforce the borders of the District of Columbia.  Some Congressmen have insisted that no visas should be processed until the District’s borders have been effectively sealed, saying they don’t want to repeat the mistakes the United States has made with its international borders.  Others want to introduce “triggers” similar to those in S.744, tying the legalization of the undocumented to the achievement of certain border security milestones.   Some have advocated that the District should apply the latest drone technology to secure its borders, while others are placing their faith in National Security Agency (NSA) monitoring systems to track “illegals” entering Washington without proper documentation. 

New Grounds of Inadmissibility – E-Verify and Mandatory Health Insurance

In order to use the DC visa, visa holders (other than members of Congress) would be registered with E-Verify[iii] and thereby prove their eligibility to work in the United States as a prerequisite to obtaining the DC visa.  (Since so many sight-seeing attractions in Washington were closed due to the shutdown, Congress hasn’t actually given any thought to foreign tourists who might want to visit our capital and how they could comply with this requirement.)  Should the federal government – including the current E-Verify program – become unfunded again (a real possibility given the partisan one-upmanship after a deal was struck in the 11th hour on October 16), the Beltway visa would remain unavailable except to current Members of Congress.   A proposal has also been suggested to fund E-Verify with user fees – similar to how immigration benefits currently are funded – to raise revenue and to allow for the DC visas to be issued as soon as possible, but some members of Congress are actually pleased that the lack of funding would delay implementation of the new visa.

DC visa applicants must also prove that they have adequate health insurance, a provision borrowed from the J-1 exchange visitor program.[iv]  Congress has also seriously considered borrowing the basic construct of the J-1 program for the DC visa, delegating the administration of the program to private-sector agents, called “sponsors,” who would be responsible for the initial review of the application for eligibility and would also be held accountable for visa-holders’ compliance with the program requirements.[v]

Narrowly defeated was a proposal to keep deadbeats out of DC by insisting that visa applicants prove their creditworthiness as part of the visa application.  The proposed ground of inadmissibility would have prohibited DC visa issuance to anyone who has ever defaulted on a loan.

Judicial Review

As mentioned above, Congress has considered various means to limit even further what it considers to be judicial meddling in immigration matters.  In the eyes of many Members of Congress, current law[vi] has still not effectively stripped the courts of jurisdiction over immigration matters, so Congress is considering not only the defunding of the judiciary but also repeal of the Administrative Procedure Act, at least with regard to immigration matters, and some have even floated a Constitutional amendment.

Effective Date

 Legislators have written conflicting effective dates into the various DC visa bills, some preferring December 32, 2013, while others are advocating for a retroactive September 31, 2013.  Ordinarily, these kinds of discrepancies are left to the executive branch or the courts to resolve if Congress doesn’t come up with a fix itself.  With another government shutdown on the horizon and judicial review potentially eliminated, it remains up to Congress to clarify when the Beltway visa law, if in fact enacted, will take effect.

Conclusion

Comprehensive immigration reform, like health care, tax reform and a balanced budget, is hard work.  Tough decisions must be made, policies thought through, discussed civilly and resolved through compromises hammered out where both sides set partisanship aside.  Running into your room and locking your door – in essence what the House of Representatives did on the 2014 budget and continues to do on comprehensive immigration reform – does not produce effective solutions to complex problems.  Instead, it only invites ridicule.  We deserve better.

_______________

* Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City.  Angelo A. Paparelli is a partner in Seyfarth Shaw in New York and Los Angeles.  The authors thank Olivia M. Sanson, an associate at Satterlee Stephens Burke & Burke LLP for her assistance in the preparation of this article.

 

 

 

 

[i] By way of background, the EB-5 investor visa gives entrepreneurs the option to obtain permanent residence (the “green card”) in the United States if they make a substantial investment in a business that creates at least 10 full-time jobs for US workers.  That investment can be as little as $500,000 if the business is in a high unemployment area; otherwise the minimum investment is $1 million.  The program has gained tremendously in profile and popularity recently, in part because of lack of readily available credit from traditional sources, which has increased the demand for alternative sources of financing, and in part because the program’s insistence on job creation is politically attractive.  Even so, critics claim that the program is fraught with abuse and poor administration, and also claim the program favors wealthy foreign nationals and puts a price tag on US citizenship, a perception fostered, e.g., by online ads from immigration attorneys on “Buying a EB5 Green Card” (see. e.g., http://www.youtube.com/watch?v=cyJ_OcyYqZY, last accessed on October 14, 2013).    See Andrew Rafferty, “Money can’t buy love, but it can open the door to US citizenship,” U.S. News on NBCnews.com (April 28, 2013), http://usnews.nbcnews.com/_news/2013/04/28/17724530-money-cant-buy-love-but-it-can-open-the-door-to-us-citizenship (last accessed on October 14, 2013).

[ii] S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act , the bipartisan bill passed in June 2013.  For a detailed summary of the bill’s H-1B and L-1 provisions, see Austin T. Fragomen, Jr., “Immigration Reform and the H-1B and L-1 Categories,” 90 Interpreter Releases 1763 (Sep. 2, 2013).   See also Immigration Policy Center, American Immigration Council, “A Guide to S.744:  Understanding the 2013 Senate Immigration Bill,” at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill, for a summary of all of the bill’s provisions.  On October 2, 2013, Democrats in the House of Representatives introduced H.R.15, also entitled the Border Security, Economic Opportunity, and Immigration Modernization Act and based on the Senate bill – see Immigration Policy Center, American Immigration Council, “A Guide to H.R. 15,” at http://www.immigrationpolicy.org/special-reports/guide-hr-15-border-security-economic-opportunity-and-immigration-modernization-act (last accessed on October 14, 2013).

[iii] Under S.744, E-Verify, now a voluntary (and free) program that allows businesses to confirm employment eligibility online, would become mandatory for all employers over a five-year period.  See Immigration Policy Center, American Immigration Council, “A Guide to S.744:  Understanding the 2013 Senate Immigration Bill,” at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill,

[iv] 22 CFR § 62.14 requires that each exchange visitor have medical and accident insurance in effect throughout the entire visit.  The mandatory insurance must include coverage of medical benefits of at least $50,000 per accident or illness, repatriation of remains in the amount of $7,500; medical evacuation expenses of $10,000; and a deductible of no more than $500 per accident or illness.

[v] See, in general, 22 CFR §§ 62.1 – 62.17.

[vi] 8 USC § 1252 [Immigration and Nationality Act § 242], which, among other things, generally precludes judicial review of any denial of discretionary relief and of any removal order based on the commission of a criminal offense. 

entry montage.jpg[Blogger’s note:  Today’s post offers a shocking analysis of how the decision by Congress some ten years ago to combine the functions of U.S. Customs, Immigration and Agricultural inspectors into a single agency, U.S. Customs and Border Protection (CBP), has led to disastrous consequences for applicants seeking admission to the U.S. under our nation’s immigration laws.  Written by a senior DHS official, now retired, shows how the supremacy of Customs over Immigration has created an error-prone, inexperienced corps of immigration officers within CBP]

Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency

By Incognito

Once upon a time there was a government agency called the Immigration and Naturalization Service (INS), which many people hated.  INS critics called upon Congress to restructure the agency, thinking that all faults would go away if that happened.  Congress finally did a major restructuring, creating the Department of Homeland Security and abolishing INS.  A funny thing happened on the way to restructuring, as Congress did what Congress meant to do, and not exactly as the INS critics meant for Congress to do.

The INS inspections function transferred to the Office of Field Operations (OFO) in a new agency called U.S. Customs and Border Protection (CBP).  An unintended consequence was that the observed level of immigration expertise has dropped alarmingly in CBP’s new OFO.  How may this have happened?

With any merger, there must be a melding of corporate cultures.  Immigration inspectors had been part of the Department of Justice, Customs inspectors had been part of the Treasury Department, and Agriculture inspectors had been part of the Agriculture Department.  With the common goal envisioned by DHS, the expectation that within a relatively short period, perhaps 1 – 3 years but not more than 5 years, the several cultures would unite into one common purpose.

Relatively quickly, with political backing, agriculture inspectors reestablished themselves and their mission as being unique.  Their critical mission has thrived in the new agency, as better resources and inspection techniques have allowed this OFO/CBP component to better protect against invasive species.

On Day One, March 1, 2003, it was clear, however, that the former U.S. Customs Service had won the decades-old tension with INS over which agency’s culture and structure was better suited to take over the border inspections program.  Ninety per cent or more of OFO/CBP’s top managers came from Customs.  The expectation was that the Customs and Immigration missions would be performed adequately by the same officers.  Ten years later, this realistic expectation has not been met, as observed by immigration practitioners.

Consider this:

In the beginning, the attitude among legacy Customs people was that the reason there was DHS restructuring was because INS had admitted alien terrorists who had carried out the 9/11 atrocities.  As Congress had abolished INS as an agency, the perceived judgment was that all things Customs were good, and all things INS must be bad and not to be trusted.  Also, if INS had not let “those aliens” into the country, terroristic activities would not have happened.  The solution appeared obvious – just don’t let aliens into the country.  However, that simple answer didn’t work, given the hundreds of millions of visitors to the country each year.  Therefore, the new CBP culture fostered the idea of figuring out some reason, any reason, to not admit an alien.  This culture also fit the mind-set of the INS cowboys who had made up a sub-set of the INS inspections program.

There were a certain number of INS district, regional, and headquarters personnel who transferred to CBP.  The question became, what should be done with them?  After all, Customs had operated since 1789 without that resource.  In that way, former INS managers, who previously had managed port of entry operations, found themselves suddenly stripped of wide-ranging responsibilities and assigned duties of little importance.  Not fired, and not particularly valued, their presence was merely tolerated by the dominant culture of the new agency.  Although many (especially younger field supervisors) have survived the new culture, some transferred to other agencies, and more retired when that option became available.  CBP failed to stem the loss of that valuable immigration resource, with the predictable result that the quality of meaningful oversight of immigration decisions has lessened greatly.

Similar things happened to the attorney resource that transferred from INS to CBP.  The overwhelming perception from attorneys who transferred was that CBP’s Office of Chief Counsel (OCC) did not value them as attorneys knowledgeable about immigration issues, but merely as positions that could eventually be filled with the personnel that Customs wanted all along in those slots.  Part of that thought came from the reality that the journeyman grade for an INS attorney was GS-14, while journeymen Customs attorneys were only GS-13s.  OCC welcomed the higher graded positions, but not the incumbents.  Attrition worked its toll, through transfers and retirements, quickly resulting in diminished immigration expertise in OCC.  Not to worry though, because when responsibility for legal counsel on immigration inspections issues was transferred to OCC, OCC attorneys attended a two hour briefing.  Emerging from the briefing, OCC deemed themselves competent to advise on all immigration complexities.  Contributing to the problem, as GS-14 and -15 level former INS attorneys left CBP, they were not replaced with experienced OCC (government) attorneys, but with new kids just out of law school.  Bright people, but, nonetheless, new kids on the block having no experienced immigration attorneys to mentor them.

Are things better now?  At least one field office of Associate Chief Counsel, when presented with an immigration question, simply declines to answer but refers the issue to Headquarters OCC.  More than one former immigration attorney from the former INS/DOJ structure who transferred to the DHS structure has deplored the alarming lack of immigration competence in CBP’s OCC.  From this, a casual observer may conclude that if OCC ever had a goal of maintaining or developing immigration expertise, it has fallen short of realizing that goal.

Lack of knowledgeable oversight has made meaningful decision-making review more difficult.  In the old INS structure, the entire chain of command, from port of entry management, to the INS district, regional, and headquarters offices, consisted of career immigration officers.  The chain of command managers had the knowledge to discern weaknesses in cases when apparent ineligibilities had developed at lower levels.  With expertise gained through time had come the additional experience of making decisions involving discretionary authorities.  In the new CBP environment, top managers were most likely (90%) to have come from legacy Customs and had neither the experience nor the expertise to spot weaknesses in questionable immigration cases.  Also, with the old INS cowboys contributing their version of law and procedure, their attitude of “The only good alien is a refused alien” gained greater dominance.

Nor were the former Customs managers comfortable exercising discretionary authorities.  The Customs culture, dealing with goods and merchandise, had developed a “good or bad” mentality.  If something was good, or permitted, it was allowed entry.  If something was bad, it either was not permitted entry, or penalized in some way.  Therefore, the concept of detecting an inadmissible alien, but permitting that person to continue into the United States, was difficult to adjust to.  Much easier just to send the inadmissible alien home, rather than take a chance of having a discretionary decision questioned by that manager’s chain of command, or agonizing whether the person who had been allowed to travel may commit some further sin.

Contributing to the reluctance of offering discretion is the Customs culture of hanging officers out to dry for the slightest perceived infraction.  Over decades, this culture had trained the Customs chain of command to pass the buck when a decision was even slightly out of the ordinary.  Not having been trained to make discretionary decisions, and, in fact, having been trained to not make discretionary decisions, it is little wonder that exercising discretion was such a difficult concept to embrace.

Over the years, criticism of discretionary decisions is no longer limited to those from the chain above.  Line officers have made reports to internal affairs that supervisors are abusing discretion authority in favor of aliens thought to be inadmissible by line officers.  First and second line supervisors are now damned if they do and damned if they don’t, both by chain of command or internal affairs second guessing. 

Faced with diminishing immigration expertise in OFO/CBP, and with increasing negative publicity about poor decisions at ports of entry, former Commissioner Basham asked a Headquarters working group why “immigration” seemed to be such a dirty word.   The answer should have come easily from OFO/CBP’s top managers, many of whom had developed well-deserved reputations in Customs of having little regard for immigration issues and immigration personnel.  Although publicly articulating allegiance to the combined immigration and customs missions, their actions spoke loudly in exposing their prejudices against that “immigration” dirty word.  Is it any wonder then that line officers, trained observers as they are, pick up on the non-verbal clues noticed by Commissioner Basham when he asked why “immigration” seemed to be such a dirty word in OFO/CBP?  It takes a truly determined effort for any individual officer to develop immigration expertise on the officer’s own initiative when doing so takes the officer outside the dominant agency culture.

Note also how CBP has eliminated the term “immigration” whenever possible, largely replacing discussions of “immigration” issues with “admissibility” issues.  One “Day One” proposal was that the best use of officers historically assigned to immigration secondary would be to reassign that resource to more intensive baggage examinations.  There have even been top-level questions of whether OFO/CBP wasn’t now past using the term “immigration officer.”  Those questions eased only when reminded that Congress had chosen to keep the term “immigration officer” in the INA.  After all, if OFO/CBP had no one designated as immigration officers, who would make decisions about eligibility/ineligibilities under the INA?

Also note the mid-level field manager who recently commented, “I came from Customs, and I just don’t get this Immigration stuff.”  But now we’ve gone ten years down the road in the new agency, and managers still haven’t learned to properly apply Immigration issues.  If legacy Customs managers still haven’t learned, where is the fault – with the manager for refusing to learn about Immigration complexities, or for the agency for not providing training and holding managers responsible for faulty chain of command decisions on immigration issues?

The Customs culture is alive and well.  The Customs culture does not hold OFO top field managers responsible for poor decisions about immigration issues.  There is a cultural lack of emphasis on developing or retaining immigration expertise, in the officer corps, among OFO managers, and in OCC.  Poor decisions are supported by the attitude that OFO/CBP officers’ immigration decisions are considered, in the first instance, to be correct, in spite of the numerous examples, both publicized and not, of incorrect decision making.

CBP’ Office of Field Operations must correct its inadequacies.  Immigration practitioners can help by continuing to bring cases to OFO/CBP’s attention for correction and corrective training.  If these efforts fail, there may be opportunities for reform through judicial review.  Eventually, Congress may step in, again.

Stressed Man in a Suit.jpg[Bloggers Note:  The second of my two-part blog post below first appeared in Seyfarth Shaw LLP‘s September 10 and September 12 “Employment Law Lookout” Blog]

The L-1 Intracompany Transferee Visa Facing Attack — from All Branches of the Federal Government (Part II) 

By Angelo A. Paparelli

As noted in our last post, American businesses which offer U.S. secondments to their executives, managers and specialists from affiliated entities abroad must take proactive measures to address several ominous developments adversely affecting the tried-and-true L-1 work visa category for Intracompany Transferees.

Even if a U.S. company can’t tell an L-1 from an elbow, concern over this visa category is important if the business engages the services of third-party vendors and service providers whose personnel to be stationed at the customer’s worksite must rely — as is often the case — for employment authorization under the L-1 visa category.

As will be seen, L-1 troubles are brewing everywhere.

I.          U.S. Citizenship and Immigration Services (USCIS).  This component of the Department of Homeland Security (DHS) recently issued a policy memorandum (“Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)”), reaffirming that decisions which are not designated as precedent should only “apply existing law and policy to a unique factual record in an individual case,” and “[do] not create or modify agency guidance or practice.” Despite this policy, USCIS adjudicators continue to follow the reasoning of the 2008 GST case, which clearly articulated new, highly restrictive L-1B specialized-knowledge criteria and rejected an established and workable policy memorandum on visa eligibility for persons seeking L-1B classification. 

On the L-1A front, a visa category for foreign executives and managers, USCIS’s responses have been unpredictable and mostly problematic.  Some cases are approved without objection, typically if the company is large and hierarchical in its operational structure, while other cases (especially for managers in companies with flat organizational management) trigger the issuance of a burdensome and time-consuming requests for additional evidence which, after submission of more documentation, are far too often denied.  When cases are rejected, the denial typically states that “[a]n employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.” 

The agency’s rationale might be legitimate if it were based on regulations in force before enactment of the Immigration Act of 1990 (the 1990 Act).  Today, however, regulations issued in 1991 implementing the 1990 Act’s liberalized definition of L-1A “manager” by creating the function manager classification and embodying Congress’s intent to modernize the L-1A category to make it more flexible.  See Brazil Quality Stones v. Chertoff, accessible here.

Of particular significance, the pre-1990 Act regulations contained (but the 1991 regulations omitted) an express bar to L-1A visa eligibility for “an employee who primarily performs the tasks necessary to produce the product and/or to provide the service(s) of the organization.”  The only reasonable inference to be drawn from this intentional excision from the rule is that to qualify for an L-1A, persons who primarily manage functions need not be engaged in the management of people.  Rather, exercising responsibility for a critical function of the organization (which may involve “primarily perform[ing] the tasks necessary to produce the product and/or . . . provid[ing] the service(s) of the organization”) is nevertheless deserving of L-1A classification. 

Employer Takeaway: Employers seeking to establish L-1A function manager visa eligibility should therefore make sure their immigration counsel outline the relevant rulemaking history when submitting a function-manager petition.

II.        U.S. Department of State and Consular Officers.  In Fiscal Year 2012, U.S. consular officers issued 134,212 L-1 visas.  With the exception of American posts in India, consular officers have generally been quite willing to issue both individual L-1 visas, based on petitions pre-approved by USCIS, and blanket L-1A and L-1B visas for companies designated by USCIS as high-volume filers. American employers have reported, however,  that L-1 visa refusals by American consular posts in India have increased dramatically since 2006.  The concern over L-1 visa refusals in India, particularly under the L-1B category, is troubling because Indian citizens account for a material percentage of L-1 visas issued worldwide, as well as for such visas refused.   

As I learned from a visit last month with consular officials at the American Consulate in Chennai, the high L-1 refusal rate is attributable to several factors:

  • The time available for each L-1visa interview, ranging from 1.5 minutes to 6 or 7 minutes, and averaging 3 minutes,
  • The consular officers’ focus on the oral response of the visa applicants to questions posed about the individual’s prior employment history and proposed U.S. duties, as well as inquiries into how the prospective employer obtained the contract to provide services in the U.S. (a consideration of commodity work based on low price for which specialized skills are not needed versus unique, value-added services),
  • The absence of time for consular officers to read much, if any, of the documentation submitted by the petitioning employer to demonstrate L-1 visa eligibility,
  • Strict adherence to current State Department L-1 visa guidance, which relies upon the non-precedent GST case, and
  • The consular officer’s application of the “clearly approvable” standard for blanket L-1 visa issuance, which is seen as far higher than the “preponderance of the evidence” (more likely than not) standard of proof applied by USCIS.

 Employer Takeaway: Employers and customers of service providers who rely on access to L-1 workers should focus much more effort on preparing the visa applicant for the consular interview and perhaps less on supporting documentation which the consular officers may not have time to read, and which — according to one vice-consul with whom I spoke — include “cover letters [that] read like advertising materials.”

III.       The DHS Office of Inspector General (OIG).  At the request of Senator Chuck Grassley, the OIG last month issued a report, “Implementation of L-1 Visa Regulations,” which supplements a 2006 study, “Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program.”  The OIG’s 2013 report is based on information gleaned from statements of government officials and fails to interview external stakeholders in the business community.  The OIG found high potential for fraud and abuse in the L-1 visa program, but failed to investigate or assess the economic benefits to American employers and U.S. workers under the L-1 program.  Without offering a legal analysis, the OIG report sided with the AAO in its GST non-precedent decision, and offered numerous process recommendations to make L-1 visas harder to obtain and keep, including site visits both before and after L-1 petitions are approved — a step USCIS has agreed to initiate.

Employer Takeaway: As noted, employers should consider placing less reliance on documentation and much more on preparing individuals applying for L-1 visas at American consular posts in India for foreseeable questions officers are likely pose during the interview.  Employers and customers of service providers who rely on access to L-1 workers should prepare for unannounced USCIS visits to company worksites by the agency’s Directorate of Fraud Detection and National Security (FDNS) to verify the representations made on visa petitions and applications.

IV.       Congressional Proposals.  Congress is also assailing the L-1 visa.  S. 744, the massive comprehensive immigration reform bill that passed the Senate over the summer, includes (among other restrictions) an entire section on L-1 visa changes that are patently more restrictive, “Title IV, Subtitle C—L Visa Fraud And Abuse Protections,” as described in the Senate Judiciary Committee’s section-by-section analysis (starting at page 141).  These proposed restrictions include: 

Section 4301. Prohibition on Outplacement of L Nonimmigrants. 

Section 4302. L Employer petition requirements for employment at new offices. 

Section 4304. Limitation on Employment of L Nonimmigrants. 

Section 4305. Filing Fee for L Nonimmigrants. 

Section 4306. Investigation and Disposition of Complaints against L Nonimmigrant Employers. 

Section 4307. Penalties. 

Employer Takeaway:  Directly and through business associations and trade groups, Employers should reach out to their Congressional representatives to let them know that the changes proposed and the administrative agency interpretations now in force are hurting their business operations and must be reversed.

V.  Judicial Interpretations. The federal courts are also taking aim at the L-1 visa category, usually deferring to immigration-agency determinations and providing little relief in response to erroneous agency action.  A recent example is Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, which follows the GST case reasoning and defers to the presumed expertise of USCIS in immigration adjudication, even though that AAO decision, as shown above, is non-binding and contradicts prior established USCIS policy in the Puleo memorandum.

The district court in Fogo De Chao does not consider the Supreme Court’s immigration-law ruling in Judulang v. Holder, 132 S.Ct. 476 (2011), in which the Justices found arbitrary and capricious behavior by a tribunal (the Board of Immigration Appeals or “BIA”) in the government’s effort to remove a lawful permanent resident. The Court declined to follow the tribunal’s latest interpretation in part because the tribunal “has repeatedly vacillated in its method for applying” the law’s requirements. 132 S.Ct. at 488.  Speaking in terms that could apply equally to the USCIS’s current expression of its L-1B criteria, the Judulang decision found that the BIA had “repeatedly vacillated in its method for applying” a section of the Immigration and Nationality Act (INA), and therefore declined to defer to the BIA’s presumed expertise. 

Employer Takeaway: Employers who seek federal court review of erroneous L-1 decisions by USCIS should make sure their immigration counsel demonstrate to the court how USCIS has  “repeatedly vacillated in its method for applying” the eligibility criteria under the  INA’s L-1 definitions of executives, managers and persons with specialized knowledge, and urge as a result that court pay no deference to the agency’s changing L-1 determinations. 

* * *

Regrettably, the L-1 visa category is not the only employment-based benefit under attack by the three branches of the federal government.  Similarly arbitrary and capricious decisions are made every business day across the pantheon of nonimmigrant work visas and employment-based green cards.  Given these daunting challenges, employers and their internal counsel should reconsider the way they deal with their immigration-related business objectives.  Thus, if ever there is a time for improving the employer’s immigration portfolio management, it’s now.

angry man tearing paper.jpg[Bloggers Note:  My two-part blog post below first appeared in Seyfarth Shaw LLP‘s September 10 and September 12 “Employment Law Lookout” Blog]

The L-1 Intracompany Transferee Visa Facing Attack

— from All Branches of the Federal Government (Part I)  

By Angelo A. Paparelli

U.S. employers have likely grown accustomed to the longstanding controversy over the highly coveted  H-1B visa for workers in a “Specialty Occupation” — the nonimmigrant category whose annual quota for professional workers often is exhausted within a week of each year’s new allotment.  The H-1B controversy arose because of apocryphal or largely unproven allegations, fueled by media reports and some politicians, that employment of H-1B workers somehow undercuts job opportunities for American citizens and promotes the offshoring of jobs. As studies have shown, however, the H-1B actually creates job opportunities for citizen workers.

Many American employers, however, are less familiar with the comparable brouhaha now brewing over the L-1 or “Intracompany Transferee” visa.   The L-1 — a veritable Clydesdale of work visas — allows executives, managers and employees with specialized knowledge, gained at an overseas affiliate, subsidiary or parent, to enter the U.S. and work in a comparable capacity for a related company.

This two-part blog post will show why employers hoping to import L-1 workers must now be prepared to submit more thoroughly documented cases in the face stiff of opposition from government adjudicators, Congress and the federal courts, as this formerly flexible and useful visa category is assailed from all quarters.

New constraints on the L-1 visa category, as will be shown, stem primarily from two Senators (Chuck Grassley and Dick Durbin), a coterie of federal bureaucrats, immigration adjudicators, consular officers, and some federal judges who pay undue deference to the presumed expertise of the primary immigration agency, U.S. Citizenship and Immigration Services (USCIS).    

Introduction to the L-1 Visa Category and a Retracing of Recent History

Created in 1970, the L-1 visa was enacted to “help eliminate problems [then] faced by American companies having offices abroad in transferring key personnel freely within the organization’ in order to “meet the objective of American industry which has been seriously hampered in transferring personnel . . .” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. at 2753-54.

From 1970 to 2008, the L-1 visa worked well, pretty much as Congress intended, although start-up companies often encountered difficulty bringing foreign managers into the country (unless the new venture already employed two tiers of personnel — something start-ups rarely do). 

Congress tweaked and liberalized the L-1 in 1990.  It created a new “L-1A” subcategory that included a class of “function manager,” in addition to the two existing types of manager — (1) a manager of at least a double layer of subordinate personnel, and (2) a first-line supervisor of “professionals” (individuals who held at least a relevant bachelor’s degree or the equivalent in the relevant field). Congress also said that government adjudicators, when considering whether staffing functions are relevant in determining whether a candidate qualifies as an L-1A manager, must consider “the reasonable needs of the organization, component, or function in light of [its or their] overall purpose and stage of development.  Lastly, Congress specified two new alternative definitions of specialized knowledge under the “L-1B” subcategory.

The immigration agency at the time, Immigration and Naturalization Service (INS), provided regulations in 1990 acknowledging that Congress had adopted the new function manger classification and broadened the basis for  “specialized-knowledge” eligibility.  It also later offered two policy memoranda that liberally interpreted specialized knowledge and provided several real-world examples to demonstrate the concept.  The more detailed of the two L-1B  policy memoranda, issued by an INS administrator named James Puleo, thus became the “Puleo memorandum” and it stood unquestioned as agency policy (likewise followed by the Department of State) for several years.

With the INS regulations and the Puleo memorandum as guideposts, adjudicators generally approved well-documented L-1A and L-1B  visas with consistency and predictability, as long as managers “primarily” managed subordinates or functions (meaning that they spent abroad and would spend in the U.S. over half the time in management activities as defined under the INS regulations), and specialized-knowledge candidates satisfied one or the other of the liberal Puleo standards.  And employers mostly said, “It is good.”

But then, out of the blue, the successor to INS, USCIS, through its Administrative Appeals Office (AAO), issued a “non-precedent” decision in 2008 that came to be dubbed the “GST” case.  GST essentially repudiated the Puleo memorandum on L-1B specialized knowledge without any change in law or regulations.

In addition, gradually over many years, before and especially since 2008, the L-1A also faced attack.  Despite the new “function manager” classification Congress created in 1990, USCIS adjudicators tended to insist that a function manager could not “primarily” manager the function, unless he or she supervised subordinates. Otherwise, the individual would be seen as performing the function rather than managing it, and be found ineligible for an L-1A.  This interpretation essentially eradicated the 1990 changes Congress made to liberalize L-1A manager eligibility.

These new constraints on L-1 visa eligibility came not from USCIS headquarters or newly published regulations signaling a change in agency interpretation, but from front-line case officers at agency’s Regional Service Centers, and then were blessed by the AAO in the supposedly non-binding GST L-1B case and in similarly restrictive AAO nonprecedent decisions interpreting the L-1A function manager category.

As Part II (appearing in two days) will show, this bottoms-up movement from within USCIS gradually has taken on the trappings of black letter law, and been copied and adopted by the U.S. Department of State’s Visa Office (which inexplicably reversed its earlier liberal interpretation),  U.S. consular officers at embassies and consulates abroad, and the Department of Homeland Security’s Office of Inspector General. Even more troubling, the Senate and the House have proposed new constraints on the L-1 visa. If enacted, these proposals will add an obligation to pay an artificially inflated prevailing wage, encourage L-1 investigations and worksite visits, and allow the filing of civil claims against employers of L-1A while drastically restricting multinational consulting and sourcing firms from using the visa category.  Part II will also suggest measures employers can pursue to continue using the L-1 to achieve their domestic and glob al business objectives. Stay tuned.  

coming back to life.jpg[Blogger’s Note:  Today’s post comes from the prodigious and talented Careen Shannon,  a frequest guest blogger and blogger in her own right, who is Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. Careen Shannon . I’ve covered similar terrain before with my co-author, Ted Chiappari: “Republicans’ Mexican-American Presidential Candidate:  Mitt Romney?.” See also, Chiappari and Paparelli, “Natural-Born Citizenship – McCain OK for Presidency?”, New York Law Journal (Aug. 22, 2008) and Chiappari and Paparelli, “President-Elect Obama, Dual Citizenship and the Constitution,” New York Law Journal (Dec. 30, 2008).  It seems every presidential election cycle the topic comes back to life.] 

Stop the Birther Nonsense Now 

by Careen Shannon

There has been altogether too much attention paid in the press lately to the question of Ted Cruz’s citizenship. This is all the more surprising since there is not really much of a left wing counterpart to the anti-Obama birther movement, apart from some fringe-worthy online commentary by people in no position to make a judgment on what is essentially a question of law. But headlines of the type that have appeared here, and here, and even here—not to mention speculation by the likes of noted constitutional scholar Donald Trump—risk fueling an embarrassing lefty birther movement that would be destructive, distracting and completely beside the point. I don’t know Ted Cruz. Ted Cruz is not a friend of mine. And were he to secure the Republican presidential nomination, there is no amount of money you could pay me to vote for him. But the fact that Ted Cruz was born in Canada does not render him ineligible to be President. So please, let’s nip this in the bud before it gets out of control. Seriously, we all have more important things to do. 

The U.S. Constitution provides that only a “natural born” citizen is eligible to be President of the United States. Ted Cruz, who was born in Canada in 1970 while his parents—his mother, a U.S. citizen who was born in Delaware, and his father, a native of Cuba who at that time was not yet a U.S. citizen—were living and working in Calgary, was presumably a U.S. citizen at birth. I say “presumably” because at the time he was born, a baby born abroad to a U.S. citizen mother only acquired U.S. citizenship at birth if the mother was physically present in the United States for at least ten years before the child’s birth, at least five of which were after the mother was age 14 or older. I do not know the facts about his mother’s prior residence in the United States, but assume that she fulfilled these residence requirements or Cruz would be smart enough never to indicate a desire to run for President and potentially raise the issue of whether he is a U.S. citizen at all. 

Assuming that Cruz acquired U.S. citizenship at birth, there is no reason to believe that he is not a natural born citizen eligible to be President. The United States recognizes two forms of birthright citizenship: jus soli (Latin for “right of the land”), meaning citizenship by right conferred on anyone born on U.S. soil, and jus sanguinis (“right of the blood”), or citizenship by descent, i.e., by virtue of the U.S. citizenship of one’s mother or father, regardless of one’s place of birth. While opinion is not unanimous—and the Supreme Court has never definitively ruled on what constitutes a natural born citizen—the consensus among legal scholars is that a natural born citizen need not have been born on U.S. soil, but that the term should be understood more broadly to mean being a citizen at birth. The non-partisan Congressional Research Service agrees. On the other hand, it seems clear that a person who acquired U.S. citizenship through naturalization is not a natural born citizen and would therefore not be eligible to be President. 

Because Canada also recognizes both jus soli and jus sanguinis citizenship, Cruz acquired Canadian citizenship at birth by virtue of his birth on Canadian soil. Politically, it makes sense for him to renounce his Canadian citizenship—many Americans would probably be uncomfortable with a President who might potentially also owe allegiance to another sovereign nation—but as a matter of law it really should not matter one way or the other. As a practical matter, our increasingly mobile and multicultural society means that many Americans have two or even three citizenships, and this will become even more widespread in the future. (For example, is it possible that Cruz is also a Cuban citizen? I’ll leave it to experts on Cuban nationality law to express an opinion on that topic. Or not. Why don’t we just leave this alone?) 

To the extent that Cruz’s dual citizenship has become a topic of conversation at all, it does provide a delightful moment of schadenfreude to the left after years of right wing birther nonsense about President Obama, who after all was born in the United States and was therefore a U.S. citizen at birth, end of story. (See the Fourteenth Amendment.) The closer call was always John McCain, who due to an odd gap in the law was actually not a U.S. citizen at birth, but acquired U.S. citizenship retroactively thanks to Congressional action granting citizenship to certain children born of U.S. citizen parents in the unincorporated Panama Canal Zone before it was an official U.S. territory. I actually think this was part of the genesis of the birther movement against Obama: it was a deliberate attempt to deflect attention from McCain’s potential ineligibility for the presidency by pointing to the black guy with the Muslim middle name and the Kenyan father. 

Assuming that Ted Cruz officially announces his intention to run for President, his own crazy political antics should guarantee that his candidacy dies a natural death. We don’t need a birther movement to ensure that there is no President Cruz in our future, and directing any further focus on this red herring simply encourages the crazies and deflects attention from the real issues.  Can we please move on? 

Sleazy Notario.jpg[Blogger’s note:  Today’s post is authored jointly by Angelo A. Paparelli and Ted J. Chiappari with editorial assistance from Olivia Sanson. It is reprinted with permission from the August 28, 2013 edition of the New York Law Journal. © 2013 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. The authors thank the Journal for permission to reprint this article.]

The prospects seem better than ever that Congress may soon transform our nation’s immigration laws.  The Senate has passed a massive bill, S. 744, that (among many other measures) creates a Registered Provisional Immigrant status allowing the roughly 11 million undocumented foreign citizens in the U.S. to obtain work permits and travel documents as they meander along on a snails-pace trek to citizenship.  Eschewing the Senate’s 13-year path to citizenship, the House, now in recess, is divided against itself.  Some representatives would opt for the Senate’s formulation.  Others want a 15-year path.  Still others want no path, no way.

Regardless of what happens in Congress,  11 million people at some point will still seek legal recourse to come out of the shadows.  As fictional TV and movie character, Richard Kimble, might have said, “It’s hard out here for a fugitive.”

Unfortunately, most undocumented immigrants are not sophisticated purchasers of legal services.  Their lack of sophistication, and, for many, their lack of English fluency, make them especially vulnerable given that they need help with immigration law, a practice area whose “labyrinthine character,” its fundamental “inscrutability” — attributable to a “maze of hyper-technical statutes and regulations that engender waste, delay and confusion for the government and petitioners alike” — causes even seasoned immigration lawyers to cry out in frustration and rage.[1]

Every  immigration lawyer worth the title has seen innumerable human tragedies unfold in their offices as victimized clients, lacking in nuance and easily gulled, tell stories and show documents revealing how their lives have been destroyed by unscrupulous providers of immigration services who prepared or presented false or clearly undeserving requests for legal status. 

To be sure, the usual suspects include a comparatively small segment of the immigration bar, who by “virtue” of lack of competence or scruples, eagerly separate the unsuspecting undocumented from their money.[2]  But the far larger problem stems from self-styled immigration consultants and “notarios” who piggy back on the formal office of notario publico which exists in many Latin American countries and promise unattainable immigration miracles, as U.S. Citizenship and Immigration Services (USCIS) explains:

In many Latin American countries, the term “notario publico” (for “notary public”) stands for something very different than what it means in the United States. In many Spanish-speaking nations, “notarios” are powerful attorneys with special legal credentials. In the U.S., however, [notaries public] are people appointed by state governments to witness the signing of important documents and administer oaths. “Notarios publico” are not authorized to provide you with any legal services related to immigration.

Resource pages from USCIS’s website offer “tools to help . . . avoid scammers” and  describe in clinical terms what can go awry, “because the Wrong Help Can Hurt.”  The agency warns that “going to the wrong place can: [d]elay your application or petition; [c]ost you unnecessary fees; [and][p]ossibly lead to removal proceedings.”[3]

The challenge, however,  for federal and state governments attempting to regulate providers of immigration services goes far beyond the many under-the-radar notarios and consultants who close in one location as soon as governmental heat approaches only to reopen elsewhere.  

Websites, created at seemingly modest cost, offer to prepare “earned legalization” applications even though no federal law yet exists which provides any legal basis for this putative immigration benefit.[4]  In addition, commercial services have recently sprung up, modeled after software companies like LegalZoom and TurboTax, which promise to automate the completion of immigration forms and help individuals apply directly for immigration benefits.[5]

Numerous cases and opinions from immigration agencies have held, however, that the selection of an immigration form requires legal judgment and therefore involves the practice of law.[6]  Only limited exceptions allow non-attorneys to prepare forms and represent parties before federal immigration agencies.  The Board of Immigration Appeals (BIA) is authorized to certify “accredited representatives” employed by any “non-profit religious, charitable, social service, or similar organization established in the United States” so long as the organization “makes only nominal charges and assesses no excessive membership dues for persons given assistance” and “has at its disposal adequate knowledge, information and experience.”[7]  Accredited representatives must be persons of good moral character with proven “experience and knowledge of immigration and naturalization law.”[8]

Legal Weapons

Prosecutions for the unauthorized practice of immigration law occur irregularly among the states.  Texas and Florida have been particularly vigilant in securing injunctions proscribing the activities of nonlawyer individuals and entities engaged in immigration consulting.  Aside from a 1939 case finding no unauthorized practice of immigration law on its particular facts, and three bar disciplinary actions involving lawyers engaged by immigration consultants, New York has apparently shown little inclination to prosecute the delivery of immigration-related  legal services by unlicensed persons.[9]

In any event, relying solely on unauthorized-practice statutes is an inadequate prosecutorial response.  Garden variety cases of fraud upon immigrants also routinely involve violations of civil laws penalizing the preparation of falsely made documents,[10] and deceptive trade practices,[11] as well as transgressions of criminal statutes punishing perjury, immigration fraud, theft, mail fraud, wire fraud, conspiracy and a host of predicate state or federal offenses under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961-68).  A variety of available legal resources make pursuing scammers of immigrants cost effective.[12]  Moreover, if government prosecutors are ill equipped or resourced to take on the challenge alone, then perhaps another avenue is available under the federal false claims (qui tam) statute.[13]  This law allows private lawyers, known technically as relators but popularly as bounty hunters, to file suit on behalf of the United States for fraud or false statement in connection with federal programs and earn legal fees, expenses and a percentage of civil fines and damages recovered in a successful prosecution.[14]  The statute targets any individual or entity that “knowingly presents, or causes to be presented, a false or fraudulent claim for  . . . approval.”  The term, “claim” is defined to include “any request or demand, whether under a contract or otherwise, for . . . property.”  It would take little stretch of zealous advocacy for a relator to persuade a federal court that a petition or application prepared by an immigration notario requesting the grant of an immigration benefit (such as legal status, a visa or green card) is a “claim” for a form of intangible right of “property.”

Action Needed Now

In any case, whether initiated by government prosecutors or private attorneys general, action must be taken soon.  With the possibly imminent enactment of comprehensive immigration reforms allowing legal status for the undocumented, state and federal prosecutors and private relators must prepare now to bring to justice unlicensed, incompetent, unscrupulous or malevolent immigration service providers. 

The readily avoidable harm to vulnerable aspiring immigrants that prompt prosecutions would prevent is inestimable. The potential benefits to our country and our justice system by the grant of immigration status and benefits solely to deserving recipients is likewise incalculable.  Prosecutors, aim your weapons.

——–

*Angelo A. Paparelli is a partner at Seyfarth Shaw in New York and Los Angeles. Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke in New York City. The authors thank Olivia M. Sanson, an associate at Satterlee Stephens Burke & Burke LLP, for her assistance in the preparation of this article.

 

[1] The quoted phrases are from the Third Circuit in Drax v. Reno 338 F. 3d 98, 99-100 (2d Cir. 2003), a case which “spawned years of litigation, generated two separate opinions by the district court, and consumed significant resources of the [Circuit Court].”  Immigration’s mind-tormenting complexity has even generated a “secret” Facebook group, “Cool Immigration Lawyers,” which styles itself as a “meeting place for . . . attorneys who think it is awesome to help people and to insist on justice for everyone,” but whose private posts often resemble the lamentations of an especially despondent 12-step group.

[2] See, e.g., April 2, 2012 press release, U.S. Attorney for the Southern District of New York, “Ringleader of Massive Immigration Fraud Mill Pleads Guilty In Manhattan Federal Court,” reporting on the successful criminal prosecution of attorney, Earl Seth David, accessible at: www.justice.gov/usao/nys/pressreleases/April12/davidearlplea.html.

[3] USCIS resources offering tips to avoid unscrupulous immigration providers can be accessed at http://1.usa.gov/iZiStr (all links active as of Aug. 20, 2013).  Similarly, see www.StopNotarioFraud.org, a website produced and maintained by the American Immigration Lawyers Association, and the Fight Notario Fraud project of the American Bar Association’s Commission on Immigration, accessible at:  http://bit.ly/JXqeMd.

[4] For one such provider, see the website of  Rapid Immigration Assistance Ltd (dba RIA International Limited), accessible at: www.riaint.com.

[5] See, e.g., Clearpath, Inc. (www.clearpathimmigration.com) and VisaEase, Inc. (www.visaease.com). 

[6] See, e.g., Unauthorized Practice Committee, State Bar of Texas v. Cortez, 692 S.W.2d 47 (Tex. 1985); Florida Bar v. Moreno-Santana, 322 So. 2d 13, 15 (Fla. 1975); Franklin v. Chavis, 640 S.E.2d 873 (S.C. 2007);  Oregon State Bar v. Ortiz, 77 Or App 532, 713 P2d 1068 (1986); Opinion of the General Counsel,  Immigration and Naturalization Service (INS), Genco opinion 93-25, CO 292.2 April 20, 1993, AILA InfoNet Doc. No. 93042090; Memorandum from Doris M. Meissner, INS Commissioner, to all INS offices, Practice of Law by Unlicensed “Immigration ‘Brokers’,” File No. HQ 292-P (Jan. 18, 1995), reported on and reproduced in 72 Interpreter Releases 529, 538 (Apr. 17, 1995).  

[7] 8 CFR §§ 292.2(a) and  1292.2(a).

[8] 8 CFR §§ 292.2(d) and  1292.1(a)(4).  Limited exceptions also exist in companion sections of the cited regulations for certain reputable individuals with a preexisting relationship to the foreign applicant or respondent and law students under supervision. In addition, a broad and ill-advised exception allows non-attorney agents of employers or foreign beneficiaries to file applications for labor certification — a predicate step to obtaining employment-based immigration benefits — with the U.S. Department of Labor.  See 20 CFR § 656.10(b).  Moreover, California, alone among the states, allows “immigration consultants” to prepare forms on behalf of immigration petitioners and applicants under limited and regulated circumstances.  See Calif. Bus. & Prof Code §22440-22447.

[9] See, Careen Shannon, Regulating Immigration Legal Service Provider: Inadequate Representation and Notario Fraud, 78 Fordham L. Rev. 577 (2009)(available at: http://ir.lawnet.fordham.edu/flr/vol78/iss2/6).

[10] See Immigration and Nationality Act § 274C, 8 U.S.C. § 1324c  (“Penalties for Document Fraud”).

[11] See, e.g., N.Y. GBS. LAW § 349 : NY Code – Section 349 (“Deceptive acts and practices unlawful”), and Texas Deceptive Trade Practices – Consumer Protection Act, TEX. BUS. &COMM. CODE § 17.41 et seq. A sample complaint under this Texas statute can be accessed at: https://www.oag.state.tx.us/newspubs/releases/2005/020905ramirez.pdf

[12] See Lilia S. Velasquez, “Quick and Dirty Guide to the Unauthorized Practice of Law,” 20th Annual California Chapters Handbook 11 (AILA 2007); Jason Abrams and Thomas E. Fulghum, “Battling Against Notarios: Waging War against the Unlicensed, Unqualified, and Incompetent,” Immigration & Nationality Law Handbook 123 (2009-10 ed.); Barbara K. Strickland, “Combating the Unauthorized Practice of Law in Immigration Law: The Impossible Dream?,” Immigration Practice Pointers 79 (2010-11 ed.); Deborah J. Notkin, “Combating the Unauthorized Practice of Law,” 24 AILA’s Immigration Law Today 6 (Nov./Dec. 2005), Katherine Brady, “Immigration Consultant Fraud: Laws and Resources,” Immigrant Legal Resource Center (March 2000)(accessible at: www.ilrc.org/files/district_attorney_manual.pdf).

[13] 31 U.S.C. § 3729–3733.

[14] For background on the qui tam statute, see generally David Freeman Engstrom, “Harnessing the Private Attorney General: Evidence From Qui Tam Litigation,” Columbia Law Review, Vol. 112:1244 (2012), available here: http://www.columbialawreview.org/harnessing-the-private-attorney-general/.

tusks.jpgLast Friday the Republican National Committee (RNC) passed a resolution opposing a path to citizenship for the 11 million people living among us without immigration status. Viewing these individuals as gate-crashers or overstayers, the resolution claimed that a majority of Americans “oppose any form of amnesty that would propose a pathway to citizenship for illegal aliens.” Inexplicably, however, the RNC nonetheless offered this amnesty-lite proposal:

RESOLVED, that the Republican National Committee calls upon the President and Congress to create a new work permit program that will allow foreign nationals who are currently in the country and have not violated any other laws of the U.S. to come forward and register and be allowed to remain and work in the U.S. The work permit will not result in application for citizenship nor any family members entering the U.S. and will require renewal every two years upon proof of continuous employment with no more than two (2) months per two (2) year period unemployed or convicted of a crime.

The resolution provides no explanation for this change of tune.  Rather than espousing the usual shibboleth that immigration amnesty would reward those who flouted the “rule of law” in the U.S., the RNC posits this puzzling twist:

Americans recognize that for many of those seeking entry in our country, the lack of respect for the rule of law in their country of origin has meant economic exploitation and political oppression.

Does this newfound RNC solicitude for the “rule of law in their country of origin” suggest a contorted rationale for amnesty-lite?  The RNC seemingly implies that since these “illegal aliens” (their phrase, not mine) are victims of economic exploitation and political oppression, caused by a lack of respect for the rule of law in their homelands, American immigration law should be amended to go just a tad easier on them here.  It’s hard to know for sure, because the resolution doesn’t explain the change of heart.

Also befuddling and unexplained is the resolution’s support for a “merit system utilizing the newest technology that focuses on the needs of United States employers and matches the economic and cultural attributes that each immigrant possesses to those needs.”  Since when do Republicans give a hoot about matching the “cultural attributes” of would-be immigrants and foreign temporary workers to the needs of American employers?  There’s a dog whistle in there somewhere, but it’s hard to discern.  Are “cultural attributes” a code for “English-only” speakers from abroad?  Again, it’s anyone’s guess.

One thing is clear, however, and that’s self-deportation or “attrition through enforcement” — the immigration policy of the GOP’s last presidential nominee — is now officially viewed, at least by RNC Chairman, Reince Priebus, as “a horrific comment to make” and “not something that has anything to do with our party.”

So, in sum, the RNC’s policy seems to be that:

  • Two-year renewable (but non-amnesty) work permits should be granted to “illegal aliens” who broke our immigration laws because they are victims of lawbreaking abroad that led to their economic exploitation and political oppression (but only so long as they stay mostly employed and otherwise remain crime-free);
  • Legal immigration that matches the economic traits of qualified foreign workers and the needs of U.S. employers should be expanded, especially if the workers’ “cultural attributes” are similarly aligned; and
  • Self-deportation is horrific and should not be supported as policy by red-blooded Republicans. 

Is this kind of petard-hoisting an illustration of Bobby Jindal’s allusion to the “party of stupid” or is it Chris Christie’s “focus on winning again”?  Whatever the underlying rationale for the RNC’s muddled messaging, the Republican Party needs to develop a more appetizing and inviting policy, for even a majority of its traditional stalwarts, senior citizens, believes it’s too extreme on immigration.

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[Blogger’s note:  Today’s post is by guest columnist, John Klow.  John is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection.  In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry.  

Spoiler alert:  The government holds all the cards — another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws.]

Immigration Mystery Revealed:  The Occult Process behind Nonimmigrant Visa Waivers

By John B. Klow

 

Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, processing of consular nonimmigrant waivers seemed to be pretty straight forward.

Applicants submitted their nonimmigrant visa applications at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver.  The process was transparent, but decisions could take frustratingly long times — often months, sometimes stretching to a year or more.  Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas.  Also, with this sort of decentralized decision-making, there was at least a perception of inconsistency of adjudications.

With the creation of the Department of Homeland Security on March 1, 2003, changes came.  U.S. Customs and Border Protection (CBP) decided to keep the nonimmigrant waiver decision-making process within the inspections program as it had rested in the INS days.  The reasoning was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination.  Since the immigration inspection program transferred to CBP, so also did nonimmigrant waiver decision-making authority.

CBP established a single office to decide all nonimmigrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA.  Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making.

For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS).  ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD.  For security reasons, there is no provision for outside parties to be part of the ARIS communication process.

The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.

What gets referred to the ARO?

Only a favorable recommendation from the consular officer gets consideration by the ARO Director.  Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility.  In reality, this means that only a favorable recommendation gets consideration for approval.  Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval.  (See, 9 FAM 40.301 N6.1 (b))

What gets forwarded with a favorable consular recommendation?

One of the frustrations expressed by immigration lawyers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration.  This is not an imaginary problem.  Briefs, and other documentation, must be scanned by the consular post into the CCD.  Scanning is labor-intensive, and utilizes valuable consular resource.  9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen.  ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs.  Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.

Will the ARO approval be a blanket authorization for travel?

The INA requires that conditions be attached to each approval:  “The Attorney General shall prescribe conditions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.”  (INA 212(d)(3)(A).)  The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.

When is the consular recommendation forwarded?

Each post will have its own review process, before the case is finalized and forwarded to the ARO.  A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO.  Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post.  Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.

Are there other delays?

9 FAM 40.301 N 6.2 describes other situations when a consular post may (or must) refer the case to the Visa Office for review.  Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.

How can a visa applicant receive expedited action from the ARO?

The FAM advises that ARO decisions may take as long as 120 days.  The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times.  The FAM also advises that Expedited Action may be requested in truly meritorious cases.  (9 FAM 40.301 N7 a.)

Can an immigration lawyer communicate directly with the ARO?

Another expressed frustration is the lack of a direct communication channel with the ARO.  This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the consular officer.  It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO Director, and the only communication about that recommendation is between the ARO staff and the consular officer.  Any attempt to communicate directly with the ARO Director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD.  Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.

Who makes the final decision?

Although the ARO Director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa.  The ARO Director may authorize visa issuance, but the final decision rests with the consular officer and the Secretary of State.

Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation?

Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied.  Both the State Department and CBP are reluctant to disclose the ARO Director’s exact reasoning, even though FOIA requests.  The simple truth is that the ARO Director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

magician with cards.jpgMay a consular officer’s decision to not make a favorable recommendation be appealed?

Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular officer refer the case to the Visa Office for an advisory opinion if a consular officer declines or refuses to make a favorable recommendation to the ARO.  (9 FAM 40.301 N6.2 a.)  After review, the Visa Office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied.  The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval.  Alternatively, the Visa Office may decide to make a direct recommendation for approval to the ARO Director.

What about an appeal of the ARO Director’s decision?

No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.”  8 CFR 212.4(a)(1), final sentence.  The question is – by what means could the NIV applicant appeal the denial of a consular officer’s recommendation to the ARO Director?  There has been no direct application submitted by the applicant to the ARO Director.  The only issue considered by the ARO Director is the consular officer’s recommendation.  The consular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.

* * *

As can be seen, much about the mechanics of a nonimmigrant visa waiver is shrouded from the visa applicant and legal counsel.  Hopefully, this blog post has added some transparency to a process seemingly cloaked in mystery.