Cabinet_of_Dr_Caligari_1920_Lobby_Card.jpgOne of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for “future flows” of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.

The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.  

Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a “Joint Statement of Shared Principles,” offering seeming harmony on future flows in these words:

[There] are instances – even during tough economic times – when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . . 

[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today’s technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.

The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS’s current mission already seems to align nicely with the task of gathering relevant job-shortage data:

The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.

The problems with the concept, however, are many.

For one, we tried this before and it went nowhere.  In 1990 Congress commissioned DOL to set up a three-year experiment requiring a “determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . .” [See the Immigration Act of 1990 § 122(a).]  

When the Labor Department proposed its initial list, however, all hell broke out.  Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified.  Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:

No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .

Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.

 

Instead, as I’ve noted in previous blog posts and explained to National Public Radio’s Martin Kaske on Morning Edition this week, employers must carry the burden of recruitment under an artificial labor certification program (DOL’s mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers) that is an “empty ritual”:

PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they’ve been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can’t find qualified workers. The result, he says, is pointless job interviews.

Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. (“Don”) Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:

[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.

I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled.  I offer, however, some friendly amendments.  

U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs.  A simple print-out of the screen shot from the government’s forthcoming database showing the lack of workers in the occupational classification should be all that’s needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition.  Thus, DOL’s current PERM labor certification procedure could be eliminated.

Moreover, there should be no change in current H-1B requirements  relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas.  As I explained to NPR’s Martin Kaste:

These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can’t work.

So let us now face the question posed in the title of this post:  

Will the new labor-business accord produce an immigration death panel?  The answer is “NO”  — as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.  

But an economy-killing immigration death panel it will assuredly be — a veritable Dr. Caligari’s cabinet — if instead a “bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues.”

Dancing Cat[Blogger’s Note:  Prolific and always astute Karin Wolman, lawyer extraordinaire in immigration matters involving artists, entertainers and others of superlative talent, once again offers a thoughtful and thought-provoking assessment (“with welcome edits by Stacey A. Simon“) of the clash of the creatives with the hard realities of modern-day immigration law and practice.  Grimace and enjoy.]

The Extraordinary Immigration Tango:

One Step Forward, Two Steps Back

By Karin Wolman

There is a strange dance of duality going on in immigration law and policy, where all sides insist that the U.S. welcomes the world’s best and brightest talent, despite plenty of evidence to the contrary. The President recently acknowledged the need for reform in his State of the Union address, when he said, “real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.”

The Director of U.S. Citizenship and Immigration Services (USCIS0 Director Alejandro Mayorkas issued a public message in 2012 which began:

Throughout the past year, USCIS has placed significant focus on advancing one of our immigration system’s foundational goals: promoting America’s economic prosperity. On numerous occasions, we gathered feedback on how to best maximize the potential of current immigration law to create jobs for U.S. workers, and this feedback greatly informed our actions. As a result, we have made significant progress in a number of areas of interest to stakeholders related to employment-based and high-skilled immigration.

This charm offensive is at odds with what immigration practitioners and US employers experience every day with respect to how their petitions are treated. The culture of “No” continues, especially for persons of extraordinary ability, where examiners grasp at straws or fabricate any excuse to deny or dismiss entire categories of evidence presented, or summarily deem them without merit.

USCIS periodically releases employer bulletins, policy memoranda, Request for Evidence (“RFE”) templates, and updates to the Adjudicator’s Field Manual. These “clarifications” of the adjudication standards are typically already in use when published in draft form, making the comment period something of a charade. The problem with implementing draft RFE templates and interim rules is that they often include novel requirements or try to resurrect requirements that the Service has unsuccessfully attempted to implement in the past, which are wholly unsupported by the law – in addition to offering guidance that may mislead examiners or prompt them to apply incorrect standards. Sadly, this has happened again with the recent publication of proposed draft Request for Evidence (“RFE”) Templates in the O-1 and O-2 visa categories, posted by USCIS for public comment from January 22 – February 5, 2013, but plainly in use by adjudicators already.

The American Immigration Lawyers Association has already published formal comments to the recent proposed RFE templates, so I offer here a few examples from these templates that are, at best, misleading to adjudicators, and at worst, just plain wrong:

  • In the RFE template for O-1A aliens of extraordinary ability in sciences, education, business or athletics, the section challenging awards or prizes of lesser national or international significance [one of their eight criteria under 8 CFR 214.2(o)(3)(B)(i)] quotes and distinguishes this standard from the higher standard allowing evidence of a one-time major, internally recognized award [at 8 CFR 214.2(o)(3)(A)], but by using the identical language, it tempts hasty examiners to misapply the higher standard for a one-time award and to improperly dismiss as irrelevant or insufficient any professional awards or prizes that are not “a major, internationally recognized award.”
  • The RFE templates for O1A cases in sciences, education, business or athletics, for O-1B arts cases, for O-1B film and television cases, and both RFE templates for O-2 support personnel, all include, under a section relating to peer advisory consultations, the mistaken assertion that a consultation must state “whether the petition requires the services of an alien of extraordinary ability.” Such a requirement was acknowledged by Legacy INS as unsupported by law nearly two decades ago, in the preamble to the final O & P regulations, which noted: “After careful consideration, the [Immigration and Naturalization] Service [the legacy immigration agency preceding USCIS] agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from this final rule.” See 59 Fed.Reg.156, pp.41818, 41820 (Aug. 15, 1994).  Even if there were such a requirement for O-1 aliens, it would never apply to O-2 support aliens, who are not required to possess extraordinary ability in their own right, but must show the essentiality of their services to the O-1 principal alien.
  • Under quite a few regulatory criteria, the proposed RFE templates give an adjudicator the option to state, “You did not submit evidence for this requirement. You may still submit evidence to satisfy this requirement.” Sadly, this language encourages time-pressed adjudicators to overlook or ignore evidence and then simply claim that it was not included in the petition. It is now a frequent occurrence for an RFE to state that evidence in support of a specific criterion was not submitted, when it was in fact included in the initial presentation, was itemized in an exhibit list, was referred to or quoted in the petitioner’s supporting letter, and its relevance to one or more regulatory criteria was explained in the attorney’s cover letter.
  • In their defense, USCIS adjudicators are given very little time to review each petition (only 10 to 15 minutes per case, by some accounts). They are under considerable pressure to meet production goals, they do not control mailroom contractors who may discard exhibit lists and cover sheets, and they undergo no supervisory review when formulating and sending out Requests for Evidence.
  • However, it seems they face no adverse consequences at all for claiming that evidence wasn’t there when it was. Due to erroneous claims of this kind, petitioners face unnecessary delays and attorneys have to duplicate their work, re-explaining previously-submitted evidence. The examining officers themselves have to spend much more time reviewing the response to an RFE than they would have had to spend reading the initial petition carefully and approving it the first time around. To fix this, USCIS could allot adjudicators a bit more time to review each case, remove incentives to generate RFEs, and require supervisors to review draft RFEs before they are sent out. The mass-production model currently in place does not lead to accuracy or efficiency in reviewing petitions for a visa category as diverse as the O-1.

USCIS is to be commended for its efforts to bring some predictability and consistency to adjudications in this area long plagued by erratic decisions. However, the design of RFE templates should not be viewed as an opportunity to make up new rules or resurrect dead ones, nor should the existence of options in a template give officers free rein to make misstatements that create wasteful, duplicative work for themselves, for the petitioner and for counsel, and that make it costlier and slower for US employers and agents to sponsor the top talent they need.

Wild rabbit in the meadow.jpgWinston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform.  Instead he was commenting on the Allies’ post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:

I hope these speculative studies will be entrusted mainly to those on whose hands time hangs heavy, and that we shall not overlook Mrs. [Hannah] Glasse’s Cookery Book recipe for the jugged hare—”First catch your hare.”  — The Last Lion: Winston Spencer Churchill: Defender of the Realm, 1940-1965,  by William Manchester and Paul Re.

This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most.  The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.

What’s the connection?  Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners.  Given much less, if any, attention, however, is whether the government’s immigration bureaucracy can competently manage, regulate and enforce all these laws.  Are the immigration bureaucrats, judges and police up to the task?  

To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that “go from good to great”:

. . . start not with “where” but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.

I submit — as I’ve argued elsewhere and often in this blog — that:

  • The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system (“boarding the right people onto the bus”);
  • The heel-draggers and naysayers among the immigration bureaucracy, the cultists of “No,” the feather-bedding careerists, and the power-mongers — all must be exited (“getting the wrong people off the bus”); and, especially important,
  • Our immigration leadership must be deployed strategically and intelligently (“putting them in the right seats on the bus”).

So what’s this got to do with the SEC’s civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.  

The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters.  The agency’s professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy.  Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America’s goods and services.

The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. — U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively — have no special expertise in assessing legitimate or illegitimate business practices.

For examples in the EB-5 context see:

If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives:  The StartUp Visa Act and the Startup Act 2.0.  These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.

The StartUp Visa Act asks DHS to decide if “a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested” at least $100,000 on behalf of a “qualified immigrant entrepreneur . . . whose commercial activities” in two years will “create not fewer than 5 new full-time jobs in the United States,” and “raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue.”  

Similarly, the Startup Act 2.0 expects DHS to assess whether a “qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . .  at least 2 full-time employees  . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . .  during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5  full-time employees . . .”

I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS’s mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.  

As for business and investment cases, particularly the EB-5 immigrant and E-2 nonimmigrant categories, decisions about investment sufficiency, investor protection, and job creation prospects should be vested in the Commerce Department or a similarly qualified department or agency of government. See, “Economic Prosperity – The Missing Immigration Mission,” and February 19, 2010 Memorandum of the Alliance of Business Immigration Lawyers  to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, Headquarters (USCIS) Re: “Employment-Based Immigration Proposals for Inclusion in Comprehensive [Immigration] Legislation”:

Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws. 

If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS’s immigration inspectors and State’s consular officers determine the question whether the individual investor or family member is or is not admissible to the United States.  In other words, USCIS’s role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.

For this to occur, however, Congress must really think big.  It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.

Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, “you may say that I’m a dreamer, but I’m not the only one.”  For as Winston Churchill also said:

We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.

people mover.jpgSteadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:

  • Why don’t they just get into line like everyone else?
  • Why don’t they wait their turn?
  • Why don’t they just follow the law?
  • Why should we reward lawbreakers who disrespect our laws?
  • Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?

All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider’s queue in due course will lead one to the front of the visa line, that even entering under duress rather than enduring extreme economic hardship or political persecution — as many have done — shows a haughty disrespect for our laws.

The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reform apparently has swallowed these memes whole hog:

[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.

The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized nothing but a pack of scofflaws whose misbehavior warrants a “back-of-the-line” requirement:

[“Undocumented immigrants”] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.

To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:

The [Administration’s] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.

As I explained to Suzy Khimm of the Washington Post (“How long is the immigration ‘line’? As long as 24 years.”), the path to citizenship for the undocumented under the Gang of Eight proposal and the President’s “markers” for reform are far more about the journey than the destination:

Instead of dying in the desert, they might just die waiting to become permanent residents.

Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system: 

With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration “wait-your-turn” memes:

[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

As President Obama has said: “Today we have an immigration system that is out of date and badly broken.” 

[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:

As usual, they got it wrong. As I tell people all the time, it’s not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born “Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents”].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of “advance,” the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born “Unmarried Sons and Daughters of U.S. Citizens”] was “only” about 80-85 years.

The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born “Spouses and Children of Permanent Residents”]. By “unusable” I mean that the parties will both be dead before a visa becomes available. No “might” about it. (Emphasis added.)

The situation of getting “in line” is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article (“Five myths about the immigration ‘line’“), the memes about the line are all myths. In sum, he notes:

  1. There are multiple lines, not just one;
  2. Unless you have a family or employer sponsor, there is no line whatsoever available;
  3. It takes decades or longer to move to the head of the line, but “[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;”
  4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our “national ethos of civil and human rights;” and
  5. There is no way under current law to make the line shorter or move more quickly — the only solution is for Congress to “increase the number of green cards available each year in every visa preference”.

The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in “the line” is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The “line” flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

We didn’t always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:

 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the illegals who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers. 
The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation. 

The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed (“The Easy Problem“): 

The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.

Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static “line.”

Thumbnail image for soccer suit 3.jpg[Blogger’s note:  Today’s guest column is by my colleague at Seyfarth Shaw, John Quill. Three abiding passions animate John — love of family, sports (hockey in particular) and immigration law.  His passion for sports and frustration with U.S. immigration law’s employer-sanctions enforcement regime combine today to bring us this insightful and wistful post.] 

 

The I-9 Audit Process is a Game

—

Alas, it is Football, not Soccer

By John Quill

 

My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football — rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or “Football” to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems.  

  • First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.”)  
  • Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.

Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, or players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of NationOfImmigrators.com are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring complex regulations and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS’s I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act’s) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.”

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

soccer suit.jpgNone of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.  

Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.

 

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I was escorted to the woodshed on January 15, a very public woodshed, and deservedly so.  Alejandro (Ali) Mayorkas, the Director of U.S. Citizenship and Immigration Services (USCIS), politely took me to task at a Public Engagement during the Q & A session when I raised two points. One involves the subject of a future post.  The other — today’s topic — challenged an aspect of the agency’s program for DREAMers known as Deferred Action for Childhood Arrivals (DACA).  

As noted below, I criticized USCIS’s stricter eligibility requirements for DACA recipients than other foreign citizens present in the U.S. who wish to travel abroad and be allowed back into the country. Mr. Mayorkas rejected my criticism (as also discussed below), but then offered one of his own.  

He noted that in my recent blog post, “The 2012 Nation of Immigrators Awards – The IMMIs,” USCIS received the “Not Especially Nimble” IMMI for its lack of agility on matters of employment-based immigration. Mr. Mayorkas suggested that if nimbleness is the measure of performance, then glaring by its omission was my failure to mention the speed with which USCIS introduced the DACA program — a scant two months from President Obama’s Rose Garden announcement.  

Ali Mayorkas is right and I was wrong.  In lightning speed for a federal agency, USCIS launched DACA and, on its first day of implementation, was prepared to act on all requests from qualified applicants.  Rather than just wagging a finger at the slow pace of USCIS action on business-related immigration, I should also have tipped my hat to the phenomenally acrobatic DACA roll-out, for it showed what the agency’s people can do when they roll up their sleeves and swing into action, notwithstanding naysayers like me. For this, I offer sincere “parole di scuse” (words of apology, in Italian).

But there is another species of DACA-related “parole” for which I offer no “scuse.” This is a form of foreign-travel-and-reentry authorization known in immigration parlance as “parole.” Unlike the use of that word in the criminal law context, however, immigration parole has nothing to do with conviction of a crime.

Rather, the discretionary power to grant parole arises under Immigration and Nationality Act (INA) § 212(d)(5)(A). By statute, it is the power to allow a foreign citizen into the United States “temporarily under such conditions as [formerly, the Attorney General, but now, USCIS, as delegate of the Homeland Security Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit . . .”

Parole is a grant of permission to travel to the U.S. and be granted entry in lieu of presenting a visa or overcoming or waiving a ground of visa ineligibility.  It comes in four flavors:

  1. Humanitarian Parole (available to persons outside the U.S. who seek letters of travel permission to present to an airlines or common carrier and entry to the U.S., usually for emergent reasons),
  2. Public Interest Parole (available to persons outside the U.S. who come for a reason the government believes is in the public interest, e.g., to testify at a criminal trial), 
  3. Advance Parole (available to persons inside the U.S. who wish to travel abroad and be reasonably assured of being allowed back in) and 
  4. Parole-in-Place (an administrative mechanism permitting an individual in the U.S., often a member of the U.S. military or a relative, to overcome an obstacle to adjusting status here and being awarded a green card).

During the Q & A portion of the January 15 Public Engagement, a member of the audience identifying himself as a DREAMer who’d been granted DACA designation asked why USCIS required DACA recipients seeking advance parole to provide compelling humanitarian evidence. (For details, see Travel Requirements and Restrictions.)  He noted that many DREAMers have been separated from family abroad for many years and just wanted to visit them and then return here.

Mr. Mayorkas responded that parole is an extraordinary remedy requiring powerful evidence of an emergent nature.

When my turn came, I challenged that assertion, and suggested that DACA grantees should be treated no differently than applicants for adjustment of status seeking advance parole while their green card applications remained in process. Adjustment applicants seeking parole need only cite a reason, or perhaps no reason at all, other than a desire to travel.

Besides diplomatically escorting me into the woodshed for my sin-by-omission grant of the IMMI award to USCIS, Mr. Mayorkas also disagreed emphatically on the grounds for parole, stating that the agency’s eligibility criteria for “Humanitarian Parole” was well established by precedent decisions and judicial case law.  Then, he moved on to the many other questioners.

Had time permitted (as it now does), I would have responded that Mr. Mayorkas was conflating Advance Parole and Humanitarian Parole.  A glance at the instructions to the parole application (Form I-131), shows that persons outside the U.S. must establish that they seek to enter the U.S. “for emergent humanitarian reasons” (Humanitarian Parole) but those already in the U.S. applying  for adjustment of status must show that you they seek to travel abroad “for emergent personal or bona fide business reasons” (Advance Parole) and then return to await the outcome of their green card application.

Although the instructions on the Advance Parole application require a showing of “emergent personal or bona fide business reasons,” immigration practitioners and historians of the immigration process know that current USCIS practice is to accept any personal reason for foreign travel offered by an adjustment applicant.  No proof of “emergen[cy]” is now required because the agency found long ago that when such evidence was demanded, applicants flooded the agency’s offices with such evidence, personnel resources were diverted substantially from other tasks, and some number of deserving applicants departed the building crestfallen because their reason was not found sufficiently emergent, while others left gleefully for the opposite reason.  Any reason now will do.

But you say, DACA beneficiaries are out-of-status immigrants while adjustment applicants must show proof that they maintained lawful immigration status.  Certainly, one would think, USCIS is right in differentiating between the two groups.  Not really.  

DACA grantees — by definition — entered the U.S. as minors before age 16.  They are faultless in the eyes of the law, given that their tender age absolved them of culpability (and they must have proven that they “[h]ave not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety” to be granted DACA relief).  Moreover, some adjustment applicants are allowed to apply even if they have not maintained lawful status for “technical reasons” or reasons other than “through the fault” of the applicant.

While it makes sense to insist on compelling humanitarian reasons to let someone outside come to the U.S., it is hard to fathom a reason to require no such evidence of one (largely) faultless group of similarly situated persons in the U.S. (adjustment applicants) and yet require it of another entirely innocent group residing here (DACA recipients).

Perhaps the real reason has less to do with adherence to old case law on Humanitarian Parole, and more to do with a recent decision of the Board of Immigration Appeals (BIA) in Matter of Arrabally and Yerrabelly. There, the BIA held that an adjustment applicant’s departure from the U.S. on a grant of advance parole does not trigger the three- or ten-year “unlawful presence” bar on reentry that usually applies to persons who stay more than six months or one year beyond the period granted by the government.  

The significance of Arrabally and Yerrabelly is that once a person is paroled back into the U.S., most prior failures to maintain status are purged and the person is adjustment-of-status eligible through the usual family- and employment-based sponsorship avenues, as my scholarly colleagues, Messrs. Endelman and Mehta, explain.  The BIA’s reasoning in Arrabally and Yerrabelly would seem to apply not just to adjustment applicants but to DACA grantees as well.  This is the conclusion reportedly reached by USCIS’s Chief Counsel, Stephen Legomsky, according to this tweet of Ben Winograd, Staff Attorney at the American Immigration Council.

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Maybe the real pragmatic and political reason to be inferred from the strict DACA rules on Advance Parole is the fear that entry on parole will facilitate the mass legalization of DREAMers through the usual adjustment process — a backdoor “amnesty” to those opposing a path to citizenship for the undocumented.

Back to the Public Engagement:  I also suggested that the denial of equal treatment to DACA beneficiaries may be a violation of Equal Protection.  Mr. Mayorkas rightly noted that Equal Protection is a principle of constitutional dimension with strict requirements not necessarily applicable in all situations of disparate treatment.  Yet, in another context during the Public Engagement (involving the need for written rather than telephonic communications between the bar and USCIS personnel), he noted that he is a big believer in people being on an equal footing or level playing field (and that therefore adjudicator/attorney oral exchanges are not allowed because lawyers can be overbearing).

While denial of Advance Parole to DACA beneficiaries who want to visit Grandma in the old country (unless she is certified by a doctor as at death’s door) may not rise to the level of an Equal Protection violation, it surely undermines the principle of an equal footing and leveling of the playing field that the Director espouses.  I therefore hope he and his agency reconsiders and — when definitive requirements are published — issues the same easily satisfied Advance Parole eligibility criteria for DACA designees as now exists for adjustment applicants.

No woodshed visit or apology would be required.

dsc_5254.jpg[Blogger’s note:  Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman.  Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws.  Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]


A New Immigration Recipe:

Specialty Chefs Need a Dream Act Too!

By Nathan Waxman

 

A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws:  the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status. 

Fast forward eight years. Despite the economic doldrums, gastronomic diversity is here to stay.

  • Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.
  • Taquerias  increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.
  • Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.
  • Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country. 

So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?  

In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of  people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.

Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines. 

Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise,  to use such nonimmigrant visa categories as H-1B, E,  L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America’s Heartland or in an  emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days. 

cook8.jpgThe four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.

A pioneering  authentic Thai restaurant in the Chicago area

A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern  suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).

Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current. 

Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged.  Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen.  They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of  § 245(i), or amendment of  § 212(a)(9) to provide realistic  opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time. 

An Armenian restaurant in a working-class New Jersey town

In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.

Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.

A pricey Mughlai tandoori restaurant in Manhattan’s East 50s

A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003.  A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog.  The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?

A Chinese restaurant in the northernmost county of Maine

Disclaimer:  I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification)  employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.

Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.  

While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.

* * *

cook11.jpgIn my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.

Will Congress come to our aid?

Will Congress rescue the many food aficionados among us with a Dream Act for restaurant workers?

And, while they’re at it, can they make it easier for the local repair shop to bring in a German mechanic to fix my European diesel?

Ultimately, tax-paying American employers who satisfy the Department of Labor’s test of labor market unavailability through the PERM process should be able to serve their constituents and communities by adding to their work force tax-paying employees earning the prevailing wage, whether at a restaurant, a car repair shop, or a foreign language school. 

violence 2.jpgBipartisan outrage erupted in the House last week, with usually loyal Republicans among the most furious and outspoken in the GOP-controlled chamber. Rep. Peter King, a Long Island Republican, chastised House leaders for conduct that is “absolutely inexcusable . . . absolutely indefensible.” Declaiming that “we cannot just walk away from our responsibilities,” King said that “anyone . . . who contributes one penny to congressional Republicans is out of their minds.”

Outside the House, another outspoken Republican, New Jersey Governor Chris Christie, pointed the finger squarely at his party and the Speaker of the House:

There is only one group to blame for the continued suffering of these innocent victims: the House majority and their speaker, John Boehner . . . This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last night. Last night, politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch.

The object of their criticism was the House’s failure to pass bipartisan legislation, already approved in the Senate, that would grant financial relief to victims of Hurricane Sandy. Their words, however, could apply with equal vehemence and accuracy to the House’s other major year-end failure — its refusal to vote on renewing and expanding the Violence against Women Act.

VAWA, as it’s known, has been an undeniable success since signed into law in 1994 by President Clinton under the sponsorship of then Senator (now Veep) Joe Biden. The incidence of domestic violence has dropped 67% from 1993 to 2010, and, according to the White House, from 1993 to 2007, “the rate of intimate partner homicides of females decreased 35 percent and the rate of intimate partner homicides of males decreased 46 percent.”  

The House GOP, led by its Majority Leader, Eric Cantor, opposed various elements of the VAWA-extender bill that passed overwhelmingly in the Senate: the bill’s provision of domestic violence protections to members of the LBGT community and undocumented immigrants, and a section that gives American Indian tribes jurisdiction over non-Native defendants in cases alleging domestic or dating violence. 

The House version that purported to reauthorize VAWA (HR 4970) would have harshly restricted the immigration-related protections of the law.  As the National Task Force to End Sexual and Domestic Violence against Women explains, there are several key failings of HR 4970:

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Section 801 eliminates crucial confidentiality protections for victims in the VAWA self-petition and cancellation of removal processes who are married to U.S. citizen or Legal Permanent Resident spouses. By requiring notification to the alleged abuser that his/her spouse has filed a VAWA self-petition, this endangers victims (many of whom may still be living with an abusive spouse since their options are extremely limited as a result of their undocumented status). It would also allow abusers to continue to manipulate the immigration process as a tool of abuse by providing them an opportunity to block her access to legal status. Additionally, it creates duplicative and unnecessary bureaucracy by dispersing VAWA adjudications from specially trained officers in a centralized unit, and increases barriers to safety for vulnerable victims by imposing a stricter standard for approval of VAWA cases than for other forms of humanitarian relief under immigration law.

Section 802 imposes arbitrary and unreasonable barriers for victims, and undermines the law enforcement purpose of the U visa, by narrowly restricting the circumstances in which law enforcement certifications can be issued.

Section 806 discourages crime victims from cooperating with law enforcement, especially in complex or dangerous criminal investigations or prosecutions, and eliminates stability for vulnerable crime victims by terminating their eligibility for permanent residence.

Section 814 burdens victims and existing state criminal court processes addressing domestic violence by discouraging plea bargaining. Because this provision will allow evidence outside the criminal conviction record in determining if someone is deportable due to a domestic violence conviction, it will be impossible for defendants to know whether to accept a plea. The resulting additional criminal trials will result in more victims being forced to face their abusers in criminal cases and most likely, more abusers who do not face any type of conviction when victims are fearful of appearing in criminal cases.

Sections 803 and 804 . . . omit critical amendments that were included in S. 1925 [the Senate bill] to prevent serial abuse and exploitation of so-called “mail-order brides” and other immigrating foreign spouses and fiancé(e)s of US citizens, as well as abuse of the visa system.

When the GOP hue and cry over Sandy burst out, John Boehner and Eric Cantor quickly took steps to make amends. On January 4, the House passed a bill (with the Senate also concurring) that set aside $9.7 billion in relief for regions that Sandy devastated. On January 15, Speaker John Boehner reportedly will bring up a vote for $51 billion more in Sandy relief measures, as requested by President Obama.

Where is the outrage over VAWA?  With Republicans claiming to have heard and now to understand the increasingly pro-female and pro-immigrant voices of the new electorate, the VAWA debacle suggests that the GOP is still clueless.  Are the “innocent victims” of domestic violence any less deserving than the post-Sandy constituents who will soon get relief?  

dcz_woman_hitting_a_son_actualizado1.jpgChanneling Peter King and Chris Christie, I say it is “absolutely inexcusable . . . absolutely indefensible” for the House GOP to have “walk[ed] away from [their] responsibilities. . .” to victims of domestic violence.  “This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last [week]. Last [week], politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch.”

America is a forgiving and tolerant nation — to a degree.  The House GOP needs to wake up quickly, and pass a bill reauthorizing VAWA in the image and likeness of last term’s Senate version.  Or else this party of “angry white guy[s]” will only hasten its flight to irrelevance.

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As we count out the final hours of 2012, let’s recall the highs and lows of the past year in America’s dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I’ve missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag “#2012IMMIS,” and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).

 

 

The 2012 IMMI Awardees

 

Immigration Word of the Year. This year’s word could well have been “omnishambles” — “a thoroughly mismanaged situation notable for a chain of errors” — chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England’s intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America’s omnishambled immigration laws when he observed:

Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.  

Instead, the IMMI goes to “self-deportation” (Mitt Romney’s proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:

[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.

Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 31.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as “Deporter in Chief” and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 — an all-time high — the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year — especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November’s election not to let strict immigration laws become the scapegoat for their loss at the polls (“while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals”).  Tancredo nudged out Kris Kobach for this year’s IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency’s contract on its Transformation program for the online submission of immigration forms, and the issuance of a “guidance memorandum” offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of “tenant occupancy” that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit’s deportation for his post-Newtown critique of America’s woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an “alien”, supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.

Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim “justice delayed is justice denied”:  The Labor Department’s Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn’t been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It’s shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.

However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the “Dr. Livingstone, I presume” IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one’s sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can’t yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy’s appointment bodes ill for comprehensive immigration reform, because it “suggests . . . that the House Republicans aren’t going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . .”

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I’ve noted elsewhere, taxing the right to enter the country smacks too much of “18th Century slave auctions.”  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona’s nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law’s provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year’s IMMI goes to those feckless employers throughout America who fail to recognize that — no matter what happens on comprehensive immigration reform — the Feds are coming to check your business’s immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.

* * *

Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation’s immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice …and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love’s sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.

[Blogger’s Note:  Today’s post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole (“Nici”) Kersey.  I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.

Also, there’s still time to nominate Immigration’s Winners and Losers for the 2012 Nation of Immigrators Awards — The IMMIs. 

Tweet your nominees on Twitter at #2012IMMIS or email me.]

All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist

By Nicole Kersey

Cookies for Santa.jpg

I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog.  I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift.  If you’ve ever been in my closet, well, that’s creepy.  But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.    

So when Angelo Paparelli asked whether I might give him the gift of a week off from blogging (he didn’t know I’d already sent him chocolates), I first wrote a lengthy piece about the day that I accidentally shaved off my eyebrow (then drew it back on with purple eyeliner), but I couldn’t find a way to make the story relate to immigration.
 
Then I realized I was in that rare “wishing for more wishes situation.”  I guess that makes Angelo the genie.  Or Santa?  I’ve mixed metaphors again.  D’oh!  (Dough?) 
I guess we will be leaving metaphorical cookies out for Santa this Christmas Eve.  (Smart cookie, tough cookie … I plan to milk this for all it’s worth.)
Tough Cookie.jpgSo my holiday gift to you:  Ten of my greatest tips for avoiding liability for immigration-related violations.  [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles.  And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)!  I splurged on something a little more fun for you.]
  1. Provide mandatory annual I-9 training to everyone involved in the I-9 process.  This is the least expensive and most effective way to limit liability.  Invest in good training by an attorney with I-9 expertise.  See here for more.  
  2. Don’t make the mistake of assuming that, because you know you don’t employ any unauthorized workers, you don’t face much risk in the event of an ICE inspection.  I have handled cases in which ICE found zero unauthorized workers and imposed crippling fines for paperwork violations.  I’ve also handled cases in which more than half of the workforce was found to be unauthorized, and no penalties were imposed.
  3. Do not assume that your I-9s are perfect.  In my experience, the employer with perfect I-9s is a myth.  In all likelihood, you have some I-9 errors in your (actual or virtual) filing cabinet.  The key is finding out how much risk you face then doing a cost-benefit analysis to determine the appropriate level of remediation.  
  4. Make sure you have a strong immigration compliance policy in place, that the policy reflects your corporate culture (a cookie-cutter policy is better than nothing, but the best policy is one that requires compliance and works for you), and that the policy is Thumbnail image for Cookie cutters in color.jpgreflected in your culture (read:  actually follow it).  Ensure that team members are given responsibility for relevant aspects of the compliance policy and that their annual review process includes consequences for ensuring compliance (or for failure to do so).  In the event of an ICE inspection, ICE may ask to see a copy of your policy.  Having a good policy in place may help you to prove that any mistakes could be attributed to a “rogue” manager (and may thus help you avoid liability).  
  5. In addition to a compliance policy, develop an investigation response protocol.  This ensures that all team members know what to do & who to call (other than Ghostbusters) in the event of an ICE inspection or other immigration-related government site visit.  For more, see here.   Also consider sending Angelo a copy of Ghostbusters for Christmas [Editor’s Note:  Please don’t!]; rumor has it, he has never seen this snickerdoodle of a film.  
  6. Talk to an attorney to do a quick review of your operations to ensure that you are in compliance will the relevant E-Verify laws. Do not assume that, because you haven’t heard anything about a law affecting you, you aren’t required to use E-Verify.  A number of E-Verify laws, rules, and regulations have taken effect in more than a dozen states, and depending on the language of the law and the number of employees you have, you may risk losing your business license if you fail to use E-Verify.  
  7. If you’re not required to use E-Verify, consider using it anyway.  There are serious pros and cons to consider, but you get brownie points (yeah, yeah, I know they’re not cookies, but they are relatives, and Christmas is all about family, right?) with ICE for using it, and if you have any paperwork errors lurking in your I-9 filing cabinet (see #3:  you do), using E-Verify may help you avoid fines.  
  8. If you are involved in a merger, acquisition, or other corporate reorganization, raise immigration issues early.  Ask me for a due diligence checklist.  I-9 liability can affect price and even kill a deal.  If one of the companies involved in the transaction uses an electronic I-9 software program, the fate of the electronic I-9s must be determined early (will the newly formed company keep the electronic I-9s, use the same software?).   “Regular” immigration issues should also be discussed.  To the extent that employees are working under employer-sponsored visas or are in the middle of an employment-based green card application process, the employers must determine what (if any) paperwork must be filed (and when) to ensure that the employees do not lose their work authorization.
  9. Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort.  See this article for more details.  
  10. Watch this video.  It is about cookies.  It has nothing to do with immigration.  (Well, that’s not entirely true.  Frank Oz (voice of Cookie Monster) was born in England and immigrated to the U.S. when he was 5 years old.)  Unless you are the Grinch or a close relative, it will make you smile.  And “smile and be nice” = some of the best legal advice I’ve ever heard.   

Merry Christmas!