It’s that time of year.  NationOfImmigrators.com is preparing its annual list of the year’s best and worst in immigration policy and law.  Here is your chance as an immigration stakeholder  — an Immigrator — to help us crowdsource the best and worst categories and the people and organizations to name as Nation of Immigrators’ biggest winners and losers for 2012.

For prior years’ selections, check out 2010 and 2011 IMMI awardees. 

Let your voices be heard.  Tweet your nominees on Twitter at #2012IMMIS or email me.

alien orange.jpgWith the Obama Administration and lawmakers in both parties promising to fix our dysfunctional immigration system, it’s time for a reality-based understanding of global migration and a fresh choice of words.  

As Prof. Fariborz Ghadar, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:

Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent. 

Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.

Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency.  We call them “aliens” — a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.

Consider too these dictionary definitions:

alien /ˈeɪlijən/adjective

1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to 

▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.

2: from another country :foreign

▪ alien residents

3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy

4: from somewhere other than the planet Earth 

▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters.

alienate  /ˈālēəˌnāt/Verb

1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: “the association alienated its members”.

1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed

2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law

3: to cause to be withdrawn or diverted

Synonyms: alien, estrange, disaffect, disgruntle, sour

When, decades ago, I first began practicing immigration law, I didn’t give the word much thought, despite its alternative meanings, because it was — as the law professors taught — a “term of art.” As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:

§ 101(a) Definitions
As used in this Act– . . .
(3) The term “alien” means any person not a citizen or national of the United States.

 

Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn’t bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts, Editor of Interpreter Releases (then the “Immigration Bible”) and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens “AIL-yuns,” which to me sounded pleasant, like “millions,” or impressive, like “stallions.”

But times and phrasings have changed.  We would never refer to people of color today, as “colored” — the term generally used in the 1950s for African-Americans and other non-Caucasians.  So, “aliens” — the word — must go.

We should also drop the term “nonimmigrant” from our statutory lexicon because it defines by negation and suggests an inhospitable negativity.  Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.  

If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing “the Migrant Manifesto“:

                       

America need not surrender its sovereignty.  It need not open the borders for all to enter.  It must make hard choices, yet do so with respect for the dignity of all.  As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from “the Migrant Manifesto”:

We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . . 

We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . . 

We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .

To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .

When the rights of migrants are denied the rights of citizens are at risk.

Dignity has no nationality.

On a similar theme, as Ai-jen Poo, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:

We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.

Let’s start by banishing bullying words, hate speech and statutory epithets.  Let’s stop the name-calling and start the welcoming.

 

The “phantasmagoric politics” of Washington DC often produce hallucinatory effects:

[A]lmost every time I travel there . . . something comes over me. Inside the Beltway, talk can give off the illusion of action. The mouthing of words, however powerful on the printed page or eloquent when spoken, is seen . . . as equivalent to progress.

During my latest trip, however, a hopeful, reality-based euphoria replaced the usual “illusion of action,” as I attended a National Strategy Session on comprehensive immigration reform (CIR) held Dec. 4 and 5 and sponsored by ForgingConsensus.org.  For the first time in ages, conservatives and progressives joined together in candid and helpful conversation.  

Representatives from national religious organizations, law enforcement and commerce (“Bibles, Badges and Business“) spoke eloquently about the urgency to enact CIR and offered common-sense wisdom that acknowledged just how surreal our immigration policies have become.  As Jim Wallis, CEO of Sojourners — “a national Christian organization committed to faith in action for social justice” — remarked, our system causes people to be “stuck between ‘No Trespass’ and ‘Help Wanted’ signs.”

The National Strategy Session, organized by the National Immigration Forum, is available for online viewing. The press conference offers the key points:

 

ForgingConsensus.org also arranged a full day of visits to Republican and Democratic lawmakers and their staffs.  I joined a group that included Mark Shurtleff, Utah’s Republican Attorney General, Dr. Richard Land, President of the Southern Baptist Convention Ethics and Religious Liberty Commission, and Robert Gittelson, a business executive and founder of Conservatives for Comprehensive Immigration Reform.

The meetings offered many new insights beyond merely the post-election recognition by the GOP that now is the time for Congress to reform our immigration laws.  One staffer, counsel for a senior Republican, offered a play-by-play, inside-baseball forecast of alternative scenarios but concluded glumly (as I paraphrase):

No matter what the Republicans do, they will not win.  If CIR passes, the Democrats will get most of the credit.  If it fails, the Republicans will be blamed.

A female Member of Congress — a Democrat — posed the challenge this way (I’m still paraphrasing): 

I try to start every negotiation by trying to think like the other side. The only way CIR will pass is if Democrats figure out what the Republicans want. They need to show their constituents that the bill that passes promotes conservative values.

A newish GOP lawmaker suggested several core values he believes his fellow conservative legislators and constituents could embrace (again I paraphrase):

We would support small-government immigration solutions, family values, entrepreneurship, innovation, and power sharing on immigration between the federal and state governments (perhaps a pilot program in which the feds continue to do the security screening, border protection and administering of the immigration system but states get to experiment with block grants of authority to issue temporary-worker and green-card visas based on local conditions and needs).

The two days of strategizing with out-of-towners and engaging with Beltway insiders convinced me that CIR — whether in a grand bargain or in a series of coordinated, interlocking votes on pieces of connected legislation — enjoys its best prospects for near-term passage in several years.

The undocumented population, though shrinking from 12 million to 11.1 million between 2007 and 2011 according to recent census data, consists mostly of “mixed-status” families that include U.S. citizens and permanent residents, many of whom are children.  This population will not go away by self-deportation; they will remain together with or without new laws. Other than hate-spewing nativists like Ann Coulter and Tom Tancredo, Republicans recognize that the undocumented are human beings, not a “plague of locust[s].” The consensus of economists (other than Karl Marx) is that widening the entryway to our borders will foster prosperity. An “Immigration Hawk,” Jim DeMint, is leaving the Senate. A new “Gang of Eight” on immigration has formed in the Senate (Democratic Sens. Chuck Schumer of New York, Dick Durbin of Illinois, Michael Bennet of Colorado, Bob Menendez of New Jersey, and Republican Sens. John McCain of Arizona, Lindsey Graham of South Carolina, Mike Lee of Utah and Sen.-elect Jeff Flake of Arizona).  The House is meeting in small groups behind closed doors — both leading lights and new faces.

As Utah AG Mark Shurtleff told the audience at the National Strategy Session, now is a “kairos moment” for immigration reform, or as Wikipedia would say, “a moment of indeterminate time in which something special happens.”  Kairos, he noted, also carries a religious significance in that kairos time should be treated as a providential call to action.  

This trip to Washington — probably because Americans from out of town and from diverse walks of life joined in — was different.  Boots on the town seem to have displaced partisan positioning and lofty rhetoric divorced from action. 

For immigration reform, this kairos call to action, at this auspicious moment, must involve people of good will and sincere motivation, acting inclusively, with country before party, to promote our shared core values — economic strength, family unity, worker protection, freedom of expression, and religion (or of no religion), border integrity, the rule of law, and human dignity. 

I feel better about the city, and more hopeful for the country.

Puck cover of the Senate.jpg“ And there took place . . . [in the U.S. Senate] so many “extended discussions” of measures to keep them from coming to a vote that the device got a name, “filibuster,” from the Dutch word vrijbuiter, which means “freebooter” or “pirate,” and which passed into the Spanish as filibustero, because the sleek, swift ship used by Caribbean pirates was called a filibote, and into legislative parlance because the device was, after all, a pirating, or hijacking, of the very heart of the legislative process. …”

Master of the Senate: The Years of Lyndon Johnson, [Vol.] III, by Robert A. Caro

The fight to end the pirating of legislative progress, the effort by Sen. Harry Reid (Democratic Majority Leader), and supported by President Obama, to soften the rough edges of the filibuster, is the talk of Washington and the media.   If Reid’s proposals were as drastic as Sen. Mitch McConnell (GOP Minority Leader) asserts, this alleged wielding of the “nuclear option” — the cutting off of otherwise unlimited debate in the Senate —  might threaten the precious checks and balances of constitutional government.  But McConnell weeps alligator tears.

Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the “World’s Greatest Deliberative Body” without respite.  Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill).  Reid would make changes that — as Washington Post reporter, Ezra Klein, notes — are “not dramatic“:

[Sen. Reid] wants to be able to make the motion to debate a bill — but not the vote to pass it — immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.

Klein also suggests:

None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)

His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced.  Furthermore, with such a change, the sway of the swing vote — just as in the Supreme Court where Justice Anthony Kennedy carries great clout — would minimize polarization.  It would also promote greater compromise and empower moderates of the minority party and independents. 

We no longer live in the time of Lincoln when robust Senate debate was witnessed merely by the eyeballs in the Gallery or readers of limited-circulation newspapers. Social media spreads audio, video and text of Senate proceedings in real-time around the globe.  Consider, for example, the favorable reaction to Sen. Bernie Sanders’ “The American People are Angry” speech railing against income inequality in 2010 that quickly went viral.

Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and “attrition through enforcement” played in marginalizing the GOP and the anti-immigration fringe in the last election.  Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CIR).

Without a softening of the filibuster rules, we’re likely to witness, as we already have seen, the resuscitation of previous small-bore CIR proposals that merely traded legalization with a path to citizenship and modest future flows of temporary workers for greater border and worksite enforcement.  While these measures are necessary in any CIR bill, they don’t go nearly far enough to address America’s 21st Century needs. As NAFSA, the Association of International Educators, recently noted:

In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery — a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.

At a time when Republicans are trying to cut out the Diversity Visa lottery and its 55,000 annual green cards, America faces the lowest birth rate on record and an aging population.  Cities like Detroit face bankruptcy unless infusions of new immigrants with their innovations and investments are welcomed through reforms of the immigration laws.  Skilled immigrants matter. So do “Immigration Entrepreneurs.” But America’s outmoded visa quotas, pulled from thin air rather than derived through empirical evidence, demoralize and dissuade intending immigrants.  Just as pressing, cross-border families deserve the most important of family values, the right to live together, free of heartless, quota-induced separations.

Republicans are searching the wilderness in three camps seeking a principled immigration policy.  One group remains full-throatedly opposed, like Mark Krikorian, dubbed an “anti-immigration scholar/kook” by Salon‘s Alex Pareene; another proposes miserly, piecemeal reforms like the Achieve Act, which would be a stricter DREAM Act with no path to citizenship (other than the second class variety); and a growing number favor CIR.

An improved set of filibuster reforms, while still protecting minority rights, might just peel off enough moderate Republicans to enact America-friendly CIR.  Go Harry Go!  

lottery winner3.jpgDespite all the post-election talk of a chastened GOP promising flexibility on comprehensive immigration reform (CIR), Republicans seem more determined than ever to reduce the number of green cards issued annually.  They would do so by eliminating the Diversity Visa lottery.  Their latest ante is a miserly family-unity sweetener to the failed STEM bill which would additionally benefit a population presently comprised of about 320,000 individuals — family members of “green card holders who marry after getting their residency permits”. In return for dropping the DV lottery, the GOP’s new proposal would let these family members “come to the U.S. one year after they apply for their green cards,” but would not let them “work until they actually got the card” — years later.

The annual 55,000 green-card DV lottery — which I’ve criticized as a program “[relying] on casino-style randomness as the basis to sprinkle green cards on a lucky few” — now upon further reflection seems to me as a category worth saving. 

Readers of this blog know that I’ve challenged the notion that the government is particularly good at picking immigration winners and losers. Don’t get me wrong.  I’m all for allowing talented university graduates with degrees in Science, Technology, Engineering and Math to get accelerated green cards. Still, some of the greatest success stories from American history (from Washington, Lincoln, Edison, Carnegie and the Wright brothers) and our own era (Jobs, Gates, Dell, Puff Daddy, Lady Gaga and Jessica Simpson) never even graduated from college. 

So while we fashion a 21st Century CIR program to serve America’s clear national interests, we should also acknowledge a degree of humility, and the benefits of randomness, chance and serendipity. We can never develop a flawlessly intelligent system that brings in just high-contributing immigrants.  But we can debunk the errant myths about immigration and humbly acknowledge that great achievers arriving in America can come in through other than the employment-based visa categories.  Sergey Brin, the co-founder of Google, came with his parents to America from Russia as a refugee, much like Tech CEO, Tan Le, fled Vietnam for refuge in Australia, and then immigrated to California: 

In the same serendipitous way, the DV lottery brings in immigrants who tend to be younger and from countries with low rates of green card issuance. Some of them, or their children, achieve success in their chosen endeavor, whether that be in soccer, or, in helping American children understand one of the world’s great religions, or, like two of my clients who won the DV lottery — a Japanese MBA graduate of Stanford, or a political opponent of an oppressive Middle Eastern regime — they achieve it by enriching America in lasting, immeasurable ways.

Proponents of an expansive form of CIR should therefore remind the Democrats to continue standing firm against the GOP’s latest proposal to cut green-card quotas.  For as the Dems’ former leader, Richard Gephardt, has noted: “Those who have prospered and profited from life’s lottery have a moral obligation to share their good fortune.”

road closed sign.jpgAs Republicans join Democrats in contemplating reform of the nation’s dysfunctional immigration system, the final line of the Pledge of Allegiance (“with liberty and justice for all”) is the best place to start. 

Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world. 

While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky.  We have posted a “road closed” sign when we should be cleaning off the welcome mat. 

Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who’ve too often espoused an inhospitable “culture of no.”  

America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge’s promise of justice and liberty for all.  Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:

Be more respectful and stop treating visa applicants like suspects and liars. Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants.  Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures.  In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers.  Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, “Ugly American” consular behaviors are a turn-off to those whom we would welcome.

Eliminate consular absolutism. No one — not even someone as admired until recently as General David Petraeus — is infallible.  Yet current law says that no government official, not the President or the Secretary of State or the Attorney General or any federal judge, can correct mistaken findings of fact made by a consular officer when deciding to refuse a visa application.  Justice for all means due process for all and it means that no one, not even consular officers, are above the law.  Congress should create a means of challenging consular visa refusals and visa revocations, especially where the rights of American companies and families are adversely affected.  The review process can begin with a pilot program covering all immigrant visas and nonimmigrant visas for investors and work-visa applicants, and then be expanded to cover additional categories.

Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation.  When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated “third-degree” style of border enforcement must give way to the rule of law and enhanced due process protections.

Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions.  Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-“tribunal” that has failed to fulfill its professed mission.  It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.  It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard. 

Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor’s Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.

Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.

Reassign Agency Roles.  The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants.  FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor’s Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as “labor certification.”  Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists.  Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.

Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and — through remittances sent back home — in the exporting nation as well.  Why then should there be a quota on economic growth?  The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration.  Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics.  Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes.  The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low.  So, why have a quota on “smart people” (as business leader and philanthropist Bill Gates has asked)?

Establish uniform privileges across all work visa categories.  There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited.  If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories.  There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return.  Nor is it logical that H-1B visa holders have “portability” of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges.  And the mother of all illogical immigration notions — the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven — should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).

Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents.  Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system.  Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination.  Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators. 

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of “free-agency” for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.

* * *

welcome_mat2.jpgThese suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers. 

While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world’s most desirable immigrants.

 

071017d0295.jpgThe caramelizing of the American electorate manifested itself last Tuesday in sweet, polychromatic splendor.  Clearly, American voters — especially the youth, and ethnic communities of Hispanic and Asian-Pacific origin — chose “leaders who are likely to welcome rather than reject our nation’s courageous and deserving immigrants.”

With the elasticity of a yoga master, former stalwarts for comprehensive immigration reform (CIR) in the Senate, who had later pivoted to the Tea-Party right to survive reelection, including Orrin Hatch (who’s “willing to listen” on CIR), Lindsay Graham (who wants the poison pill of Birthright Citizenship added to CIR) and John McCain (who has moved from “complete the danged fence” to “support[ing]” CIR), are now bowing in “Downward Dog” to the popular will.

Sensing the prospect of irrelevance (an “angry white guy” problem) and perhaps extinction, much like the Beach Boys, whose fans — according to Bill Maher — “are dying” out, Republicans now are bending quite flexibly in an about-face “evolution” on CIR, including support for a path to citizenship, even if dubbed “amnesty.”

Post-election discussions of strategy among family- and employment-based immigration stakeholders have ranged from the taking of baby steps in the lame duck session to more fundamental reforms in the next Congressional term.  Although in a different political environment I’ve recognized the CIR-piecemeal approach of politics as the art of the possible (“Timing is Everything for Hungry Immigration Reformers“), I think the country has shifted tectonically in its embrace of CIR, as confirmed by exit polls revealing a 65% preference among all voters for granting unauthorized immigrant workers “a chance at legal status.” 

Like Lyndon Johnson upon his unforeseen ascent to the highest office in the land, the timing is perfect for President Obama to seize the moment and go BIG and go BOLD on CIR, as I suggest in my post-election interview on LXBN.TV, available in the 12-minute uncut version here, and in the summary version at this link and the video below: 

In forthcoming blog posts, I’ll drill down with specific suggestions to improve the immigration system, to make it more fair and welcoming, to reverse the brain drain and instead to serve as a multi-trillion-dollar stimulus.  I’ll also discuss strategy by — among other approaches — using GOP talking points to gain consensus on massive skill-based immigration quota increases. 

dancer pose.jpgAs with the Fiscal Cliff and the imminent increase of revenue (through elimination of the Bush tax cuts) and the automatic spending cuts (demanded by Sequestration), so too with immigration.  President Obama holds the upper hand, and Republicans can be made to stand tall like a skier in Dancer’s Pose or to fall in the new American yoga of immigration reform.  His Administration’s exercise of executive power through DACA —  a cost-free contribution to his reelection — is but one of many examples of “pen-stroking” actions he can take to change the system, preferably with, but if necessary, without, Congressional cooperation on legislation.

[Blogger’s note: 

Dear Readers: I promise that this post is indeed about immigration and the quadrennial election on Tuesday.   Please read to the end, beyond the meandering yet relevant introduction, to see the connection.]

Davidfosterwallace.jpgJust over four years ago, David Foster Wallace, a gifted, troubled writer of wide acclaim, took his life. Fans of his writing, myself included, have marveled at his intelligence, wit and humanity.  Reading Foster Wallace is an exercise in mental gymnastics and focused attention that pays bountiful dividends. 

Rod Serling.bmpThirty-seven years ago, another writer and deep thinker, Rod Serling, who gave us the Twilight Zone television series, lost his life to heart failure while likewise still in his prime.  Gene Roddenberry, futurist and creator of Star Trek, could have been describing Foster Wallace when he lauded Serling thusly: “No one could know Serling, or view or read his work, without recognizing his deep affection for humanity . . . and his determination to enlarge our horizons by giving us a better understanding of ourselves.”

Serling’s introduction to his show — epitomizing the man himself — is forever a part of American culture:  

You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!

I thought about the parallels between the two writers this week when I stumbled on a Twitter post that led me to Foster Wallace’s 2005 commencement address at Kenyon College. Here are excerpts from his talk about the real value of a college education, the ability to distinguish, depending on the degree of our committment to “attention” (Foster Wallace’s take) or “imagination” (Serling’s formulation), the autonomic from the conscious thoughts that come to mind while experiencing life’s prosaic events. 

Foster Wallace illustrates his point as he describes a mundane, seemingly “boring” wait at a grocery checkout line, disrupted by the outburst of a frazzled mother yelling at her boisterous child:

[If] you’re aware enough to give yourself a choice, you can choose to look differently at this fat, dead-eyed, over-made-up lady who just screamed at her kid in the checkout line. Maybe she’s not usually like this. Maybe she’s been up three straight nights holding the hand of a husband who is dying of bone cancer. Or maybe this very lady is the low-wage clerk at the motor vehicle department, who just yesterday helped your spouse resolve a horrific, infuriating, red-tape problem through some small act of bureaucratic kindness. . . .

[The] so-called real world will not discourage you from operating on your default settings, because the so-called real world of men and money and power hums merrily along in a pool of fear and anger and frustration and craving and worship of self. Our own present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom. The freedom all to be lords of our tiny skull-sized kingdoms, alone at the center of all creation. This kind of freedom has much to recommend it. But of course there are all different kinds of freedom, and the kind that is most precious you will not hear much talk about . . . in the great outside world of wanting and achieving. . . . The really important kind of freedom involves attention and awareness and discipline, and being able truly to care about other people and to sacrifice for them over and over in myriad petty, unsexy ways every day.

That is real freedom. That is being educated, and understanding how to think. The alternative is unconsciousness, the default setting, the rat race, the constant gnawing sense of having had, and lost, some infinite thing. . . .

[If] you really learn how to pay attention, then you will know there are other options. It will actually be within your power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.

Just as serendipity triggered by social media led me to think of Foster Wallace, and then to Serling, it led me to my friend and immigration-law colleague, Paul Parsons, who this week offered an inspiring Facebook post to show “why being a U.S. immigration lawyer can be the greatest job in the world”:

Last Friday we received our first two Deferred Action for Childhood Arrivals (DACA) approvals, and one of those clients sent this uplifting message today:

I just wanted to take another opportunity to thank you all for your help. I do not think I will ever be able to explain with words or emotions how immensely happy and grateful I am. For the first time in my life, I have a sense of belonging in the country that has raised me. My life has not been easy. I have had my fair shares of bumps and bruises along the way, but [life] is not supposed to be easy.

I know you all take pride in the work you do, because there are not many people that can say their job involves giving people the opportunity for a better future. You give hope to those who might have felt hopeless. You all can go home with the satisfaction of knowing you helped somebody, in many cases an entire family.

There are memories of things, events, and people that I will never forget, some good and some bad. Now I have one more good memory to add and you all will be part of it. Keep up the good work because there are many others like me waiting for the same opportunity.

. . . You are in the business of changing [lives] for the better, thank you again for making my life one of those. There is a saying that goes “Before you have a story you need to have a storm”. Well the storm has just past and the story is now only beginning.

As Americans vote for our leaders this week, I hope that we use both our attention and our imagination; that we remember our origin as a nation of immigrants; that we recall the wonders of immigrant innovation and the resulting benefits we enjoy; and that we call to mind our “power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.”  

I hope as we enter the “other . . . dimension” of the voting booth, “a dimension not only of sight and sound but of mind,” that we are not entranced into reflexive thinking about “the so-called real world of men and money and power [which] hums merrily along in a pool of fear and anger and frustration and craving and worship of self.” Although our “present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom,” I hope we remember that elections trigger consequences, and that precious lives and futures depend on our choices.

I also hope we acknowledge that America needs people, and more people, like Paul Parson’s client, as well as the remarkable contributors whose lives are poignantly revealed in Green Card Stories, just as much as we need dedicated public servants who help “resolve horrific, infuriating, red-tape problem[s] through some small act of bureaucratic kindness.” 

In short, I hope we choose leaders who are likely to welcome rather than reject our nation’s courageous and deserving immigrants.

With one week to go before the election, the final days have been marked by heated arguments over the proper role of government.  In the prime battleground state of Ohio, the Presidential candidates have crisscrossed virtually every county, arguing over whether and when government should intervene to save or create jobs.

Political comic, Jon Stewart, recently offered his usual sarcasm-saturated take on the topic, pointing out that — whether the choice is made by government or the private sector — consistently investing in winners while passing on likely losers is hard.

The Daily Show with Jon Stewart Mon – Thurs 11p / 10c
Picking Winners & Losers
www.thedailyshow.com
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The same debate is playing out in microcosm on both coasts. In Washington and Laguna Niguel, officials of U.S. Citizenship and Immigration Services (USCIS) at the agency’s DC headquarters and its California Service Center struggle and temporize over the selection of victorious and vanquished EB-5 Regional Centers. 

The EB-5 “employment-creation” immigrant visa category — despite its 22-year, topsy-turvy history — is finally beginning to capture the attention of U.S. dealmakers who seek project-financing alternatives to the nation’s banks, which remain skittish about approving loans. Wealthy foreigners, however, still see America as attractive. The lure of green cards has produced a bumper crop of non-citizens willing to invest here, especially in Regional Centers, which are allowed by Congress to count both direct and indirect job-creation. 

So, in this land of caveat emptor and moral hazard, where the EB-5 regulations require that funds be “at risk,” and Congress allows USCIS to approve Regional Center designations based merely on “general predictions . . . concerning . . . the jobs that will be created directly or indirectly as a result of . . . [EB-5] capital investments,” why is USCIS falling down on the job?  Why is the agency requiring reams of detail, elaborate econometric reports, and extensive financial plans and projections, yet is still not quickly approving applications for new or amended regional center designations? Why too is USCIS seemingly usurping the investor-protection role of the Securities and Exchange Commission rather than merely up-or-down adjudicating requests for immigration benefits in prompt fashion as Congress intended? 

I raised these questions in a colloquy with senior USCIS officials at a recent EB-5 stakeholders engagement, suggesting that the more evidence the agency demands, the more likely that foreign investors will infer that approved regional centers are government-vetted, -approved and -endorsed. Wouldn’t it be better, I asked, that USCIS disabuse investors of any such inferences by following Congress’s design?  The EB-5 is a two-stage process involving classification of investors first for conditional green cards, and then 24 months later, taking another look when a petition to remove conditions on permanent residence is filed.  Thus, if the jobs are not created or the investment is not sustained at the two-year check-in, then why not merely deny the petition to remove conditions? 

Here is the essence of USCIS’s response — “Open Questions from Room, Q2” (which, to me, is unsatisfying):

  • Conditional green cards confer precious rights;
  • USCIS has a duty to find by a preponderance of the evidence that a reasonable basis has been shown allowing the agency to infer that ten jobs per investor will likely be created;
  • USCIS has a duty to protect American job seekers and foreign investors from sketchy investment deals;
  • Denying petitions to remove conditions on residence would disrupt the lives of investors and create adverse financial consequences for many parties;
  • The agency therefore must ask for all the evidence it needs and take sufficient time to reach the conclusion that however many jobs a regional center predicts will be created will in fact result.

In a perfect world, this explanation might be plausible; but in the real world of business, deals can’t wait months and months to determine if EB-5 investor financing will be permitted.  Congress declared that regional centers merely submit “general predictions” that the required “jobs . . . will be created directly or indirectly as a result of . . . [EB-5] capital investments . . .”

I offered USCIS a compromise solution:  If a regional center predicts that 300 jobs will result from an aggregation of EB-5 investors’ funds, but USCIS believes the evidence only establishes 250 reasonably likely jobs, why not approve the regional center designation and only allow investments capped at the amount needed to support this lesser number of jobs?  The reflexive USCIS initial response was that such a finding might be interpreted as an endorsement by the government that the creation of 250 jobs is assured.  Fortunately, however, the USCIS official leading the stakeholder engagement agreed to give further thought to the suggested compromise.

If USCIS adopts the suggested practice of capping the amount of permitted investments by issuing a decision that permits but does not require a prescribed number of reasonably foreseeable jobs to be created, then a virtuous cycle ensues: 

  • Regional centers and prospective EB-5 investors would be given the freedom to exercise their respective business judgment and independently decide whether or not the deal still makes sense; 
  • If the scaled-back deal seems sound and investors still invest, they place their funds “at risk,” as Congress intended;
  • Each investor, rather than the government, picks the hoped-for winner, as the god of Capitalism intended;
  • The rule of law would be honored by USCIS more in the observance than the breach, and
  • Immigration stakeholders would be one step further removed from living in a bureaucratically contrived Nanny State. 

Bernie Wolfsdorf and Big Bird.JPGDebate scorers and pollsters called it even.  Mitt Romney won the first Presidential debate, essentially by showing up. Barack Obama prevailed in the second, a verbal brawl, by departing the state of suspended animation, entering New York state, and manning up.

Observers of the Twittersphere honed in on one line — Mitt Romney’s non-responsive comment to a question in the second Presidential debate on pay equality (“I brought us whole binders full of, of women”).

Another remark, however, prompted intense reactions among immigration lawyers: 

[You] shouldn’t have to hire a lawyer to figure out how to get into this country legally.

Within minutes of the debate’s end, a Facebook group, “Immigration Education for Mitt Romney,” sprang into existence. The group’s “About” tab describes its raison d’être: “Since Mitt Romney seems to think that immigration law & policy can be simple, as he stated during the Presidential debate on 10-16-2012, we need to educate Mr. Romney about immigration law & policy.”

Immigration lawyer Randall Caudle posed the first question (for which I’ll provide a Rosetta Stone in brackets):

What do these acronyms mean & what is the immigration status of an individual with each of these? PIP [Parole in Place], AP [Advance Parole], OPT EAD [Optional Practical Training Employment Authorization Document], POSABAG [Period of Stay Authorized by the Attorney General], AOS [Adjustment of Status], VWP [Visa Waiver Program], ACWIA [American Competitiveness and Workforce Improvement Act] Portability [the ability to change jobs or employers in the same or a similar occupational classification without losing AOS eligibility], AAO [Administrative Appeals Office] Appeal Pending, BIA [Board of Immigration Appeals] Appeal pending with or without motion to stay deportation (9th circuit or other circuit), LPR [Lawful Permanent Resident], USC [U.S. Citizen], CSPA [Child Status Protection Act] beneficiary, RFE [Request for Additional Evidence] for CGFNS [Commission on Graduates of Foreign Nursing Schools, the International Commission on Healthcare Professions and the International Consultants of Delaware] Cert. for RN [Registered Nurse] or PT [Physical Therapist], CIMT [Crime involving Moral Turpitude], AgFel [Aggravated Felony], TA Admin Close [Trial Attorney Administrative Closure], CLPR [Conditional Lawful Permanent Resident], EWI [Entry without Inspection], ICE hold [U.S. Immigration and Customs Enforcement detainer], TN [Trade NAFTA {North American Free Trade Agreement}], NIV [Nonimmigrant Visa], IV [Immigrant Visa], OTM [Other than Mexican] (this one is complicated for your father & grandfather), & of course the easy one – DACA [Deferred Action for Childhood Arrivals]?

 Another immigration lawyer, Susan Bond, replied to Mr. Caudle in two posts:

Brilliant Idea . . . . Wouldn’t it be great if Romney had to actually answer some of these questions. . . .

I don’t think we need doctors. If the medical system were efficient enough, we could just go into booths — much like the airport screening booths, and with the wave of a wand, we would know what ails us and learn the cure. Diagnosis completed, and when you exit the booth, a prescription comes out of a machine with the swipe of a credit card. What’s so hard about that?

Given Mr. Romney’s promise to shrink government, encourage “undocumented, illegals (sic)” to engage in “self-deportation,” and squeeze the costs out of health care, a kiosk-based, self-service approach is at least a consistent, if oddly aberrant, set of policy prescriptions for the über-contortionistic Flipper of flip-floppers.

The former governor’s underlying proposition, however, that our legal immigration system is so mind-bogglingly complex that it must be simplified, is a worthy notion — as I’ve urged in prior posts (“Immigration Law is Too Complex and Important for Johnny or Jane One-Notes,” and “Two Market-Based Proposals for Immigration Reform: Cap-and-Trade or Uncap-and-Grow?“).  Indeed, the system’s very complexity is the answer to the naive question posed by poorly informed Americans: “Why don’t they just get in line and follow the rules?” — as Mike Flynn, Shikha Dalmia and Terry Colon of Reason.org make plain in this chart (click for full size):  Reason Immigration Chart.jpg

If, miraculously, the laws and procedures were simplified, I would still recommend (accusations of self-serving behavior notwithstanding) that all but the most simple and clearly deserving requests for legal immigration benefits should be pursued only with competent legal representation and counsel.  Even the seemingly simple benefits program, DACA, requires help from an experienced immigration lawyer, as Senator Dick Durbin and Rep. Luis Gutierrez apparently have learned by now. 

Immigration lawyers are entrusted with lives, fortunes and destinies yet to manifest.  Former immigration agency spokesperson, Karen Kraushaar, had it right when she said: “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.”

In short, I’ll believe that a President Romney will eliminate the need for immigration lawyers by streamlining the ways to enter and work legally in America after he accomplishes a comparable hat trick, that is, just as soon as he simplifies the tax laws and fires his accountant.