boy_looking_up_and_scratches_his_head.jpg“[A] riddle, wrapped in a mystery, inside an enigma”  ~ Winston Churchill

The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939.  U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts.  Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.

If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items — border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents.  It must also strive to simplify the law.  

Consider what should be a straightforward concept — following the rules.  How does a noncitizen comply with the immigration laws?  What does it take to maintain legal immigration status?  Sadly, the answer is as clear as fracking fluid runoff.  

For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a “nonimmigrant”) through the action of a third party, say a parent or spouse, a spouse’s employer, a university official, or a lawyer, can “fail to maintain nonimmigrant status,” be in a condition known as “unlawful presence” and “not [be] in a lawful nonimmigrant status” — three phrases in law or regulation that often don’t mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for “duration of status,” a condition that carries no date-certain expiration. Go figure.) 

Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as “advance parole”) and then reenter in order to await the grant of a green card under the adjustment of status process.  Such a person would not have maintained nonimmigrant status — indeed would not have any legal status (because parole is not a status) — and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.

Or, consider a foreign person with a U.S. work permit.  As I’ve noted in an earlier post about human levitation, you may have the right to work here but not to be here.

Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one’s passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.  

Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened.  The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period.  Or s/he may be misled by the DMV which issues a driver’s license with a validity period extending to the later end date on the clip-out I-94.  

Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person’s immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal — all because of confusion over the simple concept of maintaining legal immigration status.

If that’s not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the “last action rule” in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The “rule” sounds simple enough: Whichever status was the last one granted (“the last action”) controls the person’s nonimmigrant status.  Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II). 

Still worse, if the immigration laws make it virtually impossible to know who’s in legal status, they make it harder than a Rubik’s Cube to figure out who’s here illegally, as DREAM activist Prerna Lal explains in “It’s More Complicated than Legal vs. Illegal,” her open letter to Ruben Navarette — which challenges his defense of the slur, “illegal immigrant.”

If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed — assuming that the immigration agency exercises its heart (which it occasionally does).  Still, it’s a shame USCIS doesn’t heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that “yield up meaning only grudgingly” to reveal “morsels of comprehension [which] must be pried from mollusks of jargon.” 

mad-men_l.jpgWith the dog days of an election year producing little more than frothy pundits regurgitating banal analyses of the day’s non-events, and seeing no near-term prospect of comprehensive immigration reform, I temporarily turned aside my wonkish ways.

While publishing two posts by guest authors, I time-shifted back to the supposedly halcyon years of my youth, the late 50s and early 60s. For the last three weeks, I’ve watched the backward-looking hit TV series, Mad Men, from Season 1, Episode 1 through the final episode of Season 4. The show — now in its fifth year — depicts a presumably “golden era” of prosperity, tarnished only by crass capitalism on resplendent display at a Madison Avenue ad agency.  As Mad Men teaches, things were great back then as long as you ignored the blatant sexism, objectification of women, abuse of alcohol and tobacco, racism, gay-bashing and other societal mortifications.

These so-called good old days are thoroughly debunked by Frank Rich, one of my favorite authors, in a recent New York Magazine piece (“Mayberry R.I.P.[:] Declinist panic. Hysterical nostalgia. America may not be over, but it is certainly in thrall to the idea.“).  As he reminds us, our best days are not necessarily behind us, though we pine for a mythical past featuring all the realism of a doctored Instagram photo.

Rich is right. As a country, America has always faced daunting problems, which we often tried our darnedest to overlook.  Mayberry as a notion may have salved our escapist needs. Mayberry as a prototypically homey and welcoming Southern city, however, was a lie (notwithstanding that it once welcomed some homespun Italian immigrants).  Similarly, as Rich notes, “American exceptionalism” is not some quintessential trait lauded by Alexis de Tocqueville but a sneering coinage bandied by one Communist, Joseph Stalin, to another.

Witness the latest “America-is-wonderful” distortions.  Mitt Romney tells audiences that, unlike President Obama, he will never apologize for America.  For his part, the President claims he took a calculated political risk in bailing out the American auto industry because he was betting on the American worker and U.S. industry. While auto workers deserve credit, the industry was saved — in my view — by the purgative of a forced bankruptcy, the injection of billions of taxpayer dollars, the shedding of unaffordable pensions, and Detroit’s belated adoption of manufacturing efficiencies introduced years earlier by Germans, Koreans, Japanese and Italians.

I’m not saying we lack admirable traits, but rather that our “secret sauce” has always been our comparatively more welcoming immigration policies, as I told the Los Angeles Daily Journal recently:

[The] cornerstone of our exceptionalism is our willingness to accept immigrants as equal human beings and allow them to contribute and become citizens and achieve the American dream while they help us to achieve the American dream.

We seem to have forgotten this lesson of our history. Instead, we allow our politicians to mouth unwavering commitments to comprehensive immigration reform with fingers crossed.  We hope we can trust a President who ignored his pledge to push for reform during his first year in office. And we want to believe a Romney surrogate (Mr. “Noun. Verb. And 9/11,” no less), when he says it is “very possible” that the candidate who took advice from Kris Kobach, and called for self-deportation would pass comprehensive immigration reform (albeit only if the GOP controls the next Congress).

We should stop ignoring the scientific method and at last accept Einstein’s definition of insanity. We must stop “doing the same thing over and over again and expecting different results.” We must stop being “amnesiac, hypocritical, outraged [and] just plain apathetic . . .” Otherwise, we inhabitants of this “Nation of Immigrators” are Immigration’s real-life “Mad Men [and Women].“

notebook with seashells.jpg[Bloggers note:  Today’s guest column is co-authored by two shining stars in the immigration firmament, Roxana Bacon and Esther Olavarria, who offer four innovative proposals for immigration reform conceived by their law students at the University of Miami Law School. The post is longer than usual but well worth your time.  

The melding of  insights from the immigration professors and the students brings to my mind the formula for  success highlighted in Brain Pickings, a marvelous site run by one of the web’s best curator’s, Maria Popova.  Quoting An Anatomy of Inspiration by Rosamund E. M. Harding, Popova — a woman who gets immigration — offers one fine formulation: 

Success depends on adequate knowledge: that is, it depends on sufficient knowledge of the special subject, and a variety of extraneous knowledge to produce new and original combinations of ideas.

Here, then, is a successful blending of insider knowledge and fresh perspectives “to produce new and original combinations of ideas” on immigration reform.]


Four Fresh and Seasoned Immigration Reform Proposals


By Roxana Bacon and Esther Olavarria

 

This spring, we co-taught an immigration class with a twist at the University of Miami Law School. Under the leadership of Dean Patricia White, UM has reinforced its commitment to human rights and migration law, with a deep bench of scholars–Becky Sharpless runs the clinic, David Abraham and Irwin Stotzky are tenured faculty, Ira Kurzban is an Adjunct, Professor Alejandro Portes, Visiting from Princeton, added his expertise in issues of assimilations and estrangement within the immigrant experience.

Dr. Joseph Chamie, the lead demographer for the United Nations for many years, introduced the course with a lively overview of the cool and irrefutable demographics that compel global immigration.   Professor Rafael Fernandez de Castro, chief of the International Studies Department of Mexico’s ITAM and advisor to President Calderon on immigration matters, joined a panel with Professor Abraham comparing German, Mexican and U.S. immigration laws and policy.

Dennis Burke, a former U.S. Attorney from Arizona, explained the real-time ins and outs of state and federal enforcement approaches, and we discussed the morality (or not) of immigration with the help of philosophy professor and ethicist, Dr. James Nickel.  As the cherry on top, the noted documentary filmmakers, Shari Robertson and Michael Camerini, (whose film “Well Founded Fear” has become the  bible for most immigration courses) showed 2 of their 12-part film  series, “How Democracy Works Now”.  By exploring the efforts to pass immigration reform between 2001 and 2008, the films take the viewer inside the legislative sausage factory, with its stew of conflicting ideologies, outsized egos, re-election fears, and occasional moments of idealism and caring.  The students learned more about partisan gridlock from them than a year in a graduate program could teach.  We used no textbooks, grounded the course in as much hard data as possible, and supplemented materials from daily headlines.  In short, the students were served a vibrant buffet of experts and information that we begged, borrowed or stole from our contacts and archives.

Our goal was to encourage a small group of 3Ls and LLMs who had already completed basic immigration course/clinic work to think outside the U.S. framework, studying natural and political influences on human migration globally before turning their analysis to U.S. immigration problems.  Their final required them to design a reform element within an identified larger area of U.S. immigration, explaining what they would reform, why, and how.  Each then presented their reform analysis and conclusions in a 90-minute class session, and then edited it based on class feedback as their final written paper.

We gave them ample latitude, assigning each team of 4 students one of 4 topics:

1. Southern Border Enforcement;

2. Labor-based Immigration;

3. Interior Enforcement;

4. Forced Migration.

We were worried that the class was too amorphous, that the 30,000’ level overview would be too lofty for presentations that had to work at the 3 foot level, that the panoply of experts and views and materials too diffuse for the students to manage in a 3 unit course.  Not to worry.  The students were spectacular.  Each Team presented a solid idea for reform that was innovative as well as doable.  Each team demonstrated a mature understanding of the gridlock plaguing Congress and the Administration on all matters dealing with immigration except enforcement, and each advanced novel strategies to pass their proposals.  Most important, each team walked away wiser, but not more cynical, about the possibility of reform, eager to take on the decades-long stalemate to achieve a fair and transparent system that works for the long term national good.  Their ideas are worth our attention.

Team 1 was assigned the general topic of Southern Border Enforcement.  Having heard the concerns of Dr. Fernandez de Castro that Mexico’s immigration law and policy are not in better shape than ours, albeit for different reasons, and recognizing the intense CBP and ICE emphasis on expedited return for those apprehended at the Border, the team made a strategic decision to focus on an issue that occurs solely within U.S. jurisdiction, but away from the immediacy of the Border.  The problem they chose is rape of undocumented migrants in U.S. drop houses. The magnitude of the problem is shocking; more than half of all women, including very young children, seeking to enter the U.S. without documents are raped. It is considered part of the price of migration, so prevalent that coyotes often require a contraception injection to avoid rape-based pregnancies.  The problem is growing; the NY Times article on May 28, 2012 documents the horror and the spread of these “houses of hell” as they move from the border to interior cities and subdivisions.

Team 1’s reform proposal is to establish a new protocol for rape victims or suspected rape victims when encountered in drop houses.  The team would require that drop house enforcement teams include a First Response Team, staffed by professionals, including therapists, who are experts in rape.  The FRT would follow the same protocol widely adopted by state and local police that treats rape victims as victims first, rather than participants in any wrongdoing, whether criminal or civil.   It is a brilliant reform idea.  No political party can disparage or dispute treating rape victims as violent crime victims without courting the wrath of women and men everywhere; indeed, being indifferent to these rapes is tantamount to being “for” drop house rape, and in turn that is tantamount to being “for” human trafficking, the genesis of the drop house problem in the first place. Further, rethinking and improving treatment of drop house rape victims conforms to the spirit of VAWA and T and U visas.  It also leverages existing state and local law enforcement experience and priorities so that little if any controversy or additional cost would be incurred.  Last, it complements existing social service resources and current thinking about the most effective treatment of domestic violence victims, i.e. rape of those in a dependent relationship.

The FRT would be required to handle all suspected rape victims in any drop house or other holding center for undocumented persons.  Currently there is no uniform protocol for treating such victims, and the outcome of any particular case is idiosyncratic, devoid of predictability or transparency.  Victims identified by medical and social service experts would be granted interim protection while their medical and emotional conditions stabilize.  That treatment would not be dependent upon their ability to identify their trafficker/smuggler, but rather on their physical and emotional conditions. They would not be incarcerated; if supervision were required, ATDs would be used.  Finally, the length and type of treatment would be set not by ICE but by the therapist who would be chosen from a rotating list.  Service on an FRT would be pro bono but would satisfy the mental/medical health professional’s continuing education requirements.  The team recommends using Arizona for beta testing, and having The O’Conner House, a centralized anti-trafficking initiative jointly established by the former Justice and Arizona State University, serve as coordinator.

Team 2 was assigned employment-based immigration issues as its general topic.  Again, the students demonstrated a deep understanding of the art of the possible; using Florida as the beta site, they crafted a new visa category, H-2C, geared to identifying undocumented persons in Florida who qualify to fill vacancies in the state’s hospitality industry.  The proposed H-2C category is unique in that it (a) targets the largest portion of Florida’s undocumented population to solve a chronic shortage of workers in the industry most vital to the state’s economy; (2) provides immediate benefit to Florida’s economy by bringing that group of undocumenteds into the state and federal tax system; and (3) allows Florida, a politically powerful state with a history of sympathy to some immigration issues, to assume a major positive role in advancing innovations in federal immigration law and policy.

Protection of U.S. workers is ensured not by the tedious labor certification process that has never been proven to be effective but by a payroll tax incentive for employers who hire a citizen or permanent resident rather than the H-2C migrant.  The incentive would also include a $1,000 annual tax credit for any U.S. worker who is retained for at least a year of uninterrupted employment.  These hard dollar incentives should be much more effective than the paper chase of labor certification, and the tax revenue “lost” would be recovered by the H-2C workers who join the tax system as regular tax-payers.  An eventual path to full resident status would be available to the H-2C workers through an expansion of the quotas for essential workers, a reform that could be expanded to include hospitality workers nationally if the Florida pilot program is successful.

The Team also outlined a strategy for passing the pilot program that is built on demonstrating the economic benefits of the H-2C category.  Each stake-holder—the industry’s employers, the unions, the associations that promote Florida’s tourism, the politicians in key “destination” cities, the immigrant communities’ advocates—would enjoy an immediate return on their H-2C investment.  More profit from more tourists is the obvious outcome of a reliable, legitimate work force in the hospitality industry, and more public tax income is the obvious by-product from booming tourism.

Team 3 chose a topic, interior enforcement, that is perhaps the most polarizing of the assignments.  It brings into clear focus the tensions created by a civil immigration law whose enforcement is modeled almost exclusively on criminal law—we arrest, we interrogate, we jail and we sentence, but we do so without any of the Constitutional protections applicable to the criminal counterparts.  We do “enforcement heavy” but “rights light”.   Team 3 did not seek to reverse any existing interior enforcement infrastructure or priorities, but rather to implement them as written.  Their program, SMART (“Securing Migrants & Americans Rights & Trust Act”) simply imposes the intent of Secure Communities, and of 287(g), by limiting local law enforcement participation in immigration to only those immigrants, whether documented or not, who have been convicted of the crimes that are the most dangerous to public safety.  The list is short, and does not turn on complex INA definitions (“agg felonies”, for instance), but rather on crimes that anyone would agree are egregious, and are the same priorities set by local law enforcement agencies for their populations generally.  But the biggest difference is that no local law enforcement would be involved in the immigration process until after a conviction.  The list of crimes that would invoke local law enforcement participation with ICE is:

a. National security crimes, including terrorism;

b. Homicide/Murder;

c. Aggravated sexual offenses;

d. Armed robbery/burglary;

e. Domestic violence that involves physical assault or battery or severe mental or emotional assault or battery, and both must result in injury.

Under 287 (g), or any state law authorizing non-federal participation in immigration enforcement, the state agencies’ role is restricted to enforcing only these serious crimes, and only post conviction.  The Team relied heavily on the fact that ICE’s fingerprint identification system (IDENT) is expanding at an annual rate of 20 million new prints, a growth that ICE has financed by increasing that part of its budget from $23.5M in 2003 to $690M in 2011.  Leveraging ICE’s own information is a smart use of SMART, and allows the local law enforcement agencies’ to concentrate on their own communities’ priorities while simultaneously supporting immigration enforcement.

Its creators repeatedly have informed Congress and the public that Secure Communities is intended to identify, apprehend and remove “the worst of the worst” immigrants.  SMART simply gives that goal more teeth, removes ambiguities that have proven difficult to surmount under the current SC memos, and allows local and federal law enforcement agencies to focus on their own lanes, with a defined area of immigration enforcement overlap.  Logically and structurally all the stakeholders should embrace it.  If not, it turns a spotlight on whatever reasons other than law enforcement or public fiscal efficiency are behind the continued use of local enforcement agencies to detain non-priority migrants.

Finally, under SMART, the default ICE position on detention would be electronic monitors or other ATDs.  Actual incarcerations would require ICE to “show cause” why physical detention is necessary for public safety or to avoid the migrant’s flight.  This hearing would be like a reverse bond hearing where the government would bear the burden of proving beyond a reasonable doubt that no ATD will suffice to protect the public.  It would not replace the actual bond hearing (although some issues and facts would resurface) in that even once incarceration is shown to be necessary, the migrant could advance mitigating factors to argue for release on bond or other ATD.

Team 4 was charged with advocating a reform in the area of forced migration that took into account the global scope of the course’s materials.  They stepped up to the challenge with a novel take on demographics, global climate change, the scarcity of potable water and the hunger in the U.S. for capital.

Recommending the creation of an EB-6(a) category for water scarcity entrepreneurs, and an EB-6(b) category for watery scarcity researchers, the Team adopted a practical approach to an inevitability: much of the globe’s midsection will be subject to increasing drought, causing the movement of hundreds of millions of people to countries unable, and in some cases unwilling, to absorb them.   

In the most obvious scenarios, political stability in nations that have nuclear capacity (Pakistan, China, India) is threatened by water scarcity.

The problem is not just migration across national borders; 1,100 counties in the U.S. are already identified as suffering from or at risk for water scarcity, many in the Midwestern states that have traditionally been the U.S.’ prime agricultural region.  Developing answers to drought-related food and water scarcities is a critical goal of the U.S. now ($9.2 billion spent on water sector and sanitation initiatives outside the U.S., and another $41.8 million to U.N. programs addressing the same issues), with the problem only growing to tsunami size in the future.

Team 4 found that the U.S. is woefully unprepared to wage war for water.  The expertise needed to develop new water sources, better distribution systems, drought-resistant crops, more efficient storage, consumer conservation techniques, etc. depend on two fundamentals: capital and expertise.  Capital is obvious; it costs big money to redirect cities, consumers, industry and agriculture away from water-intensive habits.  Expertise is also obvious; the U.S. produces far fewer engineers and scientists than we need to address the water issues.  As 80% of the professional workforce associated with public wastewater and water retire over the next 10 years, we do not have enough replacements just to stay even.  Since the number of environmental jobs is expected to increase by over 50% in the next 10 years, the talent deficit grows ever bigger.   China and India both produce over 9 times more engineers each year than the U.S. (over a million to our 10,000), and that disparity increases each year even as competition for that talent becomes fiercer.

The EB-6(a) category would grant permanent residence to a discrete category of entrepreneurs in the field of water scarcity (desalination, purification, distribution, etc.) and/or food-related research (drought-resistant crops, waste-water crops, consumer conservation, etc.).  The entrepreneurs would themselves have to have graduate degrees in a STEM field directly related to their business proposal, and, in a flip on the current EB-5 program, could only be employed in their own start-up.  Direct involvement in their investment is required.

The investment would be much more modest; $100K initially, but with 5 employees, not related to the investor, in new jobs within 2 years.  Further, the business must have raised $500K in investment or generated $500K in gross revenue within 2 years.   To avoid the EB-5 problems, the science part of the investment proposal would be reviewed by scientists in the field, selected by the NSF, and if approved, would be sent to the Treasury Department to review the applicant and the proposal’s financial fitness.  DHS’ role would be limited to a review of the Act’s excludability factors.

The EB6(b) category is reserved for persons currently in the U.S., or who come in the future, to undertake and complete a graduate level degree in a STEM discipline at an accredited U.S. school who:

a. commit to work in the field of water/food scarcity (defined generously) for 3 years;

b. receive a letter from their employer(s) verifying a 3 year commitment (not enforceable as a private contract, but a statement of intent that can be investigated without cause);

c. if they do not have a letter, demonstration that they have assets sufficient to maintain themselves in the U.S. for up to one year while they look for qualifying employment;

d. become eligible to apply for permanent residence if employment in the field continues for 5 years.

Team 4 included extensive research documenting the statistics on U.S. engineering numbers, the growing need for more engineers and related skills in the field of water resources that only deepen our engineering talent deficit, and the need for rapid and prolific innovation in this area of the type best done in small start-ups.

Conclusion

We were delighted with the results of the Teams’ work, and hope some of you will be, also.  Each Team demonstrated an understanding of the intense anti-immigrant sentiment that is currently stopping reform, and they were wise in their selection of pieces of U.S. policy and law that could yield big dividends.  Most important, they recognized the almost impenetrable maze of political barriers to change, and in each case sought to build on existing law and policy, moving it ahead without burning bridges, but by building new, and natural, ones with partners whose  histories suggest they should be willing to sign on.  All 16 students (all 3Ls or LLMs) were smart, diligent and engaged, all remain interested in immigration law as a career, and not all have employment.  Upon request, we are happy to pass their names on to anyone who might be interested in following up with them, or with us, for each Team’s full submission.

[Roxana and Esther can be reached at: roxie.bacon@gmail.com]

woman behind fence

[Blogger’s Note:  This week’s guest column is by Jennifer Oltarsh, an immigration lawyer practicing in Manhattan. She writes about how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.]

Immigration Law — Moving away from Individual Rights

By Jennifer Oltarsh

Immigration laws are increasingly more complex.  When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.

Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects  very poorly on this country.  These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system.  Many of these laws have ultimately proved to be an embarrassment.  A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed.  Under this law all Chinese were banned from immigrating to the United States and to naturalize.  Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902.  This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II.  130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.

In 1996 two laws were passed with the goal to deprive judicial review and discretion.  The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review.   Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation.  As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well.   As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.   

This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy.   The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA.  The law is based on the false premise that we need mass detention and deportation to keep dangerous “criminal aliens” off our streets.  In reality immigrants are less likely to commit crimes than native-born Americans.    Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses.   In the 15 years since IIRIRA’s passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained.  Taxpayers pay for these detentions.  The detention include thousands of immigrants and permanent residents who pose no threat to the community.  It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.

We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety.   Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!

The failure to take individual circumstances into account has always resulted in untold human costs.  We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society. 

Immigrant from FranceA newly resurrected dispute over word choices has gone viral. Charles Garcia revived the debate by arguing that the term, “illegal immigrant,” is a slur.  Ruben Naverette countered that it is apt, albeit a discomfiting truth, asserting in essence that a spade should be called a spade. Siding with the Supreme Court, Dan Kowalski parsed the term differently and offered a preferred adjective, “unauthorized,” when referring to immigrants, and the noun used in federal law, though repugnant to many, “alien.” Many others in cyberspace, especially friends of Facebook friends, piled on.

The brouhaha evokes the memorable words of Juliet who bemoaned the family feud epitomized by her differently surnamed lover, Romeo:

O, be some other name!

What’s in a name?

that which we call a rose  

By any other name would smell as sweet.  

Few may recall that the aromatic rose of Shakespeare’s coy reference was a double entendre also suggesting the odiferously unhygienic toilets of the Rose Theatre in Old London.

I join the fray and ask:

Is illegal immigrant a “stinking rose?”

Is it an ad hominem attack on Latinos like the now quaint but still non-PC terms, “dago,” or “wop,” or “paddy” or “mick,” used to slime earlier immigrants of Italian or Irish provenance?

I say yes and side with the Drop the ‘i’ campaigners.  

As a matter of law and language, the phrase, “illegal immigrant,” is improper. Worse still, it is a form of groupthink, an egregore with a life of its own, used wittingly by some (the nativists) and probably unintentionally by others (the AP Stylebook editors) as a group defamation, no less than the now discredited, “anchor baby.” Indeed, I would drop both the “i” and the “a,” notwithstanding that they are a statutorily recognized twosome, the even more repulsive,  “illegal alien.”

“Illegal immigrant” is wrong on the law, though crashing the border without inspection is at least a federal misdemeanor.  It is mistaken because it omits a fundamental legal precept, the presumption of innocence until proven guilty.  Journalists, egged on by their lawyers, surely know this. Hoping to avoid a defamation suit, they routinely add “alleged” to any assertion of criminality.  When a particular immigrant is convicted of the crimes of illegal entry, or of illegal reentry after deportation, only then might the phrase be legally correct to refer to the individual as an “illegal immigrant.”

But it would still violate the laws of grammar.  “Immigrant” is no less an adjective than a noun. When “immigrant” is used as a modifier and further modified, the term would be correctly phrased in reference to a person as an “illegally immigrant” individual, with the adjective “illegal” thereby converted to the adverb, “illegally.”  Even used as a noun, “immigrant” when modified by “illegal” rings false in modern usage.  If it were otherwise, we would customarily refer to alleged lawbreakers as illegal tax evaders, illegal burglars, illegal child molesters, and yes, illegal lawyers, bankers and senators.  But we do not; hence, proper English usage ordains that “illegal immigrant” is poor parlance.  “Illegal” in reference to immigrants should not be singled out and used differently than references to all other alleged or convicted criminals.

Most importantly, “illegal immigrant” is wrong for its intended message, transformed by repetition into a meme. Frank Luntz, the man who turned the “estate tax” into the “death tax,” has proven beyond doubt that words matter. The illegal immigrant is no longer the loving nanny caring for our kids but that scary “other” who is responsible for the alienation of our affection. Its suffix conjures associations with such other repulsive terms as “vagrant” or “rodent” and combines subconsciously to form “vermin.”

People do not become evil by labeling them so; unless by popular delusion when everyone resorts to the same hurtful, bullying name-calling. We should all cut it out.  Drop the “i.”

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business_woman_frustrated_and_stressed_pulling_her_hair.jpgIt’s been a momentous, startling and exasperating two weeks.  The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.  

Each of these events — though some are quite positive — carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come.  Here, then, are what pleases and what remains lodged in my craw.

The Arizona Ruling

The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state’s brand, while victimizing U.S. citizens and mixed-status families.

Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):   

The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

And paraphrasing the words (bolded below) of Voltaire, Spiderman and others before them, the majority homed in on the nub of the problem, a failure of people and polity to push for comprehensive immigration reform:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Still, the Court’s majority should never have promoted the urban legend that immigrants are more prone to criminal conduct than the population at large.  Citing a much-criticized study from a partisanly wolfish think tank wearing nonpartisan sheep’s garb, the majority decision observed:

[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

The Health-Care Decision

The word “immigration” came up but once in the opinion — a discussion of Congress’s relative authority under its constitutional powers to tax and to regulate commerce: 

[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)

National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration — the scope of comparative rights to health care afforded to legal and undocumented immigrants.

Concerning health coverage for the latter group, the subject is rife with obvious controversy, typified famously by Rep. Joe Wilson’s impudent “you-lie!” charge to President Obama during the 2009 State of the Union address to Congress. The President was right then when he explained that the Affordable Care Act excludes coverage for unauthorized immigrants.

In truth, however, the legislation will probably have a mixed, uncertain impact on the undocumented:

At first glance, the Affordable Care Act’s implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.

The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children’s Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants — both legal and undocumented — receive medical care even without insurance.

The Montana Slap Down

This decision — which says nothing directly about immigration — is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United.  Immigration reform — like every other policy decision facing post-Citizens United America — will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.

The EB-5 Engagement with Economists   

Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel’s office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.

Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.  

Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists’ pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government’s supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.

Truth be told, I’m no economist and I have no formal training on when a new job is “created.” (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as “creative destruction” espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that “if you want to make an omelet you need to crack a few eggs.”)  

Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.

Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists’ rabbit-from-the-hat proclamations have been “startling,” are affected by fear and nervousness, and made it “riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements.“

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My view, which I shared with USCIS leadership, is this:

With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going — in my view — will destroy the program and hurt its salutary goals of investment and job creation in the United States.

* * *

As you can see, it’s been a long and exhausting two weeks.  I need a vacation! Guest posts (well-written and edgy) are welcome.

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arguing lawyers.jpg[Blogger’s note:  Whether by dint of nature or nurture, lawyers love to argue; immigration lawyers perhaps more so. Unlike our colleagues (outside of immigration practice) for whom sources of law are better defined, immigration attorneys can access a wider array of law and non-law sources with which to fashion our pro and con arguments.  

As a change of pace from this blog’s usual fare of criticizing immigration agencies and Congress, today we’ll offer a PG-rated point/counterpoint with guest blogger, Karin Wolman, and me (Disclosure: Neither of us is depicted in the photo).  

We debate the oft-posed question whether a foreign citizen while living in the United States and holding one of any number of categories of U.S. nonimmigrant status who are not expressly authorized to work can nonetheless be employed by and serve a foreign employer.  This might, for example, include:

  • a spouse on a dependent visa whose other half is lawfully employed on a work visa;
  • a B-2 or WT (visa waiver) visitor for pleasure vacationing in the U.S. who must attend to emails sent by a customer of the visitor’s foreign employer;
  • a B-1 or WB (visa waiver) visitor for business who must assign or supervise work to be performed abroad;
  • an F-1 student who is sent by her employer abroad to study for an MBA; or
  • an H-1B work visa holder who (although authorized to work for a specific U.S. employer) is not expressly permitted to moonlight for an employer abroad.

The controversy arises because Congress has never bothered to define “employment” under the immigration laws, and the definitions of the term in immigration regulations, case law and non-binding policy guidance are incomplete or imprecise.  

So you be the judge.]

Can I Work from Home for a Foreign Employer? 

[Karin Wolman’s answer] 

 May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad?  This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories. 

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens.  Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions: 
1) total annual earnings from such services is less than $3,000; 
2) the nonresident alien is physically present in the United States for not more than 90 days in the year; 
3) the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.
This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather  than under
3 months. Their visa status does not permit them to earn any “US source income.”  If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here.  From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under INA 245(c).
There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so. 
The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.
 *CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional. 

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens.  Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:

  1. total annual earnings from such services is less than $3,000; 
  2.  the nonresident alien is physically present in the United States for not more than 90 days in the year; 
  3. the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather  than under 3 months. Their visa status does not permit them to earn any “US source income.”  If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here.  From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under Immigration and Nationality Act (INA) § 245(c).

There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so.

The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.

 *CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional. 

Can I Work from Home for a Foreign Employer?

[Angelo Paparelli’s reply]

Can a nonimmigrant who lacks authorization by U.S. immigration authorities be employed in the U.S. to work from his or her home in the U.S. for a foreign employer abroad?  My lawyerly answer is: It depends.  The question is not one of tax law.  The tax laws and immigration statutes have each been enacted for distinct purposes, and one legal regimen does not necessarily inform the other. Rather than taxation, the laws of employment and of immigration apply, as well as a subject of law study known as “conflicts of law.” 

Phrase the question thusly and the answer may well be different from the one Karin offers:  

Does U.S. immigration law prohibit a foreign citizen from fulfilling an employment agreement with a company incorporated and doing business abroad?

Before answering, assume the agreement specifies that the required activities will involve creating and saving work product, through the use of a web browser in “the cloud,” with the cloud’s servers located on foreign soil.

Assume further that the agreement allows the foreign citizen to work from anywhere in the world, is made before the individual enters the U.S., and provides that salary payment shall be in a foreign (non-U.S.) currency with direct deposit into a foreign bank account and provides that the law of the foreign state and the courts of that state where the employer has its headquarters shall govern any disputes that may arise between employer and employee.

On these assumed facts, does the foreign employer or employee violate American immigration law if the employee fulfills his or her part of the bargain from a residence in the United States? My answer is:  Probably not, because the mere fortuity that the work is performed from within the U.S. rather than in any other country is too slim a fact to give the U.S. under conflicts of law principles a legitimate interest in applying American law. After all, no American workers were harmed by the work performed under this contract.  

As I read the INA, Congress has never expressly said that U.S. immigration law should be given extraterritorial effect.  See EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 1230 (1991), in which the Supreme Court changed the longstanding presumption against the extraterritorial application of American law (unless a contrary intent appears) into a presumption against extraterritoriality (unless there is the affirmative intention of the Congress clearly expressed). To be sure, the U.S. immigration police would probably try to assert that a nonimmigrant who works from his U.S. home for a foreign employer on the facts I’ve posited has violated the immigration laws. But that doesn’t mean the immigration cops would be right.  I believe, nonetheless, that the federal judiciary would follow EEOC v. Arabian American Oil Co. and say that U.S. immigration law cannot be applied extraterritorially to prohibit that which is lawful on foreign soil.

[Karin Wolman’s retort] 

I fall unequivocally on the “unauthorized employment” side: The salary paid for the employment is active, earned income characterized by a combination of three factors — provision of services for hire by the foreign national + physical presence in the US that is not brief nor intermittent + U.S. source income in exchange for provision of those services.

[Angelo Paparelli’s rejoinder]

The real question then is not whether a foreign employer may employ a foreign citizen working in her American home without a work visa but WWTCD (What would the courts do)? 

The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doe provided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.

It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:

  • Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives. 
  • Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here, here, here, here, here and there), provided the legal justification. 
  • A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper. 
  • Vargas and fellow DREAMers — just hours before the fateful change was announced — appeared on the cover of Time Magazine and in this moving video:

 

Dismissing interruptions from an impudent, pull-up-the-gangplank journalist who immigrated from Ireland, and outcries from foes on the right (perhaps the most ironic from the author of the Bush torture memo assailing Obama’s executive overreach), President Obama finally projected a modicum of courage. In a Rose Garden address, he announced that giving deferred action and work permits to DREAMers in the exercise of executive discretion is the “right thing to do.”  

The task now falls to the Homeland Security Department’s immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million.

Are they up to the job?  

The challenge will be daunting.  No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.

Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred?

Here’s what should be done:

  • ICE and USCIS should publish regulations and OMB should approve them on an expedited basis.  Many informal pronouncements have been issued since Friday. The White House released a transcription of the President’s Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment.  As Leland Beck urges in the Federal Regulations Advisor blog, “[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement.”  Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.  
  • USCIS should use the EAD application process as the platform for deferred action requests.  USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen “who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment.” The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria “to be considered” for persons in the defined DREAMer class, USCIS should treat the Secretary’s directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history).  By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS — as the adjudication agency — should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
  • USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications.  USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification.  Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon.  Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) — once trained on DREAMer eligibility adjudications — can be assigned to augment the adjustment adjudicators.  If needed, USCIS can also hire and train more adjudicators  — assuming that $380 per EAD application is sufficient.  If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications — a proposition I doubt given my insider sources with knowledge of filing-fee economics — USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
  • USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort).  Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because — as Secretary Napolitano stated in her memo to agency leaders: “Our Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.” 
  • Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America’s success in the global economy hinges on CIR.  Like a balloon held under water, CIR must eventually emerge.  Possibly ephemeral deferred action status and evanescent work permits are insufficient.  They are revocable, and offer no path to citizenship and no route to full integration into American society.  The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows.  We must reform a system that New York’s Mayor Michael Bloomberg calls “national suicide.” 

As Martin Luther King, Jr., the quintessential Dreamer, reminds us, “the arc of the moral universe is long but it bends toward justice.”  Let’s make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.

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fighter jet.jpgLast week, the American Council on International Personnel (ACIP) convened its 40th annual symposium in Pentagon City VA, just outside Washington DC, an event attended by scores of immigration managers and corporate counsel hailing from Fortune 500 and Forbes 100 companies.

A week earlier, on the other side of the globe, hedge funds and institutional investors following the IT consulting industry in India read “Access Denied,” a report co-authored by the CLSA U and this blogger for clients of Credit Lyonnais Securities (Asia) “to help fund managers understand the latest industry trends, investment theories and macro developments that impact the markets and sectors in which they invest.”

Ironically, the same questions monopolized the ACIP’s panel discussions and corridor conversations, while also garnering the attention of CLSA U’s clients:  

  • Why are the Departments of Homeland Security and State fighting an undeclared immigration war on the consulting industry and its customers?  
  • Why has the L-1B visa for persons with “specialized knowledge” — a category readily available to “Intracompany Transferees” since 1970 — suddenly become virtually unattainable if the foreign citizen (especially if coming from India) will be stationed at a consulting customer’s worksite?  
  • Why does an Administration that claims to be a friend of job-creating businesses cause projects to be delayed or cancelled, contracts to be breached and American job opportunities that would have been created to become so much collateral damage?

The war’s drone attacks have increased dramatically since last year (although early casualties have been inflicted since at least 2008 when the USCIS Administrative Appeals Office issued its supposedly “non-precedent” GST decision, which offered eager adjudicators a pretext to shoot down the expansive interpretation of specialized knowledge in place since Immigration Act of 1990 and, in effect, extralegally reserved the L-1B category exclusively to persons with “unique  knowledge”.

This year and last, organizations as disparate as the AFL-CIO’s Department for Professional Employees (DPE), the American Immigration Lawyers Association (AILA), the Economic Policy Institute (EPI), the U.S. Chamber of Commerce and 63 businesses representing the crème de la crème of Corporate America — not to mention Senators Chuck Grassley and Dick Durban — jumped into the fray, taking sides and writing letters to the President or to Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS).

Director Mayorkas — who I lauded recently in this blog — addressed the ACIP’s audience, promising that draft guidance (allowing public comment before becoming final) would be released “any day.” In response to a question I posed expressing concern over the immigration agency’s historic “antipathy toward business,” he denied that a war was underway, or that any anti-business attitude prevailed among adjudicators.

“I have not found an institutional antipathy towards business or to any particular community,” he said in response to an audience member’s question regarding the level of support USCIS will give to explicitly pro-business policies. “What I have seen is interpretations of law that don’t necessarily understand sometimes the way business works and the challenges that businesses face and what the purpose of the particular visa category is.”  Source: Elliott Dube, Reporter, Bureau of National Affairs.

As we await the promised L-1B guidance on specialized knowledge, insiders report that USCIS may buckle under the weight of this war of letters and try to restrict the category notwithstanding any relevant change in law or regulation since 1990. They suggest that the agency might try to find dry gunpowder in the L-1 Visa Reform Act of 2004 to shoot down the broad definition of specialized knowledge. 

That law, however, offers USCIS no basis to restrict specialized knowledge; it merely prevents the stationing of an L-1B worker primarily at a worksite owned or controlled by another entity where either (a) the worksite entity controls the work of the petitioner’s employee; or (b) the placement is “essentially an arrangement to provide labor for hire” for the worksite entity rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

The first part of the change duplicates existing law. Under the doctrine of “deemed employment,” if the worksite entity were to control the individual’s work while knowing that it had not petitioned USCIS to employ a foreign worker, the act of deemed employment would violate the Immigration Reform and Control Act of 1986. The second part of the 2004 change is also duplicative.  A foreign individual who participated in “an arrangement to provide [the worksite entity with] labor for hire” would not meet the definition of specialized knowledge and thus could never acquire an L-1B visa. 

As USCIS recognized in its implementing guidance, nothing in the L-1 Visa Reform Act of 2004 changed the definition of specialized knowledge:

[The] alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(D) . . . .

So, perched in our bunkers waiting for this war’s next wave — a battle for talent, a battle to enable projects that will create jobs for Americans — anxious non-belligerents ask, will it be bombs away or bombs put away? 

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2 wild guys.jpgThe federal government regularly auctions airwaves and drilling leases.  Should it also auction humans?  This is the startling question posed recently at a May 15, 2012 Hamilton Project conference in a paper, a slide presentation and the transcript of remarks offered by Giovanni Peri, an economics professor at the University of California (Davis). Prof. Peri provides an intriguing, market-based proposal (“Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth”) — in three phases — to reform America’s sputtering immigration system. 

Surprisingly to me, a well-griddled and grizzled immigration lawyer, conference participants expressed largely enthusiastic support for his proposal, but doubted that Congress has the near-term will or ability to tackle comprehensive immigration reform. In my view, while Prof. Peri’s description of current immigration dysfunctionalities is spot on, his ideas for a better system are replete with moral dilemmas, inequities and logistical impediments. 

In Phase One, Peri would have the Department of Commerce supervise (or outsource) two online auctions of three-year permits allowing businesses offering the highest bids to employ foreign citizens on provisional U.S. visas.  One auction would be for low skilled immigrants (similar to the H-2 visa) to fill jobs that Americans tend to shun; the other would be for H-1B workers in specialty occupations (and possibly also TN workers from Mexico and Canada under NAFTA and L-1 intracompany transferees). The number of permits to be auctioned would be based on average annual usage in the corresponding nonimmigrant categories over the prior ten years. Permits could be traded in a secondary market to hire a replacement foreign worker, or resold for the unexpired term, if a foreign worker invokes the right of job portability.  Peri says he would also protect small businesses by allocating a minimum number of permits to them or by capping the number of permits that any single employer could buy via auction. 

Phase Two would extend the auction to all other “labor-based” nonimmigrant and green card categories.  Phase Three would take into account the number of foreign citizens who have entered under the labor-based categories and then adjust (“rebalance”) the family-based categories (presumably because fewer family-based immigrants will be needed).  Along the way, he would create a path to legalization for the 11.5 million undocumented foreigners in the U.S., and use funds from the permits to enhance E-Verify, protect the border, pay for Commerce Department auction expenses, and allow the Labor Department to conduct more immigration audits, given that the agency would no longer be supervising tests of worker availability under the temporary and permanent labor certification programs. 

Prof. Peri does not dub the monies paid through the Commerce Department auctions as new taxes but that’s in effect what they are.  I suspect that Grover Norquist and his obeisant promise-keepers might agree that a levy imposed on companies for the privilege of employing a foreign worker seems just as much a “tax” as the gas-guzzler tax that must be paid for the privilege of buying a fuel-inefficient luxury vehicles. More troubling to me, however, is that Prof. Peri’s proposal and those of other auction proponents seem too reminiscent of 18th Century slave auctions except that the auctioned permits convey not ownership but a temporary right to import a foreign worker for up to three years as long as employer and employee remain satisfied with the arrangement. 

I share Peri’s interest in market-based solutions, but believe market-testing has already proven that — at least in the nonimmigrant sector — artificial visa quotas are not necessary.  History shows (as Peri notes) that when the economy sizzles, the annual allotment of quota-based visas has been consumed in days, but when it is frail, the quota supply has not run dry. 

There are better ways of improving the immigration system that nonetheless promote Peri’s goals of simplicity, fairness and economic growth.  Here are a few: 

1.      Simplicity. By reducing unneeded visa categories and consolidating immigration authority in one department, the unnecessarily byzantine complexity of immigration laws could be replaced by a far more rational system. 

  • Each employment-based nonimmigrant and immigrant visa category was created for a specific purpose, but many categories overlap.  Sometimes the overlap is beneficial, e.g., the B-1 in lieu of H-1 subcategory of business visitor serves as a safety valve when H-1B quota numbers have run out and provides a ready alternative to the cumbersome and costly H-1B category for short-term entrants who will remain employed abroad and not be hired by a U.S. employer.  But many times the duplicative categories make little sense.  We don’t really need four types of intern/trainee categories: a J-1 intern/trainee, an H-3 trainee, and a B-1 in lieu of H-3 trainee and a Q-1 cultural trainee.
  • We don’t need multiple categories of dependent family members of principal work-visa holder (H-4, L-2, E-1, E-2, E-3 ad infinitum); they should be grouped under a single dependent category with spousal employment rights. 
  • We don’t need multiple agencies administering their separate immigration turf across multiple Executive Branch departments.  We really only need one enforcement directorate and one benefits directorate within a single Department of Immigration led by a Secretary who sets policies and resolves intra-departmental disputes, as well as an independent Article III Federal Immigration Court to perform traditional judicial functions within this specialized area.   

2.      Fairness. By insuring procedural due process, consistency and transparency, our immigration system would be less a trap for the unwary and unlawyered, and more an example to the world. 

  • Congress should declare an Immigration Stakeholder Bill of Rights and Responsibilities that, wherever possible, would apply uniformly across all immigration categories, and allow for attorneys fees and costs to be reimbursed if a party claiming material infringement of rights prevails in an administrative claim against the infringer, whether that be the government or an employer. 
  • There is no reason why applicants for adjustment to green-card status in H and L visa categories may travel on their existing visas and thus are relieved of the burden of applying for advance parole travel authorization while those in E, F, M, J, O and other categories are treated as having abandoned their adjustment applications if they leave the country without advance parole and reenter on their valid nonimmigrant visas. 
  • There is no reason why EB-5 investors and Special Immigrant religious workers may not apply for adjustment of status unless they have an approved immigrant visa petition, while virtually all other applicants can apply for adjustment concurrently with the filing of an unapproved immigrant visa petition.
  • There is no reason that numerous parties with a legal interest in an immigration matter should be deprived of the right to be heard in a case affecting that interest.
  • As noted, all spouses of principals on work visas should be given open-market employment authorization, not just E and L spouses.
  • The fault or adverse actions of others should not be attributed to innocent parties.  DREAMers brought here through the violations of their parents should be given avenues for relief.  A worker faultlessly fulfilling the terms of a particular employment-based visa should not lose status when his/her employer terminates employment.  Adjustment of status portability should be a benefit enjoyed by the employer who sponsored the worker’s labor certification application as well as the worker/beneficiary (the “cell-mitosis” theory of portability that I’ve espoused before). 
  • Foreign citizens in removal proceedings should be given meaningful rights akin to those of criminal defendants.
  • Unfair and unevenly applied legal presumptions, such as the presumption of immigrant intent, should be eliminated; instead, applicants for visas and immigration benefits must merely be required to establish eligibility for the visa or benefit sought based on the facts and law.
  • Vested rights, such as the right to work, should not be taken away while an adverse decision is pursued in a non-frivolous administrative appeal.
  • The newly created Article III Federal Immigration Court should conduct de novo hearings and review appeals of denials of visas, waivers and applications for extension, change or adjustment of status without any deference accorded to the agency because of its presumed expertise but decide the case solely on the facts and law. 

3.     Economic Growth. In addition to the usual recommendations (elimination of per-country immigrant visa quotas, expedited green cards for STEM graduates, etc.), there are many ways that immigration can spur economic growth: 

  • Nonimmigrant visa quotas should be eliminated since it makes no sense to have a quota on the number of smart, talented and hard-working people we allow in to help us grow the economy and create jobs.
  • Just like the spouses of U.S. citizens, immediate family members of lawful permanent residents (who can provide support to sponsored relatives at 200% of the federal poverty guidelines) should not be subject to immigrant visa quotas.
  • Dependents of employment-based immigrants should not be charged against the annual immigrant visa quota.
  • Congress should enact the $$$ Visa, allowing three-year, renewable periods of authorized stay and work permission, for foreign citizens who purchase homes in the U.S. valued at $500,000 or more.
  • Congress should pass a law granting the newly established Department of Immigration authority to conduct an annual immigration “race to the top” whereby states who propose market-based immigration incentives that are likely to promote significant local hiring of Americans or investment in the state are awarded a set number of work visas and green cards to confer on grantees.
  • Family-owned businesses with real jobs for real money should be allowed to bring in their relatives from abroad to work in those jobs as a means of promoting family values and immigrant entrepreneurship.
  • Congress should create a Golden-Spoon/Retirees’ Green Card for high-net-worth immigrants who have no desire to work in the U.S. but who purchase and hold at least $3 million worth of U.S. Treasury bonds.
  • Congress should authorize a Create-American-Jobs program that would provide blanket approvals and expedited adjudications of applications seeking immigration benefits for U.S.-based with a proven track record of using the immigration system to create jobs in the United States. 

Just like the anticipated Congressional reaction to Prof. Peri’s proposals, the realist in me knows that my suggested immigration policy reforms will likewise be rejected in the near term.  That said, he and I are not “two wild and crazy guys” unfamiliar with the way things are done here.  We merely believe that later, or preferably sooner, our people and our leaders will come to see that the immigration status quo is “broke” and desperately needs “fixin’.”