“How old would you be if you didn’t know how old you are?” ~ Satchel Paige

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One of the benefits of having played in the immigration sandbox for a long time is to see old friends return. A fondly remembered playmate — who left in 1995 and returned in 2010 — is a good ol’ cuss named ACUS — the Administrative Conference of the United States. Not to be confused with ACORN, ACUS (at a glance or in historical context) left the sandbox because it became homeless (Congress cut off its allowance).  

Back in the day, ACUS was a great friend to advocates of more functional immigration laws.  It adopted Recommendation 89-9 (Processing and Review of Visa Denials) at the urging of a tireless law professor, James Nafziger, who has long railed against the scourge of consular nonreviewability, or as many prefer, consular absolutism, an injury that can still hurt years after a visa refusal.  Apparently to save its funding ACUS claimed in 1995 that it had indeed made progress on consular review — a fib I forgive, given ACUS’s latest activity (described later in this post):

89-9 Processing and Review of Visa Denials Partially implemented. Recommends that the Department of State implement changes in its procedures for review of visa applications at United States consulates abroad. The recommended changes include permitting the assistance of attorneys, increased explanation of the basis for denials, making public advisory opinions of the Visa Office, and studying the development of an administrative appeals process for visa denials. The Recommendation was transmitted to the Secretary of State and to relevant Congressional committees. In 1990, the ABA adopted a resolution supporting most elements of this recommendation [p. 56]. In 1990, the Legal Adviser of the State Department indicated, in a letter to the Chairman, that the Department was considering implementing specified parts of the Recommendation but would likely not initiate a study of the implementation of administrative appeals. In 1992, H.R. 5173 was introduced to establish a Board of Visa Appeals in the State Department. In 1993, the State Department issued a cable emphasizing the need to give explanations of the reasons for visa denials, and providing additional information in cases where an advisory opinion is being sought. (Italics in original.)

(In addition to the ACUS and ABA proposals for consular review, AILA’s Board of Governors adopted a resolution urging consular review based on an article I co-authored with Mitchell Tilner: “A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases,” Interpreter Releases, October 7, 1988.) Defiantly, however, the State Department remains as intransigent as ever in opposing any system for review of visa refusals (indeed, State even eliminated the Board of Appellate Review which protected U.S. citizens who challenged governmental claims that they’d expatriated).  Congress never established a Board of Visa Appeals. Attorneys still are barred from most consular interviews and advisory opinions are not published. 

While that battle is in pause mode, ACUS is proposing a slew of administrative reforms for consideration on June 16 that would apply generally to all Executive Branch agencies. The most important for immigration aficionados would make the immigration system more just and efficient.  The ACUS proposal offers a cornucopia of improvements (37 in all) to the immigration courts and the removal process which would help take the 800 lb. kangaroo out of the court room. The recommendations are backed up by a 133-page report by Law Professor Lenni Benson (I’m proud to say she was my former partner at Bryan Cave [see her here as she explains CIR’s promise and peril in this 9-minute video]) and Russell Wheeler, a visiting fellow at the Brookings Institution.

If ACUS approves the recommendation to fix the immigration removal system, that will surely change the national dialogue.  Although the reincarnated ACUS hasn’t yet tackled comprehensive immigration reform, this public-private partnership will deflate the arguments of immigration hardliners who oppose CRI and just hate it that border crossings are down. By showing how the system can be made more efficient, less costly and more just — meaning that people who really ought not be here are removed quickly and cheaply, while those with equity are allowed to reclaim their quest for the American Dream — ACUS will help force the opponents of reform to face the inevitable need to fix the two other legs of the CRI stool (the undocumented who are here and future flows of those whom we need). 

Among the other ACUS proposals for consideration on June 16 is one that likewise addresses immigration dysfunctionality.  As the Federal Regulations Advisor Blog describes it, the proposal would “Improv[e] Coordination of Related Agency Responsibilities:

The Committee on Collaborative Governance makes recommendations on the perceived problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. In reviewing the report by Jody Freeman (Harvard) and Jim Rossi (Florida State), agencies will need first to determine their jurisdiction, an issue of large concern by itself.

acus.pngThe problem of endemic dysfunctionality in the perpetual brouhaha that masquerades as interagency dialogue in the immigration space, however, is not one of mere perception. To be sure, sometimes the separation of functions can serve as a helpful system of checks and balances as for example when Congress wisely separated immigration enforcement from benefits adjudication in enacting the Homeland Security Act of 2002. But mostly the problems of mission creep and mission avoidance remain.  Even more troubling to stakeholders is the despicable reality that immigration officials in one agency rarely learn let alone understand or master the overlapping regulations of another agency in what ACUS refers to as “shared regulatory space.”

So I’m delighted that ACUS is back in the immigration sandbox.  Although the cynics might say that ACUS builds castles in the sand, I’m with many American forebears who would urge ACUS to continue striving.  These, I fancy, would include the age-defiant Satchel Paige in the quote above and Henry David Thoreau, whom (for the sake of maintaining my sandbox metaphor) I paraphrase thusly: “If you have built castles in the [sand], your work need not be lost; that is where they should be. Now put the foundations under them.”

Welcome back ACUS. Let’s Quixote-like (as opposed to coyote-like) build CIR castles with solid foundations and tilt at more dysfunctional windmills in the immigration sandbox together!

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Julius Caesar.jpgRender unto Caesar the things which are Caesar’s … 

Jesus of Nazareth, Matthew 22:21

I send greetings to all those observing Public Service Recognition Week 2012. Each day, our country benefits from the efforts of dedicated Federal, state, and local government employees who do their jobs with pride and passion. So many of these men and women work tirelessly on behalf of their fellow citizens to confront the challenges impacting our communities and our Nation. During Public Service Recognition Week, we recognize these committed civil servants and honor their efforts to ensure a brighter future for the next generation.

President Obama, May 4, 2012

As a debate on the right and left rages throughout the nation over the proper role of government, it is fitting that NationOfImmigrators take note of Public Service Recognition Week and salute the devoted public servants in the immigration ecosphere who honor their oaths of office and strive to accomplish justice, leavened with compassion.  

I do not speak of the dull, ill-trained, uninformed or indifferent, or those in the immigration corps who would dishonor themselves and their branch of government by rendering decisions based on personal motives such as an aversion to hard work, career advancement or the promotion of a political agenda not based on the rule of law but rather on the passions of the mob, the media, the Twittersphere or bullies in Congress. I’ve ranted about them enough before (here’s a potpourri: “Immigration Indifference – The Adjudicator’s Curse,” “Ignorance of Immigration Reality,” “Power-Mad Career Immigration Bureaucrats Cry Wolf, Spook DHS Leaders,” “Immigration Governance Unmasked, “I Am Furious (Yellow) — at USCIS and its AAO,” “Has Immigration Fraud Really Gone Viral in the DOL PERM program?,” “A Silent Bronx Cheer: Hillary to ‘Streamline the Visa Process,'” “Immigration Heart on ICE: Why Does ICE Decide All, and Deny Most, Humanitarian Parole Requests?,” and “A Cancer within the Immigration Agency“).

Rendering unto these immigration Caesars suggests another meaning of the term, the turning of awful offal into “value-added” products (in this case by shaming them into good behavior or providing them with pink slips or incarceration, depending on the severity of their transgressions).

Instead, I render salutes to those who fulfill year-round the “New Year Resolutions for Immigration Officials“: 

  1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
  2. I will not issue requests for evidence merely as a means of pushing a case off my desk.
  3. I will decide cases promptly and remember that justice delayed is justice denied.
  4. I will not judge the case by the size of the company or the nationality of the applicant.
  5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
  6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

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Every day, government officials face perplexing immigration decisions. Many more times than they are given credit, they apply the law justly and within its letter and spirit, using their hearts as well as their heads. Sometimes, they face improper external pressure.  Take for example, Alejandro “Ali” Mayorkas, the Director of United States Citizenship and Immigration Services (USCIS). He has justly won plaudits for enhancing public engagement and transparency.  

One day not too far off, I predict, he’ll be lauded for finally rolling out — after years of labored birth by a midwife known as Transformation —   the first release on May 22, 2012 of USCIS ELIS (electronic immigration system) which the agency promises will provide “improved customer service, shorter processing times, and enhanced adjudication tools to combat fraud and safeguard national security.” As with version 1.0 of most software, “[r]eleasing the system in multiple phases will give USCIS the ability to continually enhance the user experience for both customers and [its] employees . . . [and] smooth the transition to electronic filing over time and retain a paper filing option for customers.”

Meantime, he faces another pressing challenge. It comes in the form of a March 7, 2012 letter from two senior Senators who should know better, Chuck Grassley on the right (a perennial foe of enlightened immigration reform) and Dick Durbin on the left (ironically, a perennial champion of the Dream Act). 

Durbin-Grassley.jpgSens. Durbin and Grassley display a rare, though wrong-headed, bipartisanship in that they both view the H-1B (Specialty Occupation Worker) and L-1 (Intracompany Transferee) work-visa categories as vehicles for fraud and discrimination (although a majority in Congress has never agreed in sufficient numbers to enact the duo’s oft-reintroduced proposals). More recently, their animosity toward the L-1 has caused them (without regard to actual law) to quote liberally from a wayward 2008 non-precedent Administrative Appeals Office decision that trounced on legislative and rulemaking history to restrict drastically eligibility for “specialized knowledge” L-1B classification.

 

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Based on Mr. Mayorkas’ repeated public pronouncements confirming that the L-1B worker need not be a “key employee” and that her knowledge need not be “closely held” among employees of the affiliate abroad, the stakeholder community anticipates that new L-1B guidance from USCIS which he has promised to issue will reaffirm the expansive interpretation of specialized knowledge that existed from 1990 until the 2008.  That is the year when the AAO issued its L-1B atrocity, only to be plagiarized in 2011 by a copycat killer — a State Department cable that turned the L-1B into a dead horse.  Although I never bet on the trotters, I wager that a revitalized team of stallions leading the L-1B chariot will soon race into the immigration coliseum a la Ben Hur with Ali Mayorkas at the reins in the role immortalized by Charlton Heston.  But, Ali, watch out for the opposition’s spiked wheels!

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nici.jpg[Blogger’s Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici’s angst, as I noted in “The Distressed Bearer of Bad Immigration Tidings.”

There are of course so many immigration stories, as I noted in my post, “Telling Immigration Stories,” which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book — Green Card Stories — which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici’s quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole (“Nici”) Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated – in Spanish – that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment — to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits – and I was afraid of having my blood drawn again – so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

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caution tape woman.jpgWith the 2012 presidential campaign in full throb, candidates Obama and Romney are embracing “the vision thing” — that nemesis of the first President Bush whose reelection effort reportedly failed because he did not “frame his positions on individual issues in a compelling and unified manner.” The two de facto nominees paint a starkly different picture of where each would take America and of government’s role in getting us there. Surprisingly, however, on one point they agree: The cumulative burden of federal regulations is simply overwhelming.

For his part, President Obama took aim at the glut of regulations “which may be redundant, inconsistent, or overlapping” by issuing Executive Order 13563 in January last year. Implementing the President’s mandate, Cass Sunstein, OMB Administrator, released a memo to the heads of “Executive Departments and Agencies” two months ago, requiring greater public participation and consideration of how to reduce the profusion of conflicting and burdensome regulations, especially by lightening the load on start-ups and small businesses.

Not to be undone, Mitt Romney, the presumed Republican nominee, would impose “a regulatory cap” set at “zero” to limit “the rate at which agencies could impose new regulations”:

[If] an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden. While not a panacea for the problem of over-regulation, implementation of this conservative principle would go some distance toward halting the relentless growth of the regulatory state.

Readers of Nation of Immigrators know, however, that — more often than not — I assail the lack of regulations and the expedient of ersatz rulemaking via press release, web posting and FAQ. Still, there is one pernicious immigration regulation that causes me to agree with the candidates about the evil of overregulation.  

A form of stealth rulemaking that I simply cannot abide, it stems from a simple dependent clause — not even a complete sentence — embedded in an obscure immigration regulation, 8 C.F.R. § 103.2(a)(1), that dates back at least to 1994. It was first adopted by the old INS (the Immigration and Naturalization Service), and later reaffirmed by U.S. Citizenship and Immigration Services (USCIS). It provides:

Every application, petition, appeal, motion, request, or other document submitted on the form prescribed . . . shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. (Emphasis added.)

On first blush, the regulation makes sense.  What’s so bad about a harmless command that merely allows a change of government mailing address to be noted in new instructions to the form? Why should the feds be required to republish a regulation, with multi-agency review and OMB clearance, if the only change is the place where immigration petitions are filed?  If that’s all the regulation means, I make no quibble.  But broadly interpreted, as bureaucrats are wont to do, the clause is a ploy to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, Executive Orders 12866 and 13563 and OMB Circular A-4.

Consider just two examples:  Form I-9 (Employment Eligibility Verification) and Form I-129 (Petition for a Nonimmigrant Worker). The I-9 is a one-page form with a list of acceptable documents of identity and work permission on the flip side. The I-129 is a workhorse.  Its submission is required for an alphabet soup of lettered work visa categories, including the E, H, L, O, P and Q.

USCIS has issued two sets of instructions for the I-9. One is just three pages. The other, Form M-274, the “Handbook for Employers,” subtitled, “Instructions for Completing Form I-9,” is a 64-page behemoth, a tome chockablock with directions that are not found in any regulation.  Take for example these M-274 instructions, involving (a) the interplay of Form I-9 and the government’s supplemental online database, E-Verify, and (b) verification and reverification procedures for persons granted Temporary Protected Status (TPS):   

[(a)] Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.

* * *

[(b)] When DHS extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring Employment Authorization Documents (Forms I-766) for TPS beneficiaries from that country to allow time for USCIS to issue new Employment Authorization Documents (Forms I-766) bearing updated validity dates. The USCIS website and Federal Register will note if Employment Authorization Documents (Forms I-766) have been automatically extended for TPS beneficiaries from the particular country and to what date. The automatic extension is typically for six months, but the time period can vary. . . . You may accept an expired Employment Authorization Document (Form I-766) that has been auto-extended to complete the Form I-9, provided . . . [certain] information appears on the card as shown in the box at the top of the page.

Only a bureaucrat hermetically sealed within the Beltway Bubble, or one who assumes that every American employer has graduated with a speed-reading certificate, could display the chutzpah to suggest, as the three-page I-9 instructions proclaim in the section that provides the Paperwork Reduction Act notice:

The public reporting burden for this collection of information is estimated at 12 minutes per response including the time for reviewing the instructions and completing and submitting this form. (Emphasis added.)

Bureaucratic chutzpah becomes even more curdled and rancid when viewed in light of another USCIS communication, the agency’s online news source, “I-9 Central.”  As the American Immigration Lawyers Association has reported, inconsistencies abound between I-9 Central and the M-274’s “instructions” (which I suppose according to the cited regulation have the force of a regulation).

The situation is just as disturbing when this wayward rule holds its sway over the instructions to Form I-129 which likewise supposedly exert regulatory force.  The I-129 instructions purport to grant the Homeland Security Department and USCIS a broad range of plenary powers:

The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided.

Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. (Underlining in original; bolding added.)

There’s just a teensy-weensy problem with this full-throated trumpeting of power.  Simply stated, it ain’t so.  None of the cited statutory sections or regulations allows USCIS to conduct “unannounced physical site inspections of residences and places of employment.”  A pesky little provision known as the Fourth Amendment to the U.S. Constitution prohibits such jackboot tactics by federal officers:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Another way of putting the problem of publishing regulations by the unlawful shortcut of amending the text of immigration forms in perspective is to address it in terms of pure administrative law, as the author of the Federal Regulations Advisor blog, Lee Beck (who is now in private practice after a 23-year career at the Justice Department and DHS reviewing immigration regulations), phrases it:

Forms can only provide general information and instructions on how to fill out the form – forms cannot impose substantive requirements that can be enforced against an applicant or petitioner. Substantive requirements must be properly adopted in a regulation. Put another way, if a petitioner or applicant is required to act in a certain way, a regulation is required to tell the petitioner or applicant to act that way. Form instructions don’t have greater legal effect than guidance, memos, policy, or manuals.

That some federal officers, such as the swoop-down visitors from USCIS’s Fraud Detection and Nationality Security Directorate, would try to defy Constitutional protections and black-letter administrative law through the back-door rewriting of the instructions to an immigration form is no surprise. It merely confirms what essayist, Jerry Pournelle, described as his “Iron Law of Bureaucracy“:

[In] any bureaucratic organization there will be two kinds of people: those who work to further the actual goals of the organization, and those who work for the organization itself. . . .The Iron Law states that in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.

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cuffs.jpgAn essay in today’s New York Times, “Unexceptionalism:  A Primer,” by the novelist, E. L. Doctorow, describes in four “phases” how America can take steps to become unexceptional, that is, “indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world.” 

Phase one begins with Bush v. Gore, a ruling that “ignore[s] the first sacrament of a democracy and suspend[s] the counting of ballots in a presidential election.” 

Phase four ends with a naked power grab: 

If you’re a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.

In phase three, Doctorow turns to immigration — the form of authentic American exceptionalism to which this blog is dedicated — and says (ironically, to my law-trained mind):  

When possible, treat immigrants as criminals.  

He apparently assumes that exceptionalism declines when the foreign-born among us are locked away for trivial or modest immigration violations, even when they pose no threat of escape or of harm to society. He might also be suggesting that by separating them from their U.S. citizen relatives after their right to be in the U.S. has been tested and denied in removal (deportation) proceedings too often threatens American families with poverty and a life of needless suffering. 

In this he is right.  Immigrant detention — promoted by a smart “ALEC” in retreat — has become a huge business, an industry so successful that it lacks adequate facilities to house immigrant detainees, one where even children as young as eight are placed in “emergency” quarters on military bases.

If Doctorow instead meant to refer to the treatment of suspected wrongdoers under either the immigration or the criminal laws, this otherwise brilliant author is flat wrong. 

Criminal suspects are guaranteed rights that people charged with violating the immigration laws can only envy. Defendants in criminal trials in most cases enjoy the right to a trial by jury. Their guilt must be established by proof beyond a reasonable doubt. Under the Ex Post Facto Clause of the U.S. Constitution, they may only be convicted for conduct that Congress made illegal before the forbidden act occurred. Indigent criminal defendants are entitled to appointed defense counsel at government expense.

Whether rich or poor or in between, criminal suspects have Constitutionally endowed Miranda rights (the warning that anything they say to police can and will be used against them in a court of law). They have a right to examine any exculpatory evidence in the government’s possession, and the right to confront the witnesses against them and insist that the court exclude purely hearsay evidence. The judges who preside in criminal cases are subject to the canons of judicial ethics. Criminal proceedings are transcribed by court reporters so as to establish an accurate record and make sure that the right to appeal a conviction is preserved.

Because of the legal charade that removal proceedings are “civil” and not “criminal” in nature, that deportation is not “punishment,” foreign citizens whose immigration status is challenged at a removal hearing before an immigration judge enjoy no such rights.

Although not treated as punishment under the immigration laws, removal (or its virtual twin, inadmissibility) hurts no less.  A former Attorney General might just as well have been talking about removal rather than inadmissibility in Matter of S- and B-C, 9 I & N Dec. 436, at 447 (BIA 1960; A.G. 1961), when he said:

Shutting off the opportunity to come to the United States [or, as I would also put it, forcing someone to leave] actually is a crushing deprivation to many prospective [and current] immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.

If America treated immigrants in removal proceedings as if they were criminal defendants, the foreign-born whose status is at risk would enjoy significantly greater rights, and the harsh rule of immigration law would be tempered with justice.  At present, however, respondents in immigration proceedings are at greater likelihood of being found at fault than criminal defendants. Here’s why:

  • No presumption of innocence but proof “beyond doubt.” An applicant for admission to the U.S. as well as a so-called “arriving alien” is not presumed innocent.  Rather s/he must prove “clearly and beyond doubt [that s/he is] entitled to be admitted and is not inadmissible. . . .” The “clearly and beyond doubt” burden of proof imposed on the foreign citizen is even more difficult to establish than the duty imposed on prosecutors to prove a criminal defendant’s guilt “beyond a reasonable doubt.”  Even for foreigners who have already been granted admission, the noncitizen (whose alienage the government has proven) must establish by clear and convincing evidence that he or she is in the U.S. based on a lawful admission.  Only then is the government required to prove by clear and convincing evidence that the respondent is deportable.
  • No Jury. Respondents in removal proceedings have no right to a jury trial.
  • No government-paid legal counsel for the indigent or incapacitated. Unlike criminal defendants, respondents facing removal (even minors and the mentally impaired) who cannot afford a lawyer have no right to legal counsel at government expense.
  • Late advisal of right to avoid self-incrimination. Immigrant respondents are only given Miranda warnings (by regulation rather than Constitutional guarantee) after a Notice to Appear before an immigration judge is served upon them.
  • “Loosey-Goosey” rules of evidence. Hearsay evidence may be used against respondents in removal proceedings at the discretion of the immigration judge.
  • Limited access to exculpatory evidence. Immigrant respondents are not automatically given access to evidence that may establish their innocence of the charges against them or their eligibility for relief from removal.  They must file Freedom of Information Act (FOIA) requests or request the immigration judge’s permission to subpoena documents or witnesses. Even if such evidence is not made available to the respondent, the immigration judge can find the person removable and ineligible for various types of discretionary relief.
  • In-person proceedings with court reporters transcribing every word not allowed. Immigration court cases are conducted without court reporters.  Instead, they are audio- or video-recorded. Too often this denies them justice.  Audio recorders are often turned on and off at the sometimes hasty flick of an immigration judge’s finger — at times thereby leaving out crucial factual information or legal argument. At other times, the recordings are garbled, incomprehensible or defective. This is usually discovered months or years later on appeal, thus requiring a remand to the immigration judge for rehearing.  Live video recording — which occurs with detained immigrants — often interferes with the effective representation of counsel or prevents a clear understanding of the proceedings by the person most affected, the respondent.
  • Retroactive culpability. Immigrants can be removed from the U.S. for conduct that would not have warranted deportation when the act was committed.  This is because Congress can and often does change the grounds for immigration removal retroactively.  There is no Ex Post Facto rule prohibiting deportation for past non-culpable conduct.
  • Immigration judges not subject to canons of judicial ethics. Although proposals to impose a judicial ethics code on immigration judges have been suggested, they are not yet final. In criminal courts, however, judges are subject to ethical canons, patterned after the American Bar Association’s Model Code of Judicial Conduct.

The civil-not-criminal distinction in removal proceedings may soon be meaningless.  If, as the prognosticators suggest, the Supreme Court upholds Section 3 of Arizona’s S.B. 1070, which creates the crimes of being unlawfully present in the U.S. and of failing to register with the federal government, we may learn in a future case whether the lack of criminal defendants’ rights in immigration proceedings can withstand Constitutional challenge. 

I’d rather see our leaders deservedly stake claim to the notion of American Exceptionalism and distinguish our nation “from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world,” by, whenever possible, granting immigrants the same legal rights as we give to criminal defendants. 

shocking.jpg[Bloggers Note:  This post is authored jointly by Brandon Meyer and Angelo A. Paparelli] 

Some scandals raise eyebrows; others cause real economic harm.  The one we’re about to reveal — known as “tenant occupancy” — does both.  It makes the GSA’s Las Vegas cavorting pale in comparison. (Immigration lawyer alert:  For those with prurient interests [you know who you are], “tenant occupancy” is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)

Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department’s immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America’s immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA”) have typically been honored in the breach and ignored in the observance.

Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS’s spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.

Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB).  Instead, the agency posts proposals on USCIS.gov.  Each mode of public notice allows for stakeholder comment and engagement.  But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS’s web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.

Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.  

Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November’s elections.  In particular, we speak of the EB-5 employment-creation investor green card program. Section 11033 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how a group of long-unresolved investor cases would be decided.

Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final. 

Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.

What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on “hold” at the headquarters level while “issues” remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.

Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.

For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds.  This is presumably the new expertise that USCIS’s “newly-hired economists and business analysts” would bring to the analysis of job-counting methodology. 

The 2002 EB-5 legislation, however, already provides the proper analytical framework.  In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note): 

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)

Thus, Congress dictated that “general predictions” on “jobs . . . created directly or indirectly as a result of [EB-5] capital investments” should suffice.  So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?

Lawyers and petitioners who’ve filed Regional Center applications containing tenant-occupancy calculation methods soon found out.  Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs”), symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.

Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol. 

Although USCIS’s RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.

The agency’s RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”

These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.

If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)

USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration’s own statements acknowledging that counting jobs is not an exact science but instead requires “crude” measures that involve admittedly inexact presumptions.  See, e.g., “Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009,” Executive Office of The President Council Of Economic Advisers, May, 2009. 

The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).

Will USCIS announce its intention to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)?  Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS’s lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA’s OIG has done of that agency’s Vegas escapades)?  Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA’s mind reader to find out.

pensive youth.pngI worry a lot about the future facing America’s young adults.  Saddled with Dickensian levels of college and grad-school debt, largely unable to find opportunities in their preferred careers, our young fear that they’ll be relegated to work in low-paid, dead-end jobs. They and their parents are rightly concerned that the middle class is disappearing, the gulf between the ultra-rich and the poor is growing, and citizens coming of age today may never achieve the American Dream of economic progress.

The country’s political, labor and business leaders seem to think the solution lies in restoring our nation’s former prominence in manufacturing:

At the Second Annual Conference on the Renaissance of American Manufacturing held in Washington on March 27, speakers from the Obama administration, the Mitt Romney and Rick Santorum presidential campaigns, Republican and Democratic senators, CEOs, and representatives from labor, think tanks and trade associations all agreed: the renewal of American manufacturing should be a top economic priority.

Richard A. McCormack, “Is Momentum Building For Adopting A New Manufacturing Policy Agenda, Or Is The Interest Due Only To The Upcoming Election?” Manufacturing & Technology News, Mar. 30, 2012.

I’m not persuaded.  Don’t get me wrong, this native Detroiter was glad when the Obama Administration stepped in to save the U.S. auto industry. Despite the protests of a certain “Son of Detroit,” the de facto GOP nominee for president, who would have “Let Detroit Go Bankrupt,” and now derides the auto bailout as “crony capitalism,” maintaining a base level of domestic manufacturing is an important element of our national security.

But it’s not the key to our economic salvation.  Slate‘s Matthew Yglesias makes the point well in “Forget the Factories [-] Obama’s foolish obsession with manufacturing jobs will make America poorer“:

[If] you look at America’s metropolitan areas, it’s clear that manufacturing-oriented places are relatively poor. The wealthy clusters in the United States are built around things like software, biotechnology and medical devices, higher education, finance, and business services. Places like California, Minneapolis, Seattle, and the Northeast corridor are far richer than the factory-oriented Rust Belt and Southeast.

Rather than overemphasize the rebuilding of its industrial base, America should play to its true strengths. We are the “crazy ones” who “think different”, the dreamers (and DREAMers), the visionaries and innovative problem-solvers. Although we’ve fallen behind in the STEM fields, and must therefore refocus our emphasis on math and the sciences, we are blessed as a nation with an abundance of creative savants who color outside the lines. Our technology dazzles and transforms the world as Hollywood entertains it.

These strengths illustrate the fundamental economic principle of comparative advantage — do only what you do best and let others do their own best thing. It works domestically, for example, when companies make the “buy or build” decision and choose to focus on core competencies.  It would work as well in the global economy if trade were truly free and fair, protectionism were eliminated, and guarantees of minimum labor standards and trade dislocation payments were universally achieved.

If America played to its strengths, our leaders would promote basic research and development, and generally decline to let government pick winners and losers. They would recognize that service industries today account for almost three-fourths of all American jobs, and that the upside potential for better-paying jobs lies more in services than in manufacturing.

J. Bradford Jensen, professor of economics and international business at Georgetown University, makes the case for increased services trade convincingly in his 2011 book, Global Trade in Services: Fear, Facts, and Offshoring, and in the video below:

 

Similarly, The New York Times’ Catherine Rampell reported last week:

In the United States, services increasingly dominate the economy. Employment in this sector has risen steadily since the 1960s, with 70 percent of Americans now working in service industries. And America already exports more services than any other country in the world, even more than the next two competitors combined. In 2011, that amounted to $612 billion exported in services, up 10.1 percent from 2009, and up 136 percent since 1991.

Still, there is great untapped potential for more, since all of these exports are being sold from a tiny share of all the American companies that could participate in the global marketplace.

“Some Urge U.S. to Focus on Selling Its Skills Overseas,” April 10, 2012.

What’s stopping us from exporting more services (a market likely to add another $800 billion to our GDP)?

dollars.jpg

Agricultural subsidies are partly to blame. They are a significant obstacle that discourages developing countries from talking about eliminating trade-in-services barriers. Ag subsidies also create “push” factors, as when many Mexican corn farmers, unable to compete with U.S. agribusiness, abandoned their fields and entered America illegally after Mexico, the U.S. and Canada enacted the North American Free Trade Agreement. As Ron Nixon of The New York Times notes, were we at least to cap artificial farm price supports, we could save billions.

Steel protectionism is another culprit.  Our would-be trading partners have seen America (the leading proponent of free trade) as behaving hypocritically when President George W. Bush imposed tariffs on imported steel in 2002 and again when Congress enacted and President Obama signed the American Recovery and Relief Act in 2009 (with its “Buy American” requirements to purchase iron, steel, and manufactured goods for use in public construction and public works projects).

Global trade in steel and farm products are important to be sure.  Lowering these trade barriers globally or regionally (while providing trade adjustment assistance and retraining for displaced workers) would be beneficial.  It would allow American consumers to purchase more goods at lower cost. The real promise of American prosperity lies, however, not so much in eliminating barriers to trading tangible commodities, but rather in exploiting our lead in the international trade for services.

The primary impediments to the negotiation of liberalized trade-in-services treaties are found among the miserly visa quotas and contrived labor-market-testing provisions codified in the Immigration and Nationality Act, as even more strictly interpreted by anti-free-trade apparatchiks in the executive branch.

Other pernicious immigration laws likewise limit American export of services. There are the U.S.-worker preferences of the 2009 Economic Recovery Act (which I assailed at the time as “Protectionist Turducken, Immigration Style“).  There is also the 2010 law imposing extortionate and exorbitant filing fees, to be paid mostly by Indian companies, to fund the sovereign function of border security — imposts that the Indian government is now challenging as illegal trade barriers in its complaint against the U.S. in the World Trade Organization.

The Times‘ Catherine Rampell in sleuthing out the cause for global restraints on trade in services concludes her article by identifying the prime culprit:

Perhaps the most basic constraint is not abroad but here in the United States, which has relatively tight immigration controls. Services often require workers to travel freely across borders. Asking India to allow American consultants to enter and leave Delhi at will is difficult if the United States cannot — or, more accurately, will not — reciprocate. Economists acknowledge concerns about freer trade displacing some American workers. But they say the United States would nonetheless have a net gain in jobs if borders everywhere were more open.

“We need to have a visa policy that allows businesses to operate efficiently at home and abroad, and that allows all professionals to be able to move back and forth between corporate offices,” said Jeffrey J. Schott, a former trade negotiator and now senior fellow at the Peterson Institute. “If we don’t, why would anyone else?”

Perversely, U.S. immigration policies are not just bars to global services trade.  They also impair our ability to compete successfully in the world’s marketplace for services.  Peter Whoriskey of the Washington Post explains:

If demography is destiny, the U.S. economy may be in the midst of a decades-long slowdown. The U.S. labor force is growing at about half the rate it was 20 years ago; according to recent projections by the Bureau of Labor Statistics, it will continue to expand at a slightly lower pace through 2020. . . .

“In the end, what an economy is depends upon how many bodies you have,” said Anthony Carnevale, an economist and director of the Georgetown University Center on Education and the Workforce.

Carnevale added that if the diagnosis for what ails the economy is the size and quality of the workforce, that may be good news, at least compared to theory that the biggest problem is foreign competition. “To the extent this is a domestic demographic problem, it’s more in our control,” he said. “We can’t blame the Chinese for the quality and quantity of our domestic labor force.”

man and bar code.jpgIndeed, America’s domestic demographic problem is in our control.

The remedy will not be found, however, by rebuilding our manufacturing base to its former glory, or, as some have recently done, by warring with women on family planning decisions.

The U.S. will only correct its trade imbalances, redouble the nation’s sizable lead in the global trade for services, and create high-paying U.S. jobs for present and future generations, by modernizing our creaky, crotchety immigration laws.

At President Obama’s signing ceremony for the JOBS Act last week, White House guests slapped high fives with bipartisan glee. They came to the Rose Garden to help “Jumpstart Our Business Startups,” as the new law’s title optimistically promises to do. With pen in hand, the President joined in the merriment, observing that it’s not about blather but action:

One of the great things about America is that we are a nation of doers — not just talkers, but doers. We think big. We take risks. And we believe that anyone with a solid plan and a willingness to work hard can turn even the most improbable idea into a successful business. So ours is a legacy of Edisons and Graham Bells, Fords and Boeings, of Googles and of Twitters. This is a country that’s always been on the cutting edge. And the reason is that America has always had the most daring entrepreneurs in the world. . . . [M]aybe one of them or one of the folks in the audience here today will be the next Bill Gates or Steve Jobs or Mark Zuckerberg. And one of them may be the next entrepreneur to turn a big idea into an entire new industry. That’s the promise of America. That’s what this country is all about.

With an eye to November and an 11% approval rating, members of the House and Senate are trying at last to rebrand themselves as a “done-something” Congress. Would it were so with the DREAM Act or with urgently needed reforms to our antiquated system of legal immigration whose last major enactment occurred in 1990. Regrettably, when it comes to immigration, the American people get claptrap not high fives.

Three years ago the Council on Foreign Relations (CFR) issued a bipartisan report and recommendations on U.S. immigration policy, the work of a task force study led by Florida Governor Jeb Bush and Thomas F. “Mack” McLarty III, former White House Chief of Staff to President Clinton. Last month, another bipartisan CFR task force, this one headed by Condoleezza Rice, former Secretary of State under the second President Bush, and Joel Klein, ex-Chancellor of the New York City education department and Counsel in the Clinton White House, issued its study and suggestions to improve U.S. national security by reforming education.

Taken together, these reports sound a clarion call for immediate legislative action on legal immigration.

As the Bush-McLarty report proposed:

The Task Force recommends that the United States tackle head-on the growing competition for skilled immigrants from other countries and make the goal of attracting such immigrants a central component of its immigration policy. For decades, the primary goal has been to ration admission; in the future, recruiting the immigrants it wants must be the highest priority.

The Rice-Klein study on education reform and national security concurs:

Too many schools have failed to provide young citizens with the tools they need to contribute to U.S. competitiveness. This, coupled with an immigration system in need of reform, poses real threats to the prospects of citizens, constrains the growth of the U.S. talent pool, and limits innovation and economic competitiveness.

The epicenter of the logjam on immigration bipartisanship – at least in the Senate – is Iowa Republican, Chuck Grassley.  Although he voted “Yea” on the bill that became the JOBS Act, Sen. Grassley is an immigration obstructionist, seemingly blind to the links between employment-based visas, U.S. prosperity and job creation for our citizens.

Despite passage in the house by a 389 to 15 vote margin, he has held up a vote on the Fairness for High-Skilled Immigrants Act — a bill that would eliminate the per-country caps on employment-based immigrants and thus allow foreign workers born in China, India and other quota-backlogged countries to obtain a green card more quickly. Sen. Grassley has also blockaded a proposal pushed by fellow Republican Senator, Scott Brown, which would give Irish citizens parity with Australians in receiving E-3 visas.

The Iowa senator worries that “flooding the employment market with foreign workers when high-skilled Americans are seeking jobs at unprecedented levels, just doesn’t square with improving the home-team advantage, let alone fostering a level playing field.”

Even more worrisome to Sen. Grassley are immigration fraudsters who steal jobs from Americans. He sees them everywhere, much like the young boy, Cole Sear, in the 1999 film, The Sixth Sense, who sees dead people all around:

The Sixth Sense.jpegCole Sear (played by Haley Joel Osment): I see dead people.

Malcolm Crowe (played by Bruce Willis): In your dreams? [Cole shakes his head no]

Malcolm Crowe: While you’re awake? [Cole nods]

Malcolm Crowe: Dead people like, in graves? In coffins?

Cole Sear: Walking around like regular people. They don’t see each other. They only see what they want to see. They don’t know they’re dead.

Malcolm Crowe: How often do you see them?

Cole Sear: All the time. They’re everywhere.

Sen. Grassley wants to place even more rigid controls on the H-1B visa (for Specialty Occupation Workers) and the L-1 visa (for Intracompany Transferees). The senator would inflate the wages that U.S. employers must pay skilled foreign workers (even though the law of supply and demand is producing that result already without an act of Congress), require feckless labor market testing of workers in occupations with low unemployment rates, and give even more authority to the Labor Department to send disruptive auditors to the worksites to investigate the supposedly ever-present fraud that he perceives.

And as Congress dawdles on legal immigration, Sen. Grassley has been a one-man lightning rod, jolting the immigration agencies under the W and Obama administrations and intimidating them so that they jump to his bidding.

Under pressure from Sen. Grassley, U.S. Citizenship and Immigration Services (USCIS) and the Department of State have denied and revoked visas and work petitions, while sending ever larger legions of immigration gumshoes from the USCIS Fraud Detection and National Security Directorate (FDNS) on unannounced and repeated visits to worksites around the country.

magnifying glass.jpgNot content to engage in officious intermeddling with an Executive Branch immigration agency, Sen. Grassley has also been busy tasering the Department of Homeland Security (DHS) Inspector General (IG) into issuing breathless reports based on unscientific measurements that unpersuasively document “evidence” of perceived fraud (links available here, here and here).  It’s not as if the IG has nothing to do; rather, he should be spending more time investigating DHS’s internal operations.

No knowledgeable observer would deny the existence of immigration fraud. I see its victims often among the immigrants who seek my counsel after having been bamboozled not just by a few unscrupulous lawyers but also by the larger ranks of incompetent and dangerous consultants and notarios – a population still coddled by the Labor Department even though USCIS, quite laudably, has mounted a campaign against them. And of course, some percentage of employers will bend or break or simply misunderstand the befuddling “rules” that the immigration agencies have written (or failed to write) in response to the existing crazy-quilt of laws passed by Congress since at least the 1950s. Despite the massive aggrandizement of law-enforcement resources to guard the immigration system since September 11, little evidence exists to show that visa fraud is widespread or that it occurs at any greater rate than in other federal programs.

We can electrify and fortify our borders, and send in the immigration drones and detectives, but we still need law-abiding sojourners and immigrants to reinvigorate our economy and uplift our people.

As much as NationOfImmigrators assails the wrongdoing of the immigration agencies, this blogger knows nonetheless that they are peopled mostly with patriots trying to do the right thing (as a USCIS Service Center Director correctly reminded me last week and as the USCIS’s Fiscal Year 2011 Highlights Report confirms).

They make mistakes, to be sure, and engage in insincere Washingtonian wordsmithing. Take for example the oft-repeated conceit that FDNS site visits are merely cleverly surprising methods to insure integrity in immigration petitions and are not law-enforcement actions subject to Fourth Amendment protections.

The veil’s been lifted on that falsehood, however, with the issuance of a March 30, 2012 federal court order in a Freedom of Information Act (FOIA) suit by the American Immigration Lawyers Association (AILA) against USCIS and DHS. AILA’s lawsuit seeks release of three USCIS documents, viz., its H-1B Benefits Fraud Compliance Assessment Report (BFCA), H-1B Petition Fraud Referral Sheet and H-1B Compliance Review Worksheet. Although the suit continues, the court generally affirmed for now USCIS’s assertion that its actions in refusing disclosure are justifiable under the FOIA exemption found at 5 U.S.C. § 552(b)(7)(E). This section protects records or information compiled for law enforcement purposes from disclosure “to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The agency relies on exemption 7E because the requested records, as USCIS’s own pleadings assert, have been “withheld to preserve the integrity and effectiveness of certain techniques and operations of current law enforcement significance.”

On what are these “techniques and operations of current law enforcement significance” based? The court’s order offer’s a tantalizing snippet:

The final page of the BFCA Report identifies several primary fraud or technical violation(s) indicators: (1) firms with 25 of fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies; (2) firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with annual gross income greater than $10 million; (3) firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years; (4) H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories; and (5) beneficiaries with only bachelor’s degrees had higher fraud or technical violation(s) rates than those with graduate degrees.

Sen. Charles Grassley.jpegIronically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree.

Clearly, USCIS and its FDNS unit are now running scared by Sen. Grassley’s gassy harrumphing, and see fraud where the President and most members of Congress, including the Senior Senator from Iowa, see opportunities for job creation.

The solution is to debunk the notion that American job losses are caused by increased legal immigration; rather, as the National Foundation for American Policy has shown, more employment-based immigration creates more jobs for U.S. workers.  

One true believer in the power of immigration, Steve Case (former AOL founder and now venture capitalist), who was instrumental in gaining the votes for the JOBS Act, says, “[m]omentum begets momentum.”  Case now has set his sights on passing job-creating immigration laws before the November election (a controversial subject among some immigration proponents who believe that only a comprehensive solution, including remedies for the undocumented, will rectify America’s immigration dysfunctions).

Perhaps with the help of Steve Case and other business leaders, Sen. Grassley may yet be persuaded to spend less time calling the President “stupid” and, instead let his love of job-creating startups push him to transform his antipathy into appreciation for employment-based, legal immigration reform.  

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Luis Gutierrez and Angelo Paparelli.JPGLast week I ventured into an alternate reality. Like the child, Alice, descending through the rabbit hole, I engaged on immigration with Executive-Branch officials, immigration lawyers, members of Congress, including the indefatigable champion of immigration reform, Rep. Luis Gutierrez, their staffs, and a group of 7th and 8th graders advocating on the Hill for passage of the DREAM Act.

At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.

The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama’s signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children. 

The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin.  Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of “all the hate” coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon’s death. As the Washington Post reported, President Obama said:

I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.

Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America.  He recalled an indomitable father who lost his livelihood and property in Castro’s Cuba and yet built a new business in faraway California.  He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.

Out on the campaign trail, concern for children was also the topic of the week. Rick Santorum — ever solicitous of keeping children on the straight and hetero path — warned a young boy not to use a pink bowling ball. Meantime, supporters of Mitt Romney, seeking to reveal his tender side, coaxed him into telling the moving story of how at Bain Capital he closed the shop one day and with his employees went searching for a 15-year-old girl who’d gone missing in Manhattan.

Thumbnail image for sad girl 2.jpgLove of children, however, only goes so far within the Beltway.  Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, “it’s the moral thing to do.”  These under-age advocates, however, didn’t rely solely on the heart and soul.  Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America.

Their petitions, though politely received, seemed mostly to fall on deaf ears.  The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November’s election. 

Even more dispiriting, the much-heralded Obama-Administration palliative of interim relief through the exercise of prosecutorial discretion (PD) is working, at best, in feeble fits and starts.  Judging from the comments I heard in DC, PD — as implemented by ICE and apparently not at all by USCIS — looks to be a disingenuous ploy to assuage the left and an administrative convenience to clear the backlog of cases pending in the immigration courts, including those with strong grounds for relief from removal.  

Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful.  I challenged him, noting that none of the members of ICE’s union, constituting the bulk of ICE’s 7000-person workforce — have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, “I’m a deportation officer, not a discretion officer.”  Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.

sad girl 3.jpgWorse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer’s well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit — the opportunity to vegetate in America, like a bromeliad, on thin air. 

Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director.  Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.

If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin.  He must also explain what “every parent in America should be able to understand” and show “why it is absolutely imperative” that we not waste our DREAMers’ young lives. 

As I explained to CBS radio recently, he should make sure ICE focuses on removing really dangerous felons like the Vietnamese ex-con who’d been ordered removed in 2006 and now is alleged to have killed five people in San Francisco. 

The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum.  The point system should feature a two-way override.  ICE should have discretion where warranted to overturn a presumptive “yes,” and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive “no.”  This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience. 

The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action.  In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.

* * *

sad teen boy.jpgAs my week in Washington ended, I couldn’t help but note the plentiful examples of our nation’s founding, an action based on the same moral principles of “life, liberty and the pursuit of happiness” as cited by the junior high students who last week urged passage of the DREAM Act.  America’s seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week (“The Founders’ Immigration Policy“), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had “appealed to [the British people’s] native justice and magnanimity” to reverse the “usurpations” of King George III, but nonetheless they “have been deaf to the voice of justice.”

Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice.  If you could adopt more children, they should look like our DREAMers.

DREAMER shirt.jpgLast week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth — Americans in all but the eyes of the law — who support enactment of the DREAM Act. 

Publicly proclaiming one’s unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its “Guide to ‘Coming Out’ for Undocumented Youth,” revealing to others that you live in this country without legal status can range from “easy to very hard” depending on the way it’s done. An act in defiance of governmental authority, “coming out” can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.

On the other hand, this form of self-revelation can be cathartic and possibly beneficial.  Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows.  Some of these avenues are described in a useful 73-page online resource, “The Life after College Guide for Undocumented Students,” published by the nonprofit, Educators for Fair Consideration (E4FC). 

Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a “D3” waiver under Immigration and Nationality Act (INA) § 212(d)(3).  This is a risky proposition.  It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security’s Admissibility Review Office — a unit of U.S. Customs and Border Protection — which must approve it.  If the waiver is not granted, a DREAMer who’d entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.

The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.  

The guide, quite correctly however, cautions DREAMers: 

It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.

The E4FC, also laudably, provides links to a free, online service for DREAMers to obtain a preliminary assessment of whether legal remedies may exist in a particular individual’s unique situation, while offering the admonition:

This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.  

I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice.  For legal advice in each individual’s case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.

With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).

  1. Build Your Tribe.  No DREAMer should face the federal government alone.  Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though government officials may deny that publicity has any effect on their actions, publicity helps.  Paraphrasing Hillary Clinton (even if she didn’t say it first or quite this way), “it takes a village to raise a [DREAM] child.”
  2. Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law’s forgiveness provisions. The immigration laws allow foreign citizens to obtain “immigrant visa classification” in many different ways.  It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer’s labor certification, as well as through self-sponsorship options under the “Extraordinary Ability” and “National Interest Waiver” avenues.  It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer’s intellectual property, valued at least at a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States.  As an initial prerequisite, AOS requires that the applicant have been inspected and “admitted or paroled.”  Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold.  If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission.  Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for “technical reasons;” or (2) if it was other than through the fault of the applicant.  See my co-authored article, “Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless.” (“Imagining the Improbable”). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through “technical reasons,” e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
  3. Seek Lawful Nonimmigrant Status without leaving the United States.  Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories.  As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if “extraordinary circumstances” can be established.  Extraordinary circumstances are decided on a case-by-case basis.  As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as “equitable tolling” to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place.  INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum.  Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.   
  4. lennonnyclogo.jpgApply to USCIS for employment authorization, while presenting evidence of eligibility for “deferred action” status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low.  According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings “provisionally amenable” to a grant of PD.  If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of “deferred action,” also sometimes known as “deferred departure,” according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the “Non-Priority Program.”   Although the Operations Instructions (OIs) of USCIS’s predecessor, the Immigration and Naturalization Service, have been superseded, “deferred action” status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he “has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”  Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:

The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:

(A) the likelihood of ultimately removing the alien, including:

(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);

(2) the age or physical condition affecting ability to travel;

(3) the likelihood that another country will accept the alien;

(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;

(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;

(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);

(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).

* * *

To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism.  So be it.  My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won. 

Thoughtful dreamer.jpgRather, this is where your tribe and the tribes of all the DREAMers must spring into action.  Mount a campaign to persuade USCIS to embrace these approaches in individual cases.  Present the most worthy and compelling cases first.  Refrain from filing cases with little hope for success.  Publicize the outcomes of the successes and failures.  Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality. 

The DREAMers, after all, are the innocents.  They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law’s good graces under remedial provisions that past administrations have created.

If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them.  Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers — in large numbers — to ask for what the law clearly allows.  

So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek.  Instead, come out, come out, wherever you are.