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As hard to spot as a well-camouflaged Waldo or surreptitious Carmen San Diego, Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), is almost nowhere to be found. The exception – aside from mandatory appearances at congressional oversight hearings and the occasional press interview – is among the pols he deigns to address who staunchly oppose a functioning and welcoming legal immigration system, or who are sure there’s fraud in every request for immigration benefits.  In gatherings of that sort, he’s as ubiquitous as Zelig.

Regrettably, no Cissna sightings have been reported among immigration stakeholders who yearn for a just immigration system founded on due process, one that is simply functional, albeit with tolerable case processing backlogs that people and businesses can anticipate and act upon. Their importunings that he speak at their national conferences or meet with them in liaison discussions have been spurned or ignored (including my own).

Despite his public absences from all but his fawning admirers, Mr. Cissna has been busy. He’s occupied himself with the task of dismantling the legal immigration system. His machinations make omnipresent the fears, tears and dashed American dreams that this director and his antifraud minions engender every business day.

Unlike his many predecessors who rightly viewed themselves as leading and inspiring the primary federal agency tasked with deciding eligibility for legal immigration benefits and charged with protecting our country’s hallowed tradition as a nation of immigrants, Mr. Cissna has a new mission, one which — as the passing months confirm — demonstrates that he is apparently oblivious to the benefits that a reasonably functioning immigration system have long conferred on American citizens and the U.S. economy.

At a time when willing U.S. workers are few and jobs go begging, Mr. Cissna sees a zero-sum game where a job filled by an immigrant worker means one stolen from an American. Apparently, he is blind to the virtuous law of abundance, widely reported in scholarly research, where productive noncitizens create more and better jobs and higher standards of living in the homeland.

Mr. Cissna has been in situ long enough now to cause law-abiding noncitizens and their sponsors — American employers and close relatives — to tremble with understandable foreboding as they try to play by the rules and work within a heretofore roughly functioning system that he has caused to devolve into chaos and dystopia.

Balderdash, you say.  This blogger’s rants, you’re sure, are but the Cassandra cries of an embittered, hyperventilating immigration lawyer who can’t accept that no means no. Think so?  Let’s look at the evidence of Mr. Cissna’s baleful misdeeds:

  • Planning to Eliminate Spousal Work Permits. As recently as August 20, 2018, the Justice Department confirmed that USCIS is moving forward with rulemaking to eliminate the Obama Administration regulation, which I dub the “freedom-from-vegetating” rule that currently allows the spouses of H-1B specialty-occupation workers who are far advanced in the employment-based green card process to pursue independent careers. No less an authority than The Economist predicts that elimination of the regulation “will have a considerable social and economic cost, particularly for women.” Citing scholarly research, it notes:

Beyond the psychological and physical costs, taking away [the right of H-4 spouses on the path to a green card] to work is likely to reduce the economic returns of the H-1B programme itself.  . . .  [Researchers] found that restrictions on spousal employment were associated with financial concerns, lower satisfaction at work and lower overall life satisfaction—in turn significant factors in both worker employment and retention.  . . . If it is reversed, the most skilled migrant workers may go to jurisdictions with more generous policies. Reversing the programme will also directly remove skilled employees from the workforce. [Other researchers found that H-4 spouses] were employed at similar levels to immigrants with the same demographic and educational characteristics but who already have the legal right to a job, . . . 46% of the spouses would be working. In aggregate, they would be earning about $2.1 [billion].

  • Expanding “Public-Charge” Ban on Immigration Benefits. According to a leaked draft DHS regulation, DHS, presumably with the approval or acquiescence of Mr. Cissna, in tandem with similar actions by the State Department, will propose a rule change that rivals in malevolence the DHS family-separation policy and the caging of children apprehended at the border. If promulgated, the change would deny eligibility for an immigrant visa, green card through adjustment of status, nonimmigrant visas, and entry to the United States by broadening a statutory ground of inadmissibility for a noncitizen who is “likely at any time to become a public charge.” Even before promulgation, as reported here and here, these changes are already hurting law-abiding citizens, noncitizens, and lawful residents. According to the Henry J. Kaiser Family Foundation, these changes would:

[Allow] the federal government to take into account use of health, nutrition, and other non-cash programs when making public charge determinations, . . . [Thus,] use of these programs, including Medicaid, CHIP [the Children’s Health Insurance Program], and subsidies for [Affordable Care Act] Marketplace coverage, by an individual or family member, including a citizen child, could result in the federal government denying an individual a “green card” or adjustment to lawful permanent status or entry into the U.S. These changes would likely result in reduced participation in Medicaid, CHIP, Marketplace coverage, and other programs by immigrant families, including citizen children, even though they would remain eligible. . . .

If the public charge policy change leads to Medicaid/CHIP disenrollment rates ranging from 15% to 35%, an estimated 875,000 to 2 million citizen children with a noncitizen parent could drop Medicaid/CHIP coverage despite remaining eligible, and their uninsured rate would rise from 8% to between 14% and 22%. (Emphasis in original.)

  • Reviving A Formal Denaturalization Program. According to Columbia University History Professor, Mae Ngai, not since the McCarthy Era, some 75 years ago, has the federal government systematically tried to denaturalize citizens (other than alleged Nazi war criminals). The sense of permanence and acceptance that comes with naturalization is now replaced by a sense of vulnerability as Mr. Cissna has established a newly hired USCIS cadre of several dozen lawyers and immigration officers to examine circumstances warranting referral to the Justice Department to initiate proceedings to yank U.S. citizenship. It’s cold comfort to grizzled observers of bureaucracy that the first targets are individuals who naturalized despite having received prior orders of deportation, for once a program is authorized and financed, its mission and scope will inevitably expand.
  • Rescinding the Deference policy. For all prior administrations, immigration stakeholders could reasonably expect – based on a well-reasoned “Deference Memorandum” – that a time-limited grant of immigration benefits, once conferred by USCIS, would endure and be approved again if the employer, the job duties, and the work location remained the same. The Deference Memorandum was appropriately based on a long-established “presumption of regularity” of official government actions, as reaffirmed by the U.S. Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 US 402, 415 (1971) (decision of the Secretary of Transportation comes with a “presumption of regularity” concerning “the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”), and United States v. Chemical Foundation, 272 U. S. 1, 14-15 (1926)(“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”).  Resting on a thatch-work of nonsense, Mr. Cissna caused USCIS to repudiate this reliance interest ostensibly because accessing the agency’s own prior case files is just too hard. No more deference, he announces, despite the presumption of regularity and correctness of official acts that the U.S. Supreme Court has conferred on an agency’s prior decisions.  Instead, backlogs clog the constipated system by virtue of the Cissna-induced presumption of irregularity.  His adjudicators now take as a foregone conclusion the insulting notion that virtually all prior USCIS adjudicators were too incompetent, oblivious or gulled to have made the correct call on an immigration-benefits request.
  • Start-Stop, Assembly-Line Injustice.  Although USCIS regulations at 8 CFR § 103.2(b)(8)(iii) allow applicants and petitioners who’ve submitted cases to be given the chance to provide additional, preexisting evidence of legal eligibility, Mr. Cissna has okayed a policy that allows no second-chances in America, the land of second chances.  Rather, his adjudicators have recently been instructed to deny cases if the initial evidence submitted seems unconvincing, and issue a Notice to Appear (NTA) which summons the unfortunate “beneficiary” to come before an immigration judge for a removal (deportation) hearing.  Fortunately, that policy has been suspended, perhaps, as many prophesied, because USCIS’s draconian leaders belatedly realized that it had not yet devised a process to issue NTAs in volumes apace with their denial rates, and even if it had one, the deluged immigration court system, flooded with asylum applications of individuals and torn-apart families fleeing the strife and violence in Central America, would have no choice but to schedule these USCIS-referred cases for hearing in 2020 and beyond.
  • Extend and Expand Suspension of USCIS Premium Processing Expedite Service. For many employers, the ability to get a response from USCIS in 15 days for an extra $1,225 filing fee was a safety valve.  Premium Processing allowed firms and individuals to plan and execute alternative business and life strategies within a known timeframe if a submitted case were ultimately delayed or denied.  It also gave USCIS — a user-fee funded agency perennially starved of financial resources with virtually no appropriations from Congress — mucho extra moulah with which to hire more adjudicators and whittle away at their growing unexpedited backlogs.  Yet, ala Archie Bunker, USCIS deciders in the Cissna era are wont to prejudge people and businesses seeking legal immigration benefits as suspect classes, take unnecessary time to write up unconvincing and undeserved denial notices and NTAs, and quite foreseeably, cause both the expedite process and the “normal” system of adjudications to collapse under the weight of the agency’s ill-conceived follies. Unsurprisingly to immigration cognoscenti, USCIS recently announced that it will extend and expand its suspension of Premium Processing of H-1B visa petitions, while also proposing to increase the filing fee by 14.92 %, to $1,410.
  • BAHA Brouhaha.  Like Scrooge spouting “bah, humbug!” in the early scenes of A Christmas Carol, Mr. Cissna and his jaundiced adjudicators have dispirited many would-be revelers rejoicing in our current low-unemployment/high-stock-market economy.  As reported in an earlier post, USCIS has grossly expanded the modest instructions in BAHA, the Buy-American, Hire-American Executive Order (which did no more than ask for ideas on how to rework the H-1B program), and used it to assault all varieties of employment-based visas.  From his mentor, patron, and former employer, Sen. Chuck Grassley, Mr. Cissna has sought an “Attaboy” for his BAHA bad acts.  But from immigration stakeholders seeking a fair and workable immigration system, for his BAHA buildout, he’s received a full-throated “BOO.”

* * *

Now that Labor Day has marked the official run-up to the mid-term elections, immigration stakeholders await a message from the voting public and the results of exit polling.  Do Mr. Cissna’s actions warrant plaudits or plum tomatoes?  Time will tell.

The State of California won and lost bigly last July 4th. But what if the state’s biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized to conduct such investigations?

 Three Clear Victories for California

In the wins column, as I recently reported, Federal Judge John A. Mendez in U.S. v. California refused to enjoin two California laws and part of another — all enacted by the state to inhibit cooperation with U.S. Attorney General Jeff Sessions and the Justice Department in their mission to apprehend and deport thousands of undocumented California residents.

Still in full force and effect are:

Senate Bill (SB) 54, which prohibits California law enforcement authorities from sharing with federal immigration authorities a wide variety of information on all but the most dangerous or felonious noncitizens in state custody (including the detainee’s release date), and

AB 103 which directs the California Attorney General to review county, local, or private locked detention facilities housing noncitizens who are held within the state for civil violations of federal immigration laws, and report on the conditions of confinement at each facility, the due process and care accorded to detainees, and the circumstances leading to their apprehension and placement in the facility to the California legislature, Governor and the public by March 1, 2019.

Part of AB 450,  the “Immigrant Worker Protection Act” (IWPA), also escaped the federal court’s preliminary injunction, viz., those involving required employee-notification provisions. IWPA requires employers served with a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications):

(A) to disclose in writing, within 72 hours, to each current employee at the worksite and any labor union representing members there that U.S. Immigration & Customs Enforcement  (ICE) will be conducting I-9 inspection, and

(B) to follow-up any affected employee or authorized union rep – also within 72 hours of receiving any subsequent immigration enforcement agent’s notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records”

A Partial California Loss?

California appeared, however, to have suffered bigly with the Federal Court’s preliminary injunction barring much of IWPA. The temporarily stricken portions reflect the state’s attempt to make California workplaces mandatory safe zones, free of federal immigration intrusions, except where judicial warrants authorize entry to nonpublic worksite areas, or judicial or administrative subpoenas mandate access to employee records.

Unless the injunction is lifted, IWPA may no longer operate to bar employers in California from:

  • reverifying the employment eligibility of any current employee (unless required by federal law); and
  • voluntarily (a) granting immigration enforcement agents entry to any non-public areas of a worksite (unless the agents present a judicial warrant), or (b) allowing the agents to access, review, or obtain any employee records (unless the agents present an NOI, an administrative or judicial subpoena, or a judicial warrant requiring compliance)(the no-voluntary-access provisions).

Practical Effects on Employers in California. In real-world practice, however, IWPA’s enjoined sections have had little impact on federal immigration enforcement activities – except for one immigration enforcement agency, FDNS, whose unlawful provenance and frequent misbehavior have been little reported.

IWPA’s Reverification Ban. The ban on employer reverification of a current employee’s right to work in the U.S. could never have operated as the state intended because the exception (unless required by federal law) always

Federal Law Requires Reverification. The only practical and lawful reasons why an employer might be required or motivated to reverify employment eligibility would be if:

  • the employee had time-limited work permission which was about to expire, and the employer needed to complete Section 3 of the I-9 requiring reverification in order to confirm that the individual continue to be authorized for employment,
  • the employer decided to conduct a lawful, nondiscriminatory I-9 compliance audit,
  • an employer had constructive knowledge of suspicious circumstances that must be investigated in order to see whether or not a current employee in fact was authorized to work, or,
  • the employer lost, failed to fully complete, or never completed an I-9 for that worker.

Reverifying the employment eligibility of current employees is a continuing legal obligation.  This duty stems from Immigration and Nationality Act (INA) § 274A which imposes on employers the ongoing, affirmative obligation to refrain from continuing to employ a worker if the employer has “knowledge” (which by USCIS regulation may be actual or constructive knowledge) that the employee is not authorized to work in the United States. This continuing duty can only be fulfilled if the employer makes sure that it has a fully executed, and undoubtedly correct I-9 for the worker:

  • A fully executed I-9 requires the worker to declare his or her status (U.S. citizen, national, permanent resident [etc.], or a noncitizen holding temporary work authorization) in Section 1 of the I-9, and to select from the I-9 Lists of Acceptable Documents and present to the employer an original document or set of documents verifying identity and employment eligibility ; it also requires the employer examine the original(s) in the presence of the worker and then certify in Section 2 that the document(s) appear(s) to be genuine and relate to the employee. As long as the I-9 cannot be located, was never completed initially, or remains partially incomplete, it is not undoubtedly correct.
  • An undoubtedly correct I-9 is one as to which the employer has not become aware of any credible facts calling into question the right of a current employee to work in the United States.

The Injunction Barring IWPA’s No-Voluntary-Access Provisions Helps Only FDNS

The preliminary injunction prohibiting enforcement of IWPA’s no-voluntary-access provisions will have little practical consequence in most cases. Save for FDNS – a unit of USCIS, the immigration benefits-granting agency in the Department of Homeland Security (DHS) – federal immigration enforcement agencies (except in legally permissible situations) have mostly refrained from conduct likely to disturb, or intrude on, the rights of employees at California worksites. None of them but FDNS makes surprise visits and demands access to nonpublic areas of an employer’s worksite or to any employee records without first presenting a judicial order or other source of legal authority.

The primary federal immigration enforcement agencies – the Homeland Security Investigations (HSI) unit in ICE, the Justice Department’s Immigrant and Employee Rights section (IER), and the Labor Department’s immigration enforcers, the Wage and Hour Division (WHD) and the Office of Foreign Labor Certification (OFLC) – routinely provide written notice in advance and cite to binding legal authority authorizing them to inspect records, and, in some cases, interview employees (although often such interviews are conducted away from the business).

Therefore, the Judge Mendez’s preliminary injunction, for all practical purposes, leaves only FDNS’s investigators free to disrupt California worksites without benefit of legal formality. If the purpose of the IWPA is to avoid federal immigration intrusions at California worksites, and provide protection to undocumented workers in the state, then surely FDNS’ surprise workplace swoops cause disruptions, and frighten and intimidate both documented and undocumented workers on the premises.

In California (and for that matter, throughout the United States), FDNS officers always appear unannounced at businesses and demand that employers provide them with access to nonpublic worksite areas and access to specific employees, while proffering nothing more “official” than the enforcement agent’s business card.  As countless employers can confirm, FDNS agents claim they are there merely for a “site visit” in order to confirm the accuracy of statements made in an immigration form submitted to USCIS by an employer petitioning USCIS for an employment-based immigration benefit, such as a work visa or, an employment-based green card.  FDNS investigators have substantial leverage to induce an employer’s cooperation.  Failure to cooperate would ordinarily lead to a negative report by the investigator to and immigration service officer within USCIS.  That officer has the power to reopen a previously approved petition issue a notice of intention to revoke an approved work-visa petition, and notwithstanding any written evidence submitted by the employer, issue a revocation notice.  The revocation has the effect of requiring the employer to terminate the employment of the sponsored employee.  It also causes the employee and immediate family members to lose lawful immigration status, and be obliged to depart the United States unless an avenue exists to obtain a new authorization to remain.

FDNS’ innocuously-sounding “site visits” at employer locations in the United States, as the Ombudsman of USCIS recently confirmed in her 2018 Annual Report to Congress (p. 9), are of two types, “administrative site visits,” which have occurred continuously since 2004 (when what would become FDNS was initially known as the Fraud Detection and National Security Office), and “targeted” worksite visits under the new “Targeted Site Visit and Verification Program,” established in 2017.  (Both the Ombudsman’s 2018 report, and DHS in its December 16, 2014 Privacy Impact Assessment for FDNS (FDNS PIA) provide a wealth of additional data on the internal and external machinations of FDNS.)

FDNS – The Unauthorized Immigration Enforcers

Although it may shock the reader, FDNS officers have no legal authority to engage in immigration-related investigation and enforcement activities.  Their actions, and those of FDNS itself, clearly violate the express terms of the Homeland Security Act of 2002 (HSA), the statute that abolished the former Justice Department agency, the Immigration and Naturalization Service (INS), and established in newly-created DHS three immigration agencies, now known as ICE, USCIS, and U.S. Customs & Border Protection (CBP), each with distinct and separate statutory responsibilities.

This division of immigration authority resulted from a prior history of INS dysfunctions.  Long before the HSA came into effect, many INS critics had assailed its schizophrenic and contradictory missions, i.e., on one hand, to protect the border and deport unauthorized noncitizens, and on the other, in the same agency, to adjudicate (approve or deny) requests for immigration and naturalization “benefits.”  These benefits are wide-ranging – from the power to grant, change, or extend nonimmigrant visa status, award asylum status, or declare individuals as U.S. lawful permanent residents (green card holders), to the authority over determinations of U.S. citizenship through the naturalization process.

Contemporary criticisms of INS in the years leading to enactment of the HSA included Demetrios G. Papademetriou, T. Alexander Aleinikoff, & Deborah Waller Meyers, Reorganizing the U.S. Immigration Function: Toward a New Framework for Accountability (1998) (describing the need for a demarcation between immigration enforcement and immigration services), and “Reconcilable Differences? An Evaluation of Current INS Restructuring Proposals,” Demetrios G. Papademetriou and Deborah Waller Meyers, Migration Policy Institute, Policy Brief (June 2002) (analyzing two legislative and two Executive Branch INS-restructuring proposals proposals).

Given these several restructuring proposals, it is not surprising that the Senate report on S. 2452, a bill that would ultimately be meshed into the HSA, acknowledged that the bill’s proposed statutory “division of INS programs into ‘enforcement’ and ‘service’ components tracks an administrative reorganization plan that is already underway.”

In ultimately enacting the HSA, however, Congress deviated from S.  2452 by creating a new Department of Homeland Security to house the enforcement and service components of the former INS rather than follow the plan envisioned in the Senate bill (“the law enforcement pieces transferred from INS . . . would necessarily need to maintain close coordination with the service programs that would remain in the Justice Department”).  Nonetheless, the HSA maintains this clear separation of immigration enforcement and benefits functions.  (For a discussion of the further administrative restructuring that occurred after the HSA’s enactment, including the formation of USCIS, ICE, and CBP, see, David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements,” Migration Policy Institute, Insight, April, 2003, No. 1.)

A review of the HSA reveals the clear intention of Congress to separate into distinct agencies the inconsistent demands that had been placed on INS.

Specifically, HSA § 451(b) (“Transfer of Functions from [INS] Commissioner”) “transferred from the [INS] Commissioner to the Director of the Bureau of Citizenship and Immigration Services [now known as USCIS] the following functions . . .

“(1) Adjudications of immigrant visa petitions.

“(2) Adjudications of naturalization petitions.

“(3) Adjudications of asylum and refugee applications.

“(4) Adjudications performed at service centers.

“(5) All other adjudications performed by the [INS] immediately before the effective date specified in [the HSA].”  (Emphasis added.)

Another provision in the HSA, § 441, created two new DHS law enforcement agencies – now known as ICE and U.S. Customs & Border Protection (CBP) – and transferred to them the former INS authority over:

“(1) The Border Patrol program.

“(2) The detention and removal program.

“(3) The intelligence program.

“(4) The investigations program.

“(5) The inspections program.” (Emphasis added.)

Although HSA § 1502 granted the President the authority to reorganize the new DHS by submitting to Congress a plan of reorganization which “shall contain, consistent with this Act (emphasis added), such elements as the President deems appropriate,” another provision, HSA § 471, now codified at 6 USC § 291(b), expressly limited the president’s power to restructure DHS. It enacted the following “PROHIBITION [capitalization in original] [:]”

The authority provided by [HSA §] 1502 [codified at 6 USC § 542] may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other.  (Emphasis added.)

Despite the allocation of exclusive authority conferred on ICE and CBP over “investigations” in HSA § 441(1), and the prohibition in HSA § 471 against combining, joining, or consolidating functions, the first Secretary of DHS, Thomas Ridge, soon violated this prohibition. On June 5, 2003, he issued Department of Homeland Security Delegation Number: 0150.1, “Delegation to The Bureau of Citizenship and Immigration Services [BCIS], (Delegation)” in which he delegated to BCIS (now USCIS) the following power:

Authority to investigate alleged civil and criminal violations of the

immigration laws, including but not limited to alleged fraud with respect to

applications or determinations within the BCIS and make recommendations for

prosecutions, or other appropriate action when deemed advisable.  (Delegation § II-I; emphasis added).

The 2014 FDNS PIA, seeming to reflect conscious awareness of this HSA violation, tried to paper over the statutorily-prohibited authority over investigations and wordsmith a meaningless, hair-splitting distinction at footnote 3 (“USCIS [through FDNS] conducts administrative inquiries, ICE conducts criminal investigations”). USCIS is more candid and forthright, however, in its job announcements which place emphasis on the duties of investigation, prosecution and law enforcement as clearly as the image from a Blu-ray disc in this FDNS job description, Fraud Detection & National Security Directorate, District 13:

Responsibilities

  • . . .
  • Identify, articulate, and pursue suspected immigration benefit fraud, public safety, and national security concerns.
  • Conduct administrative investigations and site visits to obtain documents, conduct interviews, perform system checks, and make determinations regarding potential administrative and/or criminal violations.
  • Serve as a liaison to law enforcement and intelligence agencies and participate in inter-agency task forces and partner-agency investigations to combat fraud and deter and detect national security and public safety threats. . . .
  • Serve as an expert witness and represent USCIS in related court proceedings. (Emphasis added.)

USCIS obviously understands the difference between investigations and its normal bread-and-butter work of adjudications. Just compare the foregoing FDNS job announcement (which closes on October 8, 2018) with a contemporaneous USCIS Immigration Services Officer job description: 

Responsibilities

  • . . .
  • Grant or deny complex and highly sensitive applications and petitions for immigration benefits based on electronic or paper applications/petitions.
  • Research, interpret and apply appropriate statutes, regulations, and precedent decisions to make adjudicative decisions.
  • Interview applicants and petitioners to elicit statements, assess credibility, and analyze information to identify facts that form the basis for a decision concerning eligibility for immigration benefits.
  • Conduct security checks and provide assistance to Federal law enforcement agencies to identify individuals who are ineligible for immigration benefits due to national security, public safety, or other legal grounds.
  • Use electronic systems to provide verification of any number of established data points to make adjudicative decisions, determine appropriate level of adjudicative review, and update databases with appropriate information and decisions. (Emphasis added.)

Common dictionary definitions also make plain the distinction between investigations and adjudications:

The Cambridge Dictionary:

investigate

​. . . to examine a crime, problem, statement, etc. carefully, especially to discover the truth:

Police are investigating allegations of corruption involving senior executives.

We are of course investigating how an error like this could have occurred. 

The Merriam-Webster Dictionary:

investigate. . .

: to observe or study by close examination and systematic inquiry

: to make a systematic examination; especially: to conduct an official inquiry

The Cambridge Dictionary:

adjudicate

. . .

​: to act as judge in a competition or argument, or to make a formal decision about something:

He was asked to adjudicate on the dispute.

He was called in to adjudicate a local land dispute.

The game was adjudicated a win for Black.

The Merriam-Webster Dictionary:

adjudicate

. . .

: to make an official decision about who is right in (a dispute): to settle judicially.

The school board will adjudicate claims made against teachers.

. . .

: to act as judge

The court can adjudicate on this dispute.

Despite the dictionary consensus, two colleagues, one, an FDNS officer at USCIS headquarters, and another, a former counsel to the Senate Judiciary Committee, have tried to suggest to me that this obvious HSA violation has been remedied by later congressional action. They point to a Conference Report to accompany H.R. 4567 [Report 108-774], “Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005” (Conference Report), which states:

BENEFIT FRAUD The conferees have agreed to the Administration’s request to increase the resources available for benefit fraud enforcement by decreasing the funds available to Immigration and Customs Enforcement (ICE) from the examinations fee account, and leaving those resources available to [USCIS], as proposed in the House report. These resources are to fund the Office of Fraud Detection and National Security (FDNS) Unit, as called for by the Government Accountability Office. The FDNS unit is responsible for developing, implementing, directing, and overseeing the joint [USCIS]-ICE antifraud initiative, and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting any immigration benefits. [USCIS] is to report by July 1, 2005, to the House and Senate Committees on Appropriations on the progress in implementing the joint anti-fraud initiative.  (Emphasis added.)

The simple retort to their argument is that no subsequent Congress can appropriate funds to a federal agency or component (here, FDNS) that has not been lawfully constituted by pre-existing or contemporaneous legislation, and whose very existence expressly contravenes the agency’s foundational enabling statute. See Congressional Research Service reports, “Overview of the Authorization [/] Appropriations Process,” by Bill Heniff, Jr., Analyst on Congress and the Legislative Process, November 26, 2012 (No. RS20371) (“Authorizing legislation  . . .  authorizes, implicitly or explicitly, the enactment of appropriations for an agency or program. . . . An appropriations measure provides budget authority to an agency for specified purposes.”), and “Authorization of Appropriations: Procedural and Legal Issues,” by James V. Saturno, Specialist on Congress and the Legislative Process, and Brian T. Yeh, Legislative Attorney, November 30, 2016 (No. R42098)(“ Under congressional rules, when making decisions about the funding of individual items or programs, . . . Congress may be constrained by the terms of previously enacted legislation” [emphasis added]).

Moreover, if FDNS already existed through authorizing legislation, why then would Rep. Bob Goodlatte, Chair of the House Judiciary, Homeland Security Education and the Workforce Committee – a former immigration lawyer before his election to Congress – have any reason or need to propose a bill, H. R. 2407, dubbed the “United States Citizenship and Immigration Services Authorization Act,” containing a seemingly superfluous Section 2 which would amend the HSA to include a new provision, HSA § 451(g)(“There is established within United States Citizenship and Immigration Services a Fraud Detection and National Security Directorate”)?

One can only infer that the chairman belatedly realized that FDNS had never been duly authorized (or this author can wistfully imagine that perhaps a supporter of FDNS directed Rep. Goodlatte to “A Cancer within the Immigration Agency,” in which I first assailed the unauthorized status of FDNS back in 2011).

 What’s in It for California?

Even if FDNS was never lawfully established, and indeed, if its existence as an immigration investigation and enforcement unit in USCIS violates HSA § 471 (the prohibition against combining, joining, or consolidating functions of the old INS), how does this help California resurrect IWPA’s no-voluntary-access provisions?

As I explained in a prior piece (“AB 450: California’s Law of Unintended Immigration Consequences”), the IWPA does not define the term “immigration enforcement agent.”

USCIS, however, clearly offers a broad regulatory definition (8 CFR § 1.2) of agency employees designated as “immigration officer[s].”  The definition includes immigration officials sporting these titles: “immigration enforcement agent, . . .  immigration agent (investigations), immigration enforcement agent, . . . investigator, . . . investigative assistant, and special agent.” (emphasis added).

Recall that in U.S. v. California, Judge Mendez declined to rule that the principle of federal primacy over immigration preempted IWPA’s no-voluntary-access provisions, ruling (at pp. 23-24) that the preemption cases cited by the DOJ did not “establish that Congress has expressly or impliedly” “authorized immigration officers to enter places of labor on employer consent  . . . [or authorized] immigration enforcement officers to wield authority coextensive with the Fourth Amendment.” Rather, the Court issued a preliminary injunction barring California’s enforcement of the no-voluntary-access sections of the IWPA because it determined that the federal government “is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine.” Finding California’s arguments unpersuasive, the Court held (at p. 26):

Given that immigration enforcement is the province of the Federal Government, it demands no stretch of reason to see that [IWPA’s no-voluntary-access provisions], in effect, target the operations of federal immigration enforcement. The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government. The law and facts clearly support [the Justice Department’s] claim as to these [provisions] and [the DOJ] is likely to succeed on the merits.

Implicit in the Court’s ruling, however, is the premise that in every case federal immigration enforcement authority is lawful, i.e., duly established by statute or regulation. As has been shown, this premise falls flat when evaluated in the context of an administrative or targeted worksite investigation by FDNS. To the contrary, FDNS’s purported authority violates the express prohibition in HSA § 471 against combining, joining, or consolidating the immigration enforcement and services functions of the former INS.

Thus, even though USCIS characterizes FDNS investigators as “immigration officers,” its regulations define this phrase to include immigration enforcement agents and immigration agents (investigations), and its job postings make abundantly clear that FDNS officers “[conduct] administrative investigations and site visits” in order to “make determinations regarding potential administrative and/or criminal violations (emphasis added).”

Therefore, as proceedings in U.S. v. California continue, consider whether the Federal Court’s interpretation of the term “immigration enforcement agent” in IWPA’s no-voluntary-access provisions might view the imposition on employers of a ban on FDNS access to nonpublic business premises and employee records in the absence of a subpoena as a proper exercise of the California legislature’s traditional police powers. After all, the Court recognized that “[when] Congress legislates in a field which the States have traditionally occupied, [Federal Courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress [citing Arizona v. United States, 567 U.S. 387, 400 (2012), which quoted Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(internal quotations omitted, and emphasis added)].”

The “clear and manifest purpose of Congress” in enacting HSA § 471 (a statute prohibiting any future re-amalgamation of the investigation and enforcement authority of legacy INS with that agency’s service and adjudicative functions) leads to no other conclusion than that FDNS is an unlawfully constituted investigative and enforcement arm of the benefits-adjudication agency, USCIS.  In addition, USCIS holds FDNS out in its job postings as an immigration investigations agency whose work product can lead to criminal prosecution of employers and employees.  For purposes of IWPA’s no-voluntary-access provisions, therefore, FDNS officers conducting site visits in California should be viewed as a “immigration enforcement agents.”  Accordingly, this writer urges the California Attorney General to file a motion for reconsideration of the Federal Court’s preliminary injunction and seek an order allowing IWPA’s no-voluntary-access provisions to continue in effect during the pendency of U.S. v. California.

What Might Happen Next?

Were the Court to release IWPA’s no-voluntary-access provisions from the constraints of the preliminary injunction, FDNS may or may not continue its site visit program without change.  USCIS, however, fearing that FDNS might be forever stripped of its fig leaf of apparent legal authority, may decide to revisit the agency’s admittedly-reasonable concern for benefits-program integrity.

No one can say how USCIS might respond.  Conceivably, the agency could:

  • Use its existing regulatory authority to conduct at its field offices in-person interviews of employer representatives and individual beneficiaries of immigration-benefits requests,
  • Propose to amend its regulations in compliance with the notice-and-comment procedures of the Administrative Procedure Act in order to create a procedural structure and approved protocols for site visits, that also comply with the HSA, perhaps modeled after its existing regulation on site visits to religious organizations under the R-1 nonimmigrant religious worker category, 8 CFR § 214.2(16)(describing the site visit as an “on-site inspection of the petitioning [religious] organization,” which “may include a tour of the organization’s facilities . . .”).
  • Modify its current approaches for gathering data and documentation through the issuance of requests for additional evidence, and the grant of opportunities to respond to USCIS notices of intention to deny a pending petition or to revoke an approved petition.
  • Decide to refrain from seeking a judicial subpoena or judicial enforcement of an administrative subpoena for access to nonpublic business premises or records until new authorizing legislation amending the HSA is enacted.

In addition, ICE, in conformity with the spirit and letter of the HSA, might at last see itself as obliged to take the laboring oar on immigration investigation and enforcement activities, and thereby essentially put FDNS out of the investigations and enforcement business.

It remains an open question, however, at a time when the hue and cry of “abolish ICE” is heard on the streets and in social-medialand, whether Congress will at last do its job and fix this dysfunctional mess of draconian and contradictory immigration laws by enacting common-sense, workable, and humanitarian immigration reforms that protect our borders, strengthen our economy, assure procedural due process, and promote our historic exceptionalism as a nation of immigrants.

The familiar lines were drawn.  Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges – all in an age-old constitutional battle of federal power versus states’ rights.

This time around, however, the roles were reversed.  Version 2018 is unlike the 1960s when extreme-right southern conservatives, claiming to champion states’ rights, defied but ultimately failed to stop federal efforts to protect civil rights.  This time, the state of California passed three statutes under its police powers with the avowed purpose of promoting public safety and protecting undocumented state residents against a determined army of newly-unshackled federal immigration enforcement officers. And this time, the state mostly won.

By enacting three new California laws – Assembly Bills, AB 103 and AB 450, and Senate Bill (SB) 54 – state legislators responded to aggressive federal immigration enforcement activities in the Golden State that they viewed as serious threats to community policing, public safety, and the state’s sizzling, low-unemployment economy.

AB 103 – effective June 27, 2017 – added  California Government Code § 12532, directing the state Attorney General to conduct a review and report on county, local, or private locked detention facilities housing noncitizens within the state for civil violations of federal immigration laws. The AG must review and issue a report to the California legislature, Governor and the public by March 1, 2019, and must address conditions of confinement at each facility, due process and care provided to detainees, and the circumstances leading to their apprehension and placement in the facility. To permit this review, AB 103 mandates that the AG be provided with access to each facility, detainees, officials, personnel, and records.

AB 450 – effective January 1, 2018 – the “Immigrant Worker Protection Act” (IWPA), as I wrote in an earlier blog post, “AB 450: California’s Law of Unintended Immigration Consequences” – prohibits California employers (on pain of civil fines) from voluntarily cooperating with federal immigration enforcement agents at the worksite unless cooperation is required by federal immigration law.  Specifically, IWPA prohibits California-based employers from:

  • voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant.
  • voluntarily allowing immigration enforcement agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications), an administrative or judicial subpoena, or a judicial warrant requiring compliance.
  • reverifying the employment eligibility of any current employee unless required by federal law.

IWPA also requires employers served with an I-9 NOI to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun, and notify any affected employee or authorized union rep – again within 72 hours of receiving any subsequent I-9 related federal notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records” (the AB 450 Notice requirements).

Senate Bill (SB) 54 – enacted October 05, 2017, and popularly titled the “California Sanctuary State Law”  – is a comprehensive statute which, among other things, prohibits California law enforcement authorities from sharing a wide variety of information on persons in state custody, including the release date of a detained noncitizen, and from transferring the individual to federal authorities unless he or she has been convicted of certain crimes or unless authorized by a judicial warrant or a judicial probable-cause determination.

Predictably, U.S. Attorney General Jefferson Beauregard Sessions III threw down the gauntlet.  The U.S. Justice Department filed a federal complaint in the Eastern District of California, requested a preliminary injunction, offered supporting declarations of senior officials in the State Department (Carl S. Risch) and DHS (Thomas D. Homan, Todd Hoffman and Rodney S. Scott).  DOJ attorneys argued to Federal Judge John A. Mendez that these new California laws unconstitutionally usurp federal supremacy and sovereignty over control of the nation’s borders. Not shrinking from the fight, California AG Becerra filed a formal opposition to the request for preliminary injunction, a motion to dismiss the suit, and a legal brief.

Ironically, on Independence Day, Judge Mendez issued his momentous, carefully considered decision (a 60-page whopper), ruling that:

  • No preliminary injunction would issue against AB 103, SB 54, and the AB 450 Notice requirements, requirements because they do not trench upon federal authority over immigration.
  • As for rest of AB 450, California authorities are preliminarily enjoined from:
    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees,
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite, or
    • allowing them to access, review, or obtain employee records.

Sounding a note of somber exasperation, Judge Mendez implored the two political branches to act:

This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

As noted in the Introduction to this Order, this case is about the proper application of constitutional principles to a specific factual situation. The Court reached its decision only after a careful and considered application of legal precedent. The Court did so without concern for any possible political consequences. It is a luxury, of course, that members of the other two branches of government do not share. But if there is going to be a long-term solution to the problems our country faces with respect to immigration policy. it can only come from our legislative and executive branches. It cannot and will not come from piecemeal opinions issued by the judicial branch. Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

U.S. v. California, Judge Mendez’s case, will continue to final judgment and injunctive orders.  Meantime, however, the federal/California square-off over immigration enforcement is only in the early rounds.  California has just shot additional volleys.

  • The latest California law, SB 785 – enacted with immediate effect on May 17, 2018 – prohibits the disclosure of an individual’s immigration status in open court, unless the party seeking to introduce it first persuades a judge in a private, in camera hearing, that such evidence is relevant and otherwise admissible. SB 785 was enacted in response to recent ICE arrests of immigrants in California courthouses, despite the March 2017 admonition of California Chief Justice, Tani Cantil-Sakauye, AG Sessions and then-Homeland Security Secretary John Kelly, reminding them that:

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.

  • In State of California, ex rel, Xavier Becerra v. Jefferson B.  Sessions, et al., the state filed a July 9, 2018 motion for summary judgment and legal brief, supported by 13 declarations, requesting a nationwide injunction against imposition of immigration enforcement conditions on federal grants for state and local law enforcement.  In a contemporaneous press release, AG Becerra’s office asserted that:

[The U.S. Justice Department has] unlawfully withheld California’s Community Oriented Policing Services (COPS) grant funds, which the State uses to support a task force that combats large-scale drug trafficking. California’s motion seeks to have the court enjoin the federal government’s unlawful conditions for all jurisdictions and compel the issuance of JAG funding to all eligible jurisdictions in the United States that have yet to receive it, as well as to restore COPS funding to California.

* * *

Although Congress apparently has no stomach for comprehensive immigration reform, despite the overwhelming popular view that reform is necessary, the judicial battle between the world’s first and fifth largest economies continues unabated.

“It became necessary to destroy the town to save it.”

~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.

US 1965 Stamp Celebrating the 750-Year Anniversary of the Magna Carta

I’ll admit I foolishly allowed myself to be misled. Despite almost 40 years of practicing immigration law, I didn’t anticipate the robustly revanchist re-grabbing of lost immigration territory and status, or the truly audacious intent and breadth of the April 18, 2017 “Presidential Executive Order on Buy American and Hire American (BAHA).”  As interpreted by officers adjudicating requests for immigration benefits at U.S. Citizenship and Immigration Services (USCIS), BAHA would “Make America Great Again” by taking us back to the pre-1965 days of racial and national origin discrimination, xenophobia, and jingoism, as was then embodied in America’s immigration laws.

Reading BAHA’s scant immigration provisions last April, I viewed it then as much a brouhaha about nothing. It merely called for inter-departmental proposals outlining potential administrative and legislative changes to the H-1B visa category that would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” and, “[consistently] with applicable law . . . [would] protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Since none of these proposals could come into existence without new legislation or new rulemaking under the Administrative Procedure Act (requiring a lengthy period of notice and an opportunity for stakeholder comment), I surmised that nothing much would change in the short-term.

To be sure, I noted BAHA’s ominous enforcement-minded tone (“it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad”). But it seemed to me that, given the long-standing “culture of no” and gamesmanship at USCIS, BAHA was merely a ritualistic shot against the bow signaling more of the same. Boy oh boy was I wrong. BAHA has apparently awakened USCIS immigration officers as if it were a dog whistle, a silent reveille alerting them loud and clear – just like their recently “unshackled” colleagues charged with immigration enforcement – that the cuffs are off. Since BAHA was issued, USCIS immigration officers seem to view themselves as henceforth free to apply even more “innovative” and superficially plausible, if extralegal and disingenuous, reasoning to deny work visa status and employment-based green cards at whimsy and will.

Many have reported on this trend. Miriam Jordan, New York Times immigration reporter, in a recent article, “Without New Laws or Walls, Trump Presses the Brake on Legal Immigration,” offers several examples of seemingly worthy cases delayed or denied since BAHA’s release. Reuters immigration columnist, Yeganeh Torbati, offers additional examples in “Trump administration red tape tangles up visas for skilled foreigners, data shows.” Distinguished immigration lawyer and scholar, Cyrus Mehta, offers a point-by-point  technical takedown of the multi-flavored yet flawed USCIS reasoning now on display in “Stopping H-1B Carnage,” and “H-1B Entry Level Wage Blues,” as do Mareza Estevez, Justin Storch, and this blogger in “H-1B Visas: Trends, Troubles & The Look Ahead,” a webinar presented by the Council for Global immigration and (linked with permission). Not surprisingly, the pain is spreading, a trend which Stephanie Saul describes in her New York Times article,  “As Flow of Foreign Students Wanes, U.S. Universities Feel the Sting.”

Even more up close and personal, Stanford MBA graduate and lawyer, Frida Yu, offers her own disheartening perspective in “Is Anyone Good Enough for an H-1B Visa?“:

Six months ago I won the lottery — the H-1B visa processing lottery for skilled foreign workers. I called my thrilled parents and celebrated with friends. I’m from northeastern China and have an M.B.A. from Stanford, and was planning to stay in Silicon Valley to help start a company based on a promising new technology to improve the use of data. I was overjoyed because, historically, being selected in the lottery was a near guarantee that an applicant could remain in this country at least three more years.

But at the end of July, I received the dreaded Request for Further Evidence from immigration authorities. I provided the extra information that United States Citizenship and Immigration Services asked for. In September, I got another request. I complied again. Finally, on Oct. 11, half a year after my celebration, I learned I had been denied a visa.

After earning law degrees in China and at Oxford, after having worked in Hong Kong as a lawyer at a top international firm, after coming to United States three years ago for an M.B.A. and graduating and joining a start-up, I was given just 60 days to leave the country. I have 17 days left.

But who’d a thunk that adjudicators would target for denial foreign workers currently in lawful visa status applying to continue working in the same job with the same employer? After all, doesn’t BAHA’s § 1(e) define “workers in the United States” and “United States workers” as described in 8 U.S.C. § 1182(n)(4)(E), to include not only green card holders, refugees, and asylees, but also authorized immigrants? And doesn’t BAHA’s § 1(c) define “petition beneficiaries” in a future-focused way as “aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program”? (Emphasis added.)

Well I was both naïve and unimaginative, given that a new, post-BAHA USCIS policy memo has apparently stripped all currently authorized nonimmigrant workers of their status as protected “U.S. workers” under § 1(e). See, USCIS Policy Memorandum PM-602-0151, October 23, 2017 (“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status”). In this policy memo, USCIS floated the spurious claim that its earlier 2004 and 2015 guidance (requiring that officers defer and approve, except in limited circumstances, all prior approvals of work-visa status as long as the job duties and employer remain the same) somehow shifted the burden of proof away from the individual and imposed it on the agency. This burden-of-proof argument rests on shaky terrain. Apparently, the effort is simply too much for USCIS, despite ever-escalating user fees “to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.”

In other words, USCIS now asserts that merely doing its job, i.e., by reviewing a nonimmigrant’s entire case history, somehow shifts the burden of proving eligibility to the agency. Not so. The statutory burden on the petitioner or applicant to establish visa eligibility remains the same. Rather the minimal duty imposed on USCIS is to retrieve the prior file and read it. If that is administratively burdensome, then a reasonable new policy would instead suggest to stakeholders that, if deference to a prior approval is desired, then the petitioning employer must include a copy of the prior submission and approval notice with each request for extension of status. Problem solved.

To tighten the screws even more, USCIS has released its 2018 regulatory agenda, which, if promulgated in final form, would apparently take steps to establish a point system to favor the most-skilled or highest-paid foreign workers, and raise the standard for eligibility as an H-1B worker in a specialty occupation – moves in step with BAHA, but entirely at odds with the H-1B provisions of the Immigration and Nationality Act and its legislative history. More draconian still are the changes to the H-1B visa category reportedly in the planning stage, possibly including restrictions on extensions of H-1B visa status beyond the standard maxout period of six years. Take a gander at “Trump considers big change to H-1B foreign tech worker visas,” as reported by the McClatchy Washington Bureau. This policy change, if true, would be the height of chutzpah because Congress enacted new exceptions to the usual six-year period of H-1B stay in the American Competitiveness in the 21st Century Act because of “lengthy adjudications” by the very same agency, USCIS, which had been unable to process its growing caseload in a timely manner (only in part due to visa-quota backlogs).

Notwithstanding these worrisome developments, and despite having been gulled before, I choose to toss cynicism to the wind, and hereby republish a few New Year resolutions for immigration officials to consider adopting:

  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.

As immigration officials ponder my tender offer, I urge each of them to recall the oath of office as a federal employee. In the oath each of them did “solemnly swear (or affirm) [to] support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . bear true faith and allegiance to the same; . . .  take this obligation freely, without any mental reservation or purpose of evasion; and . . . well and faithfully discharge the duties of the office on which [s/he is] about to enter.”

I thus implore immigration officials not to destroy America to save it. I ask them to recall that our cherished American heritage stems both from the rule of law, first embodied some 800-plus years ago in the Magna Carta, and from our cherished exceptionalism as a nation of immigrants. If immigration officials nevertheless persist in savaging decades of immigration law and policy, then I urge them to consider my intentionally nonviolent reference to the Urban Dictionary‘s definition of the Latin phrase, sic semper tyrannis, perhaps wrongly attributed to Brutus (but also uttered very unjustly by John Wilkes Booth):

sic semper tyrannis

Latin, translation: “Thus always to tyrants”, purportedly (but unlikely) uttered by Brutus at the assassination of Julius Caesar.

The phrase is meant to signify that tyrants will always be overthrown and removed from power.

The California legislature and Governor Jerry Brown have once again entered the immigration fray.

This foray is not about its Sanctuary State legislation, recently enacted, and promptly decried  by U.S. Attorney General Jefferson Beauregard Sessions III as “unconscionable”, and by Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), as “[forcing his] hand,” and causing him to “quadruple workplace crackdowns.”

No, the latest California leap into the federal immigration ecospace is Assembly Bill  450, which imposes civil fines on employers ranging from $2,000 to $10,000 per violation for a variety of newly unlawful practices. Signed by Gov. Brown on October 5, 2017, AB 450 stands among a slew of new California laws taking effect on January 1, 2018.

Under the new law, every public and private employer in California, or any person acting on the employer’s behalf, must:

No Fourth Amendment Waiver 

Refrain from waiving Fourth Amendment protections against unreasonable searches and seizures by:

  • granting voluntary consent to enter any non-public areas at a place of labor, except if presented with “a judicial warrant,”
  • granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without “a subpoena or judicial warrant,” except if an “immigration agency” (most often, this would be Homeland Security Investigations [HSI], an agency of  U.S. Immigration & Customs Enforcement [ICE]) issues a Notice of Inspection (NOI) of Employment Eligibility Verification Form I-9s and other records required to be maintained under federal immigration regulations in order to verify employment eligibility;

Posted Notice of Worksite Inspection

 Post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving an NOI, communicating the following information to employees:

  1. An immigration agency, identified by name, has issued an NOI (a copy of which must also be posted at the same time) and will conduct inspections of I-9 forms or other employment records.
  2. The date that the employer received the NOI.
  3. The “nature of the inspection” to the extent known.

Notice to the Union

Give written notice to the “employee’s authorized representative,” namely, the exclusive collective bargaining representative, if any, within 72 hours of the immigration agency’s issuance of an NOI:

  • Delivery of Requested Copy of the Notice. Provide any employee, upon reasonable request, with a copy of the NOI;
  • Provide Notice of Suspect Documents. Within 72 hours of the employer’s receipt of a written immigration agency notice informing the employer of the results of the agency’s Inspection of the I-9s and the employer’s employment records, typically entitled, a “Notice of Suspect Documents” (NSD), provide a written notice to certain “affected employees” who apparently lack work eligibility (and any collective bargaining representative ) of the obligations of the employer and the affected employees, containing the following information:
  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.

No Re-Verifying Current Employees

 Refrain from re-verifying the employment eligibility of a current employee at a time or in a manner not required by the employment eligibility verification provisions of the Immigration Reform and Control Act of 1986, 8 USC § 1324a(b), or that would violate any E-Verify Memorandum of Understanding the employer has entered into with the Department of Homeland Security.

* * *

To be sure, AB 450 offers sops feigning fealty to federal immigration law. Replete in the law are exceptions stating that these new mandates are not to be interpreted as requiring the employer to violate federal immigration law. California’s political leaders apparently believe that U.S. immigration rules– in the aspirational words of the Fifth Circuit court federal Court of Appeals – are “comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.”

Regrettably, they are anything but. The court said in this 1981 decision in words that ring ever more true today:

Whatever guidance the [immigration] regulations furnished to those cognoscenti familiar with procedures, this court . . . finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon.  Kwon v. INS, 646 F. 2d 909 (5th Cir., 1981). (Emphasis added.)

AB 450’s supporters, the California Labor Federation and Service Employees International Union, defend the law because it adds what they apparently see as reasonable but necessary burdens on employers in order to protect the state’s sizable population of undocumented employees from immigration raids and the abusive practices of some employers:

“[M]illions of union members are immigrants and worksite immigration raids undermine workers’ rights in significant ways: they drive down wages and labor conditions for all workers, regardless of immigration status; they interfere with workers’ ability freely to exercise their workplace rights; they incentivize employers to employ undocumented workers in substandard conditions because the threat of immigration enforcement prevents workers from complaining; they undermine the efforts of the state to enforce labor and employment laws.”

However laudable this legislative goal, AB 450 would be better titled, the “Have Your Immigration Lawyer on Speed Dial Act,” because that is how this new law will likely play out. This is probably why the Society for Human Resource Management (SHRM) steadfastly opposed AB 450, stating:

“[W]hile well intentioned, [AB 450] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law.”

Consider some of the issues this new law will raise.

Role of California state courts to interpret federal immigration laws? AB 450 grants the California Labor Commissioner or the state’s Attorney General the exclusive authority to initiate civil actions to enforce its provisions. Assuming that the courts find that this law can peacefully coexist with Congress’s plenary authority over immigration law, then presumably California state administrative officials and courts will now be required to decide whether or not particular actions by employers are “required” by federal immigration law.

Distinguishing between a subpoena and a judicial warrant? AB 450 permits employers to grant federal immigration officers access to non-public worksite areas if the employer is presented with a “judicial warrant.” Access to a company’s employee records, however, is not prohibited under the law if immigration officers tender to the employer a “subpoena or judicial warrant.” Few employers likely realize, however, that a subpoena may be issued by a court or by administrative agency officials.

Under Immigration and Nationality Act § 235(d)(4); 8 U.S.C. §1225(d)(4), immigration officers are empowered to issue administrative subpoenas for books and records. If an employer refuses to comply with an administrative subpoena, however, then immigration officials can only enforce it if they persuade a federal judge to issue a judicial order. Yet – in the real world – when federal immigration agents issue an administrative subpoena carrying an official federal seal and, by its terms, demanding access to business records, pity the unsophisticated HR manager who violates California law if s/he “voluntarily” provides the business’s employee records.

Who are “immigration enforcement agents?”  AB 450 does not define the term “immigration enforcement agent.”  The phrase undoubtedly refers to officers of ICE and HSI. Less clear is whether other federal immigration officers should be characterized as immigration enforcement agents under this law. Federal officers with immigration enforcement authority — all of whom have taken an oath to “well and faithfully discharge [their] duties”  —  may hail from any number of Executive Branch departments and agencies.  Under 8 CFR § 1.2, USCIS has set forth a broad definition of DHS employees who are designated by regulation as “immigration officer[s].” These include: “immigration enforcement agents, forensic document analysts,  immigration agents (investigations), immigration enforcement agents, immigration inspectors, immigration officers, immigration services officers, investigator, intelligence agents, intelligence officers, investigative assistants, and special agents, among others.”

Conceivably, AB 450, by its terms, could also extend to federal officials performing immigration functions within the Departments of State, and Labor. Moreover, the current practice of one Department of Homeland Security  (DHS) sub-component, the Fraud Detection and National Security (FDNS) Directorate of United States Citizenship and Immigration Services (USCIS), discussed frequently and critically in this blog, to conduct unannounced “administrative site visits” or “on-site compliance reviews,” raises immediate concerns about its officers’ future interactions with California employers.

Although FDNS asserts that it is not an immigration enforcement agency, a current job opening for the position, “Immigration Officer (FDNS),” – accessible here, and if the posting is taken down, also  here – confirms that, “[every] day, our Immigration Officers (FDNS) . . . identify, articulate, and pursue suspected immigration benefit fraud.” Moreover, employers seeking to hire foreign workers must sign petitions under penalty of perjury for virtually every request for immigration benefits submitted to USCIS, requests which contain the acknowledgment, “I also recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews,” see e.g., the Petition for a Nonimmigrant Worker (Form I-129 Part 7, p. 6).

Indeed, the task of immigration site inspectors, according to FDNS, are to:

  • Verify the information, including supporting documents, submitted with the petition;
  • Verify that the petitioning organization exists;
  • Review public records and information on the petitioning organization;
  • Conduct unannounced site visits to where the beneficiary works;
  • Take photographs;
  • Review documents;
  • Speak with the beneficiary [the nonimmigrant worker sponsored under an employment-based petition by an employer]; and
  • Interview personnel to confirm the beneficiary’s work location,  physical workspace, hours, salary and duties. (Emphasis added.)

The conceit asserted by FDNS that it is not an immigration enforcement agency is also belied by this disclosure on its website:

USCIS has formed a partnership with Immigration and Customs Enforcement (ICE), in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. (Emphasis added.)

Even if a line can fairly be drawn between FDNS’s pursuit of immigration fraud and ICE’s activities in conducting criminal investigations, the use by AB 450 of the term, “immigration enforcement agent,” suggests at the very least an agency relationship between FDNS (the agent) and ICE (the principal).

Thus, a California employers could well face liability under AB 450 if it voluntarily consents to an FDNS officer’s request for access to the beneficiary’s “physical workspace,” the opportunity take to “take photographs” of the workspace (which routinely happens), and conduct a “[r]eview [of] records.” Yet, if a California employer were to refuse such a request, FDNS officers will no doubt report that refusal to USCIS adjudicators, who then routinely issue a notice of intent to deny or revoke work-visa petition approval. Notices of intent to revoke approval are especially problematic, because if they cannot be overcome in light of the obvious state law impediments in AB 450, then USCIS will revoke the employment authorization of the particular beneficiary. The result of a revocation is that the employee must be terminated upon the employer’s receipt of the notice of revocation, and that termination may constitute a failure on the part of the beneficiary to maintain lawful nonimmigrant status, which itself would trigger an obligation to depart the United States immediately with his or her immediate family members, or face removal from the United States at a hearing initiated by ICE before an Immigration Judge.

These problems become even more complicated if the employer provides facilities for its own workers and for the employees of any of its contractors, consultants, staffing companies, or vendors. While AB 450 does not prohibit a California employer from voluntarily sharing whatever information it might possess about the employees of its contractors, this new law, by its terms, mandates, on penalty of civil fine, that the employer refuse to grant voluntary consent to “enter any non-public areas at a place of labor” – apparently irrespective of the party employing the particular workers at the place of labor. Such a refusal likewise under current USCIS practice would lead to a similarly insurmountable notice of revocation, thereby terminating the employment authorization and nonimmigrant status of a contractor’s who was the subject of an FDNS unannounced site visit, and conceivably, resulting in a breach of contract by the customer for precluding the vendor from fulfilling the object of the contract, i.e, the rendition of contractually-agreed services.

Good faith immigration compliance and voluntary internal audits? DOJ and DHS component agencies encourage employers to voluntarily conduct internal immigration-compliance audits, and prescribe procedures to (a) correct I-9 paperwork errors, and (b) reasonably investigate circumstances suggesting that an employee may lack employment authorization. Such audits sometimes require the cooperation of current employees, as, for example, if corrections must be made to the employee portion of the I-9, Section 1, or if the employer suspects that the documents of identity and employment eligibility that the employee previously presented may not be genuine.

Given that AB 450 prohibits reverifying a current employee’s eligibility to work in the United States, should California employers defensively adopt “head in the sand” policies to preclude or discourage voluntary immigration compliance audits? The answer will depend on the employer’s business circumstances and employment practices in the particular industry. It may also turn on whether an employer has become aware of facts or credible assertions that call into question the employment eligibility of one or more employees.

Under the constructive-knowledge rule, an employer will be deemed to know whatever could have been discovered if a reasonable investigation had been conducted. Thus, if an employer declines to investigate suspicious circumstances suggesting unauthorized employment, ICE can maintain that an employer has violated federal law because company officials should have known that the business had hired or continued to employ a worker while aware that the individual had no right to be employed in the United States. Consequently, as SHRM feared, AB 450 will “force human resource professionals to decide between abiding by federal law or state law.”

Unintended harm to workers, their unions, and business operations? While the constructive-knowledge rule, in effect, requires an employer to conduct a reasonable investigation, the rule does not dictate the speed of the investigation. In past ICE investigations, some field offices have expressly allowed an employer time to respond to an NSD by phasing-in the duration of time when workers whose employment eligibility has been questioned must reverify their employment eligibility. A compliance phase-in would give the employer time to reverify its challenged employees in tranches. Without internally posting a notice to employees that ICE has begun in I-9 investigation, an employer granted phase-in permission by ICE would (a) privately and without fanfare reverify the employment eligibility of its most recently hired or least skilled workers, (b) speedily hire replacements (who would quickly be trained by employees with longer tenure or greater expertise in the operations of the business), and (c) then reverify the most senior or essential workers.

In this way, employers could conduct a constructive-knowledge investigation sequentially over time, business operations could continue with less disruption, the most valued employees could continue in employment for the time being, and unions would continue to receive dues payments, while retaining the ability to negotiate severance packages for terminated employees.

What, then, is the likely outcome of AB 450’s requirement that the employer give public notice within 72 hours to all employees and the local union that ICE has served a NOI?  Today, many employers have found that when employees learn of an ICE worksite investigation, they quickly disappear for fear of arrest and deportation.  Leaving the employer in the lurch, an unknown number of undocumented workers merely purchase new identities and forms of work permission on the street – documentation that, with the increasing sophistication of counterfeiters, will appear to be genuine, and thus be used to get a new job with the next employer. And so the cycle continues. Rinse and repeat. Consequently, the 72-hour NOI notice requirement in AB 450 will likely only serve to disrupt businesses and prompt undocumented workers to switch jobs, while shrinking the duration and amount of dues payments to unions.

A bonanza for translators? AB 450 requires employers, within 72 hours of receiving an NOI, to post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, announcing that ICE has served an NOI on the employer, and providing other required details. Although not clearly phrased, the posting obligation seems to include the duty to provide a translation of the NOI itself into the language(s) ordinarily used to communicate with employees.

California is a state that prides itself on its diversity, which necessarily entails a noncitizen population speaking a multiplicity of languages. Many workers in the state do not speak English well, but do speak a native language, be it Spanish, Chinese, Tagalog, Vietnamese, Armenian, Khmer, Farsi, or Russian, among others.

Heaven forbid – for example – that ICE serves an NOI on a Friday. This will likely leave many an employer scrambling first to draft the AB 450 notice, and then to find weekend translators capable of quick turnaround to produce the required translations. Perhaps competent translators can be found, but probably only at a premium price for speedy, afterhours delivery.

The drafters of the legislation apparently did not realize, however, that ICE officers are usually quite willing to extend its own 72-hour regulatory deadline by a week or two for an employer to turn over its I-9s and other required records, or even longer, if the employer can provide a reasonable explanation for its inability to satisfy the 72-hour rule.

California lawmakers made no provision for extension of the posting deadline in AB 450. It therefore doesn’t take a Hollywood scriptwriter to visualize how this might play out:

(Scene 1) Mid-day on a Friday afternoon, ICE serves the employer with the NOI,

(Scene 2) As the weekend is about to begin, the employer scrambles to find a lawyer  begins who will help word the AB 450 notice,

(Scene 3) At the same time, the employer scrambles to locate translators to prepare translations into multiple relevant languages,

(Scene 4) On Monday afternoon, just hours before the  72-hour deadline in AB 450, the employer posts the translations on the employee bulletin board,

(Scene 5) Later that afternoon, the workers read the posting, interpret it as a “run notice,” and flee the building,

(Scene 6) Minutes later, ICE officers – aware of the California statutory deadline – are already poised in the parking lot to apprehend the fleeing workers and process them for deportation, and

(Scene 7) en Tuesday morning, the factory is idle and quiet, except for the angry voices of union bosses complaining to management about unfair labor practices.

* * *

AB 450 is not the first California encroachment on federal immigration law, and not likely the last. As the courts, federal immigration agencies, and the NLRB are left to sort out federal from state legal rights and duties amid the detritus of this law, California politicians will likely be at it again, concocting new immigration laws, while figuratively quoting a former governor’s thespian line: “[We’ll] be back!”

[Blogger’s Note:  Today’s post is by my colleague, Mahsa Aliaskari, Seyfarth Shaw LLP’s Senior Counsel. Mahsa has advised and defended businesses with up to 100,000+ nationwide employees on U.S. immigration compliance programs and practices.  She and yours truly — along with former USCIS Director, Leon Rodriguez, noted worksite enforcement lawyer, Dawn Lurie, and Alexander Madrak, who recently joined Seyfarth from the Immigrant and Employee Rights Section in the Civil Rights Division of the U.S. Department of Justice — are part of Seyfarth’s Immigration Compliance Specialty Team, within the firm’s Immigration Group. Mahsa’s basic message is that, given the Administration’s focus on immigration worksite-enforcement, employers  — no matter how vigilant corporate leaders perceive their immigration compliance measures to be — must take nothing for granted.  Stop assuming and check things out.]

Targeted ICE Investigations ~ in it for the Long Haul with Record $95 Million Plea Deal for I-9 Violations

By Mahsa Aliaskari

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers.  As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.  Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies.  The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible.  If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).
We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected.  This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.
The Story Behind Asplundh
Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?
ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States.  But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas  in connection with this case, with each defendant facing prison time and fines.
ICE Acting Director Thomas Homan stated in its September 28th announcement that  “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).
The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States.  More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.”  The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.
While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts.  As noted in the company’s own statement, Asplundh has already taken some corrective action, including:
  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.
These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE.  Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.
What Does This Mean for Your Operations?
The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made.   From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.
Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability.  Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda.  Businesses can begin taking a proactive approach and action on the following fronts:
  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s.  Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities.  When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals.  For the company it can also mean a PR nightmare.  Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor.  As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties.  The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.
For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless  of the party controlling the executive branch.  Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.
As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under Title I, Part A of the Immigration Reform and Control Act of 1986 (IRCA) should be taken very seriously.

Deciphering the workings of the bureaucratic mind is never easy.  What seems settled practice is often anything but. Abrupt abandonment of longstanding policy can happen in a nanosecond — many times with nary a word of forewarning or explanation. Usually there’s an unstated backstory  — one that can be divined by asking the forensic question first popularized by the Romans:  Cui bono? (Who benefits?)  Yet once in a while there is simply no logical explanation.

A recent example of illogic at its most stark comes from an unexplained about-face in policy just adopted by the nation’s agency that grants or denies immigration benefits — U.S. Citizenship and Immigration Services (USCIS), a component within the Department of Homeland Security (DHS). This “turnabout is unfair play” change involves “advance parole,” the privilege to enter the U.S. without a visa that USCIS and its predecessor, the old Immigration and Naturalization Service, have collectively made available for decades.

This USCIS policy change will unnecessarily impede the flow of U.S.-based global travel to and from the United States. Without strengthening the integrity of the immigration system, or enhancing President Trump’s admonition to “Hire American,” the change will gum up the workings of the national and global economy, and needlessly disrupt the lives of individuals and families here and abroad.

A few words of explanation: Advance parole is a special form of permission to return to the U.S. without a visa stamp in one’s passport.  As the name applies, USCIS grants it to a foreign national before s/he leaves the country. It is a generally reliable reassurance that the advance parolee will be allowed to reenter upon return from foreign travel. It is also essential to most persons applying for a green card, because a different USCIS rule treats applications for adjustment as having been abandoned if the applicant travels abroad without having first received advance parole. In the exercise of agency discretion, USCIS grants parole in finite increments for legitimate business or personal reasons requiring travel abroad.

Until a few weeks ago, USCIS’s standard practice has been to allow noncitizens — largely green card applicants — already granted a period of advance parole to apply for, and receive renewal for another term before the current grant expires. For years, USCIS allowed this beneficial practice to persist, presumably so that frequent international travelers would have no advance-parole gap, and thus, no impediment to travel abroad and reentry.

But now, USCIS apparently has just remembered that an instruction to the advance parole application (Form I-131) states: “If you depart from the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”  In plain English, this means that if you are a noncitizen who (1) has an unexpired advance parole document, (2) applies for renewal, and (3) travels abroad with the intention of returning before the initial grant expires, then the act of departure NULLIFIES your renewal application because USCIS considers that you’ve abandoned it.

This would be little more than an annoyance involving the burden of reapplication if USCIS adjudicated advance parole applications quickly. To every applicant’s dismay, however, USCIS — according to its own published processing times reports — takes between SIX TO NINE MONTHS to decide whether or not to grant advance parole.

The upshot of this USCIS policy reversal is that it creates a de facto foreign travel ban.  It means that most green card applicants cannot leave the U.S. on short notice no matter if grandma is dying or a business emergency requires immediate foreign travel.  It also means that if they do leave the country without advance parole travel authorization or re-authorization, not only will they have to reapply for a green card (assuming they have a visa for reentry), they might not even be able to get back in at all.  Some might be required to apply for and receive a nonimmigrant or immigrant visa from a U.S. consulate abroad; others who had been unlawfully present in the United States before their departure might have to wait three or ten years before becoming eligible to receive a visa and return to the United States.

Furthermore, for the two categories of nonimmigrants who can travel abroad and reenter without advance parole — H-1B (Specialty Occupation workers and their H-4 dependents) and L-1 (Intracompany Transferees and their L-2 family members) — they may well need to apply for renewals of their visas at a consular post abroad, but only after USCIS has approved their employers’ requests to extend the visa-petition validity period.

So what’s this all about USCIS?  Asking the “who benefits” questions, we wonder: Is it you?  Does your agency reap a windfall in additional filing fees from abandoned and renewal applications for advance parole travel authorization?  The answer is “no.”  Ever since July 30, 2007, renewal applications for advance parole on Form I-131 require no filing fee.

In other words, USCIS will be required to renew advance parole applications for free, and deal with a slew of expedited-adjudication requests for advance parole renewals, also for zero dollars.  Perhaps USCIS adjudicators look with envy at immigration officers in other DHS components who view themselves as unshackled by executive orders to clamp down hard on illegal immigration. So, folks at USCIS headquarters: Is this a dog whistle? Have you concluded, perhaps for the sake of your own and your teammates’ job security, that you must be seen as strictly enforcing the eligibility requirements for legal immigration benefits, even if all stakeholders and your agency suffer?

If that’s the case, you’ve gone too far. Your forebears at INS and your former selves in prior administrations realized that when a “rule” makes no sense, hurts immigration stakeholders for no good reason, and puts more uncompensated work on your desks, the appropriate course is to see if another, less damaging interpretation might be permissible. A more relaxed view of the so-called rule is especially warranted if the requirement merely originates in an instruction to a form.

To be sure, 8 CFR § 103.2(a)(1) provides that USCIS form “instructions are incorporated into the regulations requiring its submission.”  But a warning or advisal in this context that USCIS would consider departure from the United States as an abandonment of an advance parole application cannot fairly be considered an instruction that explains how to complete and file a form to request permission to reenter the United States. Moreover, if your agency has already granted permission to travel abroad and return on a document that is unexpired, why would you infer that an advance parole renewal application has been abandoned? Have you already forgotten that a 2012 Board of Immigration Appeals precedent decision binding upon your agency — under a common sense reading of the immigration laws — expressly rejected your interpretation that travel outside United States with an unexpired advance parole document authorizing one’s readmission is not to be treated as an abandonment of the pending application.

So again I ask you, the leaders of USCIS, who benefits from this senseless policy reversal?

The pattern by now is all too familiar. With the Trump Administration fully ensconced, the rollback of President Obama’s eight-year legacy continues. This time it involves the International Entrepreneur Regulation — an imperfect and burdensome rule that would have become effective last month had the Administration not  imposed a delay. The Obama-era rule created a labyrinthine human steeplechase allowing a few foreign entrepreneurs, in league with U.S. venture capitalists, to secure an immigration benefit through “parole” by together investing $250,000.Parole is a statutory immigration benefit that allows lucky parolees to enter the U.S. without a visa. If U.S. Customs and Border Protection (CBP) or U.S. Citizenship and Immigration Services (USCIS) grants parole, one or the other agency must determine on a case-by-case basis that urgent humanitarian reasons or a significant public benefit warrant the grant of this extraordinary, discretionary privilege.

At the 11th hour, however, United States Citizenship and Immigration Services (USCIS) announced its intention to rescind the regulation, claiming that the rule conflicted with a January 25, 2017 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” which required the Secretary of Homeland Security to “take appropriate action to ensure that parole authority under  [Immigration and Nationality Act] section 212(d)(5) . . . is exercised only on a case-by-case basis.” Thus, USCIS invited the public to tell the agency why the rule should or should not be rescinded.

Last week, I took USCIS up on its offer and sent the following comment:

August 10, 2017
Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529

Submitted via:  http://www.regulations.gov/

Re:      International Entrepreneur Rule: Delay of Effective Date

82 Fed. Reg. 31887 (July 11, 2017)

DHS Docket No. USCIS-2015-0006

Dear Ms. Deshommes:

I respectfully submit this comment in my individual capacity as an interested immigration stakeholder in response to the notice of the Department of Homeland Security (DHS), “International Entrepreneur Rule: Delay of Effective Date,” published in the Federal Register at 82 Fed. Reg. 31887 (July 11, 2017).

I am an attorney admitted to practice law and in good standing in the States of Michigan (1976), California (1981), and New York (2005).

My comment to the captioned DHS Docket No. USCIS-2015-0006 notice hereby incorporates by reference the August 10, 2017 comments of the American Immigration Lawyers Association (AILA) and the American Immigration Council (Immigration Council); the October 17, 2016 comments of the Alliance of Business Immigration Lawyers (ABIL) to an earlier version of the proposed international entrepreneur regulation, and my August 26, 2016 Nation of Immigrators blog post, entitled, “Venture Capitalists and Immigration Proponents Likely Disappointed by USCIS Proposed Entrepreneurial Parolee Rule”.

While I concur in these incorporated comments which suggest numerous improvements to the extant version of the final International Entrepreneur regulation (the Final Regulation), I write separately in the event that DHS and U.S. Citizenship and Immigration Services (USCIS) determine, despite the comments, that they will nonetheless proceed with their stated intention to revoke the Final Regulation.

The Trump Administration is understandably concerned about blanket parole authorizations and apparently believes emphatically that statutory parole authority should be exercised on a case-by-case basis. With respect, I maintain that the USCIS’s Final Regulation and its Supplementary Information convincingly demonstrate that the requirement that case-by-case parole adjudications would in fact be accorded to International Entrepreneurs who apply for parole.

Should the Administration nevertheless proceed, however, to revoke the International Entrepreneur Final Regulation I urge that the revocation be simultaneously replaced by the issuance of an Executive Order or the adoption of binding policy to be incorporated into the USCIS Policy Manual that would more generously incentivize foreign and domestic entrepreneurs and their joint-venture partners who in good faith endeavor to create desirable jobs for American workers.

Thus, I offer the following suggestions for inclusion in an Executive Order or a new chapter on international entrepreneurs in the USCIS Policy Manual, and ultimately, in a proposed and final regulation following public notice and an opportunity to comment.

  1. Parole authority under the Final Regulation – because of the inherent limitations and restrictions of parole admission – is at best a less than optimal way to attract and enable entrepreneurs to innovate in the United States. Parole offers no direct path to a work visa or permanent resident status, and a grant of parole is an unreviewable discretionary decision offering finite benefits. Parole is not a nonimmigrant status within the existing authority of the Immigration and Nationality Act for employment-based foreign citizens seeking to come to the United States. A better and likely more successful regulation encouraging foreign entrepreneurs and innovators to cast their lots with the United States should be based upon existing authority under the Immigration and Nationality Act (INA) for the importation of employment-based workers.
  1. Existing authority under the INA’s employment-based nonimmigrant and permanent resident visa categories already endows the Trump Administration with power to immediately publish an Executive Order or amend the USCIS Policy Manual, and in due course to publish proposed and final rules which would define specific examples and circumstances under which qualified and worthy entrepreneurs would be authorized to enter and work in the United States on a temporary or permanent basis. Included among these provisions are the O-1 visa for extraordinary ability individuals, and the employment-based immigrant visa categories for extraordinary ability individuals (EB-1-1), outstanding professors or researchers (EB-1-2), individuals of exceptional ability or advanced degree holders based on a national interest waiver (EB-2), and an expansively interpreted restatement of the Department of Labor’s Schedule A, Group II labor certification exemption (also EB-2).
  1. Were the Trump Administration to take the actions suggested above under existing INA authority, it should do so by adopting more reasonable requirements that better reflect business reality and legitimate practices in the startup sector than those contained in the Obama Administration’s Final Regulation. Such an effort would be far more likely to create well-paying jobs for US workers in new industries, and offer world-class innovations in American goods and services. Such a rule would also advance President Trump’s objective to Make America Great Again, would more likely enhance entrepreneurial innovation in the United States, and would better compete for the scarce supply of entrepreneurs and innovators against alternative national immigration schemes such as those offered by Canada and other countries that compete for the same scarce global pool of talented entrepreneurs.

* * *

For these reasons, I respectfully ask USCIS and DHS that they not throw out the entrepreneurial baby, even if they must toss the parole bathwater. Thank you for considering my comment.

Sincerely,

Angelo A. Paparelli

Blogger and Immigration Lawyer

 

Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.

Facts: Former Senator Jeff Sessions (a stalwart opponent of legal immigration) is the Attorney General. Sen. Charles Grassley (no friend of the EB-5 program) has proposed legislation, with Sen. Dianne Feinstein, to eliminate the EB-5 program.

Facts: Trump Administration appointees and nominees have previously worked closely with Messrs. Sessions and Grassley, or with the Federation for American Immigration Reform (FAIR), a nonprofit widely regarded as an anti-immigrant advocacy group. The decisionmakers include:

Sessions alumni

Stephen Miller, now Senior Advisor to the President for Policy.

Gene Hamilton, now Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor.

Grassley alumni

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS).

Kathy Nuebel Kovarik, now Chief of the USCIS Office of Policy and Strategy.

FAIR alumni

Julie Kirchner, now USCIS Ombudsman.

Aside from Stephen Miller, reportedly an author or coauthor of Versions 1.0 and 2.0 of the controversial Executive Order described by the President as the “travel ban,” not much is known publicly about the intended policy positions of these individuals, except for Mr. Cissna[1] and Ms. Kirchner, [2]  both lawyers of strong pedigree.

Mr. Cissna has been most recently “detailed” to Sen. Grassley where he helped write S.2266,[3] the H-1B and L-1 Visa Reform Act of 2015  — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits, as well as S.1501,[4] the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by and Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

Before and after his stint with Sen. Grassley, Mr. Cissna spent years as a lawyer at DHS immersed behind the scenes in immigration policy.  His testimony before the Senate Judiciary Committee and his written answers to questions from three Senators tell us how he intends to deal with the EB-5 program if approved as USCIS Director:

  • He will finalize the two prior rulemaking efforts of USCIS during the Obama Administration (an advance notice of proposed rulemaking and a proposed rule) into final effect “according to the process set forth in the Administrative Procedure Act and related DHS and OMB [Office of Management and Budget] guidance.”[5]
  • He is “committed to enforcing USCIS policies ensuring the integrity of all USCIS adjudications, no matter who the applicant or petitioner is, as well as policy deliberations, including their independence from any inappropriate external influences.”[6]
  • He has observed that the “USCIS Ombudsman and the USCIS director should maintain an independent, yet respectful and cooperative relationship, as both share the goal of improving USCIS” and acknowledged the “USCIS Director’s statutory obligation to ‘meet regularly with the Ombudsman . . . to correct serious service problems identified by the Ombudsman . . .’”[7]
  • He confirmed his intention to “strive to ensure that the agency carries out its mission in a fair, lawful, efficient, and expeditious manner.”[8]

Before becoming the Ombudsman, Ms. Kirchner apparently did not make any public statements revealing her personal views on the EB-5 program.[9]   During her tenure as Executive Director of FAIR, however, the organization actively opposed EB-5 program.[10]

In accepting her position and taking her oath of office, Ms. Kirchner is no doubt aware of Section 452 of the Homeland Security Act, the statutory mandate prescribing the authority and duties of the Ombudsman, which provides:

Section 452 of the Homeland Security Act (HSA) provides:

(a) IN GENERAL – Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS – It shall be the function of the Ombudsman—

1) To assist individuals and employers in resolving problems with [U.S.]  Citizenship and Immigration Services;

2) To identify areas in which individuals and employers have problems in dealing with [U.S.]  Citizenship and Immigration Services; and

3) To the extent possible, to propose changes in the administrative practices of [U.S.]  Citizenship and Immigration Services to mitigate problems identified under paragraph (2).

In addition, Section 452(c)(F) of the HSA requires the Ombudsman to report annually to Congress and recommend “such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications[.]”[11]

The responsibilities of the Ombudsman are particularly significant given that in August 2015 USCIS published a set of EB-5 “Protocols,” which limited the direct intervention of USCIS leadership in specific EB-5 cases, but exempted the USCIS Ombudsman from its prohibitions.[12] Since direct outreach to USCIS senior leadership in specific cases is now greatly restricted, the statutory role of the USCIS Ombudsman in assisting “individuals and employers in resolving problems with” USCIS becomes essentially the only way that EB-5 stakeholders can raise quality assurance problems in specific cases.  To be sure, the USCIS Office of Public Engagement (OPE) conducts regular EB-5 stakeholder engagements and listening sessions. These OPE opportunities, however, are often structured to preclude posing questions or concerns about specific cases.

Ms. Kirchner, the fifth individual to hold the title of Ombudsman, will likely review and adapt for herself the varying approaches of her predecessors.  At least one Ombudsman took a more aggressive approach, which understandably produced resistance at USCIS.  Others in varying degrees have been more or less assertive, innovative, affable and collaborative in finding ways to communicate directly with USCIS Service Center adjudicators and help resolve individual and employer  problems.

So, how much power does an Ombudsman have in interacting with USCIS?  As a matter of historic practice, prior incumbents often achieved a measure of success by acting as disinterested intermediaries, but did not offer or make public the Office’s own interpretations of the Immigration and Nationality Act (INA), deferring instead to USCIS.  As a coequal component of DHS with USCIS, however, the Ombudsman  is authorized by its mandate in HSA § 452(b)(2) and (b)(3) to “identify” problematic areas in the public’s “dealing with [USCIS]” and to “propose changes in the administrative practices” of USCIS.

Clearly, therefore, the Ombudsman’s duties of identifying problems and proposing changes to USCIS’s administrative practices are sufficiently broad to include problems and practices stemming from misinterpretations of the INA and agency regulations.  A recent instance in which a legal interpretation by the Ombudsman would have been appropriate and welcome is on long-unresolved issues of the period during which EB-5 conditional resident’s funds must be redeployed and whether the redeployment must be in “at-risk” assets once the investment project has concluded but before conditions on residency have been removed.[13]

Knowledgeable immigration lawyers recognize that the role of the Secretary of Homeland Security, and the Department’s component agency, USCIS, is to “administer” and “enforce” the INA and all other immigration laws, whereas the Attorney General possesses exclusive authority within the Executive Branch to determine and rule on all questions of law.[14]

Since the Ombudsman’s role is to identify problematic areas in the public’s dealings with USCIS and to propose changes in its administrative practices, the Ombudsman undoubtedly holds coequal authority with USCIS to challenge the latter’s legally unsupportable and troublesome administrative interpretations of the law and regulations underpinning the EB-5 program, subject only to the Attorney General’s power to conclusively determine questions of law that are binding within the Executive Branch.

Recently, Ms. Kirchner provided welcome insights on the EB-5 program. In the Ombudsman’s 2017 Report to Congress, she acknowledged the adverse consequences caused by the lack of robust anti-fraud and national- security protections, and by the failure of the House and Senate to agree on a permanent or multi-year reauthorization of the Regional Center program. Concerning the unfortunate pattern of successive short-term EB-5 Regional-Center reauthorizations, Ms. Kirchner observed:

Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework,and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program.[15]

In addition, Ms. Kirchner observed in her 2017 Report that extremely long backlogs in EB-5 adjudications at USCIS continue to plague the program, and, with regard to the predominant segment of all EB-5 investors, namely, individuals born in mainland China, that the lack of annual EB-5 immigrant visa numbers “will likely [require them to] wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”[16]

One troubling observation in the 2017 Report hinted that the Office of the Ombudsman may not offer its own independent statutory and regulatory analysis in situations where USCIS’s policy guidance appears to deviate from the INA and agency regulations, even though the views of USCIS cause problems for individuals and businesses:

In November 2016, USCIS released an addition to its Policy Manual titled “Investors.” This six-chapter policy treatment is a significant achievement, as it synthesized and aligned the agency’s regulations, decisional law, policies, and procedures with enabling statutes. Given the complexity of the EB-5 Program, the creation of this comprehensive and authoritative resource has been well received by EB-5 stakeholders.[17]

This statement no doubt comes as a surprise to many external EB-5 legal experts. The lawyers who submitted an eight-page AILA Comment replete with numerous and wide-ranging suggested corrections to the EB-5 chapters in the USCIS Policy Manual would likely disagree with the characterization that this sub-regulatory guidance can be fairly characterized as a “comprehensive and authoritative resource [that] has been well received by EB-5 stakeholders.” Thus, it remains to be seen just how much future federal litigation (likely brought under the Administrative Procedure Act, the INA, and other statutes) will be spawned raising substantive legal questions on the degree to which the manual is in fact comprehensive or authoritative. Hence, scholars of EB-5 jurisprudence must stay tuned as EB-5 jurisprudence evolves.

* * *

In the final analysis, insufficient hard facts are known to foretell how Mr. Cissna, Ms. Kirchner, and their respective agencies will discharge their responsibilities under the immigration laws. As noted, they are both accomplished lawyers, and during their respective honeymoon periods, EB-5 stakeholders should accord them the respect and confidence, consistent with existing rules of professional responsibility, that the views of their former employers are not necessarily predictive of their future policies.[18]

Time will tell whether and how well Ms. Kirchner and Mr. Cissna engage together in resolving EB-5 stakeholder concerns over backlog reduction, wayward adjudications, kitchen-sink requests for additional evidence, and other frustrations.  Until more is known about real-world actions of the Ombudsman and adjudications at USCIS, EB-5 stakeholders and their immigration lawyers must decide for themselves whether resort to Ombudsman intercession will more likely help or hurt regional centers and immigrant investors in specific cases. The calculus in approaching or avoiding the Ombudsman should be based on a variety of factors, such as, the financial strength of the project and its potential or actual job-creation activities; the factually-demonstrable urgency in receiving an adjudication; the presence or absence of red-flag factual or legal issues; and the likelihood that the particular case presents issues that, once resolved, would benefit multiple EB-5 stakeholders, and thereby allow the Ombudsman to husband its scarce resources, and get more bang for its intercessory buck; and other relevant  considerations.

This author believes that USCIS (under Mr. Cissna) and the Office of the USCIS Ombudsman (under Ms. Kirchner) will be led in good faith by talented and accomplished lawyers who have taken oaths to support and uphold the Constitution and the immigration laws of the United States, unless either of them, by their conduct, demonstrates otherwise.

For the time being, as a matter of fact, this author will continue to seek the intervention of the Ombudsman in worthy cases, given that (a) Office of the Ombudsman continues to be staffed by experienced lawyers and other career officers who have historically been helpful in employment-based immigration matters, (b) the EB-5 program continues to be a tax-generating engine of economic growth and job creation, and (c) fully law-compliant EB-5 petitions continue to encounter “problems” at USCIS.

As for USCIS itself, the agency’s widely-known endemic problems continue to cry out for resolution.  Submission of well-documented cases establishing EB-5 eligibility, participation in public engagement, advocacy at public conferences and through print and social media, and litigation — this author believes — remain the tools of choice.

Footnotes:

[1] Mr. Cissna’s legal career is outlined in his answers to the questionnaire of the Senate Judiciary Committee, accessible here (unless otherwise noted, all links are current as of June 12, 2017).

[2] Ms. Kirchner’s official biography can be found here.

[3] S.2266 is available here.

[4] S.1501 is available here.

[5] May 27, 2017 Responses of Lee Francis Cissna to Questions for the Record from Sen. Dianne Feinstein), available here, No. 11 (Responses).

[6] Responses to Sen. Durbin, available here, No. 9.  Sen. Durbin expressly asked “How would you ensure that President Trump’s family business interests won’t affect the adjudication of [the EB-5 program] . . . or the consideration of possible reforms to [the program].”

[7] Responses to Sen. Durbin, No. 6.

[8] Responses to Sen. Feinstein, No. 2.  In the preface to her question Sen. Feinstein stated that “one of the agency’s strategic goals is ‘providing effective customer-oriented immigration benefit and information services’ . . . [and] one of USCIS’s core customer service principles is ‘to approach each case objectively and adjudicate each case in a thorough and fair manner.’”

[9] Based on the remarks made by a representative of the USCIS Ombudsman at the Federal Bar Association Annual Immigration Conference on May 12, 2017, Ms. Kirchner reportedly has indicated to staff that she is interested in the EB-5 investor program, the H-1B visa category and other areas of employment-based immigration law.

[10] Ms. Kirchner is listed, for example, as a lobbyist in 2012 concerning  S.3245 sponsored by Sen. Leahy, a bill to “permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program,” regarding provisions  “relating to more controversial issues in three of the four programs because of significant deficiencies in oversight and fraud.” See Form LD-2 for Third Quarter 2012, available here.  Also, in 2012, while Ms. Kirchner served as FAIR’s Executive Director, the organization published “Selling America Short: The Failure of the EB-5 Visa Program,” available here.

[11] As discussed in the text below, on June 29, 2017 Ms. Kirchner, in her formal capacity as Ombudsman, submitted to Congress her Office’s  2017 Annual Report (“2017 Report”).  The report, discussed later in the text, is available here (last accessed on July 12, 2017).

[12] Entitled, “Ethics and Integrity: Protocols for Processing of EB-5 Immigrant Investor Visa Petitions and EB-5 Regional Center Applications, Including Stakeholder Communications,” the document is available here.

[13] The USCIS’s continuing at-risk “sustainment” requirement for redeployed funds, lasting until conditions on residency have been removed, is an issue that begs for interpretation by the USCIS Ombudsman. See June 14, 2017 USCIS Policy Alert, “Job Creation and Capital At Risk Requirements for Adjudication of Form I-526 and Form I-829,” (accessible here) and amendments to the USCIS Policy Manual at Volume 6: Immigrants, Part G, Investors [6 USCIS-PM G] (accessible here). See also, “USCIS Finalizes EB-5 Sustainment and Redeployment of Capital Issues and Consequences of Regional Center Termination,” by Robert C. Divine in the current issue. For arguments opposing the USCIS redeployment and sustainment interpretations, see American Immigration Lawyers Association Comments on the USCIS Policy Manual Regarding Eligibility Requirements for Regional Centers and Immigrant Investors. Volume 6: Immigrants, Part G, Investors (December 14, 2016; AILA Doc. No. 16121565 Posted 12/15/16 [“AILA Comment”]), at pp 6-7 (noting that the at-risk requirement is a creature of the regulations and not the INA, and that as a matter of law the EB-5 investment need merely be “… sustained over the two years of the petitioner’s conditional permanent residence in the United States”).

[14] See INA § 103(a).

[15] See, 2017 Annual Report at 32 (footnotes omitted).

[16] Id. at 33.

[17] Id. at 31-32 (footnotes omitted).

[18] Rules of legal ethics generally hold that “a lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” See American Bar Association Model Rules of Professional Conduct Rule 1.2(b)(“Scope Of Representation And Allocation Of Authority Between Client And Lawyer”), accessible here. The author understands that Ms. Kirchner apparently did not serve as an attorney of FAIR, but as its Executive Director. In this author’s view, however, merely because an individual on behalf of a prior employer has opposed immigration relief for unauthorized immigrants (see, e.g., Ms. Kirchner’s November 8, 2007 testimony before Congress to that effect, accessible here) does not require or necessarily justify the conclusion that she would ipso facto take steps to maintain America’s legal immigration system in its clearly dysfunctional state.

“It’s tough to make predictions, especially about the future.”

~ Yogi Berra

fortune tellerThe talk of the nation – at least that segment interested in U.S. green card benefits available to foreign investors – is about the welcome or feared changes likely to occur in the EB-5 employment-creation immigration investor visa program.  Scuttlebutt and divination have yielded a wide range of ever more restrictive, complex and burdensome changes that are foreseeable for this year.

This article will add to this mix a few of the author’s soothsayings, derived from attendance at conferences, discussions with knowledgeable insiders, and a review of the plethora of differing bills and drafts emanating from both houses of Congress (or their respective staffers).  Reader beware, however; some, none, but not likely all, of the predictions below may happen.  Nonetheless, preparedness for the unknown future is probably better than obliviously passing time, doing nothing and learning that the light at the end of the tunnel is an oncoming train.

Continuation of the Regional Center program. Despite the oft-stated gripe that the EB-5 program allows foreign citizens to buy a U.S. passport, and subject to the connivery of malefactors, Congress will enact and President Trump will sign an appropriation bill or continuing resolution to extend the Regional Center program beyond its current sunset date (April 28, 2017).  Sometime thereafter, broad reforms of the EB-5 program (predicted below) are likely to become law.

No future for USCIS’s draft rules. USCIS’s January, 2017 proposals for new regulations, which among others would have significantly increased the minimum amount of investment, will never be promulgated in final form without substantial revisions.

Extended longevity for the Regional Center program.  Rather than the fits-and-starts renewals of the past few years, Regional Center investments will be given at least a five-year lease on life.

Cough up more dough.  EB-5 investors will no longer qualify with at least a $500,000 investment.  Expect that investments minimums will increase to at least $800,000 or a $1.2 million.

Enhanced transparency and more timely reports of material changes.  Expect Congress to insist that Regional Centers, New Commercial Enterprises, Job Creating Entities, related parties, and EB-5 investors must disclose far more detailed data and documents than heretofore required. How USCIS will manage the filings and place them online (as Congress will likely require) remain to be seen.

Submission and approval of exemplar business plans before I-526 petitions can be filed. As a practical matter, it makes sense to require that project-related documents and Regional Center designation or amendment requests be given a deferential green light before USCIS adjudicates individual investor petitions; but this exacerbates the immigrant visa quota backlog.

Due diligence will become more than merely de rigueur.  Individual non-investor participants will be required routinely to certify that — after internal and external due diligence reviews – entity-related filings fully comply with state and federal securities laws and all other applicable laws and rules.  Anticipate also that regional centers and all other project participants (including their lawyers, agents or individuals in active concert with them) must describe policies and procedures that ensure law compliance.

Audits and site visits will proliferate.  Entity stakeholders should expect that their activities and records will face onsite or remote scrutiny for law and program compliance at least once every three years.

No hidden payments.  Expect that never again will the previously prevalent practice of burying or hiding fees paid to third parties, including migration agents, be countenanced.

Well capitalized players only.  Congress will assuredly gouge out ever-higher filing fees, including mandatory deposits into an enforcement-oriented integrity fund and more exorbitant petition filing fees). It will also provide for substantial monetary fines for EB-5 program violations and other legal transgressions – which may be paid only from non-EB-5 money.  The heyday of thinly capitalized Regional Centers is over.

No foreign governments or nationals allowed. Foreign governments, sovereign funds or state-owned enterprises will be allowed, directly or indirectly, to provide capital or be involved with a Regional Center, a New Commercial Enterprise, or a Job Creating Entity.  Only U.S. citizens or lawful permanent residents will be permitted to own these entities.

The U.S. securities laws will apply extraterritorially.  Congress will at last put to rest the feeble claims that EB-5 investments are not securities or that securities jurisdiction ends at the U.S. border.  It will also extend the SEC’s lasso to foreign migration agents and promoters.

With expensive provisos, good-faith but swindled investors can keep their priority dates.   Priority-date preservation must occur within a short window of time but only if cheated investors ante up another capital contribution of at least the minimum required investment.  Money will talk but those with no more investment money will walk (or otherwise leave the U.S.), notwithstanding that hoodwinked investors put up their life savings to immigration under the EB-5 visa category.

Set-aside TEA preferences will be established.  Minimum investment amounts and more generous visa-number allotments (with rollover of unused visas) will go to EB-5 investors contributing capital to projects in rural or high-poverty urban areas, or to infrastructure or manufacturing projects.  (The name of this movie is The Return of the Pork-Barrel Earmarks.)

Fund administrators will proliferate.  Ronald Reagan’s “trust but verify” methodology will come to the EB-5 program.  Private plan and yacht builders beware:  Money will not move unless independent administrators certify that EB-5 funds will go solely to their lawfully required destinations.  Fund administrators will also be required and authorized to review all deal docs of the NCEs and JCEs and to provide timely reports to USCIS, the SEC, and EB-5 investors of any untoward or otherwise materially different activities than outlined in signed documents or governmental filings.

New regulations, studies and reports will regularly be published.  Inspectors-general and GAO reports on every nook, cranny and aspect of the EB-5 program will be publicly released.  In addition, the Commerce Department will issue regulations outlining job creation methodologies and USCIS alone will determine eligibility for TEA classification.

Some good news.  Minors will receive limited age-out protection; concurrent submission of I-526 petitions and I-485 adjustment of status applications will be allowed as now occurs in other employment-based immigrant visa categories; USCIS must reduce processing times; and investors who have waited two years after filing I-526 petitions that are ultimately approved, and who then are either admitted as immigrants or adjusted to lawful permanent resident status will go straight to green card status without conditions.

* * *

As scriptures report, prophets often bring unwelcome news.  As the last election proved, prognosticators – no matter that their conjectures may be based on metrics or gut instincts – can be wrong.  Whether or not these predictions manifest someday, please be nice to me.  Keep in mind the words of Yusuf Islam (Steven Demetre Georgiou, but commonly known by the stage name Cat Stevens), in his unforgettable song, quoted here, clearly out of context:

I was once like you are now, and I know that it’s not easy

To be calm when you’ve found something going on

But take your time, think a lot

Why, think of everything you’ve got

For you will still be here tomorrow

But your dreams may not . . .

Look at me, I am old, but I’m happy