[Y]ou have to be prepared at any moment to face difficulties and even dangers by knowing what to do and how to do it.

Agnes and Robert Baden-Powell, How Girls Can Help to Build Up the Empire

Be Prepared in [m]ind . . . by having thought out beforehand any . . . situation that might occur, so that you know the right thing to do at the right moment, and are willing to do it.

Robert Baden-Powell, Scouting for Boys – Campfire Yarn No. 3 – Becoming a Scout

Excerpts from the Scout Motto: “Be Prepared.”

When immigration-beat writers for the Sentinels of the Left and Right, the New York Times and the Wall St. Journal, report on a new trend in government enforcement actions against employers, prudent businesses must take note.

The NYT’s Julia Preston reports: “The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers.” In a similar vein, Miriam Jordan of the WSJ writes: “Even as the Obama administration cracks down on companies that hire illegal immigrants, it is simultaneously going after employers that it says go too far in vetting job applicants to ensure they are entitled to work in the U.S.”

The truth is many U.S. employers are as eager to think about immigration audits as are politicians thrilled to be You Tubed during a lurid escapade in the Red Light District. When it comes to U.S. immigration enforcement trends, however, “struthiousness” is downright reckless. (No, that’s not a word coined by Stephen Colbert, but rather an obscure noun meaning ostrich-like behavior — averting one’s eyes from a clear and present danger and pretending it’s not there.)

As my colleague, Nici Kersey, and I note in our recent AILA Annual Conference article (“No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters“), readiness for the immigration agents’ knocks on the door is essential. The threat stems not merely from ICE (Immigration and Customs Enforcement), but also from an array of ALL-CAPS federal agencies that enforce immigration regulations governing the worksite: The OSC (the DOJ’s Office of Special Counsel for Unfair Immigration-Related Employment Practices), FDNS (the USCIS’s Fraud Detection and National Security division within DHS), and the DOL’s OFCCP (Office of Federal Contracts Compliance Programs) and WHD (not to be confused with WMD or WD-40 — it’s the Wage and Hour Division).

As the article explains, immigration-enforcement preparedness must involve not just HR and the office of general counsel. Rather, it requires a host of additional corporate players: Occupants of the “C” Suite (the CEO, COO, CFO, CIO and others), the messengers (corporate communications), the internal enforcers and protectors (corporate compliance and corporate security), the greeters (the receptionists), and of course, foreign workers (whether employed by the corporation or by its vendors) and your immigration counsel, to name a few.

Readiness is also about checklists, protocols, data collection (the required immigration paperwork and related personnel, payroll and tax information), internal compliance audits and practice drills. Immigration preparedness involves strategic choices and business judgments that must mesh with the company’s corporate ethos and culture. All of this preparation takes time.

Forewarned is forearmed. Be good Scouts!

[Blogger’s Note: Today’s guest posting on immigration dysfunctionality offers a view on pop culture. The parenthetical “(REALLY!?!)” in the title — inserted as an editorial comment by the blog’s usual author — suggests the smarmy skepticism of an Amy Poehler and Seth Meyers riff on Saturday Night Live. The Haloween-themed guest post is by Nici Kersey, my colleague at Seyfarth Shaw LLP and a rising star in the immigration-lawyer firmament.]

For Halloween, I have decided to dress as Max from Where the Wild Things Are. I was not able to locate a Max costume at any of the traditional Halloween costume stores, so I channeled my former costume designer self, pulled out the sewing machine, and made one. I chose Max because the costume was much easier to make than the costume for any of the other “wild things” and because I have of late been feeling a lot like Max. Bottled up anger and frustration, often directed toward the immigration authorities, make me want to tear through the woods screaming. “Roar! Roar! ROAR!”

A recent example:

A colleague asked if I could help his friend with an immigration issue. For immigration attorneys, this is a frequent occurrence. Typically, the question is about a boyfriend, fiancée, friend, nanny, or neighbor who is in the U.S. “illegally.” Those discussions are often heartbreaking, as there is frequently not much that we can do to help.

This time, the discussion was upsetting for a different reason. A gentleman who had been in the U.S. for several years, working in H-1B status, complained that his wife was unable to obtain a driver’s license. The man’s employer had violated numerous immigration laws and regulations by requiring, for example, that he pay the costs and attorney fees associated with his H-1B visa petitions and with his labor certification application, but he was not interested in trying to recoup those costs (totaling more than $10,000). His main concern was that his wife was not able to drive.

In Atlanta, not being able to drive is a fairly serious disability, as public transportation is unreliable and inconvenient. This man’s wife was suffering from a frustrating lack of independence and a serious case of cabin fever. (Still, I was surprised by the lack of concern over the ten grand.)

Due to government error in issuing the H-4 approval notice to this man’s wife, the notice did not include a start date or an expiration date. When she went to the license branch, she was turned away, as her immigration document did not contain the information necessary for issuance of the license, and the SAVE (Systematic Alien Verification for Entitlements) system could not verify that she was legally allowed to be in the United States.

She tried contacting USCIS to correct the error and was told she would have a response within 45 days. (The wild things roared their terrible roars …) No response ever arrived. (… and gnashed their terrible teeth …) We contacted USCIS and SAVE to attempt to correct the error, and we were told that we would have a response within 45 days. (… and rolled their terrible eyes …) Again, no response ever arrived. (… and showed their terrible claws …) Because of the length of time the woman’s husband had spent in the U.S. in H-1B status, her H-4 status was only valid for 1 year, and by this time, nearly half of that year was already gone.

In the end, rather than continue to seek a revised approval notice or a driver’s license, the couple decided to move to Canada, where the gentleman has been offered a job. The good news is that the new employer treats its foreign national employees well and will pay all of the immigration-related costs for the couple’s move to Canada and for their maintenance of immigration-status in Canada. More good news? The man’s wife should be able to obtain a Canadian driver’s license. The bad news is that the U.S. lost a talented individual who had hoped to make the U.S. his permanent home. He had to uproot his family, which had lived in Atlanta for nearly a decade and had come to consider this his home. All of this, over something as simple as a driver’s license. Roar.

As has been noted in this blog in the past, USCIS does not offer an acceptable form of customer service. I accept that the government makes mistakes; we all do. But it should never take 45 days to correct a clear government error – an error that could be corrected by re-printing a single sheet of paper and sticking it in the mail. Here, it took more than 90 days to not correct the error or do anything at all to cure the problem. (If I regularly treated my clients this way, I would likely be not only fired but also disbarred.) It is due to problems like this that the U.S. is becoming a less desirable destination for so many talented individuals. It is due, in part, to our immigration system that the U.S. lost the recent bid to host the Olympics.

A Canadian friend recently called and said that his J-2 work authorization was set to expire and that he needed to extend it. “Is that something you can help me with?” he asked. I said that I would be glad to help. “So, can I just bring this down to your office and you can stamp it or something?” I explained that that was not exactly an accurate description of the extension process. “But I thought that attorneys were ‘officers of the court’ and that you could take care of these types of things.” Let the wild rumpus start!

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