What happens when the laws of America clash with the laws of physics? In the Never-Never Land of Immigration, the natural laws of physics must defer to human-made law. This is the absurd answer of U.S. Citizenship and Immigration Status (USCIS), the Board of Immigration Appeals (BIA) and the Court of Appeals for the Fifth Circuit (CA5) in its Sept. 29 decision, Bokhari v. Holder.

The case involves the interpretation of a USCIS regulation, 8 C.F.R. § 274a.12(b)(20), which came into being because of the problems caused by bureaucratic delay. The regulation allows the automatic grant of work permission for up to 240 days whenever the employer of a foreign citizen (who derives legal status under one of a large number of work visa categories) files a timely application to extend the worker’s right to remain in the country. Because it necessarily takes time for USCIS and its predecessor, the Immigration and Naturalization Service (INS), to decide whether to grant the employer’s request, 8 C.F.R. § 274a.12(b)(20) allows the preservation of the status quo. As long as the agency takes under 240 days to decide the request to extend the period of authorized stay, the employer may continue employing the worker, and the worker may remain lawfully employed — and everyone is happy.

Everyone, that is, except USCIS. The agency would have us believe (and the BIA and CA5 agree) that the right to work in this country does not entail the right to be physically present in the United States. Bokhari v. Holder thus holds that any foreign citizen who works after the initial period of authorized stay expires — while a lawfully and timely filed application to remain longer is pending — has the right to work in this country but not the right to be here. Thus, any foreign worker so foolish as to trust the regulation — the CA5 concludes — may be denied a green card for lawfully working here while displaying the effrontery to be here without “status.”

Perhaps USCIS has a special distinction in mind that would harmonize the laws of physics and the agency’s own regulation: human levitation. By hovering a few feet above the ground, the law-compliant foreign citizen could work “in” (albeit in the airspace of) the U.S. without being “on” U.S. soil.

Should Bokhari v. Holder ever reach the Supreme Court, it will be fascinating to see USCIS try to persuade the nine Justices that work permission does not include legal status. Surely, agency lawyers would cite the reputed origin of the power to levitate, the “unified field” of quantum mechanics,”the fundamental nonchanging field of life . . . [that] is eternal, unbounded, beyond space and time, wherein are contained all possibilities. . . . the unmanifested field of pure potentiality from where all force and matter fields emerge.” In further support for its reading of 8 C.F.R. § 274a.12(b)(20), USCIS could refer the Court to the cases of other noteworthy “levitants” who — had they been lawfully admitted to the U.S. — would have been in legal immigration status, such as St. Joseph of Cupertino (“the Flying Friar”), Yogi Millarepa (a 13th Century Tibetan mystic), and more recently, “Yoda” of Star Wars.

Perhaps before Bokhari v. Holder reaches the Supremes, however, careful USCIS “administrative inquiry” — the euphemism for “investigation” favored by the agency’s Fraud Detection and National Security (FDNS) directorate — might call into question even this elevated form of attempted law obeisance, as this BBC clip suggests.

Or, more plausibly, other federal courts might make a better, more “grounded” decision. They could adopt the reasoning of El Badrawy v. Dept. of Homeland Security. In this federal district court decision, the judge rightly determined that legal immigration status necessarily inheres in the grant of permission to work in the United States.

Still, those who try to reconcile natural physical laws and our artificially constructed immigration laws may wonder how the high-flying decision in Bokhari v. Holder came to rise in prominence. Perhaps a plausible answer lies in the September 27 issue of the Orange County Business Journal, which lists the “Best Places to Work” and cites as number 10 the USCIS “California Service Center” — with its 1% turnover rate — an employer offering, among other employee enticements, “onsite gym membership” featuring as one of its offerings the ancient healing art of “yoga.” This supposition is surely no less implausible than the strained and ethereal distinction in Bokhari v. Holder between the vaporous grant of work permission and the landed right of physical presence.

Dear Stephen,

I’ve been letter-writing lately on immigration — to Glenn Beck and to the Editor of The New York Times. As a loyal American and a citizen of ColbertNation, it’s high time I correspond with you.

I’m writing to applaud your appearance before the House Judiciary Committee during “Protect Our Harvest,” the Immigration Subcommittee hearing on Sept. 24. I leave it to others to decide if your first formal appearance in Congress outdid your hosting of the 2006 White House Correspondents Dinner, but — in my view — you definitely gave farm-worker immigration the Colbert Bump. Your prepared remarks for the record were very good, but your live testimony was outstanding. You certainly know how to fill a hearing room (one representative noted that the House hadn’t seen such a crowd since the impeachment hearings).

Predictably, narrow-minded observers in the media and the world of politics have criticized your testimony as a comedic stunt and waste of taxpayer dollars, even going so far as to demand that you apologize to the American people! How little do these critics understand history.

You showed your cred as a master historian, reminding the legislators that “it was the ancient Israelites who built the first food pyramids.” Beyond your knowledge of American history, you also know well the wisdom of the ancient Romans, including the poet and writer, Decimus Iunius Iuvenalis, known by more juvenile students as Juvenal. As you know, he coined the term, panem et circenses (bread and circuses), the time-tested, if cynical, observation that the best way to govern is to appease people with food and entertainment.

You did both:

1. You gave us entertainment (asking why scientists can’t grow vegetables that pick themselves since the “genetic engineers over at Fruit of the Loom have made great strides in human-fruit hybrids“).
2. You also offered sustenance. In the run-up to your testimony, as one of 16 fearless Americans, you accepted the “Take Our Jobs” challenge of the United Farm Workers. You worked for an entire back-breaking day on an American farm, picking beans (something you noted that even the “invisible hand” doesn’t want to do) and packing ears of corn — to be turned into high-fructose corn syrup, an ingredient in virtually all the pablum that most Americans eat.

Describing the experience, tears came to your eyes, as you said:

I started my workday with preconceived notions of migrant labor, but after working with these men and women picking beans, packing corn for hours on end side by side in the unforgiving sun, I have to say — and I do mean this sincerely — please don’t make me do this again. It is really, really hard work.

You also offered a way out of the controversy:

Maybe we could offer more visas to the immigrants who, let’s face it, would probably be doing these jobs anyway. And this improved legal status might allow immigrants recourse if they’re abused. . . . [It] just stands to reason to me that if your co-worker can’t be exploited, then you’re less likely to be exploited yourself. . . . [That] itself might improve pay and working conditions on these farms, and eventually Americans may consider taking these jobs again.

In reply to a question, you explained your underlying motivation for offering testimony:

I like talking about people who don’t have any power and it just seems like one of the least powerful people in the United States are migrant workers who come and do our work but don’t have any rights as a result. And yet we still invite them to come here, and at the same time ask them to leave. . . .

‘Whatsoever you do for the least of my brothers [quoting Jesus]’, and these seem like the least of our brothers right now. . . A lot of people are least brothers right now because the economy’s so hard and I don’t want to take anyone’s hardship away from them or diminish anything like that, but migrant workers suffer and have no rights.

I agreed with you when you also testified that “Americans are tough.” But toughness alone won’t put food on our tables or keep fruit and vegetables from rotting unpicked.

AgJOBS, the Agricultural Job Opportunities, Benefits and Security Act, will get our produce to market and to table. Although you didn’t read it, AgJOBS, a bill pending over several sessions of Congress, is now languishing as S. 1038 and H. 2414. Tamar Jacoby of ImmigrationWorksUSA has explained the need for AgJOBS in a letter to its lead sponsor in the Senate, Diane Feinstein:

Fewer and fewer Americans are interested in farm jobs. The vast majority of farm workers are foreign-born. And by helping to keep American agriculture afloat, this foreign labor force sustains literally millions of farm-dependent jobs in other sectors of the U.S economy. The problem is that the existing channel for seasonal farm workers to enter the country legally is far from adequate – it supplies workers to fill only two to four percent of available job opportunities. And as a result, the vast majority of foreign farm workers in the U.S. are believed to be unauthorized.

The beauty of AgJOBS is that it addresses this problem both retroactively and by looking forward. It alleviates the risk and instability that growers and farm workers face now – and promises an adequate future flow of needed farm labor by reforming the dysfunctional H-2A [temporary agricultural worker] program.

All of us know the sad legacy of the Bracero Program. The ending of that effort in 1964, however, did not solve the migrant labor shortage. While you continue offering us your evening circuses, please continue helping to make sure that the politicians finally deliver the bread.

Your fan,

Angelo A. Paparelli

Blogger, www.NationOfImmigrators.com

p.s. If you want to know more about our dysfunctional immigration system, invite me on your show.

Dear Glenn:

I’ve never communicated with you before, but something you said recently prompts me to write.

I saw you on C-SPAN during your August 28 Restoring Honor event at the National Mall in Washington. Like many others, I was pleasantly surprised that you turned away from politics and focused instead on time-honored moral and religious values.

You spoke about reading the biblical story of David and Goliath with your five-year-old son and exclaiming, “Wow, what a hero he is!” To your son, however, David was not a hero because he “can’t fly” and doesn’t “wear a cape.” You then “realized” that “we’ve lost too many heroes in this nation” and that “heroes are just people who . . . at their own peril . . . stand and do the right thing.”

You also spoke admiringly of the military, America’s fighting men and women, your heroes, who are at the top of the list of those whom America trusts, “15 points higher” than the next most trusted group. You asked people on the Mall and across the land to contribute money to the Special Operations Foundation — an organization that, according to the SOF website, “provides full scholarship grants and educational and family counseling to the surviving children of special operations personnel who die in operational or training missions”

You may not know, but there is another group of unsung heroes, the Immigration Innocents, young persons (brought here illegally by their parents or made to remain longer than the law allowed) who would immensely benefit the nation by participating in military service or pursuing higher education. Indeed, the Immigration Innocents wish to enlist, and the the armed forces welcome them in furtherance of America’s strategic goal of maintaining “a mission-ready All Volunteer Force.” Yet they are barred by law from joining our valiant service men and women whom you (and I) so sincerely acclaim as heroes.

Congress will vote soon on an amendment to the Department of Defense Authorization Act for Fiscal Year 2011 that would solve the problem. Known as the Dream Act, the measure is the same proposal you railed against in 2007 when you were still at CNN. You said then that, while you “love immigrants,” you have problems with those who sneak in and with legislators who pass bills “when nobody’s looking.” You added: “Me personally, I care about security first. Why don’t we patch the holes and put fences on our borders? Milk before meat, Washington.”

Perhaps it’s time for you to reconsider. The non-partisan Pew Hispanic Center has reported that illegal entries at the border are sharply down since the middle of the decade. Better yet, the Homeland Security Department has already deployed aerial drones, marshaled troops and taken many other steps to improve border security. Congress has also strongly reinforced the integrity of our borders with a $600 million supplemental appropriation.

Well, having drunk some milk, maybe it’s time for meat. You’ve spoken reverently about your devotion to the Bible, your affirmation that Jesus is your lord and savior, and the wisdom of the Founding Fathers.

I suspect you know what the Bible says in the Book of Lamentations 5:7: “Our fathers sinned . . . It is we who have borne their iniquities.” As I’m sure you’re also aware, the Bible describes the Massacre of the Innocents in the Gospel of Matthew 2:16-18, and tells how Herod ordered far-reaching male infanticide in Bethlehem after hearing the Magi report that a newborn King of the Jews hailed from that village. Even Euripides, the polytheist and Greek playwright, regrettably recognized: “The gods visit the sins of the fathers upon the children.”

Yet the signers of the U.S. Constitution, in Art.3, s.3, n.2, wisely took steps to put a halt to the practice of unjustly hurting innocent offspring. They prohibited any bill of attainder that would “work the corruption of blood,” the imposition of penalties on the innocent children of treasonous parents.

So, Glenn, maybe it’s time for you to reconsider your opposition to the Dream Act, just like you recently regretted your criticism of the President as a racist who harbors a deep seated hatred of white people (“I have a big fat mouth sometimes and I say things. . . . [that’s] just not the way people should behave”). Perhaps, you can look and listen here to the brave heroes who risk deportation for the fundamental right to live and thrive, pursuing the American Dream, in the country of their youth. Maybe you’ll join with General Colin Powell, no less a patriot and supporter of the military, when he says:

Immigration is what’s keeping this country’s lifeblood moving forward . . . America is going to be a minority nation in one more generation. Our minorities are not getting educated well enough now. Fifty percent of our minority kids are not finishing high school. We’ve got to invest in education. We should use the DREAM Act as one way to do it.

Glenn, this time everyone’s looking. Many people listen to you. You have the power to persuade the naysayers to reverse course. Help save the Immigration Innocents by supporting the Dream Act.

As a Christian, I ask you: What would Jesus do?

James Carville’s famous snowclone on how to win an election — “It’s the economy, stupid!”— has new, very buff legs. With the traditional Labor Day launch of campaign season just six days ago, the American people have already witnessed the fur of political charges and countercharges flying. The 24/7 news cycle and the ocean of tweets, blogs and YouTube videos reveal a viral debate over which of the two parties is most responsible for the lingering frailty of the economy and the blight of persistent joblessness.

Ruling out a fight for another massive stimulus bill, President Obama has opted for small-scale measures to help businesses gain the temerity to hire again. The GOP –- confident of an election landslide ahead -– espouses a permanent extension of the Bush tax cuts (subliminally if not overtly concluding that “deficits don’t matter”).

Meantime, America continues its slide from the economic pinnacle. The World Economic Forum reports that the U.S. is now ranked behind the three S’s (Switzerland, Sweden and Singapore) in the WEF’s “Global Competitiveness Report 2010-2011.” And unlike past recessions, IT jobs will not lead the way because these jobs increasingly are moving offshore, as the New York Times reported in a Sept. 6 front-page story:

“There’s been this assumption that there’s a global hierarchy of work, that all the high-end service work, knowledge work, R.&D. work would stay in U.S., and that all the lower-end work would be transferred to emerging markets,” said Hal Salzman, a public policy professor at Rutgers and a senior faculty fellow at Heldrich Center for Workforce Development. “That hierarchy has been upset, to say the least,” he said. “More and more of the innovation is coming out of the emerging markets, as part of this bottom-up push.”

While politicians debate such vacuous notions as excising birthright citizenship from the 14th Amendment, a few followers of the dismal science are pointing to legal immigration (including a penalty-laden legalization of unauthorized migrants) as the way forward. So writes Slate‘s James Ledbetter in “Give Us Your Tired, Your Poor. Really. We Mean It. Economists are making the case politicians are afraid to: Immigration is great for the U.S”:

Pro-immigration arguments are booming, and reached a zenith this week with the publication of a paper by the San Francisco Federal Reserve Bank, arguing among other things that immigrants, despite popular misconception, do not displace American workers. This has led a number of economic bloggers to make the very rational argument that one of the best things America could do now to fix our sagging economy is to encourage more people to come here and work. According to the econo-blogosphere lately, immigration is a cure-all for America’s economic ills.

Ledbetter offers three reasons why immigration promotes prosperity: (1) Immigrants create demand for housing (“[e]xpand the number of [H-1B] visas granted, make them contingent on buying a house, and the newcomers will make a fast and substantial dent in the glutted market”); (2) they can be the necessary replacement workers as Boomers retire (as they contribute vastly more to Social Security than they receive); and (3) they pump the economy.

Our history teaches that immigration brings new ideas and energies and drive. A new book by Richard Herman and Robert L. Smith, Immigrant, Inc.: Why Immigrant Entrepreneurs Are Driving the New Economy, explains why it’s important for Americans to “Think Like an Immigrant.” Immigrants, Herman and Smith note, bring a “culture of entrepreneurship that stems from education, thrift, family loyalty and ambition.”

Even the field of psychology, with research derived from Cradles of Eminence, a study of the childhoods of 700 prominent high-achievers, is offering its own take on why immigrants help our economy:

Creative people are complex, meaning that they see the world from multiple perspectives. This is an adaptive response to complex inputs during childhood. We are all constantly trying to make sense of the world we live in and the more complex our experiences, the more challenging this proves to be. This challenge is the key to creativity

Biographically speaking, creative people have a foot in two camps. In the U.S., for example, immigrants are seven times more likely to excel in creative fields compared to individuals whose families have lived here for generations

So as Congress reconvenes this week and prioritizes its short-term, pre-election “To-Do” list, here’s hoping it will take another look at immigration, not as every pol’s favorite whipping boy, but as the engine of job-creation and renewed economic vitality that it truly is.

Let’s resume our journey along the road where the arts intersect with America’s dysfunctional immigration system. (Previous blog stops en route are posted here and here.) Two weeks ago, USCIS made news when it reportedly held up the approval of a visa petition for America’s Got Talent judge, Piers Morgan, thus requiring Larry King to extend his term as CNN evening host until November.

Today, we learn from The New York Times that a U.S. consular officer apparently caused the renowned German director Peter Stein to withdraw last July from a major Metropolitan Opera production of Boris Godunov, an operatic masterpiece by Russian composer Modest Mussorgsky. Although the show will go on with another director, the damage to America’s reputation by an intemperate consular officer remains. Here is how director Stein, a septuagenarian, describes his encounter with the U.S. visa man (as reported by The New York Times):

In June [Stein] went to the [U.S.] consulate in Berlin for a work visa for the Met job and was forced, he said, to stand for hours in a stifling room with 50 other visa applicants. When he finally reached the consular official, “He said to me, ‘Why don’t you laugh?'” Mr. Stein recounted. “I said, ‘I stay here for two and a half hours standing and I am an old man.'” The officer replied, “‘In this case you will not have a visa,’ and sent me away,” Mr. Stein said. Mr. Stein said the experience left him humiliated and deeply offended.

The Met ultimately flew an employee to Berlin to facilitate issuance of Stein’s work visa, but even with visa in hand, the consular encounter apparently traumatized the director, leaving him “‘terrified and demotivated’ out of fear that a similar incident could occur in the United States.”

The NYT did not report the identity of the seemingly ageist consular officer or suggest that the State Department did or should discipline him for what appeared to be an illegal visa refusal based on senior-citizen status (or perhaps other equally unlawful grounds to deny a visa, such as Stein’s failure to smile or his complaint about long waiting periods, inadequate seating or lack of ventilation in the consulate’s waiting area).

Rarely does the public hear about visa refusals based on clearly unlawful criteria such as race, ethnicity or national origin, even though many have decried the invidious racial and ethnic profiling that Arizona’s SB1070 would have required had a federal court not placed most of the AZ law under preliminary injunction. One unforgettable opportunity to peak behind the purdah of consular operations is a 1997 case, Olsen v. Albright, in which Federal Judge Stanley Sporkin lambasted the State Department for its institutionalized practices of discriminating against a wide array of groups and nationalities. Readers, I hope, will indulge me the following extended quote from Judge Sporkin’s decision, which found unlawful a consular manual distributed throughout American visa posts in Brazil:

The Consulate had established various policies which all officers were required to follow in adjudicating eligibility for nonimmigrant visas. Some of the policies focused on the applicant’s physical appearance and economic status. According to the Consulate’s manual: It is helpful to circle doubtful items on the [visa application form] so that other officers have an idea of why the applicant was g-ed [Blogger’s note: This is probably a reference to Immigration and Nationality Act § 221(g), a catch-all ground of visa refusal]. Officers sometimes use abbreviations on the forms: RK = Rich kid LP = Looks poor TP = Talks poor LR = Looks rough TC = Take care . . . Some of the stated reasons for the denial of visas included: “Slimy looking[;] wears jacket on shoulders w/ earring,” . . . “LP. . . “LP!!!!!,” . . . (emphasis in original); “LR”. . . (emphasis in original); “Look Really Poor,”. . . “L[ooks] Scary,” . . . “Bad Appearance. Talks POOR,” . . . (emphasis in original); and “Looks + talks poor.” Id.

In addition to the codes based on physical appearance and economic status, the Consulate’s policies focused on the race, ethnicity, place of birth, and national origin of applicants. For example, the Consulate’s manual provided: KOREAN/CHINESE FRAUD Major fraud; hard to check. In general, they are almost always called for an interview. Visas are rarely issued to these groups unless they have had previous visas and are older.. . .

The manual also distinguished among applicants based on place of birth within Brazil. After identifying various cities “known for fraud” — most of them with predominantly black populations — the manual states: “anyone born in these locations is suspect unless older, well-traveled, etc.” . . . In addition to the manual, an April 1993 memorandum distributed to the consulates in Brazil states in pertinent part: “Arab and Chinese last names set off bells and whistles, regardless of what passport/nationality they may have.” . . .

The memorandum further states that “it is very easy to assume a false identity in Brazil and obtain a genuine passport and nationality and other documents. Most Brazilians have no interest in doing so, but Arabs and Chinese are two groups to worry about.” . . .

According to Consular Section Head Patricia Murphy: “Another body of guidelines is not post-specific but nationality-specific[.] [F]or example, Filipinos and Nigerians have high fraud rates, and their applications should be viewed with extreme suspicion, while British and Japanese citizens rarely overstay, and generally require less scrutiny.” . . .

Regrettably for most refused visa applicants who lack the notoriety and influence of a Peter Stein, arbitrary consular decisions to deny a visa are virtually impossible to overturn. This is the way the Congress, the State Department, the Department of Homeland Security (which now has the authority to deny a visa that a consul would grant) want the consular-visa system to operate.

The Immigration and Nationality Act (INA), as interpreted by the courts, has enshrined in law “doctrines” of “consular nonreviewability” and “consular secrecy” (INA § 222(f) [8 U.S.C. § 1202(f)]) that in virtually all instances deprive the public, the courts and stakeholders (foreign visa applicants and their American sponsors) of a means to hold consular officers accountable. The interests of fair process, impartial consideration, respectful treatment, government transparency, the cultivation of a favorable opinion of the U.S. among citizens of other countries, and the application of solely lawful grounds to grant or deny a visa — all of these are thrown under the bus (as I’ve noted here, here and here).

Just maybe, however, the law of unintended consequences will do what generations of immigration lawyers have failed to accomplish. Consular officers may soon have their interview colloquies with visa applicants recorded, if a bill (approved by the Senate Appropriations Committee last month and espoused by the travel industry becomes law). While only visa applicants will be videotaped, the interrogating voices of U.S. consular officials will at last be recorded. Thus, with no small measure of irony, high-fidelity sound, a form of the electronic arts, may create higher-fidelity adherence by U.S. consular officers to the rule of law and fair play on the visa stage.

——–

For someone whose career had seemed in rocket-vectored ascendancy, Piers Morgan — famed British journalist, TV host, 2008 winner of Donald Trump’s Celebrity Apprentice, and 2006 season judge of America’s Got Talent — has encountered an implacable obstacle. The object reportedly in his way is so impenetrable that, even with help from CNN, Piers cannot pierce it.

As first reported in the New York Post, government approval of CNN’s U.S. work visa petition to allow Morgan to be the new host of Larry King Live has reputedly been delayed. Another journalist, Richard Adams, who blogs on U.S. politics and culture from the Guardian newspaper’s Washington DC bureau, summarized the apparent problem thusly:

The unstoppable force of Piers Morgan’s career has finally met an immovable object: the US Citizenship and Immigration Services. . . . The nature of the delay is unknown . . . [I]t comes at a time when immigration is a hot-button issue in US politics. . . . [Q]ualification for a US work visa is a long and often fraught process . . . US immigration authorities are famously unimpressed by celebrity, and a delay of several months is not uncommon in even the most straightforward cases.

Others (here and there) are quick to discount the story.

I have no idea whether CNN, on behalf of Morgan, an author of eight books, and host of two BBC series (The Importance of Being Famous and The Dark Side of Fame with Piers Morgan), has not received swift visa-petition approval from USCIS. If USCIS is indeed the reason why Larry King will linger longer, then I speculate that perhaps Morgan’s multifarious career has been too much a moving target and King’s iconically idiosyncratic show too unique a form of entertainment for USCIS examiners to link together. Or maybe hosting a talk show is seen by USCIS as too different from judging a talent show, in the same way that the agency decided that “arguably one of the most famous baseball players in Korean history” was unqualified for a green card to serve as a baseball coach for the the Windy City’s White Sox team because his fame was solely as a player rather than as a coach. See, Lee v. Ziglar, 237 F. Supp.2d 914, 918 (N.D. Ill.2002).

The Post speculates that Morgan needs a “special visa,” while Blogger Adams suggests that Morgan has “options” available to him (“‘Individuals with Extraordinary Ability or Achievement in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field’ for which Piers would surely qualify”). At the same time, a TV.com staff writer — in a snarky slap to the immigration bar — asks: “Aren’t there people [Morgan] can hire to take care of that?”

I’m not ready to pass judgment on USCIS in d’Affaire Morgan (or to remain silent when uninformed outsiders unfairly slime immigration lawyers).

I note with satisfaction, however, that under the administration of Alejandro Mayorkas, USCIS Director, the agency has taken unprecedented steps to improve adjudication of EB-1 (Employment-Based First Preference) immigrant visas requiring regulatorily prescribed levels of extraordinary attainment. As Los Angeles Times reporter, Teresa Watanabe, reported recently, quoting the Director:

Mayorkas said he was determined to “get it right and get it fast.” “The community deserves consistency,” he said. “These are our customers, and we are committed to improving customer service.”

The latest example of the changes wrought by Director Mayorkas is an opportunity to allow the public to comment on interim guidance memorandums before they becomes effective in final form. This type of pre-effective-date chance to comment never happened before with the old INS or the pre-Mayorkas USCIS. The early-peek opportunity for comment allows the agency to withdraw with dignity intact from a position that stakeholders may show is contrary to law or legitimate business practices. For example, USCIS is now accepting comments on a guidance memo with a dry title but a topic of great significance to many prospective green-card applicants with high levels of accomplishment: “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions.”

This particular guidance memo arises from a debunking the agency received from the Ninth Circuit Federal Court of Appeals in Kazarian v. USCIS, 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774). The Court in Kazarian held that USCIS (in this case the Administrative Appeals Office) may not “unilaterally impose novel substantive or evidentiary requirements” without support in the Immigration and Nationality Act or agency regulations.

While Kazarian dealt with EB-1 (extraordinary ability or achievement) green-card eligibility criteria, the interim agency guidance cited extends this also to the EB-2 immigrant visa category for exceptional ability aliens. In my view, USCIS should have issued a guidance memorandum more broadly. Stakeholder feedback should have been issued on a guidance memorandum (which I’d be happy to craft upon request) entitled “Illegality of Unilaterally Imposing Novel Substantive or Evidentiary Requirements.”

Although the proposed title of my suggested USCIS memo is admittedly just as dry as those the agency issues, its scope is more important. The guidance memo I propose would cover all formal decisions (“adjudications”) that USCIS must make and not be limited solely to green-card grants or denials. It would apply to naturalization, asylum, work visa petitions, marriage petitions, investor petitions, battered spouse determinations, human trafficking and crime victims cases, waiver requests and more.

To be sure, Hollywood v. USCIS is a battle of great moment. Still, everyday supplicants who pay USCIS ever-steeper user fees deserve fair and prompt adjudications and the same equitable consideration as celebrities like Piers Morgan. I’m not saying that I’m happy that Morgan’s immigration case may have been delayed. But I will savor the last few pre-nostalgic months before Larry King retires his suspenders.

For a supposedly-sleepy dog day of summer, last Thursday produced a disturbing clash of views on employment-based immigration in the two Washingtons — DC and WA.

Seattle, about as far from the Beltway as one can go in the lower 48, hosted the Northwest Summit of ImmigrationWorks — a coalition of large and small businesses bent on reforming the immigration laws in ways that will enable the economy to grow. At the same time, the Senate reconvened from its recess for about a half hour to pass H.R. 6080, a $600 million border enforcement law whose protectionist elements triggered an immediate complaint from the Government of India to the U.S. Trade Representative.

The Northwest Summit offered speaker after speaker from far-flung industries describing a set of immigration rules and restrictions that prevents the economy from growing. Throughout the day, farmers, seafood harvesters, restaurant owners, executives in the service industries, and entrepreneurs in technology companies decried a broken system that demonizes law abiding businesses for the failings of federal officials. Even more compelling were the corridor conversations where individual business owners — grizzled veterans of their industries — spoke privately of the fear of criminal prosecution and loss of livelihood despite scrupulous efforts to obey the immigration laws and the daunting challenge of running legitimate businesses plagued by domestic labor shortages.

A continent’s width away, Senator Charles Schumer, lead Democrat on immigration policy, defended the financing mechanism for the border bill — the doubling of H-1B and L-1 visa filing fees — as a poetically just surcharge on companies whose very “business model” contravenes Congressional intent and “[is] ruining the reputation of the H-1B program.” He blamed these firms (which he had earlier called “chop shops” but corrected himself and then termed them “body shops” that engage in “labor arbitrage”) for a host of ills:

According to the Economic Policy Institute, [misuse of H-1B visas by these companies is] lowering the wages of American tech workers already in the marketplace [and] . . . discouraging many of our smartest students from entering the technology industry in the first place [because they balk at paying tuition for advanced degrees] when the market is being flooded with foreign temporary workers willing to do tech-work for far less pay. . . .

Congress does not want the H-1B program to be a vehicle for creating multinational temp agencies where workers do not know what projects they will be working on or what cities they will be working in when they enter the country. The fee is solely based on the business model of the company, not the location of the company.

If you’re using the H-1B to innovate new products and technologies, that’s a good thing regardless of whether the company was originally founded in India, Ireland or Indiana. But If you’re using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of this program, I and my colleagues believe you should have to pay a higher fee to ensure that American workers are not losing their jobs because of the unintended uses of the visa program, and this belief is consistent whether the company that uses these practices is founded in Bangalore, Beijing or Boston. . . .

[Based on press reports, the] leaders of this business model are agreeing that our bill will make it more expensive to bring in foreign tech workers to compete with American tech workers for jobs here in America. That means these companies are going to have to start to hire U.S. tech workers again. . . . This bill [thus] has the . . . advantage of creating more high paying American jobs.

Sen. Schumer’s rationale for sticking foreign companies who sponsor H-1B and L-1 workers in volume with the cost of protecting the U.S. border is flawed on several counts:

The Senator cites no evidence that American students are refraining from the study of STEM (science, technology, engineering and math) subjects because of a flood of lowly paid tech workers. As the White House attests, good STEM teachers make for dedicated STEM students. Rather, a report prepared by Public Agenda for The National Center for Public Policy and Higher Education confirms that, as a general matter, “many Americans are becoming more skeptical about whether colleges and universities are doing all that they can to control costs and keep tuition affordable.” Thus, the skyrocketing of tuition costs, not a deluge of poorly compensated foreign workers, is the primary reason that some students refrain from pursuing higher education.

The meme that the H-1B visa program allows access to underpaid foreign workers ignores the law’s requirements. As the American Immigration Lawyers Association made clear in challenging the findings of an Economic Policy Institute report (a study prepared in partnership with the AFL-CIO, and the same report cited by Sen. Schumer):

The H-1B program carefully protects wages by requiring that companies pay the higher of the wage paid by their competitors for comparable positions or the wage the company itself pays to other comparable workers. These protections are enforced by the Department of Labor and non-compliance already includes heavy penalties, including complete bars from petitioning for any foreign worker. Furthermore, H-1B employers are required to pay a $500 fraud prevention and detection fee for the initial H-1B petition which funds the government’s ability to investigate potential fraud in the H-1B program, not to mention the fee of up to $1500 filed with each petition to help train U.S. workers. If employers are deliberately violating the program requirements, the DOL can and should levy penalties. But the characterization of these programs as a means of obtaining cheap, indentured labor is false and irresponsible.

Temporary staffing agencies are not the same as global sourcing companies that provide IT and business-process solutions and other innovative services. Temp agencies, whether domestic or foreign, supply temporary workers to fill short-term needs, sometimes at lower costs. Global sourcing enterprises use a legitimate business model that significantly benefits governments, businesses, citizens and customers by offering better quality, 24/7 service across time zones, and speedier start-up and delivery, while allowing customers to focus on core competencies. Global service providers are not “glorified international temp agenc[ies].” They are no less vital to American businesses than are the hundreds of private contractors who serve the federal government, including the Departments of Justice and Homeland Security. Regrettably, the border-law’s definition of businesses that must pay the ramped-up H-1B and L-1 filing fees is not carefully tailored to reach only temp agencies engaged in body-shop activities. It unjustly imposes a protectionist tax on legitimate multinationals in the global sourcing industry.

The fees generated by the new border law won’t “ensure that American workers are not losing their jobs because of unintended uses of the visa program.” None of the money raised will be provided to the two government units with primary authority to investigate and enforce H-1B and L-1 visa requirements — the Department of Labor (Wage & Hour Division) and the Fraud Detection and National Security division of U.S. Citizenship and Immigration Services. Rather, as the last sentence of the border bill provides, “all amounts collected pursuant to the fee increases authorized . . . [must] be deposited in the General Fund of the Treasury.”

The border law is not a carefully crafted statute intended to pay for border security by making it more costly for a narrow band of perps to engage in a specific type of visa abuse. It is blatant protectionism, something that hurts all of us in the long run, as Milton Friedman reminded us soon before his death. President Obama and a number of world leaders were right last March when they said:

The G20 [nations] must go beyond merely advocating for trade and against protectionism. . . We must continue to resist protectionist pressures, and to promote liberalization of trade and investment through the national reduction of barriers . . .

Notwithstanding these anti-protectionist sentiments, each time the President has had the chance to sign a new bill containing immigration provisions, protectionist elements crept in. It happened with the Employ American Workers Act and now again with the border law. It’s clear that NYU Law Professor, Samuel Estreicher, could have been speaking of the border law when he said:

Over the last several decades, trade unions in the United States increasingly have been unable to realize their objectives at the bargaining table and have turned more and more to politics.

It’s little comfort to multinational businesses that they dodged a bullet this time. Free-trade opponents and their Congressional enablers have even more changes planned — enfeebling amendments to the H-1B and L-1 visa categories that “carry a significant likelihood of being ruled inconsistent with U.S. commitments under the GATS [the General Agreement on Trade in Services].” Still, the H-1B category is not without its supporters. Even the vehemently anti-immigration organ, the Center for Immigration Studies, has found a reason to support the beleaguered visa category: The Center proposes H-1B visas for foreign judges who can be imported to the U.S. to help in ordering the deportation of removable aliens.

As Yakov Smirnoff, the Russian émigré, sardonically observed:

“What a country!”