Perhaps I was naive to have expected more thoughtful analysis from conservative writer David Frum on last Friday’s Real Time With Bill Maher. Maybe what lowered my guard was Frum’s refreshing candor in criticizing as a failed strategy the Republicans’ “just say no” approach to the health care act, and suggesting that bipartisan engagement might have produced legislation more to the GOP’s liking. Maybe my manure detector was thrown off by his even more passionate critique of Republican nihilism, Rush Limbaugh and Fox News after his firing as resident scholar by the American Enterprise Institute.

Still, for a Canadian émigré who transferred from the University of Toronto to pursue a bachelors and masters at Yale and then graduate from Harvard Law School, this former foreign student and seeming intellectual truly disappointed me with the disinformation he unloaded in his exchange with Bill Maher about the “so permissive” U.S. immigration system:

Frum:

If you’re concerned about them [Muslim terrorists like confessed Times Square bomber, Faisal Shahzad] being over here, this also raises the question: So why are they here? Why is America’s student visa program so permissive? Why is it so easy to be naturalized? This is a failure of America’s immigration and naturalization system.

Maher:

There’s already millions of Muslims here. The problem is in their head. Let’s talk about the psychology of this guy. He was in a [lousy] marriage, he had a dead-end job.

Frum:

Of course he was in a [lousy] marriage, he got married to get his green card.

Maher:

His house was under water. If that’s not an American, I don’t know what is.

Frum:

. . . I don’t know how you talk about terrorism on these shores without saying that the immigration system needs to be more restrictive. Somebody cannot be excluded, it is illegal to exclude someone from this country — even for a visa, never mind citizenship, even if you have evidence that the person has all kinds of radical views. The law says unless there is an overt act, unless the person belongs to a proscribed group, or has committed a crime, that the visa officer in the foreign embassy [presumably he means the American consular officer at a U.S. consulate or embassy abroad] cannot exclude him from the country.

Maher:

Let’s talk about this on a more psychological level. That’s all well and good, but you can’t make laws about what’s going on inside someone’s mind.

Frum apparently doesn’t need a law “about what’s going on inside someone’s mind” because he can read minds. Many terrible accusations can be made about Faisal Shahzad, but the charge of marriage-fraud is contradicted by the evidence: two children born of the marriage to Huma Anif Mian; a mortgage the couple held together; and a marriage that apparently remains intact after six years.

Of more importance, however, are Frum’s legally flawed accusations about U.S. immigration laws. Frum neglects to mention or plainly misstates several restrictive elements of the Immigration and Nationality Act, a McCarthy-era statute, made even more restrictive by successive amendments over several years and by regulations interpreting the statute. Here is where Frum is dead wrong:

1. The student visa system. Far from being permissive, student visa holders in F-1, M-1 and J-1 visa status are monitored more closely than all other nonimmigrants to the United States. If a foreign student or exchange visitor fails to report to campus, fails to take a full course load, receives failing grades or otherwise fails to maintain status, U.S. Immigration and Customs Enforcement requires school officials to report the immigration violation in real time through the SEVIS (the Student Exchange Visitor Information System) database or else lose the highly lucrative authority to admit foreign students.
2. The naturalization process. Becoming a naturalized U.S. citizen is not easy. The wait to apply is from three to five years in most cases, the oral examination has been made harder, trips abroad are scrutinized, security and criminal-law screenings are conducted, and naturalization examiners can reject the application if the individual lacks the nebulous “eye of the beholder” quality of “good moral character.”
3. The power of visa officers. Consular officers are authorized to exclude individuals from this country on multiple grounds. Their factual determinations (most of the grounds for visa refusal turn on questions of fact rather than of law) cannot be overturned by the State Department or the courts under the principle of consular nonreviewability. An overt prohibited act, a criminal conviction, or membership in a proscribed group are not the only grounds for exclusion. The consular officer and the inspecting officer at the port of entry each have independent power to exclude the applicant if either has “reasonable ground to believe, [that the person] seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . illegal activity.” [8 U.S. Code § 1182(a)(3)(A)(ii).] Furthermore, the law puts the burden on the individual to prove eligibility for a visa, not by the usual civil standard of a preponderance of the evidence, but rather to “the satisfaction of” the officer, and neither the consul nor the border inspector is required to reveal the underlying basis for the belief that the person will, even if only incidentally, engage in any illegal activity in the U.S. [8 U.S. Code § 1182(b)(3).] As an even stronger safeguard, even if a consular officer decides to grant the visa, the Homeland Security Department can override the decision and deny the visa. Furthermore, even if a visa is somehow issued, it can be revoked by the consular officer or the State Department under 8 U.S. Code § 1201(i) before or after the visaholder enters the U.S., thereby making those admitted instantly deportable under 8 U.S. Code § 1227(a)(1)(B).

Frum never said what he would do to make the immigration system “more restrictive.” Perhaps he would require that all visa applicants be administered Sodium Pentothol and attached to a polygraph during multiple visa interviews. Or perhaps he would merely shut down the visa system and refuse entry to all foreign citizens, including Canadians (who, by the way, in most instances, are visa-exempt). Maher is right that the government cannot pass a law “about what’s going on inside someone’s mind.” The U.S. should also not engage in such “shoot-oneself-in-the-foot” behavior by making it ridiculously tougher than the law already is on foreign students seeking to enter the United States.

What the media can do is to challenge Frum and others of his ilk when they make broad and unfounded assertions about the immigration laws. They should check with media-savvy immigration lawyers, like Victor Nieblas, a candidate for national Secretary of the American Immigration Lawyers Association whom I heartily endorse.

What the Administration and Congress can do to protect us is to video-record all applicants as they are interviewed by consular officers and provide sufficient resources so that the interviews last longer and are more fair, probing and thoughtful than allowed now under the current process, with each interview lasting only about five minutes. Come to think of it, a longer and more thoughtful Q and A might just have an additional benefit. Even applicants refused a visa might leave the experience feeling better that, at least, they were fairly considered as an individual by a not-so-aesthetically-challenged officer under America’s clearly restrictive immigration system.

Ever the optimist and trying her best to think happy thoughts, Tinker Bell, the world’s most famous faerie, has been flying over Washington this week. She soared into town, lifted up by throngs of May Day marchers who believed popular revulsion to Arizona’s “Papers, please” law would finally jolt politicians into enacting comprehensive immigration reform.

Hailing from the country of Neverland, Tinker flew in solidarity with the marchers, alarmed that she had entered the country without inspection and without papers, and that all she had in her pocket was faerie dust. Then she plummeted, almost to the ground, as she saw Capitol Police arrest Rep. Luis Gutierrez and several others, each wearing T-shirts bearing the plea: “Arrest me, not my family.” She rose to a bit higher altitude on Sunday, watching the brave Luis G. on Face the Nation debate that Hookish Hayworth fellow:

My arrest was part of a response to what I consider the immorality of our broken immigration system. We were protesting the fact that hundreds of thousands of immigrant families have been destroyed, husbands losing their wives. There are 4 million American citizen children whose parents have either been deported or under threat of deportation. It’s time to make family sacrosanct once again and to fix our immigration system. So I was arrested yesterday because it was time, I thought, to escalate and to elevate the level of awareness and consciousness for all those who try to reach our shores and can’t because our system is broken.

The work week began, and again Tinker hovered low to the ground, as one politician after another threw cold water on what seemed the hottest recent prospects for reform, creating only steam. In need of a break, she repaired to the White house grounds and slept deeply — just above Michele Obama’s luscious vegetables — only to be awakened by festive music. A crowd of Cinco de Mayo celebrants had come to hear President Obama, with Michele at his side, speak again about the need for comprehensive immigration reform:

I want to say it again, just in case anybody is confused. The way to fix our broken immigration system is through common-sense, comprehensive immigration reform. That means responsibility from government to secure our borders, something we have done and will continue to do. It means responsibility from businesses that break the law by undermining American workers and exploiting undocumented workers -— they’ve got to be held accountable. It means responsibility from people who are living here illegally. They’ve got to admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law — and then get in line and earn their citizenship.

Comprehensive reform —- that’s how we’re going to solve this problem. And I know there’s been some commentary over the last week since I talked about this difficult issue: Well, is this politically smart to do? Can you get Republican votes? Look, of course, it’s going to be tough. That’s the truth. Anybody who tells you it’s going to be easy or I can wave a magic wand and make it happen hasn’t been paying attention how this town works. We need bipartisan support. But it can be done. And it needs to be done. So I was pleased to see a strong proposal for comprehensive reform presented in the Senate last week —- and I was pleased that it was based on a bipartisan framework. I want to begin work this year, and I want Democrats and Republicans to work with me — because we’ve got to stay true to who we are, a nation of laws and a nation of immigrants.

Tinker Belle’s wings stopped fluttering. She fell to the ground, angrily muttering to herself:

What’s this about “begin work this year” coming from the candidate who promised to tackle the immigration challenge in his first year as President? This from the same man who just last week told University of Michigan graduates that “The point is, politics has never been for the thin-skinned or the faint-of-heart, and if you enter the arena, you should expect to get roughed up.” I can’t take it anymore!

Mustering all her strength, Tinker flew past the Secret Service with even more stealth than party crashers at a White House dinner. She didn’t stop flying until arriving like a hummingbird just at the President’s left ear. As he walked into the West Wing, she shouted to get his attention, but he could hardly hear her because his left side had become benumbed. She shouted even louder “YES WE CAN!” At last the young boy from Hawaii who grew up to wear ties in July heard and recognized her. The President told his retinue that he needed to be alone. Tinker faced Barack and said:

What’s this about not having a “magic wand” to wave around? You’re the President of the United States! You have more than just a bully pulpit. Have you forgotten the Constitutional Law you taught students at the University of Chicago? You don’t need Ben Nelson. You don’t need Lindsey Graham. You can sign an Executive Order and fix a large part of the country’s immigration problems, and neither Republicans, Democrats, Tea Partiers nor pundits can do anything about it.

Tinker threw pixie dust in the air and a scroll appeared. She unfurled it and began to read aloud:

Executive Order

— Providing for a System of Registration of Undocumented Immigrants to Protect National Security and for the Early Acceptance of Applications for Adjustment of Status to Permanent Resident Status by Individuals with Long-Backlogged Priority Dates.

Section 1. By the authority vested in me as President by the Constitution and the laws of the United States of America, I declare an Immigration Emergency.

The said Immigration Emergency has arisen because:

1. Over 10 million individuals of foreign origin are living illegally in the United States, many with American citizen children, but nevertheless generally contributing to the economic prosperity of the country and otherwise abiding our laws;
2. The Federal Government lacks the economic resources and practical ability to remove these individuals from this country consistent with due process of law and has not ascertained the identities of most of these individuals, thereby undermining the safety and security of the nation from external and internal threats;
3. The Congress and prior administrations have tried repeatedly but failed to enact comprehensive immigration reforms that would protect national security or honor our traditions as a nation of immigrants;
4. Frustrated at the inaction of Congress and unwilling to pay for the unfunded burdens of a dysfunctional federal immigration policy, several states have enacted laws that interfere with, contradict and attempt to supplant the Federal Government’s preeminent authority over immigration law and policy;
5. The most recent state legislation, enacted by the Arizona legislature and signed by its Governor, has raised serious civil rights and Constitutional concerns and poses risks to public safety since otherwise law-abiding persons illegally present in the country are unwilling to cooperate with the police in helping to stop crime and identify terrorist threats to public safety;
6. Children and young adults who lack legal immigration status have been educated by our schools and colleges but are unable to begin careers or enroll in our military because of the lack of legal status and a work permit;
7. Foreign students who have graduated from U.S. educational institutions and other lawfully present nonimmigrants who have obtained a labor certification or are otherwise eligible for sponsorship and approval of an employment-based or family-based immigrant visa are pressured to leave the U.S. and offer their energy and talents to our country’s competitor nations because of outdated agency interpretations, needlessly inflexible regulations and backlogged immigrant visa quotas that have been exacerbated by the failure of administrative agencies over several years to administer the immigrant visa quota system properly and avoid the loss and waste of such visas in each year’s allotments;
8. Federal agencies charged with enforcement of the immigration laws have poorly prioritized their responsibilities by focusing to a greater extent than prudent on the arrest and deportation of persons whose only legal violations are entry without inspection or overstaying of one’s visas, thereby depleting enforcement resources that are better dedicated to anti-terrorism and serious criminal law violations;
9. Federal enforcement agencies have largely failed to exercise the prosecutorial discretion to grant deferred action to foreign citizens who have strong ties in the U.S. and no serious criminal law history.

Section 2. The Secretary of Homeland Security and the Attorney General shall — on an expedited basis — promulgate regulations and use their discretionary authority under law in order to:

1. Establish a system of registration and national-security screening of illegally present foreign citizens who are to be encouraged to enroll in the registration system by the grant of deferred action and employment authorization to all registrants who pass security screening, prove that they have paid or otherwise arranged for payment of all federal income taxes owed, acknowledge their violations of immigration laws under oath, pay a civil fine of not more than $2,500, and pay user fees to cover the full cost of the registration system; and
2. Allow the immediate submission of applications for adjustment of status under Section 245 of the Immigration and Nationality Act by persons who have obtained an immigrant visa priority date based on a non-frivolous filing with the Department of Labor of an application for Alien Labor Certification, or on an immigrant visa petition with the U.S. Citizenship and Immigration Services, that has a reasonable basis in law and fact.

BARACK OBAMA

THE WHITE HOUSE, May __, 2010

Tinker Bell picked up a pen from the Oval Office desk and handed it to the President, waiting hopefully that he would display courage and exercise leadership by signing the Executive Order.

Today’s New York Times brims with immigration dysfunctions galore. The paper’s immigration reports tellingly underscore the front-burner role this white-hot policy issue plays in the nation and the world.

In the first section alone, we see:

· An open-mike faux pas by British PM Gordon Brown, referring to an immigration opponent as a “bigoted woman,” prompted his abject apology and now risks a Labor Party loss in the UK election next week;

· A controversial opinion piece and articles on the political, legal and economic fallout of the Arizona Peace-Officers’ Suspect-and-Arrest-or-Refrain-and-Be-Sued Act;

· A report on four Dream Act marchers’ arrival in DC on a trek by foot from Miami, paired with a plea by Sens. Durbin and Lugar to former AZ Guv and Homeland Security chief (Janet Napolitano) that she grant deferred action and employment authorization to Dream Act beneficiaries as an exercise of prosecutorial discretion;

· A story on pillow-less immigration detention facilities and other atrocious indignities visited on detainees and visitors alike;

· Interviews with a trafficking coyote and would-be border crossers;

· A prosecutor-proposed life sentence (based on bank fraud, with immigration charges dismissed) — opposed by (of all people) Nixon-era Attorney General (Ed Meese) and seven other federal AGs — on the convicted owner of a notorious Kosher slaughterhouse raided by ICE;

· How immigrants to New York have brought with them a “remarkable trove” of up to 800 foreign languages, making the Big Apple “the most linguistically diverse city in the world”;

· Remarks at a deficit-reduction forum by President Bill Clinton on the need to increase the number of young, taxpaying high- and low-skilled immigrants as a material aid in saving the economy, Social Security and Medicare.

While all the stories add context and texture to the immigration debate, the piece most worthy of highlighting is the one offering Bill Clinton’s views on the role of immigration as a form of fiscal savior:

I don’t like that Arizona bill but I get why it happened. . . . The real reason there’s anti-immigrant sentiment is, if you look at the numbers, it’s white male factory workers without a college degree that got killed [financially in the last decade because of falling wages and the economic downturn]. . . . But they’ll get more jobs if the economy grows, their taxes will be lower if we’ve got more taxpayers. The pressures on Social Security and the changes we’ll have to make will be slightly less draconian if you have more people contributing into the system.

Well-respected author, news analyst and immigrant to America, Fareed Zakaria, expands on Clinton’s points in his must-read book, The Post American World — a tour de force on the challenges and opportunities America faces with the “rise of the rest” (particularly China, India, Brazil, Russia as well as other emerging nations):

Immigration . . . gives America a quality rare for a rich country — hunger and energy. As countries become wealthy, the drive to move up and succeed weakens. But America has found a way to keep itself constantly revitalized by streams of people who are looking to make a new life in a new world. . . . America has been able to tap this energy, mange diversity, assimilate newcomers, and move ahead economically. Ultimately, this is what sets the country apart from the experience of Britain and all other historical examples of great economic powers that grow fat and lazy and slip behind as they face the rise of leaner, hungrier nations.

Will America’s promise and heritage as a nation of immigrants become tomorrow’s bird-cage liner, or, will we take today’s messages to heart and move forward with immigration reform by act of Congress or, if necessary, by Executive Order?

I’ve attended hundreds of meetings of immigration lawyers in my career. Many of them have exhibited characteristics of 12-step groups in which we formed circles of victimhood, and “admitted that we were powerless over [INS, USCIS, DOL, State, etc.]and that our lives had become unmanageable.” Many of these sessions disgusted me because of the excess of whining complaints over action. Too often immigration lawyers are wont to complain and play victim, but rarely do they model the fictional TV executive, Howard Beale in the movie, Network (“I’M AS MAD AS HELL, AND I’M NOT GOING TO TAKE THIS ANYMORE!”).

I also believe in the proverb I first encountered, if memory serves, in The Autobiography of Malcolm X: It’s the squeaky wheel that gets the grease.

Well now is our chance to stop whimpering in darkness and light a few candles (I can’t seem to avoid proverbs today). USCIS has asked for stakeholder input on its priorities. A “policy review” survey, approved by the Office of Management & Budget (OMB), is open for response until April 29. As food for thought on what policies make the most sense, consider the USCIS-related testimony given on March 23 before the House Judiciary’s Immigration Subcommittee.

I took the survey today and here are excerpts from my comments:

USCIS’s # 1 priority should be statutory compliance with the APA and other laws administered by OMB.The agency should comply with the APA rulemaking requirements for public notice and comment, and issue regulations in a variety of areas where regulations do not exist. The agency should refrain from issuing press releases, posting web site announcements, making significant substantive law changes on immigration forms or issuing policy memoranda that are not in compliance with the APA, the PRA, the RFA and other laws administered by OMB.

# 2 USCIS should make every effort to persuade Congress that a primarily user-fee system of financing its operations will not protect homeland security or allow achievement of the agency’s mission and that substantially larger appropriations are required to perform the critical federal mission of USCIS.

# 3 priority should be revamping the Administrative Appeals Office by requiring adjudicators to be lawyers, publishing rules of procedure, speeding cycle time on appeals, allowing for continuation of employment authorization and tolling of unlawful presence during appeals and establishing precedent decisions.

#4 The USCIS should adopt an on-line case problem application for lawyers and accredited representatives. There is no need to clog the 1-800 # with lawyer and representative calls when problems can be more easily solved through an on-line tool.

I also added commentary, in line with many of my posts, that USCIS should work with ICE to expand the grant of deferred action and employment authorization to favored categories of unauthorized persons, e.g., beneficiaries of the DREAM Act and AgJobs bills (as Senators Lugar and Durbin now propose), as a precursor and (changer of facts on the ground) in anticipation of comprehensive immigration reform.

Immigration lawyers may quibble with me over my prioritization of USCIS policies, of course. But unless you take the survey, be sure that the next time I see you at a bar function (YOU know who YOU are), I will have no sympathy if you answer “no” to my question: “Did you take the survey?”

——–

In staccato movements, our post-health-care President seemed to have found his rhythm: 15 recess appointments, a yet-to-be ratified arms-reduction treaty with Russia, and a world-leaders’ conference on nuclear nonproliferation, the first such gathering since President Franklin Roosevelt convened the precursor meeting that would lead to the formation of the United Nations. Why then is he (and his usually powerful Michelle) showing timidity around comprehensive immigration reform (CIR)? No doubt the recent flip-flop of Harry Reid, Senate Majority Leader, hasn’t helped. Over the weekend Reid promised to make time on the calendar for CIR, only to backtrack a few days later.

While the politicians in Washington dither, those in Arizona pass a bill headed for the governor’s desk that would criminalize the undocumented population of the Grand Canyon State. While an inaudacious president waits for Congress to make the first move, his Secretary of Homeland Security maintains a “full steam ahead” policy of immigration enforcement.

The President’s choices are clear. He can risk the ire of the CIR proponents in his base and merely blame Congress. He can declare a moratorium on enforcement. He can stay silent while the states enact Draconian criminal legislation attacking the undocumented. He can use his bully pulpit to move CIR legislation forward. Or, he can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.

The eyes of many Americans have focused of late upon the absurdly harsh consequences that immigration law inflicts on people after they have satisfied comparatively modest penalties imposed under the criminal laws.

The New York Times’ Linda Greenhouse (who has followed the Supreme Court for many years) notes correctly in a recent blog posting that “today’s harshly anti-immigrant legal regime applies not only to the undocumented, but to permanent legal residents as well.” While recognizing that immigration law is largely a creature of statute, Greenhouse worries that in “this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity.”

This same “harshly anti-immigrant legal regime” also applies, as another Times columnist, Tom Friedman, has noted with passion and panache, to individuals and businesses seeking to invent, innovate and produce high-value jobs:

I am a pro-immigration fanatic. I think keeping a constant flow of legal immigrants into our country — whether they wear blue collars or lab coats — is the key to keeping us ahead of China. Because when you mix all of these energetic, high-aspiring people with a democratic system and free markets, magic happens. If we hope to keep that magic, we need immigration reform that guarantees that we will always attract and retain, in an orderly fashion, the world’s first-round aspirational and intellectual draft choices.

Sadly, however, no authority within the federal government has as its primary mission to promote, facilitate, encourage, and remove obstacles in the path of, business- and employment-related immigration. To be sure, there are many federal agencies who peripherally exercise authority over the subject. Yet, the promotion of immigration as an engine of prosperity all too often yields to other competing missions:

The Department of Homeland Security: “We will lead the unified national effort to secure America. We will prevent and deter terrorist attacks and protect against and respond to threats and hazards to the Nation. We will secure our national borders while welcoming lawful immigrants, visitors, and trade.”

U.S. Citizenship and Immigration Services: “USCIS will secure America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

The Department of Labor: “[DOL] fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.”

The Department of State: “[State will create] a more secure, democratic, and prosperous world for the benefit of the American people and the international community.”

You might reasonably surmise that the Department of Commerce, given its mission, would play a leading role in standing up for legal, business-based immigration policies:

The historic mission of the Department is “to foster, promote, and develop the foreign and domestic commerce” of the United States. This has evolved, as a result of legislative and administrative additions, to encompass broadly the responsibility to foster, serve, and promote the Nation’s economic development and technological advancement.

But your surmise would be wrong, if the experience of immigration bar associations is any guide. Take the leading national immigration bar, AILA. Mistake or oversight are not the reasons that AILA’s “Agencies and Liaison” page on its website does not list the Commerce Department. Truth be told, Commerce has not been a player in the immigration policy debate and has not stepped in to object when anti-business bills and regulations are proposed by Congress and by its sister Departments.

As Cyrus Mehta, Laura Danielson, Steve Clark and yours truly have urged on behalf of the Alliance of Business Immigration Lawyers in an ABIL white paper on comprehensive immigration reform (CIR) to the leadership of USCIS, America needs a federal agency whose focus is on the job-creation and export-promotion capability of legal, business-related immigration:

An Agency to Support and Protect the Economic Benefits of Immigration Should be Created within the Department of Commerce or Another Suitable Department.

Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.

Mission statements are made for good reasons:

A mission statement defines in a paragraph or so any entity’s reason for existence. It embodies its philosophies, goals, ambitions and mores. Any entity that attempts to operate without a mission statement runs the risk of wandering through the world without having the ability to verify that it is on its intended course.

Worse than operating without a clear mission, pursuing mixed missions, as immigration history has shown, creates huge problems. The time has come for one agency to speak forcefully, consistently and solely on behalf of legal, business- and job-generating immigration policies.

In a post last summer (“The Immigration Singularity“), I accused the Department of State (DOS) of hoodwinking the Office of Management and Budget by getting OMB to approve use of a new, all-purpose nonimmigrant visa application form, the DS-160, without submitting the form itself for review under the Paperwork Reduction Act:

In my view, State snookered OMB in approving the release of the DS-160 under the Paperwork Reduction Act (PRA) without providing the public with access to a complete copy of the form and all the questions posed. The purpose of the PRA is to reduce the burden of completing government forms; it is not to allow government agencies to force visa applicants and their stakeholders to play “whack a mole” or “peek a boo” as different answers pop up unexpectedly.

Having now experienced the DS-160 first hand, I stick by my snookering charge, and my accusation in the Singularity post that the form is “an atrocity.” Still, I must set the record straight by letting readers know that, apparently back in 2008, State did send OMB 117 pages of screen shots of the new form’s “User Interface Design” (even though this document is not listed among the on-line documents OMB maintains for this form and the many drop-down lists on the form do not appear in the screen shots).

The Urban Dictionary defines “snooker” as “to cheat somebody, to trick him or her” and it defines “snooks” as a British slang word meaning “a stupid person.” Both terms apply to an hilariously cheesy and misleading YouTube clip, posted by the U.S. Embassy (London), hailing the DS-160 as a time-saving innovation that eliminates three forms (the DS-156, DS-157 and DS-158) and makes applying for a U.S. nonimmigrant visa a pleasing experience and a paperless boon to the environment. “Snookering” and “snooks” also apply to the absurd claim by the DOS that the form can be filled out on average in 75 minutes (recently, a paralegal, a tech-savvy client and I tried completing the form and it took several hours).

My experience is not unique and perhaps is not so bad according to some comments posted on the Embassy’s home page under the title “We are experiencing connectivity problems with the DS-160” and its YouTube video:

I HAVE JUST FILLED IN FOUR VISA FORMS FOR MYSELF . . . MY HUSBAND . . . MY SON . . .AND MY DAUGHTER . . . I FILLED IN EACH FORM AND THEN CLICKED ON ‘CONTINUE’. THE ONLY FORM I WAS ABLE TO PRINT OUT WAS THE LAST ONE I FILLED IN . . . DO I NEED TO FILL IN THE OTHER 3 FORMS AGAIN? PLEASE CAN YOU LET ME KNOW ASAP AS WE ARE DUE TO TRAVEL ON 3RD APRIL.

* * *

i have visa interview appointment on 26th march. today i try to fill up DS 160 form for my b2 visa .its almost took 4 hours and still not finished. one thing i can say its really not user friendly. please do something to save our precious time.

* * *

The DS 160 is creating an absolute nightmare please take this form down until it works. Please, Please, Please – I beg you.

* * *

Patience my friends. I have been trying to fill out the DS160 for about 10 days and my session has timed out several times. I checked the embassy website only to find out that they are having technical issues with the online form (latency or load-balancing issues). So, I went through the DS 156/157, filled them out. I was curious about DS-160 again, I had saved off the application earlier and so I uploaded it, went on by clicking Next, next and the never-ending-next buttons; and it timed out when I clicked the “Sign and Submit” button! Doh!! Went on with this entire 3-4 more times, and succeeded. The website is slow, my interview is a week from now, and I now have all kinds of forms with me. 156, 157, 160, 999? Good luck. Keep trying.

My client’s, paralegal’s and personal experiences are similar. Here are our comments (there are more problems noted on the Embassy’s web site):

1) Estimated Burden time of 75 minutes is gross understatement . . . ;

2) Sessions are supposed to “time out” after 20 minutes of inactivity, but they “time out” much sooner – even while actually typing into the fields;

*NOTE: If a session times out while you are working, you lose any data not “saved to file”, and must reenter it. Even if you take the time to save the data into the form at the bottom of each page, the data is only retrievable for uploading into the application if it has been “saved to file”.

EXAMPLE: While working on the DS-160 . . . , the session timed out on us 6 times, and we lost data each time.

EXAMPLE: Are you applying in the same country where the visa above is issued and is this country your principal country of residence?

3) Application Errors occasionally pop up and kick the user out of the system, with no explanation as to the type or reason for Error. When this happens, similarly to when a session times out, the user loses any data entered that was not “saved to file”.

4) The form requires the applicant/user to complete each field on each page/section before moving on to the next page/section. In other words, an applicant cannot prepare a “draft” of the form with partial data, and complete the form at a later date when more data becomes available.

5) The applicant/preparer can not print the entire application for review before submitting; you have to print each page separately.

6) The questions asked in the Form are not always clear –

Example: Purpose of trip to the U.S.? If you choose “business”, the form will assume you are seeking a B-1; you need to choose “Other”, and get a list of nonimmigrant categories.

Example: E Visa – “Are there any foreign entities (corporation, partnership, etc.) associated with the U.S. business?” Associated is not defined.

Example: [Answer “yes” or “no” to a compound question]: Are you applying in the same country where the visa above is issued and is this country your principal country of residence?

7) The form does not eliminate paperwork. See [DOS Frequently Asked Questions]. :

 

FAQ # 13. When I apply for a nonimmigrant visa using the online DS-160, are additional forms required?

No, with two exceptions. When applying at a U.S. Embassy or Consulate that is using the new DS-160, Online Nonimmigrant Visa Application, you will use only one (1) form. For Embassies and Consulates that have converted to this new process, the DS-160 has replaced all of the following forms: DS-156, DS-157, DS-158, and DS-3032, which are no longer necessary.NOTE: The exceptions are Fiancee Visas (K-1/2) which still require use of the forms DS-156 and DS-156K, and the Treaty Trader/Treaty Investor visa application, which is explained in #14 below.

It is important to check the Embassy or Consulate website where you will apply for your nonimmigrant visa for information on the application process in place. Embassies and consulates worldwide will transition one-by-one to the DS-160. Therefore, those Embassies which have not yet converted to the new DS-160 online form continue to require all application forms, as necessary.

FAQ # 14. I am applying for a Treaty Trader/Treaty Investor, E Visa. Do I need to fill out the DS-160 and the DS-156E?

It depends. If you are an E Visa, Principal Investor (E-2) applicant, all you need to complete is the DS-160. If you are a Treaty Trader (E-1) or an Executive/Manager/Essential Employee you will need to complete the DS-160 and you or your employer will need to complete the paper DS-156E. (Sometime next year a new form, the DS-161, E Visa Business Information form, will be released. This form will allow you or your employer to complete an online form and submit the form electronically to the Department. Until that time all treaty traders, executives, managers, and essential employees of an E visa business will be required to complete and submit the paper DS-156E.)

8) Why do they specify that the applicant should NOT bring their entire application, but only the Confirmation Page from a successful upload? Do they want to test the applicant during the interview to ensure they answer orally as stated in the application, but without the aid of that application during questioning?

FAQ # 10. Do I bring my entire application with me to the interview, or do I just bring the confirmation page?

You should not bring your entire application. Your confirmation page is all that is needed to retrieve your application data. You must bring the confirmation page with you during all phases of the application process. Without the confirmation page, it may not be possible to access your application and process your visa case.

9) Where the client and the attorney are not in the same room, it is extremely difficult to confirm the answers provided, especially where data is lost through time-out and “application error” problems. The DS-160 discourages attorney-assisted preparation and counsel:

Notice 22 C.F.R.6 41.103 requires an applicant to sign and submit his or her own Nonimmigrant Visa Application unless otherwise exempt. Although the applicant may receive assistance from a third party in preparing the application, the applicant is required to click the “Sign Application” button at the end of the application. The applicant’s failure to sign the application may result in a termination of the application.

The critical importance of attorney advice and representation in immigration matters has recently been reaffirmed by no less an authority than the U.S. Supreme Court in Padilla v. Kentucky. In a 7-2 decision, the majority determined that a defense lawyer’s failure to advise his client of the immigration consequences of a guilty plea violates the Constitution’s Sixth Amendment guarantee of the right to counsel in criminal cases. The majority understatedly confirms in its ruling: “Immigration law can be complex.” (Slip opinion at 11.)

Concurring in the judgment, Justice Alito arrays a variety of ambiguous statutory terms in the Immigration and Nationality Act, along with their wide-ranging interpretations, and then states:

In short, the professional organizations and guidebooks on which the Court so heavily relies are right to say that “nothing is ever simple with immigration law” (slip opinion, concurrence at 7).

With the “not ready for prime time” but “mandatory” DS-160, the DOS, having spread its dissembling widely, has been allowed to foist a migraine-inducing burden upon the OMB, the immigration stakeholder community and the bar — all in the guise of a technology solution.

I guess, we are the snooks for tolerating this agency’s shenanigans.

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In the act of passing massive and historic health care legislation (America’s Affordable Health Choices Act of 2009, as reconciled by the Health Care and Education Reconciliation Act of 2010), U.S. senators, in Congress assembled, took time, appropriately, to honor in silence one of universal health care’s fallen champions, Ted Kennedy.

The prior weekend, while the House voted on health care, outside the Capitol tens of thousands of marchers urged Congress to honor Sen. Kennedy’s memory by passing his other passion, comprehensive reform of our immigration laws.

The effort to reach consensus on how to fix immigration will be a tortuous slog. A new HBO film — The Senators’ Bargain — tells the inside story of the last unsuccessful immigration reform effort by Sen. Kennedy. Three reviews (by New York Times movie reviewer Allesandra Stanley, NYT immigration reporter, Julia Preston, and Christine Kearney of Reuters) and the film’s trailer are all worth partaking, but nothing can replace a viewing of this TV movie with its moment-by-moment depiction of sausage-making gone rancid.

The Senators’ Bargain reveals the faustian pact supporters of reform reluctantly made to gain legal status for the millions of undocumented in America by swallowing hard on a point system that tilted in favor of high-skilled workers over family-unity immigrants. Ultimately, the “grand bargain” of Sen. Kennedy and his Republican co-sponsor, Sen. Kyl, failed. Senators who were not party to the bargain proposed a slew of amendments to defeat or dilute the bill, and the grand bargainers could not tease out the support of enough senators to bring the bill to final vote.

The film also shows Sen. Kennedy personally addressing far more numerous marchers on Washington seeking immigration reform. Tellingly, this time, however, the latest marchers viewed Pres. Obama on video screens. This time as well erstwhile immigration supporters such as Sen. John McCain — who previously paired with Sen. Kennedy on yet another failed immigration reform effort — have already predicted that the Democrats’ use of reconciliation and other parliamentary maneuvers have poisoned the well for future bipartisanship. For his part, President Obama proclaims his unwavering commitment to keep his campaign promise to pass immigration reforms, but says the effort will not move forward without Republicans pushing together with Democrats. No Republicans to date have stepped forward, other than Sen. Lindsey Graham, who likewise predicted that use of reconciliation to pass health care would scotch any chance for bipartisan immigration reform.

With reform at a standstill for now, administrative fixes and Presidential executive orders are the sole game in town, but only if the President and his Homeland Security Secretary, Janet Napolitano, are willing to play. Gary Endelman and Cyrus Mehta point the way to a partial fix in their virtuoso article, “The Tyranny of Priority Dates.” In the present era of post-post-partisanship, President Obama should recognize that more can be done with immigration reform and it won’t take 22 pens, just one.