Since the early days of this blog, I’ve chastised immigration bureaucrats who use specious reasoning to treat small businesses petitioning for employment-related immigration benefits more harshly than their large-cap counterparts.

The latest assault on fairness and reason is reflected in a trend affecting several categories of employment-based visas — the H-1B (Worker in a Specialty Occupation), the L-1 nonimmigrant (Intracompany-Transferee Manager or Executive) and the EB1-3 (Multinational Manager or Executive). An example of this trend is a recently released EB1-3 decision (decided May 1, 2009) of the USCIS Administrative Appeals Office (AAO) denying an immigrant visa petition for a multinational manager from abroad who owned a controlling stake in the company petitioning for the visa. The basis for the visa denial was the asserted lack of an employer-employee relationship and the supposition that the terms, “employer,” “employee,” and “employed” are undefined.

The AAO apparently has forgotten that it is an agency bound by precedent decisions issued by the Attorney General:

[D]ecisions of the Attorney General . . . shall be binding on all officers and employees of the Department of Homeland Security.

[8 CFR § 103.37(g)].

Ever since 1958, the Attorney General in the precedent case of Matter of M (p. 49 et seq.) has held that a corporation may legitimately petition for its owner to receive an immigrant visa. See also, Matter of Aphrodite Investments Limited. Likewise, a Federal District Court, interpreting the L-1 visa category, ruled that a sole proprietorship can form the basis for its foreign owner to qualify under the L-1 category. See Johnson-Laird, Inc., v. INS, 537 F. Supp. 52 (D. Ore 1981). Indeed, USCIS’s own regulations recognize that if the sponsored employee, in immigration parlance, “the beneficiary,” is a major stockholder of the petitioning company, an L-1 visa is permitted:

If the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence that the beneficiary’s services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.

[8 CFR § 214.2(l)(3)(vii)].

While this evidentiary provision is essentially a dead letter because the Immigration Act of 1990 eliminated the requirement of proof of the intention to return abroad, its continuing presence in the Code of Federal Regulations stands as a testament to the agency’s longstanding recognition that an owner of a company may qualify as an employee of the petitioning entity.

This is not the first time I’ve railed against the lawless behavior of USCIS officials. The sad truth is that the targets of their lawlessness — small businesses — are the very “first responders” who lead the economy out every recessionary swoon. President Obama at the Brookings Institution this week in his “Remarks on Job Creation and Economic Growth” placed the issue in stark relief:

Over the past 15 years, small businesses have created roughly 65 percent of all new jobs in America. These are companies formed around kitchen tables in family meetings, formed when an entrepreneur takes a chance on a dream, formed when a worker decides it’s time she became her own boss. These are also companies that drive innovation, producing 13 times more patents per employee than large companies. And it’s worth remembering, every once in a while a small business becomes a big business — and changes the world.

At this labor-management summit, the President solicited the best ideas available to create new jobs in America. Well, Mr. President, I have one: Send the Attorney General to the USCIS AAO and the Regional Service Centers and have him stop their sophistic slaughter of small businesses.

Just when U.S. employers thought the bad vibes emanating from U.S. Citizenship and Immigration Services (USCIS) could get no worse, the agency tasked with deciding whether to approve or reject requests for immigration benefits has come up with VIBE — its new Verification Initiative for Business Enterprises which costs a whopping $35,506,760.43.

Just imagine . . .

. . . a program in which USCIS, by using VIBE, “will acquire information from an [Independent Information Provider (IIP)] . . ., which can be used to verify the eligibility of a company while detecting multiple types of misrepresentations.”

. . . a program that will run checks on the “finacial viability” of the existing population of 137,000 companies that have registered with E-Verify, Homeland Security’s online employment-verification database, as well as the roughly 52,000 new E-Verify registrants each year.

. . . a program where a “Privacy Impact Assessment (PIA) [mandated by the E-Government Act of 2002] and a System of Records Notice (SORN) [mandated by the Privacy Act] will not be required.”

. . . a program where USCIS flouts the spirit if not the letter of its own regulation, 8 CFR § 103.2(b)(16)(i), which requires its officers to advise a petitioner or applicant of derogatory evidence and provide an opportunity to rebut the information.

. . . a world where information collected on companies’ financial viability and business operations may be inaccurate, incomplete or outdated, and yet is relied upon by USCIS to issue requests for additional evidence (RFEs) that are even more burdensome than the type we see today and that unfairly delay the grant of work permits, visa petitions and green cards to deserving companies and their employees.

. . . a world in which a cash-strapped immigration agency, whose “financial viability” is endangered because its business model relies on the uncertain ebb and flow of user fees rather than government appropriations, would probably fail IIP testing if subjected to the same sort of third-party scrutiny as it plans to inflict on the very payors of its user fees.

Well, there’s no need to imagine such a program because, according to a recent letter from USCIS Director Alejandro Mayorkas to Senator Chuck Grassley, VIBE will likely be implemented in the “spring of 2010.” Director Mayorkas promises to provide Senator Grassley with “regular updates as to the progress of the [VIBE] program’s rollout.”

Perhaps the good Director can also provide the public, through the USCIS Office of Public Engagement, and the Senate and House Immigration Subcommittees, with an explanation of why VIBE requires no Privacy Impact Assessment or Privacy Act SORN notice, or why the financial viability of E-Verify registrants must be tested, or what safeguards have been incorporated or reparations set aside for payment if an IIP provides inaccurate data or an immigration examiner misinterprets data and a petitioning company — perhaps a startup of which the IIP is unaware — thereby loses a major contract, or if an unjustified delay in adjudication or denial of benefits results in the loss of a key foreign worker.

Clearly, stakeholders, take note and be wary, for the Immigration Singularity is upon us.

Stealth protectionism on the immigration front is surfacing again in Congress. Two odd bedfellows — self-described socialist Sen. Bernie Sanders (D. VT) and A+ anti-immigration lawmaker, Chuck Grassley (R. IA) — are at it again. Earlier in the year, the duo inserted the Employ American Workers Act into the stimulus legislation (the American Recovery and Reinvestment Act) — something I called “Protectionist Turducken” — to prevent the hiring of H-1B workers by recipients of TARP and Federal Reserve funding.

On Nov. 19, they proposed the “Employ America Act,” a bill (S. 2804) which would require employers of over 100 workers who lay off 50 or more employees to also terminate any workers with nonimmigrant visas who were hired in the last 12 months. The nonimmigrant terminations would be effective 60 days after the employer issues a notice under WARN (the Worker Adjustment and Retraining Notification Act), 29 U.S.C. 2101 et seq. Their bill would also prohibit the Secretary of Homeland Security from approving “a petition by an employer for any visa authorizing employment in the United States” unless 12 months have passed since the issuance of a WARN notice.

The broad language of the ban on new employment-based visa petition approvals would seemingly cover nonimmigrant workers as well as foreign citizens in the U.S. or abroad who seek green cards through employer sponsorship. As the National Foundation for American Policy reported recently, wait times for employment-based green cards are now ranging up to 12 to 20 years because of inadequate annual quotas which have not changed since 1990.

A Wall St. Journal editorial accurately summarized the problem of interminably long immigrant visa queues:

The costs of losing this human capital are high. Between 1990 and 2007, an astounding 25% of publicly traded companies in the U.S. that were started with venture capital had an immigrant founder. Many foreigners come initially to study or do research at our superior colleges and universities. But the barriers to remaining are forcing them out. A survey of 1,200 international students taken in March shows we can no longer take for granted that skilled immigrants will want to stay and work in America. Some 55% of Chinese, 53% of Europeans and 38% of Indian students worried about being able to obtain permanent residence in the U.S.

Canada, Australia, the European Union and others have streamlined processes for hiring foreign workers to lure skilled immigrants away from the U.S. Unless Congress addresses these long wait times and low quotas, more immigrants will take the skills they acquire in U.S. universities and use them to help other nations prosper.

What sane persons from abroad would cast their own and their family’s lot with America when the Commissars in Congress subject their futures to the vagaries of economic fluctuations that, over the course of decades, cause unavoidable workforce reductions? Heaven help us if Sens. Sanders and Grassley have their micro-managerial way.

[Blogger’s Note: With the surrender by Lou Dobbs last Wednesday of his role at CNN as an anti-immigrant advocacy journalist, and his refusal to rule out a run for political office, It’s time to reprise my reasons for blogging about our nation’s dysfunctional immigration policies, first published on October 24, 2004. Despite the passing years, the message has muscular legs.]

This is the first posting to a new public-policy blog with a name that must be a typo: www.nationofimmigrators.com. Surely this blogger means to write “Nation of Immigrants,” not “Immigrators”. No; there’s no mistake. We are all Immigrators. We, the inhabitants of America, whether citizen or foreigner, are all Immigrators.

In the post-9/11 America of 2004, Immigrators include:

The politicians who make hissing sounds about supporting or opposing legal and illegal immigration but just never get around to passing laws that reflect our fundamental values and – once and for all – fix our country’s dysfunctional immigration system;

The demagogic media celebrity and modern-day Father Coughlin who each week night on cable TV frightens the public and derides American employers and the federal government for causing or failing to fix our country’s “Broken Borders”;

The immigration restrictionists who, like the Know Nothing Party of old, foment fear and hatred of foreigners and espouse a closed-border policy;

The owners and executives of virtually every U.S.-based business who reap the economic benefits of immigration;

The bureaucrats who administer our immigration laws, denying or granting citizenship and other immigration benefits, while dispensing fairness to some and injustice to many;

The immigration agents, some Dr. Jekylls and others Mr. Hydes, who sometimes succeed but often fail to protect our borders and remove deportable aliens; The law-abiding foreign citizens who enter the U.S. with proper visas or Green Cards and contribute mightily to our national economy and our cultural heritage;

The immigration lawyers who despite the scorn of an angry public help immigrants and temporary entrants achieve the American Dream;

The public officials, government appointees, and one- and two-career families, who knowingly hire housekeepers, nannies, handymen and gardeners (all without work permits);

The amnesiac, hypocritical, outraged or just plain apathetic American people who:

• forget that they enjoy the blessings of America only because their ancestors came here as immigrants,
• refuse to admit that immigrants are not “illegal” people but mostly honest and hard-working human beings, some of whom may have broken a largely unenforced and very confusing law,
• will not acknowledge that they enjoy low prices and low inflation because of immigrant labor, earn lower or higher wages because some immigrants are exploited and others create new and better jobs for American workers, or
• are indifferent and therefore fail to hold federal government leaders accountable for an incompetently administered, outdated and dysfunctional immigration policy; and

Lest we forget, the 8 to 12 million people from foreign lands who are here without benefit of legal status, and are no more or less “illegal” than the wealthy criminals who are granted amnesty even after evading their fair share of taxes through abusive shelters and avoiding jail by ‘fessing-up in so-called “voluntary compliance” programs.

Yes, indeed, America is an ever-squabbling and conflicted Nation of Immigrators. We all benefit and we all suffer (more or less) in this land of immigrant opportunity.

Well Immigrators of this country, unite! You have nothing to lose but your misunderstandings. Heed the postings of this blog. Take a close look at America’s immigration system. Learn where it works and where it needs fixing.

——–

Until recently, travelers to the U.S. under the Visa Waiver Permanent Program have enjoyed seemingly hassle-free entry to the United States. If you hail from (or now hold citizenship in) one of 35 favored countries, the process is simple. Go online to a website, ESTA (Electronic System of Travel Authorization), answer a few questions, get a green light to proceed, purchase a round-trip ticket and hop on a plane with just your passport as your entry document. Sure you waive a host of procedural rights, but with the value of the dollar plummeting, the shopping bargains in the U.S. are just too good to let legal technicalities get in the way of real deals.

These idyllic journeys, however, are about to be ruined, if a recent immigration bar practice alert (AILA InfoNet Doc. No. 09110565) outlining the reported views of U.S. Customs and Border Protection (CBP), holds true. The trip-spoiler is a little known provision of the Immigration and Nationality Act (INA), known as § 221(g). As a Congressional Research Report describes it, § 221(g) involves a ground for rejection of a visa application on the basis that “[the applicant] did not comply with provisions in the INA (technically referred to as § 221(g) noncompliance).” In fiscal year 2008, according to the State Department, consular officers relied on this provision to refuse 589,418 nonimmigrant visas but were then persuaded that in 510,549 of these applications the § 221(g) ground of noncompliance had been “overcome.”

So why is this (in most cases) temporary determination of visa ineligibility the bane of visa waiver travelers? The answer lies in a single question on the ESTA online form (“Have you ever been denied a U.S. visa?”). The State Department and CBP apparently agree that even a fleeting and ultimately overturned § 221(g) determination of ineligibility to receive a visa is a visa “denial” that requires a “yes” answer to this ESTA question. The problem, however, is that most visa applicants never realize that a § 221(g) determination involves a visa refusal. Most think, and are told by consular officers, that the visa cannot be issued because “administrative processing” (a euphemism for a security clearance) must take place before a visa will be granted or that the applicant must produce a missing document that stands in the way of visa issuance. As a result, well-intentioned visa-waiver applicants will answer “no” to the “ever-had-a-visa-denied” question on ESTA.

When this technically inaccurate answer begins to roost in federal immigration databases, as State Department digital records are increasingly merged with those of CBP, unsuspecting visa-waiver travelers may well find an ugly surprise at the U.S. port of entry or pre-flight inspection post. A CBP inspector may be waiting to accuse the sojourner of willfuland material misrepresentation or fraud in an effort to gain an immigration benefit (a ground of lifelong inadmissibility under the INA). Worse yet, the inspector has the power to issue an order of expedited removal (a deportation order that carries with it a five-year bar on returning to the U.S.) and put the traveler on the next flight back home. This is more expensive than bargain-hungry visa waiver travelers ever expect to pay.

Obviously, then, the safe answer appears to be that any temporary refusal to issue a visa requires disclosure on the ESTA application. The automated ESTA response may thus be that the applicant is refused permission to travel visa-free, and must apply for a visa at a U.S. consular post. Is this what Congress had in mind when it sought to grant easy entry to nationals of countries with low-fraud immigration profiles and relieve consular posts of the burden of approving huge numbers of visitor visas? Probably not. Why then is an ambiguous and evanescent technicality risking unwelcome encounters with legitimate visitors to the United States? Ask the hyper-technical bureaucrats and police agents at State and CBP.

Reports on immigration lawyer listserves are mounting. Shocked and frightened lawful permanent residents (LPRS) are reporting similar incidents in calls to immigration lawyers. The Department of Homeland Security (DHS), apparently in cooperation with state and federal police agencies, has at last merged many of the country’s previously siloed law enforcement databases and, as a result, is receiving increasing numbers of hits on decades-old criminal incidents when LPRs return from travel abroad.

The real-life scenario often plays out like this. U.S. Customs and Border Protection (CBP) officers take the arriving LPR from the point of first contact (primary inspection) to a back room (secondary inspection) as startled American-citizen family members look on. Questions are asked about what may be a long-forgotten event, one or more arrests or convictions, perhaps decades old, even though fines have been paid and time served. The LPR (whose green card and passport are confiscated) is either held in custody or given an appointment for a deferred inspection at a CBP district office and told to bring criminal court records to try and clear the matter. Often, the LPR finds that all or the bulk of the court records no longer exist. At the deferred inspection, the CBP inspector — unable to sort out the prior incident(s) — has little choice but to refer the matter to the immigration court for a removal (deportation) hearing. Issued a Notice to Appear for removal hearing, the LPR joins a cast the size of a Cecil B. DeMille epic as one more Respondent among thousands.

This is when immigration administrative proceedings reminiscent of Kafka’s The Trial begin. Immigration judges (IJs) with overflowing dockets face emotional stress from the unrelenting and growing tide of new and old cases. Government attorneys, many new admittees, others grizzled lifers waiting longingly for retirement, wheel shopping carts of case folders into the courtrooms but frequently cannot locate the files for many a Respondent in court that day. Immigration lawyers, some able and diligent, others barely (or perhaps not) competent, try to demonstrate that the incidents in question do not warrant deportation or that the law allows “relief from removal.” All this happens while growing throngs of immigrant detainees languish in federal, state and contractor-run immigration prisons, and DHS bids out contracts to build more and more detention space, like the pending bid for a 2,200-bed facility in or near Los Angeles. “Master Calendar” hearings — where many in the crowded court rooms lack legal representation — are held and concluded in rapid sequence. IJs order removal, grant voluntary departure in lieu of deportation, and schedule merits hearings on the “Individual Calendar” to try cases in which legal defenses are raised or relief from removal is sought.

LPRs — especially those in the U.S. for many years — when contemplating the prospect of appearing in immigration court, usually move through the classic Kübler-Ross phases of grief: Denial, Anger, Bargaining, Depression and Acceptance. Hiring a lawyer during the Denial phase often occurs. The sense of disbelief leads to the insouciant selection of immigration legal counsel. The Denial phase may also be prolonged by a mistaken belief that the conviction is a small matter — too often attributable to the errant assurances of criminal defense counsel that no adverse immigration consequences would arise or that an expungement would erase all traces from the LPR’s record.

LPRs are best advised to take IJ proceedings seriously. The pursuit of happiness, liberty, proximity to family and friends, and financial assets — all are at risk in the immigration court, and in the appellate proceedings that follow with the similarly strapped Board of Immigration Appeals and the Federal Court of Appeal. Whether retaining pro bono representation or private counsel, LPRs — much like the sick or diseased facing long-term disability or death — must not wholly relinquish control of their circumstances to professionals. They must “own” their case, participate in strategic decisions, help provide witnesses and supporting evidence, and be prepared to fight hard to retain the right of lifelong permanent residence and eligibility for citizenship in the United States.

The international travel industry will hate me for saying so, but LPRs with a blemished past probably should consider staycations rather than foreign vacations if the return trip requires running through the harrowing gauntlet of immigration court proceedings.

Our lawmakers are again behaving badly in public over illegal immigration. This time the tussle threatens passage of health care reform legislation. The latest contentious debate, as the New York Times reports, revolves around a slew of issues.

Among these is whether unauthorized migrants — who will be subject to the mandate that all purchase health insurance — will be allowed to use their own money to buy coverage from the public exchanges. Another is whether uninsured legal immigrants — who must also buy their own insurance — will be barred from insurance-premium subsidies until long waiting periods have elapsed. Still another is whether “mixed-status” families (consisting of citizens and legal and illegal immigrants) will be ineligible for subsidies because the formula for calculating their household expenses will disregard the living costs of the undocumented in their midst.

If these proposals become law, they will be hideous examples of taking the immigration scalpel to the public’s nose just to spite its face. The Senate and Congress would be wise instead to heed a lesson in morality and pragmatism from pronouncements last month in the Vatican and the White House honoring a famous immigrant. On October 11, Pope Benedict XVI canonized a priest, Damien de Veuster, who immigrated from Belgium to what is now the 50th U.S. state. Two days earlier President Obama, a native of Hawaii, applauded the forthcoming sainthood of St. Damien of Molokai with these words:

Fr. Damien has . . . earned a special place in the hearts of Hawaiians. I recall many stories from my youth about his tireless work there to care for those suffering from leprosy who had been cast out. Following in the steps of Jesus’ ministry to the lepers, Fr. Damien challenged the stigmatizing effects of disease, giving voice to the voiceless and ultimately sacrificing his own life to bring dignity to so many.

In our own time as millions around the world suffer from disease, especially the pandemic of HIV/AIDS, we should draw on the example of Fr. Damien’s resolve in answering the urgent call to heal and care for the sick.

Not since the unrepentant Lou Dobbs tried to tie illegal immigration to the false claim by his show’s reporter, Christine Romans, of a huge increase in recorded cases of leprosy (7,000 in a recent three-year period, she claimed, although the actual figure was 434) has the disfiguring malady known as Hansen’s disease received such public attention. (Truth be told, this ancient disease persists in its power to instill irrational fear, although its incidence is extremely low and modern medicine found a cure in the 1930s.)

Still, conflating and inflating irrational fears of immigrants and of disease may do what threats of death panels and pulling the plug on grandma could not do. The cynical opponents of health care for all and of comprehensive immigration reform must be silently smirking as they paraphrase H. L. Mencken’s defamatory coinage, “No one ever failed to kill health care by underestimating the intelligence of the American people.” The pragmatic and compassionate among us, however, must remind the public and our lawmakers that pandemics scoff at national boundaries and that the “urgent call to heal and care for the sick” will be heard sooner (while preventative care can keep costs low) or later (when those in extremis without coverage drive up costs for all, as they now do, in emergency rooms across America).

Last Tuesday, Chuck Kuck, immediate Past-Prez of AILA, and I covered the landscape of current developments in U.S. immigration law and policy on “The Immigration Hour,” Chuck’s weekly program on America’s Web Radio. If you’ve grown weary of the health-care debate and are hankering for the next large public controversy, give a listen.

We covered the origin and current exploits of the USCIS Fraud Detection and National Security (FDNS) unit, the latest meanderings of their outsourced compatriots who are paying visits to American employers from sea to shining sea, and the prodding of Sen. Grassley to find more and more perceived and real immigration fraud.

Next, we offered predictions on the prospects for passage of comprehensive immigration reform (CIR) before the Congressional mid-term elections. We asked aloud whether the pro-immigration coalition will splinter if legalization’s proponents push so hard for the unauthorized 12 million that the employer community is left empty-handed in its quest for increased H-1B and green-card quota numbers. This would be a painful role reversal for the “split the bill” voices of the business community that abandoned the pro-immigrant community in 1996’s enactment of the draconian Illegal Immigration Reform and Immigrant Responsibility Act.

We also asked whether the birthers and tea-baggers will morph into xenophobes and whether the anti-immigrant lawmakers in Congress will at last wake up and smell the strong Hispanic coffee, as the debate moves from health care to immigration. Were our ruminations mere phrenological head-scratchings? Or, did we make a valid point or two? You decide, and then kindly comment on this blog. All views are welcome.