I am sure this post will be controversial, and I welcome comments.

I’ve long believed that the practice of immigration law, which has become dramatically more challenging since 9/11, is not for the dabbler (of course) but also poses a risk for attorneys who choose to specialize only in business immigration. The linked article, “A 3-Point Immigration Manifesto for Chief Legal Officers and Outside Counsel,” published this month by The International WhosWho of Corporate Immigration Lawyers, elaborates on my views.

Ever since 1996 and the passage of the Illegal Immigration Reform and Immigrant Responsibility Act with its unlawful-presence penalties, the notion of a fixed line of demarcation between business or family-based immigration on one hand and litigation and removal defense on the other has been revealed as fiction. Business immigration opponents of IIRAIRA succeeded in persuading Congress to “split the bill” and deal later with a set of harsh restrictions on employment-based immigration. As the ensuing years have demonstrated, that victory was phyrric indeed.

Only now do we see that the government agencies charged with the enforcement and administration of the immigration law, especially the conferral of immigration benefits, have taken an approach to interpretation of the INA that in too many instances is mean-spirited and inconsistent with legislative intent. After all, bureaucrats need to justify their budgets. It’s hard to catch terrorists, especially when the agencies rely on immigration forms that require truthful disclosure of illegal terrorist actions. As 9/11 has taught, anyone willing to commit suicide would not be dissuaded from fibbing on a goverment form.

So instead the agencies have taken to auditing the corporate clients of law firms for the sin of talking to their lawyers (DOL), radically reinterpreting L-1B specialized knowledge by using specious reasoning to jettison 18 years of post-IMMACT90 liberalization of this visa category (USCIS), appointing inexperienced immigration judges and members of the Board of Immigration Appeals for partisan or ideological reasons (EOIR) and eliminating administrative appellate rights of citizens to contest a claimed loss of nationality (State Dept.).

My hero in immigration law, the late Sam Williamson, as quoted in Faith and the Professions (at pp. 184-186), was mostly right when he said: “[The practice of immigration law is] a competent, involved, technical job in which, if you’re successful, you can see the consequences of your actions. Also, I don’t like the government.”

Unlike Sam, I like the government when it honors the Constitution and follows faithfully the statutes that Congress enacts. I don’t like it when it crosses the line. Immigration lawyers cannot be mere paper shufflers and online preparers of immigration forms. They must be lawyers first and foremost. It’s time to resist government encroachments that deprive our individual and business of clients procedural and substantive due process. It’s okay to specialize, but don’t overlook that competent representation requires a broad array of substantive knowledge in the many nooks and crannies of U.S. immigration law and regulations. As was correctly stated, for once, by a legacy INS spokesperson, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” — INS Spokeswoman Karen Kraushaar (quoted in The Washington Post, April 24, 2001, in an article entitled “Md. [Maryland] Family Ensnared in Immigration Maze – After Changes in Law, Couple Faces Deportation”).

Chalk up one for USCIS and a Federal Judge. The agency’s 17-month extension of F-1 optional practical training has survived a motion for preliminary injunction sought by the Programmers Guild. U.S. District Judge Faith S. Hochberg issued an August 5 order finding a lack of causal connection and insufficient harm to sustain the claim of Guild’s members (out-of-work or underemployed engineers and programmers) that failure to grant a preliminary injuction would irreparably injure them.

USCIS’s lawyers filed a nifty memorandum of law with apparently persuasive arguments, including a history of the agency’s pre-INA (Immigration and Nationality Act) authority to grant employment authorization to F-1 students. The government’s memorandum contains language (italicized below) that may be useful for citation by the employer community, nonimmigrant applicants for benefits and the immigration bar in a request for compassion or expedited adjudication, agency recognition of extraordinary circumstances, comments to a proposed rule or arguments in support of legislation authorizing more H-1B visa numbers or recapture of unused employment-based immigrant visas:

Even were this Court to find Plaintiffs’ injuries “concrete and particular,” and even were the Court to find a viable causal nexus between Interim Final Rule [IFR] and Plaintiffs’ alleged injuries, Plaintiffs’ case for standing still fails because this Court cannot redress their injuries. Foreign students might still petition for H-1B visas; employers might still hire them. Jobs might be exported overseas as U.S. employers try to remain competitive in a global market. Practical training has existed for over sixty years, yet Plaintiffs, by their own admission, were “unemployed” or “underemployed” before promulgation of the IFR. Plaintiffs misdirect their attack on the extension of OPT within the Interim Final Rule.

* * *

Were the Court to issue a preliminary injunction, thousands of otherwise lawfully present students could be forced out of status. Notwithstanding the hardship this would work upon these students in forcing them to leave the country to apply for an H-1B visa, an injunction would have more serious consequences still. A student’s eligibility for OPT (and by extension, a change of status to an H-1B visa) depends upon maintaining lawful status. See 8 U.S.C. § 1258(a) (limiting changes of nonimmigrant status to aliens who have maintained lawful status). A preliminary injunction would force thousands of students out-of-status.

Were the Court to enjoin this IFR, and thrust thousands of students out-of -status, the enormous disruption would affect not only students and prospective employers, but other more collateral interests. Stripping lawful status away from these students would result in untold confusion [for] third parties and the public. The preliminary injunction Plaintiffs seek would not preserve the status quo, it would throw an orderly and predictable system into a chaotic mess, as neither students nor employers could be sure of who could work or when [italics supplied].

Turnabout is fair play. Hoist the government on its own petard. (I’ll stop gilding the lily for now with trite chestnuts.)

Remind them with their own words that insensitive rules and rulings result in extraordinarily harsh and irreparable consequences to human beings and American businesses. If USCIS won’t listen to employers, foreign citizens and immigration lawyers, maybe they’ll listen to themselves.

——–

The dog days of summer have arrived. Congress is on a five-week holiday, er, excuse me, a “Summer District Work Period,” as the House calls it. The economy is in the doldrums. Gross Domestic Product grew a feeble 1.9% in the second quarter of 2008 from 0.9% in the first quarter. Foreclosures and bankruptcies are on the rise. Homeowners face unaffordable energy bills for gas, home heating and electricity. Civilian unemployment in July rose to 5.7%, up from January’s rate of 4.9%.

Amid the ashes of bad economic news, an immigration phoenix arises — the “Regional Center” program under the Employment-Creation EB-5 category for immigrants who invest $500,000 or $1 million in enterprises that directly or indirectly create at least 10 American jobs. According to Invest in the USA (IIUSA), an association of USCIS-approved regional centers, the EB-5 regional center program is estimated to create 400,000 new jobs through immigrants’ investments of $20 billion over the next five years.

These jobs will be lost, however, because the Senate is in summer-snooze mode. The statutory provision authorizing the regional center program will sunset on September 30, unless Congress acts promptly. Expiration of regional-center program authorization will likely put a freeze on new I-526 approvals and designations of additional regional centers. More important, it will scare off potential EB-5 investors and new investment opportunities.

Before recessing, the House approved HR 5569, a five-year reauthorization of the EB-5 regional-center program. A companion bill in the Senate is mired in disagreement over renewal of the controversial E-Verify program (which does not expire until November 30) and horse-trading over bills on religious workers, the Conrad 30 J-1 doctor waiver program and family reunification.

The federal government worked weekends and took quick steps when Bear Stearns was set to collapse and when Fannie Mae and Freddie Mac needed Uncle Sam’s financial guarantees. Why doesn’t the Senate get off its hammock and jumpstart economic growth by the simple, uncontroversial expedient of reviving the EB-5 regional-center legislation?

[Disclosure: With Steve Yale-Loehr and Nelson Mamey (a lawyer who prefers real estate finance and development over law practice), I own a recently approved regional center in Southern California.]

——–

The National Foundation for American Policy this week released a bluntly accurate critique of the recent anti-attorney, anti-employer shenanigans at the U.S. Department of Labor (DOL). The report, entitled “Certifiable: The Department of Labor’s Approach to Labor Certification,” chastises the agency for crafting the labor certification process without statutory authority (“DOL’s mandated advertising and recruitment scheme, which it wields like a club against employers, their attorneys and skilled immigrants, goes well beyond what the law prescribes for labor certification.”)

Authored by Stuart Anderson, the NFAP report aptly describes the DOL’s convoluted process of labor-market testing as one that “adds a significant dead weight cost to the operations of many of America’s most innovative companies, [and diverts] energy and resources that employers could better utilize on innovations that could create more jobs and wealth in the United States.”

The NFAP urges Congress to minimize the DOL’s role or “largely remove the [agency] from the [employment-based immigration] process,” quoting with favor my recent article in The New York Law Journal, co-authored with Ted J. Chiappari, that describes the DOL’s apparent view of lawyers in the labor-certification process as essentially nothing more than “potted plants.”

In its conclusion, the report offers what apparently is the real reason for the DOL’s process, more Potemkin village than the real world of recruitment:

“Given its actions, the Department of Labor has shown it has no interest in proposing or operating a simple system, since that would reduce the role and influence of Labor Department employees. It increasingly appears that the process contrived by the Department of Labor and the department’s battles against employers and their attorneys is not about protecting jobs for U.S. workers but jobs for employees at the U.S. Department of Labor [emphasis added].“

(CORRECTION: When drafting the NYLJ article I got carried away with the italicizer function of my word processor, and mistakenly italicized a few more words of text than the DOL had actually altered when it slipped in, without explanation, the phrase “attorney for the employer” to the existing regulatory ban in 20 CFR § 656.10(b)(2)(i) on involvement by the lawyer for the alien in considering or interviewing U.S. worker job applicants.]

The saga of DOL’s new focus on PERM enforcement continues. As reported yesterday in the National Law Journal (“Labor Agency Audit of Firm Angers Immigration Lawyers“), after clearing away its pre-PERM backlog in the fall of last year, the Department of Labor found itself with time on its hands.

Apparently adopting the view that the idle mind of a bureacrat is the devil’s workshop, the agency has decided to focus the attention of its PERM staff on audits and other enforcement mechanisms. As DOL Solicitor, Gregory F. Jacobs, explained to the NLJ reporter: “We are vigorously enforcing and making sure we are adhering to our statutory mandate.” Mr. Jacobs’ wording is a bit of a contortion of the phrase “statutory mandate” given that nowhere in the INA is there any authorization for the Rube Goldberg recruitment test required by the PERM regulation. See the definitive article by Gary Endelman that refutes Mr. Jacobs’ assertion.

Setting aside the absence of statutory duty, I began to wonder: How much time does DOL spend on adjudicating PERM applications? Turning to the lawyer’s trusty friend (the Paperwork Reduction Act [PRA]), I decided to look under the DOL’s hood for the answer. It turns out, according to the DOL Supplemental Statement to Form 9089 submitted under the PRA, the agency spends precious little time on average: about 15 minutes each on “clean” applications. On the 30% of the 100,000 PERM cases per year that DOL estimates will be audited, it spends an average of four hours per application (three hours by an “analyst” and one by a “manager”). That’s 120,000 hours on audits per year. The DOL omits any time estimate on supervised recruitment.

“Vigorous,” in my mind and in the dictionary, connotes “energetic activity” or “intensity.” But turning to another dictionary definition, I see that after all the word is correctly used: “powerful in action or effect: vigorous law enforcement [italics in original].” Now I see the “shock and awe” impact of unbridled power. With the power of the press release, backed by a paltry four hours per audit, the agency enjoys the in terrorem effect of intimidation of law-abiding companies and attorneys.

Ironically and tragically, this action occurs just as the top technology official charged with keeping us safe, Jay Cohen, the Department of Homeland Security’s Undersecretary for Science and Technology, warns that America faces the risk in two decades that our economy will no longer be “first-world” because of a severe shortage of students in science and math: “Homeland Security Official Warns U.S. Workforce Faces Skills ‘Crisis.’“

In the waning months of the Bush Administration, this blogger, quoting Marvin Gaye ” asks in frustration and sadness: What’s Going On?”

On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn’t enough room for the couple to go through that unjust portal. Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrine that the courts will not consider visa refusals based on a factual decision of an American consular officer.

The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that “when a citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason.” The Ninth Circuit rested this slim right of review on the citizen’s liberty interest in marriage:

[We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application. The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures.” Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).

The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a “reason to believe” that Jose was a drug trafficker.

In many other situations, however, the “reason to believe” standard does not apply. In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal. Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith. I suspect that some cases of this type are out there. Build the argument and the clients will come.

Congratulations to the Bustamantes’ lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.

“Don’t it always seem to go
That you don’t know what you’ve got
‘Til it’s gone”

The Joni Mitchell lyrics to Big Yellow Taxi came to mind as I read today’s announcement from the Department of State. The agency published in the Federal Register an interim final rule that eliminated as “obsolete” the Board of Appellate Review (BAR). The BAR — housed in State’s Office of the Legal Adviser — provided U.S. citizens and applicants for U.S. passports a time-honored way to appeal consular officer determinations of loss of U.S. nationality or Passport-Office refusals to issue an American passport. The BAR’s rules of practice were heavely laden with procedural due process protections, such as the right to a hearing, the right to attorney representation and the right to seek reconsideration, all contained in, but soon to disappear from, 20 CFR Sec. 7.1 et seq.

In place of the BAR, State has conferred discretionary authority upon the Bureau of Consular Affairs to review passport refusals and loss-of-nationality determinations. These are the same secretive folks who operate in the shadowy world in which attorney representation at consular interviews is barred, and refusals to share the contents of advisory opinions on questions of law issued to U.S. consular officers are countenanced. I’m not optimistic that we’ll see much due process with Consular Affairs. State has not published any rules of practice or procedure for Consular Affairs to honor. Everything will apparently be decided behind closed doors.

On the other hand, discretionary review at the administrative level is an option not a duty. Passport refusals and the determination that a citizen has lost U.S. nationality can now be directly considered in Federal Court, since there are no longer any administrative remedies to pine for or to exhaust.

Meantime, dear citizens, step up to the bar and raise a toast to BAR for its historic adherence to procedural due process. Alternatively, you have until September 16, 2008 to offer State your comments on its interment of BAR.

May BAR R.I.P.

Sometimes, for no apparent reason, a word or phrase bubbles up from deep within the realm of memory. As I studied the excellent 2008 USCIS Ombudsman’s Report to Congress, out from my cerebral hard drive popped “Hello Out There!” — the title and opening and ending lines of William Saroyan’s outstanding 1942 one-act play. The play is about angst, the existential cry of the human spirit beset by a world of injustice, but also about hopeful beginnings. (In high school I played the smallest of bit parts — the jailer — a ten-second walk-on with no lines.)

As I wondered why this phrase suddenly popped in my mind, into my consciousness came another meaning of “hello,” pronounced with an adolescent sing-song intonation that stresses the last two syllables, as in “HellOOo.” This slang meaning of “hello,” as confirmed in www.SlangSite.com, expresses astonished incredulity at another person’s naivete.

Pondering the two meanings of this common salutation, I at last made the connection to the Ombudsman’s report. On one hand, his report is a deep-throated “Hello Out There!” — an earnest clarion call alerting us in detail to the many problems and dysfunctions of USCIS, and a hopeful urging to our nation’s leaders for resolute action. On the other, the report may well evoke a skeptical and smarmy reaction from members of the public and the immigration cognoscenti whose hopes have been dashed repeatedly by countless broken promises and initiatives that failed.

I take the quixotic view of the Ombudsman’s report. If he can help in achieving even a glass half-full of his many worthy recommendations, and earlier unanswered suggestions to his predecessor, our country will be well served.