Charles Kuck, ABIL President
Musings on Immigration

Yesterday we focused on the shortcomings of the "Gang of 8's" Four Pillars of Immigration Reform.  Let's take a look now at Utah Senator Orrin Hatch's new Immigration Innovation Act of 2013 or "I-Squired Act of 2013 (now that a catchy little ditty of a title, no?)  Frankly, this is exactly what an immigration reform bill should look like if it is serious about making America competitive into the 21st century.  Senator Hatch's office released a summary, which I have paraphrased:

Employment-Based Nonimmigrant H-1B Visas

This bill Increases H-1B cap from 65,000 to 115,000 immediately. And, it establishes a market-based H-1B escalator, so that the cap can adjust — up or down — to the demands of the economy (includes a 300,000 ceiling on the ability of the escalator to move):

•  If the cap is hit in the first 45 days when petitions may be filed, an additional 20,000 H-1B visas will be made available immediately.

• If the cap is hit in the first 60 days when petitions may be filed, an additional 15,000 H-1B visas will be made available immediately.

• If the cap is hit in the first 90 days when petitions may be filed, an additional 10,000 H-1B visas will be made available immediately.

• If the cap is hit during the 185-day period ending on the 275th day on which petitions may be filed, and additional 5,000 H-1B will be made available immediately.

The bill also uncaps the existing U.S. advanced degree exemption (currently limited to 20,000 per year) and authorizes employment for dependent spouses of H-1B visa holders.

Further, the bill increases portability of high skilled foreign workers by:

• Removing impediments and costs of changing employers;
• Establishes a clear transition period for foreign workers as they change jobs; and,
• Restores visa revalidation for E, H, L, O, and P nonimmigrant visa categories in the United States, which was taken away after the events of 9/11.  

Student Visas

This bill allows dual intent for foreign students at U.S. colleges and universities to provide the certainty they need to ensure their future in the United States. This will make securing a student visa much easier, which is good news for our economy and our universities.  

Immigrant Visas and Green Cards

The bill enables the recapture of green card numbers that were approved by Congress in previous years but were not used.  This has been a huge problem in the last decade, and will substantially lessen the waiting period for immigrants currently in the proverbial "line."

Even more importantly, the bill exempts certain categories of persons from the employment-based green card cap:

•          Dependents of employment-based immigrant visa recipients
•          U.S. STEM advance degree holders
•          Persons with extraordinary ability; and
•          Outstanding professors and researchers

Further, the bill provides for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so future visas are not lost due to bureaucratic delays
Eliminates annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas

U.S. STEM Education & Worker Retraining Initiative

Finally, the bill increases the fees on H-1B visas and employment-based green cards and uses the money from these increased fees to fund a grant program to promote STEM education and worker retraining to be administered by the states.

Frankly speaking, other than the increase in fees, which can be somewhat justified, there is absolutely nothing wrong with this bill. While it has zero chance of passing on its own (although a straight up or down vote would likely lead to immediate passage), I believe the concepts and ideas found in this bill could very well be incorporated into the "Gang of 8" proposal, which will be the principle vehicle for moving immigration reform legislation in the Senate.    Let's congratulate Senator Hatch for his work on this bill and for leading the way on fixing a broken legal immigration system.

Charles Kuck, ABIL President
Musings on Immigration

There has been much made of the Immigration Reform Proposal put forward by the "Gang of 8," a bi-partisan group of Senators seeking to "solve" the immigration problem in which we find ourselves. President Obama says he support most of these principles.   But the solution proposed by these well-meaning Senators will not really fix our Immigration System, and this solution may very well make our immigration problems worse.

The "Gang of 8" is made up of Sens. John McCain (R-Ariz.), Chuck Schumer (D-N.Y.) (Richard Durbin (D-Ill.), Robert Menendez (D-N.J.), Michael Bennet (D-Colo.), Lindsey Graham (R-S.C.), Marco Rubio (R-Fla.) and Jeff Flake (R-Ariz.).  Potentially there is some really good immigration reform proposal that could come from these specific Senators.  What most folks don't realize is that the "Gang of 8" has NOT introduced any actual legislation!  All we have so far is an "outline" of what they believe an immigration bill should do.  These good Senators propose a plan based upon four "Pillars:"

1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

The first Pillar contains the backbone of a legalization and border security plan intertwined together in such a way, and with such a lack of detail, that it is entirely possible to read the provisions of the first Pillar and conclude that it is likely that any permanent solution to the undocumented situation could take decades to complete.   The first Pillar also includes a separate Agricultural worker "path to citizenship," without any definition as to what that might be.  The first Pillar requires that any movement toward temporary legalization of the undocumented only start after a commission made up of elected politicians from the Southwestern Border states (perhaps these Senators have forgotten that Canada is not yet part of the U.S.),  advises on when and how the border is secure.  Another ill-conceived, but long sought after provision of the first Pillar is that of implementing the now infamous Exit/Entry Control system, seeking to ensure there are no visa overstayers in the U.S.   (yeah right, let's see the funding for that one) Finally, the first Pillar completely ignores the DREAM act, and basically says to these kids who are in every way, except birth, Americans, you have to get to the back of the line too, even though it was not your fault you are here.   Each of these provisions of the first Pillar create an untenable and remarkably unworkable fix. What is clear from the first Pillar is that you cannot please all of the people all of the time.

The second Pillar, which focuses on making our legal immigration system what it needs to be to reunite families and assist in growing the American economy, is perhaps the easiest part of the overall plan.  The provisions of this Pillar calls for increasing the number of family and employment based immigrant visas (this is LONG overdue), and creates a separate path for permanent residence for those who graduate with PhD and Master's degrees in STEM fields.    There is no mention of what those new numbers should be, or how long a wait is too long.  There is NO talk of fixing our broken non-immigrant visa system, increasing H-1Bs visas, getting USCIS in line on crazy RFEs on L-1s, and securing an investor visa system that works for entrepreneurs  investors and America.  

The third Pillar calls for "strong employment verification."  Basically, every employer in America will have to use E-Verify.  Period.  To Congress, this is simple. To employers, its another burden and unfunded mandate. While many employers are willing to trade this effort for access to workers when they need them, they are not aware that the fourth Pillar does NOT get them those workers!

The fourth Pillar admits new lesser skilled workers and "protects workers rights."   Supposedly.  The Gang of 8 is going to make American employers demonstrate that they have recruited for open positions before hiring an non-immigrant, something which is in place now. SO basically, they are reiterating that they will make the current H-2A (agricultural workers) and H-2B (non-agricultural workers) more usable, without saying how that is going to happen with an Obama administration Department of Labor which has consistently made these visas harder for employers, not easier.  

What we see from the Four Pillars of immigration reform from the Gang of 8 is NOT the Pillars that will fix our broken immigration system, assist in growing our economy or secure America into the future.  Rather, we see the elected politicians trying to kowtow to the same old anti-immigration restrictionists.  These are NOT bold ideas.  These Pillars are retreads, ready to blow up on the first big pothole they hit.

Where are the provisions fixing our immigration system? Where is the provision eliminating the 3 and 10 year, and permanent bars?  Where is the provision restoring discretion to our immigration judges? Where is the provision raising the artificial quota on the H-1B visa? Where is the provision creating an Entrepreneur visa?  Where is the provision eliminating per country quotas?  I could go on for pages like this, but you get the idea.  

Word on the street is that a bi-partisan group in the House of Representatives is drafting a bill and will have it introduced before the State of the Union Speech in two weeks.  We will see if our Congressman are better suited to lead here than our Senators.  If they all fail to lead out, President Obama says he will send his bill up to Capitol Hill and demand a vote on it.  But, oh Mr. President, why didn't you do that four years ago, and what will your bill say?

I hold out great hope we will have immigration reform this year, I just hope it is an immigration reform we can be proud of.  A reform that will make America strong long into the 21st century.  We deserve that much.

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

On January 15, 2013, the Court of Appeals for the Second Circuit issued a precedential decision in the case of Shabaj v. Holder, No. 12-703.  Paulin Shabaj, the plaintiff in the case, had come to the United States in November 2000 with a false Italian passport and sought asylum.  His asylum application was ultimately denied, but while in asylum-only proceedings before an immigration court, he had married a U.S. citizen in July 2005.  Although USCIS determined Mr. Shabaj’s marriage to be bona fide and approved his wife’s I-130 petition, it denied his application for a waiver under INA § 212(i) of his inadmissibility due to his previous fraud, and denied his related application for adjustment of status.  Mr. Shabaj filed a lawsuit in the U.S. District Court for the Southern District of New York, challenging the determination of the USCIS Administrative Appeals Office (AAO) that he had failed to demonstrate that his wife would suffer extreme hardship if he were removed from the United States.  The Second Circuit, in its recent decision, affirmed the District Court’s decision that it lacked jurisdiction to review this denial, even though Mr. Shabaj asserted “that CIS’s decision to deny his section 212(i) waiver application was erroneous as a matter of law.”  Shabaj, slip op. at 4.

As the Second Circuit indicated in Shabaj, there is a specific provision in the second subparagraph of section 212(i) stating that “[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).”  8 U.S.C. § 1182(i)(2).  There is also a more general provision regarding judicial review of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” various sections of the INA providing for discretionary relief, including INA § 212(i).  Shabaj sought to rely on the exception provided by 8 U.S.C. § 1252(a)(2)(D) that preserves jurisdiction over “constitutional claims or questions of law,” but the Second Circuit rejected this argument because § 1252(a)(2)(D) applies to “constitutional claims or questions of law raised upon a petition for review filed in an appropriate court of appeals”; Shabaj had raised his arguments about the denial of his § 212(i) waiver not in a petition for review (his earlier petition for review from the Visa Waiver Program removal order against him having been denied previously, see Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010)), but in a suit before the district court.  Thus, because Shabaj, having participated in the Visa Waiver Program with his false Italian passport, was unable to seek to reopen his removal order and file a new petition for review, he could not obtain judicial review of the asserted legal errors in the USCIS denial of his § 212(i) waiver and adjustment application.


At first glance, there might appear to be a conflict between Shabaj and the decision of the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005).  Gummersindho Pinho, the plaintiff in that case, had been arrested and charged with three counts relating to possession of cocaine and intent to distribute it.  His application for New Jersey’s “Pre-Trial Intervention” (PTI) program was rejected because of a subsequently invalidated policy “against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school”,id. at 196, and in 1992 he pled guilty topossession of cocaine. He then sought post-conviction relief in 1997 based on the ineffective assistance of his criminal defense counsel.  At the hearing on Pinho’s ineffective-assistance claim, pursuant to prior discussions between Pinho’s then-counsel and the state prosecutor, it was explained that Pinho had been accepted into PTI, and his conviction was vacated and the charges dismissed.  Nonetheless, Pinho’s 2000 application for adjustment of status was denied by the then-INSon the theory that his 1992 guilty plea met the INA definition of a “conviction” despite having been vacated, rendering him inadmissible and ineligible for adjustment of status.

Pinho was not placed in removal proceedings, and so sought review of the denial of his adjustment application through a lawsuit in District Court “seeking a declaratory judgment that the denial of his adjustment of status was arbitrary, capricious and unlawful because his vacated state conviction should no longer be a bar to his eligibility for adjustment.”  422 F.3d at 198.  Despite the statutory bar on review of discretionary decisions, including the denial of an application for adjustment of status under INA § 245 (which is specifically mentioned among the types of discretionary relief covered by § 1252(a)(2)(B)), the Third Circuit found that the District Court had jurisdiction over this suit.  As the Third Circuit explained:

Pinho, 422 F.3d at 203-204.  That is, the Third Circuit found that a District Court had jurisdiction over the claim that Pinho had been found ineligible for adjustment of status based on a legal error, even outside the context of removal proceedings.  At first glance, this would seem to reach the opposite result as Shabaj, under analogous circumstances.

The jurisdiction of the Second Circuit includes New York, Connecticut, and Vermont, while the jurisdiction of the Third Circuit includes New Jersey, Pennsylvania, and Delaware, as well as the U.S. Virgin Islands.  If there is a split between the Second and Third Circuits on this issue, therefore, it would mean that adjustment applicants in New York would have less access to judicial review than adjustment applicants in New Jersey.  There may, however, be a way to read Shabaj and Pinho in harmony with one another.

Although it is not entirely clear from the decision in Shabaj what sort of legal error was alleged, there does not seem to have been any dispute that Mr. Shabaj required a waiver of inadmissibility due to his past fraud, or that his U.S. citizen wife was actually his wife and was actually a U.S. citizen.  Rather, the dispute was over whether he had sufficiently established that his wife would suffer extreme hardship if he were removed—a decision that the Second Circuit had held to be discretionary, see Camara v. Dep’t of Homeland Sec., 497 F. 3d. 121 (2d Cir. 2007).  In Pinho, on the other hand, the dispute was over whether Mr. Pinho was inadmissible at all.  The disputed determination of eligibility for adjustment in Pinho was, one might say, logically prior to the discretionary decision on the ultimate adjustment application, while the disputed determination of hardship in Shabaj was itself one that is deemed discretionary.

In the context of § 1252(a)(2)(D) jurisdiction over constitutional claims and questions of law raised on a petition for review, it is possible for a reviewable legal error to exist even within a discretionary determination, if the adjudicating authority has used an incorrect legal standard or has committed some other legal error in making the discretionary determination.  In Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010) (in which this author was counsel for the petitioner), for example, the Third Circuit found jurisdiction to hold that the agency could not consider the petitioner’s number of qualifying relatives as a factor necessarily weighing against her ability to establish exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal under INA § 240A(b)(1)(D).  Similarly, the Second Circuit in Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009), found that the agency had made an error of law in its determination of exceptional and extremely unusual hardship “where . . . some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized,” id. at 323.  Shabaj may stand for the proposition that the sort of legal error at issue in Pareja or Mendez, which is a part of the hardship analysis or other discretionary analysis, cannot be the basis of a lawsuit in district court; this is not necessarily inconsistent with the idea that a legal error like that at issue in Pinho, which is part of an eligibility determination logically prior to the discretionary analysis, can be the basis of such a lawsuit.  One could certainly argue with some force that the Pareja/Mendez type of error should also be cognizable in district court, on the ground that the agency has no discretion to commit a legal error of any sort, but there is a potential distinction between the two sorts of legal error that could allow one to read Shabaj and Pinho as consistent with one another.

In any event, whether or not one reads Shabaj to conflict with Pinho, it is at least clear that Shabaj should not prevent judicial review of USCIS denials of petitions or applications that are not made discretionary by statute.The decision to deny an immigrant petition for a relative or prospective employee (an I-130 petition, I-140 petition, or I-360 petition for a religious worker), for example, is not discretionary, because INA 204(b) states that the Attorney General “shall” approve the petition if he determines that the facts in the petition are true, and the alien for whom the petition is filed is an immediate relative as defined by statute or is eligible for the requested preference.  (This decision is normally now made by the Secretary of Homeland Security and her delegates within USCIS, although a BIA decision on an administrative appeal regarding an I-130 petition is still under the authority of the Attorney General.)  Thus, district courts have jurisdiction to review the denial of such petitions, as has been held in such cases as Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009);Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008); and Soltane v. U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004).  Similarly, district courts should have jurisdiction to review denials of H-1B and other nonimmigrant visa petitions, as described in an earliest post on this blog by Cyrus D. Mehta, because the decision on those petitions as well is not specified by the statute to be in the discretion of the Attorney General: INA § 214(c)(1) states that “the question of importing any alien as a nonimmigrant under [various subparagraphs] shall be determined by the Attorney General, after consultation with appropriate agencies of the government, upon petition of the importing employer.” In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court made clear that only decisions actually declared discretionary by statute can be immunized from judicial review, superseding some earlier Court of Appeals decisions which had suggested that decisions made discretionary by regulation could also be immune from review.  (At least one such pre-Kucana decision, CDI Information Services Inc., v. Reno, 278 F.3d 616 (6th Cir 2002), had refused on that basis to review the denial of an H-1B application for extension of stay.)

In addition to not precluding judicial review of denials of petitions or applications that are not explicitly made discretionary, Shabaj may not preclude judicial review of a USCIS denial of a discretionary waiver or adjustment application when the denial relates to an applicant who at that time or subsequently is the subject of an otherwise reviewable order of removal, even if the discretionary waiver or adjustment denial comes from USCIS rather than the immigration courts and the BIA—as could happen with many “arriving aliens” whose adjustment applications fall outside immigration court jurisdiction.  As the Shabaj opinion explained in footnote 4:

Shabaj v. Holder, slip op. at 6 n.4.  The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order,to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

Even if an arriving alien is already the subject of an order of removal when their adjustment application or related waiver application is denied by USCIS, it should be possible to seek judicial review of that denial despite Shabaj, so long as there is no order under the Visa Waiver Program (or at least no valid order, since such orders are sometimes issued in error and can then be set aside on a petition for review).  As previously explained in an article by this author on our firm’s website, denial of an adjustment application made by an arriving alien against whom an order of removal is already outstanding could be analogized to the denial of an asylum application by an applicant who has been ordered removed under the Visa Waiver Program.  In both cases, the denial of the outstanding application enables the removal of the applicant, even though the denial is in some technical sense not a removal order.  Thus, just as the Second Circuit has found jurisdiction over a petition for review of the denial of an asylum application in asylum-only proceedings because such a denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006), it should find jurisdiction over a petition for review of the denial of an adjustment application by an arriving alien against whom there is a final order of removal.  Alternatively, under Shabaj footnote 4, it may be possible for such an arriving alien to seek reopening of the removal proceedings to pursue such an arriving-alien adjustment application, which would presumably be denied under Matter of Yauri, 25 I&N Dec. 103 (BIA 2009) (in which the BIA held that it would not reopen proceedings for an arriving alien to apply for adjustment before USCIS because such reopening was not necessary to allow adjustment), and then petition for review of the denial of reopening and seek review of any adjustment or waiver denial in the context of that petition.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football -- rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or "Football" to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems. 

• First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.”)  
• Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.

Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, or players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of NationOfImmigrators.com are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring complex regulations and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS's I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act's) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.”

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

None of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.   Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.

by Guest Blogger, Felicia Zeidman
The Insightful Immigration Blog

Editor's Note: While we will soon be deliberating about the merits of various proposals to comprehensively reform the US immigration system, the Canadian-based points system may be proposed as it was part of earlier comprehensive immigration reform proposals, especially the 2007 compromise Senate bill. Under existing US immigration law, an employer generally sponsors a foreign national based on a need and is required to test the US labor market through labor certification.  This week, guest blogger Felicia Zeidman will examine Canada’s points assessment and explore whether it can fit into a US immigration reform proposal. One of the criticisms of the points system is that it  fails to match the prospective immigrant to an employer, and there are cases of many Ph.Ds ending up driving taxis. The question, however, is whether employability should be the sole determining factor or whether it should assess the immigrant's overall ability to successfully adapt in the new country?  Ms. Zeidman is a U.S. and Canadian-licensed lawyer practicing from New York and New Jersey, and can be reached at  646 789 2224 or in Canada at 416 459 8958, email Felicia_Zeidman@visaserve.com

Canada maintains immigration legislation with an objective to pursue the social, cultural and economic benefits of immigration. The method of achieving this goal is consistently being tweaked by policy-makers and legislators and subject to collected data that will shape the type of immigration Canada will seek in any particular period. While Canadians might argue about the assessment of data and what conclusions should be drawn from it for the creation of current policy, the background ethos of the nation includes a strong gratitude to the waves of immigration that arrived and successfully built sectors of industry while influencing all manner of next-generation development. These background factors in policy-making will not strike Americans as particularly unique and are grounded in common 19th and 20th century experiences in the U.S. and Canada. This article will discuss the 'points test' of the Canadian immigration procedure, the likes of which is not utilized in U.S. immigration practice and provides an illustration of how procedure, if not policy, between the two heavily industrialized nation-neighbours is in fact different.

Canada has utilized a points system for the partial assessment of certain classes of applicants in its recent immigration programs. A points system breaks down what are perceived to be the most important of the applicant's abilities so that the his/her overall likelihood of success – both for his/her own integration and the meeting Canada's needs – can be determined. The more points an applicant gets, the stronger his/her application. The system awards point for age, with more points awarded for youthful workers; it awards points for education; it awards points for language ability; work experience; a job offer; and similar experiences of a spouse. Most recently the points system was an integrated part of the federal skilled worker program, building on the requirement that a worker be in one of 29 particular occupations, with a year of experience in the profession. The federal skilled worker program awarded permanent residency before the individual even landed on Canadian soil, a significant benefit which will be referenced later in this article.

In addition to the professional experience requirements of the federal skilled worker program, the applicant had to score 67 points on the test out of a possible 100, without any one element of the test absolutely requiring achievement, and officer discretion was available should an applicant score under 67 points. The 67-point rule made some difficult-to-accomplish test elements (getting a job offer, for instance, which garnered 10 points) possible to abrogate by achieving high points in another part (perhaps taking all 24 points available for language ability in English and French). Some parts of the test were in practice nearly impossible to abrogate, as points for education and age, for example, were such a large percentage of the overall test.

It should be noted the points system is likely being revamped as is Canada's federal skilled worker program which encourages the immigration of certain professionals. Over the last decade, the program has gone from relying entirely on a points assessment to requirements that the applicant also be experienced in a certain profession. The federal skilled worker program has been altered several times over the last few years, and this year is no different as the program has been 'closed for renovation' since July 2012 with an opening date of May 2013. Announcements from the government have clarified that the revamped federal skilled worker program which opens in May will include, amongst others, a renewed emphasis on youthful workers, language ability of the applicant and spouse, and in-Canada experience. It is unknown whether the points test will continue to be a central assessment tool but the concept of stressing certain factors does appear to remain.

A U.S. Immigration lawyer would label the Canadian system outlined above as 'self-sponsorship'. This is because the U.S. System does not have a program that includes a points and professions test in order to find an individual immigration-worthy; an individual seeking to immigrate to the U.S. without relying on family sponsorship is most likely to rely upon very high-level expertise or in-country, ongoing work experience. (The overall procedural distinctions are for another article). It can be argued that the Canadian system, where it relies on points, assesses a more raw potential in applicants: age; education; language; experience. How do we ferret out elements of the U.S. System that might include assessments similar to a points test? We look at the elements of the points test as they are embedded in an individual's capacity for and achievement of ongoing employment. In other words, insofar as professional experience and education (awarding many points on the Canadian test) has made a potential immigrant employable, he/she can proceed down the employment and perhaps the permanent residency paths of the United States.

The Canadian assessment is larger-scale. In the Canadian assessment, being employable is a significant element of the points test; one needs to consider only that it is part of the federal skilled worker program assessment. However, the federal skilled worker is awarded permanent residency before the individual lands on Canadian soil, so it makes sense to integrate raw potential for overall success in and contributions likely to Canada. For example, the spouse's adaptability factor may not impact job success, but it is part of the points test because it impacts overall family adaptability. An age assessment of under 50 will not be important for many potential jobs, but it is a significant part of the points test because it will impact on Canada's future work force and the test is meant to bring in younger workers.

This is the interesting part about the integration of a points test. It doesn't have to be strictly related to any one class of immigration and can be part of a much larger policy. Although many would argue that employment and employability are the most critical factor in an immigrant, and there are dozens of Canadian immigration programs which are indeed employment-driven, the points test takes into elements outside of success at any one job and seeks to bring an immigrant with overall likelihood of success and contribution capacity. The question for policy-makers is whether or not this larger assessment fits in with the country's immigration practice.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

I was escorted to the woodshed on January 15, a very public woodshed, and deservedly so.  Alejandro (Ali) Mayorkas, the Director of U.S. Citizenship and Immigration Services (USCIS), politely took me to task at a Public Engagement during the Q & A session when I raised two points. One involves the subject of a future post.  The other -- today's topic -- challenged an aspect of the agency's program for DREAMers known as Deferred Action for Childhood Arrivals (DACA).  

As noted below, I criticized USCIS's stricter eligibility requirements for DACA recipients than other foreign citizens present in the U.S. who wish to travel abroad and be allowed back into the country. Mr. Mayorkas rejected my criticism (as also discussed below), but then offered one of his own.  

He noted that in my recent blog post, "The 2012 Nation of Immigrators Awards - The IMMIs," USCIS received the "Not Especially Nimble" IMMI for its lack of agility on matters of employment-based immigration. Mr. Mayorkas suggested that if nimbleness is the measure of performance, then glaring by its omission was my failure to mention the speed with which USCIS introduced the DACA program -- a scant two months from President Obama's Rose Garden announcement.  

Ali Mayorkas is right and I was wrong.  In lightning speed for a federal agency, USCIS launched DACA and on its first day of implementation, was prepared to act on all requests from qualified applicants.  Rather than just wagging a finger at the slow pace of USCIS action on business-related immigration, I should also have tipped my hat to the phenomenally acrobatic DACA roll-out, for it showed what the agency's people can do when they roll up their sleeves and swing into action, notwithstanding naysayers like me. For this, I offer sincere "parole di scuse" (words of apology, in Italian).

But there is another species of DACA-related "parole" for which I offer no "scuse." This is a form of foreign-travel-and-reentry authorization known in immigration parlance as "parole." Unlike the use of that word in the criminal law context, however, immigration parole has nothing to do with conviction of a crime.

Rather, the discretionary power to grant parole arises under Immigration and Nationality Act (INA) § 212(d)(5)(A). By statute, it is the power to allow a foreign citizen into the United States "temporarily under such conditions as [formerly, the Attorney General, but now, USCIS, as delegate of the Homeland Security Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit . . ."

Parole is a grant of permission to travel to the U.S. and be granted entry in lieu of presenting a visa or overcoming or waiving a ground of visa ineligibility.  It comes in four flavors:

1. Humanitarian Parole (available to persons outside the U.S. who seek letters of travel permission to present to an airlines or common carrier and entry to the U.S., usually for emergent reasons),
2. Public Interest Parole (available to persons outside the U.S. who come for a reason the government believes is in the public interest, e.g., to testify at a criminal trial), 
3. Advance Parole (available to persons inside the U.S. who wish to travel abroad and be reasonably assured of being allowed back in) and 
4. Parole-in-Place (an administrative mechanism permitting an individual in the U.S., often a member of the U.S. military or a relative, to overcome an obstacle to adjusting status here and being awarded a green card).

During the Q & A portion of the January 15 Public Engagement, a member of the audience identifying himself as a DREAMer who'd been granted DACA designation, asked why USCIS required DACA recipients seeking advance parole to provide compelling humanitarian evidence. (For details, see Travel Requirements and Restrictions.)  He noted that many DREAMers have been separated from family abroad for many years and just wanted to visit them and then return here.

Mr. Mayorkas responded that parole is an extraordinary remedy requiring powerful evidence of an emergent nature.

When my turn came, I challenged that assertion, and suggested that DACA grantees should be treated no differently than applicants for adjustment of status seeking advance parole while their green card applications remained in process. Adjustment applicants seeking parole need only cite a reason, or perhaps no reason at all, other than a desire to travel.

Besides diplomatically escorting me into the woodshed for my sin-by-omission grant of the IMMI award to USCIS, Mr. Mayorkas also disagreed emphatically on the grounds for parole, stating that the agency's eligibility criteria for "Humanitarian Parole" was well established by precedent decisions and judicial case law.  Then, he moved on to the many other questioners.

Had time permitted (as it now does), I would have responded that Mr. Mayorkas was conflating Advance Parole and Humanitarian Parole.  A glance at the instructions to the parole application (Form I-131), shows that persons outside the U.S. must establish that they seek to enter the U.S. "for emergent humanitarian reasons" (Humanitarian Parole) but those already in the U.S. applying  for adjustment of status must show that you they seek to travel abroad "for emergent personal or bona fide business reasons" (Advance Parole) and then return to await the outcome of their green card application.

Although the instructions on the Advance Parole application require a showing of "emergent personal or bona fide business reasons," immigration practitioners and historians of the immigration process know that current USCIS practice is to accept any personal reason for foreign travel offered by an adjustment applicant.  No proof of "emergen[cy]" is now required because the agency found long ago that when such evidence was demanded, applicants flooded the agency's offices with such evidence, personnel resources were diverted substantially from other tasks, and some number of deserving applicants departed the building crestfallen because their reason was not found sufficiently emergent, while others left gleefully for the opposite reason.  Any reason now will do.

But you say, DACA beneficiaries are out-of-status immigrants while adjustment applicants must show proof that they maintained lawful immigration status.  Certainly, one would think, USCIS is right in differentiating between the two groups.  Not really.  

DACA grantees -- by definition -- entered the U.S. as minors before age 16.  They are faultless in the eyes of the law, given that their tender age absolved them of culpability (and they must have proven that they "[h]ave not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety" to be granted DACA relief).  Moreover, some adjustment applicants are allowed to apply even if they have not maintained lawful status for "technical reasons" or reasons other than "through the fault" of the applicant.

While it makes sense to insist on compelling humanitarian reasons to let someone outside come to the U.S., it is hard to fathom a reason to require no such evidence of one (largely) faultless group of similarly situated persons in the U.S. (adjustment applicants) and yet require it of another entirely innocent group residing here (DACA recipients).

Perhaps the real reason has less to do with adherence to old case law on Humanitarian Parole, and more to do with a recent decision of the Board of Immigration Appeals (BIA) in Matter of Arrabally and Yerrabelly. There, the BIA held that an adjustment applicant's departure from the U.S. on a grant of advance parole does not trigger the three- or ten-year "unlawful presence" bar on reentry that usually applies to persons who stay more than six months or one year beyond the period granted by the government.  

The significance of Arrabally and Yerrabelly is that once a person is paroled back into the U.S., most prior failures to maintain status are purged and the person is adjustment-of-status eligible through the usual family- and employment-based sponsorship avenues, as my scholarly colleagues, Messrs. Endelman and Mehta, explain here.  The BIA's reasoning in Arrabally and Yerrabelly would seem to apply not just to adjustment applicants but to DACA grantees as well.  This is the conclusion reportedly reached by USCIS's Chief Counsel, Stephen Legomsky, according to this tweet of Ben Winograd, Staff Attorney at the American Immigration Council.

Maybe the real pragmatic and political reason to be inferred from the strict DACA rules on Advance Parole is the fear that entry on parole will facilitate the mass legalization of DREAMers through the usual adjustment process -- a backdoor "amnesty" to those opposing a path to citizenship for the undocumented.

Back to the Public Engagement:  I also suggested that the denial of equal treatment to DACA beneficiaries may be a violation of Equal Protection.  Mr. Mayorkas rightly noted that Equal Protection is a principle of constitutional dimension with strict requirements not necessarily applicable in all situations of disparate treatment.  Yet, in another context during the Public Engagement (involving the need for written rather than telephonic communications between the bar and USCIS personnel), he noted that he is a big believer in people being on an equal footing or level playing field (and that therefore adjudicator/attorney oral exchanges are not allowed because lawyers can be overbearing).

While denial of Advance Parole to DACA beneficiaries who want to visit Grandma in the old country (unless she is certified by a doctor as at death's door) may not rise to the level of an Equal Protection violation, it surely undermines the principle of an equal footing and leveling of the playing field that the Director espouses.  I therefore hope he and his agency reconsiders and -- when definitive requirements are published -- issues the same easily satisfied Advance Parole eligibility criteria for DACA designees as now exists for adjustment applicants.

No woodshed visit or apology would be required.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Blogger’s note:  Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman.  Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws.  Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]

A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws:  the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status.

Fast forward eight years. Despite the economic doldrums, gastronomic diversity is here to stay.

• Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.
• Taquerias  increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.
• Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.
• Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country.

So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?

In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of  people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.

Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines.

Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise,  to use such nonimmigrant visa categories as H-1B, E,  L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America's Heartland or in an  emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days.

The four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.

A pioneering  authentic Thai restaurant in the Chicago area

A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern  suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).

Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current.

Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged.  Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen.  They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of  § 245(i), or amendment of  § 212(a)(9) to provide realistic  opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time.

An Armenian restaurant in a working-class New Jersey town

In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.

Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.

A pricey Mughlai tandoori restaurant in Manhattan’s East 50s

A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003.  A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog.  The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?

A Chinese restaurant in the northernmost county of Maine

Disclaimer:  I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification)  employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.

Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.

While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.

***

In my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

America has been founded on the noble notion of welcoming immigrants. Even the American Declaration of Independence cites this as one of the failings of England’s monarch King George III, and thus a justification for the revolution: “He  has endeavored to prevent the Population of these States; for the purpose obstructing the Laws of Naturalization of Foreigners, refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.” George Washington loftily viewed the United States as “an asylum to the oppressed and the needy of the earth.”

Yet, there has always been an historical ambivalence towards immigrants. After each group of immigrants settled in the new country, they pulled up the draw bridge and felt that newcomers would not be as worthy as them. Thus, anti-immigration movements have always existed throughout the nation’s history and continue to exist today through groups such as Federation of American Immigration Reform, Center for Immigrant Studies and NumbersUSA. Individual anti-immigration leaders such as Kris Kobach, the architect of the Arizona and other restrictive immigration state laws, have also existed from time immemorial. This is the bad news. Anti-immigration groups and leaders will continue to exist.

The good news, however, judging from history, is that each anti-immigration group or movement has never survived for too long. They soon became irrelevant while the inexorable flow of immigrants into the United States has continued and continues even today. America’s greatness has been the triumph of immigrants who have gone on to benefit the country over the forces that have opposed them.

The Staff Report of the Select Commission On Immigration And Refugee Policy, US Immigration Policy And The National Interest (1981), provides a vivid glimpse of the anti-immigration movements from the past. I draw liberally from this report to make my point.  Between 1830 and 1860, when there was virtually unrestricted immigration, 4.5 million immigrants arrived into the United States. Amongst them were Irish and Germans who were Catholic, and there was an over simplified view that Catholics would never be good citizens as they were beholden to the Pope and subject to the orders from the church. Samuel Morse, well known as the inventor of the telegraph and Morse code, was also a nutty xenophobe, who warned:

This is the time when political parties such as the Know Nothing movement emerged with the objective of preventing foreigners from participating in national affairs. One of the pamphlets of the Know Nothing party warned:

Yet, immigrants kept on marching into the US. After the Civil War, the demand for labor increased and about 2.5 million Europeans came each decade from 1860-1880. During the 1880s, the number doubled to 5.25 million and another 16 million immigrants entered over the next quarter century. The Germans and Irish were by now assimilated, and the Know Nothing party had disappeared, but newer immigrants became the scapegoats as they appeared more foreign than the older immigrants. Jews and Italians became the targets of accusations that they could never become 100 percent Americans. A leading sociologist of his time Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.” Towards the end of his life, Ross moved away from these views.

Hardworking Chinese immigrants were also accused of never being able to assimilate. Indeed, similar to Arizona today leading the anti-immigrant movement against the influx of Mexicans in recent years; in 1876, a California State Senate Committee described the Chinese as follows:

In 1907, when the flow of immigrants reached a high water mark, Congress appointed the Dillingham Commission, which premised its work on racist theories of superior and inferior people, and that the newer immigrants from southern and eastern Europe were not capable of becoming successful immigrants. The Dillingham Commission concluded, somewhat similar to the rationale for the existence of today’s anti-immigrant organizations (although without the blatant racist overtones that cannot be expressed in a more politically correct era):

• 20th century immigration differed markedly from earlier movements of people to the United States;
• The new immigration was dominated by the so-called inferior peoples – those who were physically, mentally and linguistically different, and therefore, less desirable thaneither native-born or early immigrant groups; and
• Because of the inferiority of these people, the United States no longer benefited from a liberal immigration admissions policy and should, therefore, impose new restrictions on entry.

The anti-immigration movements and commissions from the 19th and early 20th centuries have been completely discredited, and reading some of their diatribe against the immigrants from those days makes one hold one’s nose. 2013 promises to herald immigration reform. After the reelection of President Obama in 2012 based on support from the burgeoning Latino population and other minorities, it has dawned upon even some opponents of immigration about the need to reform the broken immigration system thus blunting some of the rhetoric of the anti-immigration groups. As our elected representatives go on with their deliberations to propose reform legislation, they will continue to be pressured by today’s KnowNothings with their false view that today’s immigrants cannot assimilate and will undermine America. If history is any guide, be sure that today’s anti-immigration groups, along with their views on immigration, will likely become irrelevant as their counterparts from yesteryears. A group that exists solely to hate, fear, suspect and create negative attitudes about certain people cannot last for too long. Indeed, it is the views of those who stood up against the anti-immigration forces that have held up through the passage of time, and will continue to remain more forceful and triumphant.

In conclusion, Lincoln’s letter to Joshua Speed in 1855 when he was wrongly accused of being a member of the Know Nothing party is worth noting:

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States.  It has been a long wait for the final rule, as USCIS needed to allow time to receive public comments (one of which was submitted by our firm) and then took a substantial amount of time to analyze the comments and determine what changes to make to the proposal, but the wait is finally over.USCIS first announced the final rule and made an advance copy available on January 2, 2013, and the final rule was officially published in the Federal Register on January 3.  The rule will take effect on March 4, 2013, and sometime before then USCIS will publish the Form I-601A that is to be used to apply for a provisional waiver.

The provisional waiver rule does not change the substantive standard that one must satisfy in order to obtain a waiver of the 3- or 10-year bar that one incurs upon accruing more than 180 days or a year of unlawful presence respectively.  In order to obtain a waiver of the 3- or 10-year bars under section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), it is always necessary to show that the waiver applicant’s spouse or parent, who is a U.S. citizen or Lawful Permanent Resident (LPR) of the United States, will suffer extreme hardship if the applicant is not permitted to remain in the United States.  However, under the new rule, certain applicants will be able to make this showing before they depart the United States to apply for a visa, which should dramatically shorten the amount of time that they need to spend abroad.  If an applicant is seeking a waiver of the 3- or 10-year bars based extreme hardship to a U.S. citizen qualifying relative (rather than an LPR), and has an approved petition as an “immediate relative” of a U.S. citizen – that is, as the U.S. citizen’sspouse, parent, or unmarried child (under the age of 21 while taking into account the Child Status Protection Act, although only applicants age 17 or older may seek provisional waivers and younger applicants would not need them because unlawful presence for these purposes does not accrue until age 18)– then the applicant may seek a provisional waiver before departing from the United States, and only go abroad to apply for an immigrant visa after the provisional waiver has already been issued.  This process is subject to various restrictions, some of which are discussed further below, but that is the basic idea.

By allowing some waiver applications to be adjudicated while the applicant remains within the United States, the provisional waiver process should significantly reduce the period of time when the U.S. citizen relative of a successful waiver applicant is subject to the cruel irony that inheres in the current process.  Under the current system, where the waiver application is filed while the applicant is abroad after an immigrant visa interview, and the applicant then remains abroad during the months it takes to adjudicate the waiver application, the qualifying relative must undergo months of the very same extreme hardship that the waiver is intended to avoid!  At least with regard to U.S. citizen qualifying relatives of applicants who are immediate relatives of U.S. citizens, and who face no other ground of inadmissibility besides unlawful presence, this new provisional waiver process should remove much of that cruel irony.  It should also encourage applications by some waiver applicants who were unwilling to travel outside the United States to apply for a waiver because of the risk of long-term separation if the waiver were denied.

One detail to keep in mind is that the U.S. citizen relative to whom extreme hardship is shown in a provisional waiver application need not necessarily be the same U.S. citizen relative who has petitioned for an applicant.  Indeed, the U.S. citizen petitionerneed not even be a possible qualifying relative for the 212(a)(9)(B)(v) waiver.  A child is not a qualifying relative for purposes of obtaining a waiver of the 3- or 10-year bars, but an applicant who is sponsored by a U.S. citizen son or daughter over twenty-one years of age, and thus qualifies as an immediate relative, would be able to qualify for a provisional waiver if he or she could show extreme hardship to a U.S. citizen parent in the event that the applicant were not allowed to return to the United States-- even though a U.S. citizen parent cannot sponsor an adult son or daughter as an immediate relative.  Or, an applicant with a U.S. citizen spouse, who cannot show that his or her spouse will suffer extreme hardship if the applicant is not allowed to return to the United States, could instead obtain a provisional waiver by showing that a U.S. citizen parent will suffer extreme hardship in the applicant’s absence.

Another important detail, which has been changed from the proposed rule, is that applicants in removal proceedings will be able to seek a provisional waiver if their proceedings are administratively closed and have not been recalendered.  Administrative closure, most recently addressed by the Board of Immigration Appeals (BIA) in Matter of Avetisyan, is a process in which a case is taken off the active calendar of an Immigration Court or the BIA without actually being terminated; one might compare it to an indefinite continuance of the case.  Traditionally, it has occurred with the consent of the Department of Homeland Security (DHS), although Avetisyan allows for it to be sought without DHS consent, a possibility which might prove useful in the provisional-waiver context.  Administrative closure has often occurred recently in the contextof the DHS exercise of prosecutorial discretion in favor of those who are lower priorities for removal so that DHS can focus its efforts on removing those who are its higher priorities for removal, such as those with serious criminal convictions—the process discussed in a June 17, 2011 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton.It is admirable that USCIS realized, upon reviewing comments on the proposed rule, that no purpose would be served by denying the opportunity to apply for a provisional waiver to those whom ICE is not actively seeking to remove in any event.

One interesting consequence of this new eligibility for those with administratively closed removal cases relates to the process created by the Court of Appeals for the Second Circuit in its October 16, 2012 opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  The Court of Appeals for the Second Circuit, in order to avoid having to spend court time unnecessarily reviewing a removal order in cases where ICE would anyway not seek to execute the order, has created an automatic 90-day waiting period during the processing of petitions for review (although one which can be ended early by either side) to allow for discussion of whether the exercise of prosecutorial discretion is appropriate.  In cases where the Office of Immigration Litigation that is representing the government on the petition for review determines in consultation with ICE that a case is low-priority and suitable for the exercise of prosecutorial discretion, the case will be remanded to the BIA for administrative closure.  Thus, at least in the Second Circuit, and perhaps in other Circuits which may come to follow the lead of the Second Circuit, some who have already received final orders of removal, but who would be eligible for a provisional waiver absent such final order and have petitioned for review of the order, should be able to return their case to an administratively closed state under the new process and then apply for a provisional waiver.

In another positive development, the final rule has retreated somewhat from the initial USCIS position that the provisional waiver process would only allow for what one might call a single bite at the apple, permitting neither appeal nor re-filing, so that an applicant who was denied a provisional waiver could only proceed with the process by departing from the United States and re-applying for a conventional waiver from abroad.  Although an administrative appeal is still not available, an applicant whose application for a provisional waiver is denied will be permitted under the final rule to file a new application (with the appropriate filing fee).

Not all the news from the final rule is good news, however.  Unfortunately, despite the urging of many commenters, the provisional waiver process will not be available to those who are currently in removal proceedings, unless their proceedings have been administratively closed and not recalendared.  It will also not be available to those who are currently subject to a final removal or deportation or exclusion order—even though those subject to such orders have long been able to file a stand-alone I-212 application for advance permission to reapply for admission prior to departure from the United States, under 8 C.F.R. § 212.2(j).  Unless those subject to a final order can get the case reopened and administratively closed (as for example could be possible on remand from a Court of Appeals), it appears they will need to follow the conventional waiver process from abroad, despite the resulting hardship to qualifying relatives.

The provisional waiver process also will not apply to those who are inadmissible for reasons other than the 3- or 10-year bar resulting from previous unlawful presence.  Although the above-mentioned previous post on this blog, and our official comment submitted to USCIS along the same lines, advocated that provisional waivers should be available in contexts such as alleged fraud for which a waiver is needed under INA section 212(i), USCIS chose not to accept that suggestion.  However, USCIS has held out the possibility of perhaps extending the provisional waiver process to other contexts once it has had a chance to observe how the initial, narrower version of the provisional waiver process works in practice.

Another restriction worth noting is that the provisional waiver will not be available to those who have already been scheduled for an immigrant visa interview as of January 3, 2013.  The key question is not when the interview was scheduled to take place, or whether the applicant attended the interview, but whether the Department of State’s National Visa Center (NVC) had already acted to schedule a consular interview by January 3.  If the NVC had scheduled a visa interview by January 3, the provisional waiver process will not be available.  If the NVC had not acted to schedule an interview by January 3, then the subsequent scheduling of an interview will not remove one’s eligibility for the provisional waiver, although in the interest of efficiency prospective waiver applicants with a case before the NVC are advised to notify the NVC of their intent to seek a provisional waiver before an interview is scheduled.  The NVC has already begun sending emails to some prospective visa applicants advising them that they must inform the NVC of their intent to seek a provisional waiver, by sending an email to NVCI601A@state.gov, and that failure to do so would delay the visa application.

For additional background on the final provisional waiver rule, interested readers may wish to review posts about it on the “AILA Leadership Blog” of the  American Immigration Lawyers’ Association and the “Lifted Lamp” blog of Benach Ragland LLP.  The New York Times has also reported on the new provisional waiver rules.  Despite all of its imperfections, the final provisional waiver rule is a very positive development, an important step along the road of reducing unnecessary hardship to the qualifying relatives of waiver applicants.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Bipartisan outrage erupted in the House last week, with usually loyal Republicans among the most furious and outspoken in the GOP-controlled chamber. Rep. Peter King, a Long Island Republican, chastised House leaders for conduct that is "absolutely inexcusable . . . absolutely indefensible." Declaiming that "we cannot just walk away from our responsibilities," King said that "anyone . . . who contributes one penny to congressional Republicans is out of their minds."

Outside the House, another outspoken Republican, New Jersey Governor Chris Christie, pointed the finger squarely at his party and the Speaker of the House:

The object of their criticism was the House's failure to pass bipartisan legislation, already approved in the Senate, that would grant financial relief to victims of Hurricane Sandy. Their words, however, could apply with equal vehemence and accuracy to the House's other major year-end failure -- its refusal to vote on renewing and expanding the Violence against Women Act.

VAWA, as it's known, has been an undeniable success since signed into law in 1994 by President Clinton under the sponsorship of then Senator (now Veep) Joe Biden. The incidence of domestic violence has dropped 67% from 1993 to 2010, and, according to the White House, from 1993 to 2007, "the rate of intimate partner homicides of females decreased 35 percent and the rate of intimate partner homicides of males decreased 46 percent.”  

The House GOP, led by its Majority Leader, Eric Cantor, opposed various elements of the VAWA-extender bill that passed overwhelmingly in the Senate: the bill's provision of domestic violence protections to members of the LBGT community and undocumented immigrants, and a section that gives American Indian tribes jurisdiction over non-Native defendants in cases alleging domestic or dating violence. 

The House version that purported to reauthorize VAWA (HR 4970) would have harshly restricted the immigration-related protections of the law.  As the National Task Force to End Sexual and Domestic Violence against Women explains, there are several key failings of HR 4970:

Section 801 eliminates crucial confidentiality protections for victims in the VAWA self-petition and cancellation of removal processes who are married to U.S. citizen or Legal Permanent Resident spouses. By requiring notification to the alleged abuser that his/her spouse has filed a VAWA self-petition, this endangers victims (many of whom may still be living with an abusive spouse since their options are extremely limited as a result of their undocumented status). It would also allow abusers to continue to manipulate the immigration process as a tool of abuse by providing them an opportunity to block her access to legal status. Additionally, it creates duplicative and unnecessary bureaucracy by dispersing VAWA adjudications from specially trained officers in a centralized unit, and increases barriers to

When the GOP hue and cry over Sandy burst out, John Boehner and Eric Cantor quickly took steps to make amends. On January 4, the House passed a bill (with the Senate also concurring) that set aside $9.7 billion in relief for regions that Sandy devastated. On January 15, Speaker John Boehner reportedly will bring up a vote for $51 billion more in Sandy relief measures, as requested by President Obama.

Where is the outrage over VAWA?  With Republicans claiming to have heard and now to understand the increasingly pro-female and pro-immigrant voices of the new electorate, the VAWA debacle suggests that the GOP is still clueless.  Are the "innocent victims" of domestic violence any less deserving than the post-Sandy constituents who will soon get relief?

Channeling Peter King and Chris Christie, I say it is "absolutely inexcusable . . . absolutely indefensible" for the House GOP to have "walk[ed] away from [their] responsibilities. . ." to victims of domestic violence.  "This is not a Republican or Democratic issue. . . . We respond to innocent victims . . . , not as Republicans or Democrats, but as Americans. Or at least we did until last [week]. Last [week], politics was placed before oaths to serve our citizens. For me, it was disappointing and disgusting to watch." America is a forgiving and tolerant nation -- to a degree.  The House GOP needs to wake up quickly, and pass a bill reauthorizing VAWA in the image and likeness of last term's Senate version.  Or else this party of "angry white guy[s]" will only hasten its flight to irrelevance.