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Will the New Labor-Business Accord Produce an Immigration Death Panel?

2/24/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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One of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border. The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.  

Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:


[There] are instances – even during tough economic times – when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . . 

[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today’s technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.
The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:
The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.
The problems with the concept, however, are many.

For one, we tried this before and it went nowhere.  In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]  

When the Labor Department proposed its initial list, however, all hell broke out.  Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified.  Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:
Does BLS project future labor shortages or surpluses? No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .

Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.
Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers burden under an artificial labor certification program, DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers, is an "empty ritual":
PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.
Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:
[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.
U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs.  A simple print-out of the screen shot from the government forthcoming database's showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition.  Thus, DOL's current PERM labor certification procedure could be eliminated.

Moreover, there should be no change in current H-1B requirements  relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas.  As I explained to NPR's Martin Kaste:
These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.
So let us now face the question posed in the title of this post:  

Will the new labor-business accord produce an immigration death panel?  The answer is "NO"  -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.  

But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."

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The Blocking of an Entrepreneur: A Broken Immigration System at Work

2/22/2013

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

3D printing technology is about to revolutionize the way we understand manufacturing, and the country that takes the lead in this new technology will be the winner ofwhat The Economist magazine has called the third industrial revolution. A state of the art hearing aid or a high tech component for a military jet can be designed through a computer and printed on an unattended 3D printer as a solid functioning object.

Yet, the US Customs and Border Protection on the Canadian border recently refused admission to a dual national Canadian/British entrepreneur JS Brandon who is part of a startup called D Shape – which has developed a large-scale 3D printer that will revolutionize the way architectural design is planned, and building constructions are executed. By simply pressing the “enter” key on the keypad D Shape gives the architect the possibility to make buildings directly, without intermediaries who can add interpretation and realization mistakes.

Although refused entry into the United States, Mr. Brandon participated in a panel discussion on February 13, 2012 at Brooklyn Law School in New York entitled Immigration Policy and Entrepreneurship: Challenges and Pathways for Startups. Thanks to technology that has now become so routine, he could participate through Skype from overseas, and told a riveted audience that he had been refused entry under a NAFTA TN visa to work for D Shape in New York, which is limited to certain occupational categories and applies to Canadian and Mexican citizens. For an individual who wishes to work in a business related field, the only TN occupational classification is “Management Consultant,” but the CBP official did not think Mr. Brandon would fall under this category as he would be more of a “Manager,” which is not a TN classification. Although he will try again for a TN visa, the H-1B visa category is more obvious,  which allows one to work in many more professional fields, but there are no H-1B visa numbers left for this fiscal year. If he applies for one, he will have to wait until October 1, 2013 to get in, and that too if he is lucky enough to get selected in the event that the USCIS receives more than the allotted 65,000 H-1B visas during the first week April 2013 – the first month when employers can file H-1B visas for an effective start date of October 1, 2013.  Other than the H-1B visa, there are few options for enterprising foreign entrepreneurs. The O-1 visa is limited to foreign nationals who can demonstrate extraordinary ability in their fields through sustained national or international acclaim. The L-1 visa is available to intra-company executives, managers or specialized knowledge employees who have been working for an affiliated overseas company for one year in the same capacities. The E-2 visa, applies to nationals of a few countries that have as treaty with the US (and Canada is one of them), but it requires the entrepreneur to make a substantial investment.

I was honored to be on the distinguished panel last week, along with Jeremy Robbins who is Director of the Partnership for a New American Economy and Special Advisor to Mayor Bloomberg, Michael Wildes, Partner of Wildes and Weinberg PC and Owen Davis, Venture Capitalist, Director of NYC Seed.  The moderator was Professor Jonathan Askin, who is the Director of the innovative Brooklyn Law Incubator Policy Clinic, which also sponsored the program along with New York Legal Hackers. Apart from the wonderful ambience and engaging audience –and there was jazz at the beginning and end of the program - the panelists generallypainted a grim picture of the visa options available to foreign entrepreneurs who wish to develop startups in the US. Indeed, Mr. Davis said that NYC Seed would be reluctant to fund foreign national entrepreneurs due to the inherent risks and uncertainties caused by the immigration system. Mr. Wildes described the many immigration options that exist in the US immigration system, but then qualified that it would be very difficult for an entrepreneur to take advantage of them. Under the H-1B visa program, for example, the USCIS insists on the need to show that the H-1B worker’s employment will be controlled by the employer, which will be difficult in the case of startup owned by the foreign national. This obstacle is in addition to the fact that H-1B visa numbers run out even before the start of the fiscal year. Even the E-2 visa is limited to nationals of treaty countries, according to Wildes, which does not include any of the dynamic BRIC (Brazil, Russia, India and China) countries.  I pointed out that there may be new hope, even amidst the bureaucratic “culture of no” mindset, in the USCIS’s new Entrepreneurs in Residence Initiative, where immigration officers have been trained to recognize the unique nature of startups, such as operating in stealth mode or not having an established office space. Control of employment may also be shown in other ways, through the need to maintain a separate existence between the corporation and the shareholder, as well as the possibility of minority shareholders exercising control through shareholding agreements or through their latent power to seek dissolution based on egregious conduct by the majority shareholders.  Mr. Robbins highlighted the political realities, which means that a new Startup Visa will only be enacted be when Congress rolls out a Comprehensive Immigration Reform bill.  Despite the importance of foreign entrepreneurs, and the fact that America knows best how to nurture entrepreneurship, there is little chance of a Startup Visa Act in the absence of Comprehensive Immigration Reform.

The take away from this program is that we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals will flounder unless they are included in a Comprehensive Immigration Reform (CIR) bill.  One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raise at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment. Thus, a CIR proposal can also tweak some of the existing visa categories to make it easier for founders to remain in the US as nonimmigrants and provide alternative pathways, such as by relaxing the element of control in the H-1B visa and also allowing a majority shareholder to be sponsored for a green card through the labor certification program. The well-intended guidance for entrepreneurs under existing visa categories should also be part of reform legislation rather than remain as mere guidelines that run the risk of not being followed by an immigration officer.  Otherwise, we will have initiatives like Blueseed, which envisages a ship in international waters off Silicon Valley that will serve as an incubator for foreign entrepreneurs to develop their startups without needing to get a US visa. They can visit shore briefly on a B-1 business visa for meetings, and then return to the ship to work at their startup. To add to the uniqueness of the entrepreneur and immigration program in Brooklyn, the founder of Blueseed, Dario Mutabdzija, also participated through Skype. I have a feeling that Blueseed will succeed even if we have CIR as there will always be entrepreneurs who may not be able to take advantage of onerous visa options in the early stages of the startup.

Finally, from my experience as a practitioner, I have seen that immigrants from all backgrounds can become entrepreneurs, and it is not necessary that only graduates from STEM (Science, Technology, Engineering and Math) programs will succeed with startups. A lesser educated immigrant with burning ambition, such as a cook, can one day start a restaurant chain just as a Ph.D in Engineering can develop the next generation 3D printer.  Both create more jobs – and America could also enjoy more cultural diversity through the businesses of foreign entrepreneurs.As I recently tweeted on Twitter, “We need both brilliant STEM and delectable tandoori chicken in America.” Thus, if the political reality is to include startup visa options in CIR, let’s bring it on sooner than later so that American will be able to benefit from the talents of foreign entrepreneurs of all backgrounds and stripes.
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Guest Post - The Extraordinary Immigration Tango: One Step Forward, Two Steps Back

2/19/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Blogger's Note:  Prolific and always astute Karin Wolman, lawyer extraordinaire in immigration matters involving artists, entertainers and others of superlative talent, once again offers a thoughtful and thought-provoking assessment ("with welcome edits by Stacey A. Simon") of the clash of the creatives with the hard realities of modern-day immigration law and practice.  Grimace and enjoy.]

The Extraordinary Immigration Tango: One Step Forward, Two Steps Back
By Karin Wolman
There is a strange dance of duality going on in immigration law and policy, where all sides insist that the U.S. welcomes the world’s best and brightest talent, despite plenty of evidence to the contrary. The President recently acknowledged the need for reform in his State of the Union address, when he said, "real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy."

The Director of U.S. Citizenship and Immigration Services (USCIS0 Director Alejandro Mayorkas issued a public message in 2012 which began:
Throughout the past year, USCIS has placed significant focus on advancing one of our immigration system’s foundational goals: promoting America’s economic prosperity. On numerous occasions, we gathered feedback on how to best maximize the potential of current immigration law to create jobs for U.S. workers, and this feedback greatly informed our actions. As a result, we have made significant progress in a number of areas of interest to stakeholders related to employment-based and high-skilled immigration.
This charm offensive is at odds with what immigration practitioners and US employers experience every day with respect to how their petitions are treated. The culture of "No" continues, especially for persons of extraordinary ability, where examiners grasp at straws or fabricate any excuse to deny or dismiss entire categories of evidence presented, or summarily deem them without merit.

USCIS periodically releases employer bulletins, policy memoranda, Request for Evidence ("RFE") templates, and updates to the Adjudicator’s Field Manual. These "clarifications" of the adjudication standards are typically already in use when published in draft form, making the comment period something of a charade. The problem with implementing draft RFE templates and interim rules is that they often include novel requirements or try to resurrect requirements that the Service has unsuccessfully attempted to implement in the past, which are wholly unsupported by the law – in addition to offering guidance that may mislead examiners or prompt them to apply incorrect standards. Sadly, this has happened again with the recent publication of proposed draft Request for Evidence (“RFE”) Templates in the O-1 and O-2 visa categories, posted by USCIS for public comment from January 22 – February 5, 2013, but plainly in use by adjudicators already.

The American Immigration Lawyers Association has already published formal comments to the recent proposed RFE templates, so I offer here a few examples from these templates that are, at best, misleading to adjudicators, and at worst, just plain wrong:
  • In the RFE template for O-1A aliens of extraordinary ability in sciences, education, business or athletics, the section challenging awards or prizes of lesser national or international significance [one of their eight criteria under 8 CFR 214.2(o)(3)(B)(i)] quotes and distinguishes this standard from the higher standard allowing evidence of a one-time major, internally recognized award [at 8 CFR 214.2(o)(3)(A)], but by using the identical language, it tempts hasty examiners to misapply the higher standard for a one-time award and to improperly dismiss as irrelevant or insufficient any professional awards or prizes that are not “a major, internationally recognized award.”
  • The RFE templates for O1A cases in sciences, education, business or athletics, for O-1B arts cases, for O-1B film and television cases, and both RFE templates for O-2 support personnel, all include, under a section relating to peer advisory consultations, the mistaken assertion that a consultation must state “whether the petition requires the services of an alien of extraordinary ability.” Such a requirement was acknowledged by Legacy INS as unsupported by law nearly two decades ago, in the preamble to the final O & P regulations, which noted: “After careful consideration, the [Immigration and Naturalization] Service [the legacy immigration agency preceding USCIS] agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from this final rule.” See 59 Fed.Reg.156, pp.41818, 41820 (Aug. 15, 1994).  Even if there were such a requirement for O-1 aliens, it would never apply to O-2 support aliens, who are not required to possess extraordinary ability in their own right, but must show the essentiality of their services to the O-1 principal alien.
  • Under quite a few regulatory criteria, the proposed RFE templates give an adjudicator the option to state, “You did not submit evidence for this requirement. You may still submit evidence to satisfy this requirement.” Sadly, this language encourages time-pressed adjudicators to overlook or ignore evidence and then simply claim that it was not included in the petition. It is now a frequent occurrence for an RFE to state that evidence in support of a specific criterion was not submitted, when it was in fact included in the initial presentation, was itemized in an exhibit list, was referred to or quoted in the petitioner’s supporting letter, and its relevance to one or more regulatory criteria was explained in the attorney’s cover letter.
  • In their defense, USCIS adjudicators are given very little time to review each petition (only 10 to 15 minutes per case, by some accounts). They are under considerable pressure to meet production goals, they do not control mailroom contractors who may discard exhibit lists and cover sheets, and they undergo no supervisory review when formulating and sending out Requests for Evidence.
  • However, it seems they face no adverse consequences at all for claiming that evidence wasn’t there when it was. Due to erroneous claims of this kind, petitioners face unnecessary delays and attorneys have to duplicate their work, re-explaining previously-submitted evidence. The examining officers themselves have to spend much more time reviewing the response to an RFE than they would have had to spend reading the initial petition carefully and approving it the first time around. To fix this, USCIS could allot adjudicators a bit more time to review each case, remove incentives to generate RFEs, and require supervisors to review draft RFEs before they are sent out. The mass-production model currently in place does not lead to accuracy or efficiency in reviewing petitions for a visa category as diverse as the O-1.
USCIS is to be commended for its efforts to bring some predictability and consistency to adjudications in this area long plagued by erratic decisions. However, the design of RFE templates should not be viewed as an opportunity to make up new rules or resurrect dead ones, nor should the existence of options in a template give officers free rein to make misstatements that create wasteful, duplicative work for themselves, for the petitioner and for counsel, and that make it costlier and slower for US employers and agents to sponsor the top talent they need.

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Memo to Immigration Reformers: "First catch your [EB-5] hare"

2/10/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Winston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform.  Instead he was commenting on the Allies' post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:

I hope these speculative studies will be entrusted mainly to those on whose hands time hangs heavy, and that we shall not overlook Mrs. [Hannah] Glasse’s Cookery Book recipe for the jugged hare—"First catch your hare."  -- The Last Lion: Winston Spencer Churchill: Defender of the Realm, 1940-1965,  by William Manchester and Paul Re.
This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most.  The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.

What's the connection?  Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners.  Given much less, if any, attention, however, is whether the government's immigration bureaucracy can competently manage, regulate and enforce all these laws.  Are the immigration bureaucrats, judges and police up to the task?  

To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that "go from good to great":
. . . start not with "where" but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.
I submit -- as I've argued elsewhere and often in this blog -- that:
  • The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system ("boarding the right people onto the bus");
  • The heel-draggers and naysayers among the immigration bureaucracy, the cultists of "No," the feather-bedding careerists, and the power-mongers -- all must be exited ("getting the wrong people off the bus"); and, especially important,
  • Our immigration leadership must be deployed strategically and intelligently ("putting them in the right seats on the bus").
So what's this got to do with the SEC's civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.  

The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters.  The agency's professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy.  Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America's goods and services.

The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. -- U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively -- have no special expertise in assessing legitimate or illegitimate business practices.

For examples in the EB-5 context see:
  • Immigration's NannyStateGate: Picking EB-5 Winners and Losers
  • The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?
  • Immigration-Agency Lawbreaking Revealed: USCIS's EB-5 "Tenant-Occupancy" Scandal
  • What Are We Paying for? USCIS and the I-526 Exemplar Process
  • Dollars and Jobs for EB-5 Green Cards: A Challenging Route to U.S. Residency
  • The Relevance of U.S. Securities Laws to Immigrant Investors, Eb-5 Regional Centers and Their Advisors
  • Investing in America through the E-2 and EB-5 Visa Categories.
If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives:  The StartUp Visa Act and the Startup Act 2.0.  These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.

The StartUp Visa Act asks DHS to decide if "a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested" at least $100,000 on behalf of a "qualified immigrant entrepreneur . . . whose commercial activities" in two years will "create not fewer than 5 new full-time jobs in the United States," and "raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue."  

Similarly, the Startup Act 2.0 expects DHS to assess whether a "qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . .  at least 2 full-time employees  . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . .  during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5  full-time employees . . ."

I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS's mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.  

As for business and investment cases, particularly the EB-5 immigrant and E-2 nonimmigrant categories, decisions about investment sufficiency, investor protection, and job creation prospects should be vested in the Commerce Department or a similarly qualified department or agency of government. See, "Economic Prosperity - The Missing Immigration Mission," and February 19, 2010 Memorandum of the Alliance of Business Immigration Lawyers  to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, Headquarters (USCIS) Re: "Employment-Based Immigration Proposals for Inclusion in Comprehensive [Immigration] Legislation":
Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.
If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS's immigration inspectors and State's consular officers determine the question whether the individual investor or family member is or is not admissible to the United States.  In other words, USCIS's role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.

For this to occur, however, Congress must really think big.  It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.

Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, "you may say that I'm a dreamer, but I'm not the only one."  For as Winston Churchill also said:
We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.
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Grumpy Ex-Consular Officer Not the Best Source of Immigration Reform Advice

2/8/2013

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Charles Kuck, ABIL President
Musings on Immigration

Having been an immigration lawyer for almost one-quarter of a century, I have heard thousands of stories of surly, rude, grumpy and downright mean Consular Officers at U.S. Consulates around the world. Songs are sung of the families they have kept apart, the U.S. employers they have left without key employees, and the souls who's dreams they have crushed.  One example of such an officer, apparently, is the writer of an opinion piece in the Chicago Tribune this week, who believes that there is no reason whatsoever for immigration reform, and that anyone who came in without papers, or who overstayed their visa, is the lowest form of humanity, regardless of their reason for doing so.

This attitude and letter reminded me of this video about the reasons why a person can be denied a visa.  I wonder if consular officers sing this song at night to be prepared to interview the next day.   (Actually, I know many consular officers and they are stellar human beings and terrific at issuing visas, but as in all things, there are exceptions).
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A House of Many Rooms: The Different Paths to Citizenship

2/8/2013

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

It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even  the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to  legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US.

The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform.  Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican  party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa,  has recently backed a path to citizenship. He stated, "Ultimately, if you're allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That's what the Republican Party stands for."

We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance,  however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.

Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control.

However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass.We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship.First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!!  With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law.

Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time,  let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much!Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.
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When is a Tweet an Attorney Advertisement?

2/4/2013

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

Immigration attorneys have naturally adapted to the internet faster than attorneys in other practice areas. They were the among the first to set up their own web sites, and with the advent of social media have also happily adapted to Facebook, Twitter, Linkedin and other social networks. Using social media helps an immigration attorney to reach out to an audience very quickly, without expending huge marketing resources. Moreover, since the client base of an immigration attorney is not bound by a particular area or state (as immigration practice is mostly based on federal law), and can also be located across the globe, social media can help an immigration attorney reach out to them.

Still, an attorney needs to be mindful of the various ethical rules that would be applicable when using social media. This advisory will focus on the ethical rules concerning advertising, and reference will be made to the American Bar Association’s Model Rules of Professional Conduct and the New York Rules of Professional Conduct, although attorneys are advised to also refer to their own state bar rules of professional conduct.

While this advisory is applicable to all social media messaging, Twitter will be its particular focus since it poses unique challenges compared to other social media. Twitter only allows one to communicate only within 140 characters, which can be particular problematic if such messaging needs to include the various disclaimers following an attorney advertisement. Twitter is also more open than other social media sites since a follower does not need permission to follow you. Moreover, even non-followers can view your tweets, which can be constant and numerous. The whole essence of Twitter is to effectively fit your message within a limited number of characters while ethics rules constraining attorney advertising require a lot more verbiage.

While lawyers are permitted to advertise their services, they are bound by various ethical constraints.

Model Rule 7.1 states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Also, many jurisdictions require that when a lawyer advertises his or her services, the words “Attorney Advertising” be stated in such a communication.

For example, this is what New York’s Rules of Professional Conduct Rule 7.1(f) requires:
Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”
However, not every communication made by a lawyer would constitute an advertisement. If a lawyer wishes to quickly share an article in the New York Times as soon as it appears on comprehensive immigration reform on Twitter, would it constitute advertising? This lawyer may have a completely altruistic motivation, which is to share a timely and interesting article on immigration reform to her community of 3,000 followers on Twitter.On the other hand, the lawyer also hopes that by sharing this article, people would realize that the lawyer is on top of the latest developments and may be more inclined to retain her services. Thus, while such a communication does not overtly invite people to employ this lawyer’s services, it might be the underlying motivation of the lawyer to brand herself as someone who is on the top of her game and hope that people would reach out to her.

When does a tweet constitute an advertisement that will be subject to the various ethical constraints? For instance, New York Rules of Professional Conduct at Rule 1.0 defines advertisement as:
Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.
It is thus unclear whether the sharing of the New York Times article would constitute an advertisement as it does not suggest that its primary purpose is for the retention of the lawyer, and then require the attorney under the New York rules to indicate “ATTORNEY ADVERTISING.” Such a requirement with respect to a tweet, which only allows 140 characters, would also diminish the value of the impromptu and conversational tone of the Twitter message, although one should be cautioned that a disciplinary committee would not be concerned about a lawyer’s desire to preserve the spontaneous character of a tweet if it violated the constraints on attorney advertising.

If every tweet is considered an attorney advertisement, it would be virtually impossible to tweet anything at least under the New York Rules of Professional Responsibility. For instance, under New York Rules of Professional Conduct 7.1(d) and (e), statements that are likely to create an expectation about results the lawyer can achieve have to be accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.” Moreover, under 7.1(h) all advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. Finally, 7.1(k) requires a copy of all advertisements to be retained for a period of 3 years following initial dissemination. This would require an attorney to keep a copy of each of his or her thousands of tweets for 3 years!

Fortunately, the State Bar of California Standing Committee on Professional Responsibility recently issued a helpful ethics opinion clarifying under what circumstances would an attorney’s postings on social media websites be subject to the standards governing attorney advertising. The opinion provides the following examples of an attorney’s postings on her Facebook page, which has about 500 friends.
Example 1

“Case finally over. Unanimous verdict! Celebrating tonight.”

Example 2

"Another great victory in court today! My client is delighted. Who wants to be be next?”

Example 3

“Won a million dollar verdict. Tell your friends and check out my website.”

Example 4

“Won another personal injury case. Call me for a free consultation.”

Example 5

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”
California’s Rule 1-400 defining “communications,” which is similar to the New York rule 7.1(f), provides that “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present or prospective client…”

The key determining factor, therefore, is whether an attorney communicates in such a way so as to make himself available for professional employment or for the purpose of retention of his services. Under this standard, according to the California ethics opinion, the following Facebook messages may or may not be communications:
“Case finally over. Unanimous verdict! Celebrating tonight.”
Example 1 is not a communication as it is not a message or offer “concerning availability of professional employment” regardless of the attorney’s subjective intent in sending it.  The opinion thus makes an important point. The communication must overtly suggest that the lawyer is available for professional employment, regardless of whether this was the attorney’s underlying motive in doing so.
“Another great victory in court today! My client is delighted. Who wants to be be next?”
The verbiage in Example 2 “Another great victory in court today! My client is delighted” standing alone is not a communication, but because of the additional text “Who wants to be next?” makes it a communication as it suggests availability for professional employment. Moreover, the opinion goes on to state that an attorney cannot disseminate communications regarding client testimonials unless there is an express disclaimer. The statement further violated California ethical rules as it included guarantees or predictions regarding the representation, which can be deceptive. The statement regarding “Who wants to be next” can be interpreted as who wants to be the next victorious client.
“Won a million dollar verdict. Tell your friends and check out my website.”

“Won another personal injury case. Call me for a free consultation.”
It is readily obvious that both Example 3 and Example 4 constitute communications and are thus subject to the restraints on attorney advertising.  Directing friends to “check out my website” suggests that people may consider hiring her after looking at her website. Even directing people to call for a free consultation can be viewed as a step towards seeking potential employment, and thus such an offer also constitutes a communication.
“Just published an article on wage and hour breaks. Let me know if you would like a copy.”
According to the opinion, Example 5 did not constitute a communication since the attorney is merely relaying information regarding an article that she has published and is offering a copy. Even communications relating to availability of seminars or educational programs, or mailing bulletins or briefs, do not entail attorney advertising, according to the opinion.

Most immigration attorneys who use social media generally share articles and information, and under this California opinion, may not be constrained by the rules relating to attorney advertising. Still, it is unclear whether other states will follow this logic and important distinction.

Comment 8 to  New York Rules of Professional Responsibility Rule 7.1 is worth noting:
The circulation or distribution to prospective clients by a lawyer of an article or report published about the lawyer by a third party is advertising if the lawyer’s primary purpose is to obtain retentions. In circulating or distributing such materials the lawyer should include information or disclaimers as necessary to dispel any misconceptions to which the article may give rise. For example, if a lawyer circulates an article discussing the lawyer’s successes that is reasonably likely to create an expectation about the results the lawyer will achieve in future cases, a disclaimer is required by paragraph (e)(3). If the article contains misinformation about the lawyer’s qualifications, any circulation of the article by the lawyer should make any necessary corrections or qualifications. This may be necessary even when the article included misinformation through no fault of the lawyer or because the article is out of date, so that material information that was true at the time is no longer true. Some communications by a law firm that may constitute marketing or branding are not necessarily advertisements. For example, pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like with the law firm name, logo, and contact information printed on them do not constitute “advertisements” within the definition of this Rule if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter.
It is advisable that any communication on Twitter, as well as other social media websites, should comport with the last example in the California opinion involving the sharing of information. However, any information written about a lawyer by a third party, which the lawyer then distributes, may constitute advertising. On the other hand, as noted in Comment 8, “[s]ome communications by a law firm that may constitute marketing or branding are not necessarily advertisements.”    A lawyer who chooses to communicate on Twitter in a way that would invite followers to use his services is doing so at his own peril.  It would be impossible to include all the disclaimers required by the ethical constraints in a tweet that can comprise only 140 characters! It is also debatable whether putting a one-time disclaimer in the Twitter header profile would suffice, such as “Tweets = ATTORNEY ADVERTISING.”  Twitter also does not allow you to include more than 160 characters of information in the profile such as the attorney’s address and other disclaimers.Moreover, a disciplinary authority might opine that every tweet ought to have included the required disclaimers since people viewing it in their Twitter feed will not bother to look at the header profile of the attorney. Still, putting a disclaimer in the profile would probably be the best good faith option for an attorney who wishes to use Twitter for attorney advertising. Indeed, New York’s Professional Rules of Professional Conduct Rule 7.1(f) requires the “Attorney Advertising” notation only on the home page of the law firm’s website, and by analogy, it could be argued that putting this notation only in the Twitter profile may comply with the rule. Another option with respect to a tweet that is an advertisement is to provide a link to another site that contains all the additional disclaimers, if applicable.

In conclusion, social media, especially Twitter, provide a valuable tool for an immigration attorney with limited resources to reach out to a global audience. In order not to get snared by the advertising constraints,  it is best for immigration attorneys to use social media to share information for marketing and branding, which in turn will create awareness of the attorney’s expertise and knowledge in the field. Until the ethics rules catch up, it would also be consistent with the spontaneous character of social media sites, especially Twitter, to use it to share information rather than to engage in outright advertising. Using Twitter in this way is likely to attract more followers than if the attorney used it for blatant advertising purposes only. Also, a tweet involving useful information is more likely to be “retweeted” than an advertisement.  There are other sources for attorney advertising, which unlike Twitter, would not constrain an attorney to include all the necessary disclaimers and requirements under the ethical rules.
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The Immigration Line is Too Damn Long (and Slow)

2/3/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Steadfastly opposing a path to citizenship for unauthorized immigrants, the anti-immigration crowd has long trumpeted an array of related memes:
  • Why don't they just get into line like everyone else?
  • Why don't they wait their turn?
  • Why don't they just follow the law?
  • Why should we reward lawbreakers who disrespect our laws?
  • Why should those here illegally be treated as VIP line-jumpers and given a path to citizenship while others have waited in line and played by the rules?
All of these questions presuppose that U.S. immigration law provides a feasible avenue to come here legally, that waiting patiently in the law-abider's queue in due course will lead one to the front of the visa line, that even entering under duress rather than endure extreme economic hardship or political persecution -- as many have done -- shows a haughty disrespect for our laws.

The bipartisan Gang of Eight senators who last week proposed a term sheet for comprehensive immigration reform apparently have swallowed these memes whole hog:

[Those] undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.
The Obama Administration has also bought into the urban legend that a refusal to follow the law and wait in line makes the unauthorized are nothing but a pack of scofflaws whose misbehavior warrants a "back-of-the-line" requirement:
["Undocumented immigrants"] must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship.
To his credit, however, the President would partially hasten the grant of lawful residency to the undocumented by ameliorating the wait time for family based immigrants ahead of them in the green card quota:
The [Administration's] proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers.
As I explained to Suzy Khimm of the Washington Post ("How long is the immigration ‘line’? As long as 24 years."), the path to citizenship for the undocumented under the Gang of Eight proposal and the President's "markers" for reform are far more about the journey than the destination:
Instead of dying in the desert, they might just die waiting to become permanent residents.
Rachel Maddow of MSNBC made much the same point, although her estimate of wait time was 28 rather than 24 years, in a tour de force segment on ungodly delays inherent in the legal immigration system:

Visit NBCNews.com for breaking news, world news, and news about the economy

With clear-eyed accuracy and righteous outrage, she exposes the lie of all the anti-immigration "wait-your-turn" memes:
[In] any of the situations in which you are allowed to immigrate this is the difficult path, look at the times, seven years, 16 years, 28 years, 28 years is how long you can expect it to take? 28 years is how long it could take right now for people who are following the rules and doing it right and doing it legally? that is how long the people can expect the system to take when the system works? 

As President Obama has said: "Today we have an immigration system that is out of date and badly broken." 

[Yes], we do, anything that takes 28 years to complete, yes, we do. The thing you hear all the time from the people involved in the immigration fight in Washington, that whatever we have to come up with has to be tough but fair. How about tough and fair and efficient? 

A legal immigration process in this country exists for a reason. It exists because legal immigration is something we supposedly value as a country. It is a basis that we allow, the basis for who we are as a country. And it is the process that the government is responsible for facilitating. And the progress for that path regularly takes up to 28 years to complete. not because you screwed up, but because you did everything right.

The reason they say that immigration reform has to be done in a comprehensive way, rather than a piece-meal fashion, where you just pick one or two things to do, the reason it has to be comprehensive because in part, the solution would mean just trying to cram more people through this existing system.

No, the system is broken. Not only do more people need to get through the system but the system needs to disappear and be replaced by something that makes sense. That is not liberal or conservative, that is something called good government. (Emphasis added.)

According to a Facebook comment by my immigration colleague, attorney David Simmons, however, the waits in the visa queue are far, far longer than either Rachel Maddow or Suzy Khimm fear:
As usual, they got it wrong. As I tell people all the time, it's not enough to know how long the line is. You need to know how fast the line moves. Just like at the supermarket. The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born "Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents"].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of "advance," the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born "Unmarried Sons and Daughters of U.S. Citizens"] was "only" about 80-85 years.

The reality is that the backlog created by the IRCA beneficiaries [those who were granted legalization based on the 1986 immigration law] filing for their family members has made all of the Mexican family-based preferences unusable, except for . . . F-2A [Mexico-born "Spouses and Children of Permanent Residents"]. By "unusable" I mean that the parties will both be dead before a visa becomes available. No "might" about it. (Emphasis added.)

The situation of getting "in line" is even more challenging than David Simmons suggests.  As reported by Dan Kowalski, senior fellow at the Institute for Justice and Journalism, editor of Bender’s Immigration Bulletin, and a practicing immigration lawyer, in his Washington Post article ("Five myths about the immigration ‘line’"), the memes about the line are all myths. In sum, he notes:
  1. There are multiple lines, not just one;
  2. Unless you have a family or employer sponsor, there is no line whatsoever available;
  3. It takes decades or longer to move to the head of the line, but "[p]eople can’t be expected to wait decades for permission to work or live near their loved ones;"
  4. The legal immigration quota is a form of baked-in-the-cake discrimination against individuals from certain countries that contravenes our "national ethos of civil and human rights;" and
  5. There is no way under current law to make the line shorter or move more quickly -- the only solution is for Congress to "increase the number of green cards available each year in every visa preference".
The long and short of the yarn spun by anti-immigration opponents that unauthorized immigrants and legal immigrants must play by the rules and wait in "the line" is that this supposed concern about law compliance is nothing short of a proxy for keeping people out.  The "line" flouts rather than upholds the rule of law.  It is the football snatched away at the last second by Lucy as Charlie Brown moves to kick it.

We didn't always act this way.  Even in the same year when President Truman officially declared an end to hostilities of World War II by Presidential Proclamation on December 31, 1946 (Proc. no. 2714, 61 Stat. 1048), our nation still welcomed immigrants with sincerity and opportunity, as this vintage film by The Encyclopedia Britannica shows:

The New York Times columnist, David Brooks, sums the solution up quite neatly in his recent op-ed ("The Easy Problem"):
The first big point from all this is that given the likely gridlock on tax reform and fiscal reform, immigration reform is our best chance to increase America’s economic dynamism. We should normalize the [unauthorized immigrants] who are here, create a legal system for low-skill workers and bend the current reform proposals so they look more like the Canadian system, which tailors the immigrant intake to regional labor markets and favors high-skill workers.

The second big conclusion is that if we can’t pass a law this year, given the overwhelming strength of the evidence, then we really are a pathetic basket case of a nation.
Economists generally agree that robust immigration reform will help resolve our economic distress. But before we follow this prescription, we must be clear-eyed about the memes that create linear obfuscation.  We need to create an immigration people-mover in place of the static "line."
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