Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

With the dog days of an election year producing little more than frothy pundits regurgitating banal analyses of the day's non-events, and seeing no near-term prospect of comprehensive immigration reform, I temporarily turned aside my wonkish ways.

While publishing two posts by guest authors, I time-shifted back to the supposedly halcyon years of my youth, the late 50s and early 60s. For the last three weeks, I've watched the backward-looking hit TV series, Mad Men, from Season 1, Episode 1 through the final episode of Season 4. The show -- now in its fifth year -- depicts a presumably "golden era" of prosperity, tarnished only by crass capitalism on resplendent display at a Madison Avenue ad agency.  As Mad Men teaches, things were great back then as long as you ignored the blatant sexism, objectification of women, abuse of alcohol and tobacco, racism, gay-bashing and other societal mortifications.

These so-called good old days are thoroughly debunked by Frank Rich, one of my favorite authors, in a recent New Yorker piece ("Mayberry R.I.P.[:] Declinist panic. Hysterical nostalgia. America may not be over, but it is certainly in thrall to the idea.").  As he reminds us, our best days are not necessarily behind us, though we pine for a mythical past featuring all the realism of a doctored Instagram photo.

Rich is right. As a country, America has always faced daunting problems, which we often tried our darnedest to overlook.  Mayberry as a notion may have salved our escapist needs. Mayberry as a prototypically homey and welcoming Southern city, however, was a lie (notwithstanding that it once welcomed some homespun Italian immigrants).  Similarly, as Rich notes, "American exceptionalism" is not some quintessential trait lauded by Alexis de Tocqueville but a sneering coinage bandied by one Communist, Joseph Stalin, to another.

Witness the latest "America-is-wonderful" distortions.  Mitt Romney tells audiences that, unlike President Obama, he will never apologize for America.  For his part, the President claims he took a calculated political risk in bailing out the American auto industry because he was betting on the American worker and U.S. industry. While auto workers deserve credit, the industry was saved -- in my view -- by the purgative of a forced bankruptcy, the injection of billions of taxpayer dollars, the shedding of unaffordable pensions, and Detroit's belated adoption of manufacturing efficiencies introduced years earlier by Germans, Koreans, Japanese and Italians.

I'm not saying we lack admirable traits, but rather that our "secret sauce" has always been our comparatively more welcoming immigration policies, as I told the Los Angeles Daily Journal recently:

We seem to have forgotten this lesson of our history. Instead, we allow our politicians to mouth unwavering commitments to comprehensive immigration reform with fingers crossed.  We hope we can trust a President who ignored his pledge to push for reform during his first year in office. And we want to believe a Romney surrogate (Mr. "Noun. Verb. And 9/11," no less), when he says it is "very possible" that the candidate who took advice from Kris Kobach, and called for self-deportation would pass comprehensive immigration reform (albeit only if the GOP controls the next Congress).

We should stop ignoring the scientific method and at last accept Einstein's definition of insanity. We must stop "doing the same thing over and over again and expecting different results." We must stop being "amnesiac, hypocritical, outraged [and] just plain apathetic . . ." Otherwise, we inhabitants of this "Nation of Immigrators" are Immigration's real-life "Mad Men [and Women]."

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

Advising a client on how to answer Kafkaesque questions on immigration forms regarding potential past criminality can pose a dilemma for the ethically-minded immigration attorney and the processes raises a multitude of complex issues cutting across various areas of law.

For example, the Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Some states criminalize “fornication” (sexual intercourse between unmarried persons) despite this type of law’s dubious constitutionality. New York criminalizes adultery no matter how long ago a person separated from the spouse. Does an immigration attorney have to plumb a client’s sexual past to answer the question on the N-400 application? Must the lawyer then also report the client’s other past potential offenses such as speeding?

The question on the I-485 application asks more narrowly if one has knowingly “committed any crime of moral turpitude [“CIMT”] or drug-related offense” which did not result in arrest. Given the heavy litigation in this area, only a lawyer with experience could recognize a CIMT. Under the categorical approach, which requires consideration of the minimal conduct implicated by a penal law, even if one has engaged in “theft,” a temporary taking of another’s belongings (rather than a permanent one) may not be morally turpitudinous. See e.g. Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007). Regarding a “drug-related offense,” if your client smoked pot at a concert during college, how do you assess whether the act was a crime within that jurisdiction back then? In a complex penal law system, requiring the prosecutor to determine the applicable law and demonstrating each element of guilt beyond a reasonable doubt, without a lab test can the client know beyond a reasonable doubt that the substance was pot and not say oregano?

ABA Model Rule 3.3(a)(1) states that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of a material fact or law previously made to the tribunal by the lawyer…” Criminal penalties may attach to a lawyer who knowingly falsely prepares an application for a client. See 18 USC 1001, 18 USC 1546 or 18 USC 371. Whether a lawyer can be accused of unethical or criminal conduct without knowing that a crime occurred is unclear; an overzealous prosecutor or bar investigator might pursue it.

The question of knowingly committing a crime for which one has never been arrested derives from INA § 212(a)(2), which makes inadmissible one who admits having committed certain crimes. Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible; he or she can be equally snared for having admitted to the commission of a crime. Yet, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.

The requirements established by the BIA to corral the unwieldy question suggests that it defies a straightforward answer. Even in what seems an obvious admission of crime – your client arrives to sign the form and reports having just killed someone, might she have committed an act of self-defense if she was in a city with a Stand Your Ground law?

This is a revised version of an article that originally appeared in AILA’s Immigration Practice News (June 2012). Copyright © 2012, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immigration Practice News, (June 2012), available from AILA Publications, http://agora.aila.org.

The author thanks his associate, Myriam Jaidi, for assistance on this article.

by Cora-Ann Pestaina, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

I still think longingly of the days when certification of a Labor Condition Application (“LCA”) could be obtained within seconds. Three years ago, the Department of Labor (DOL) mandated that all LCA filings must be filed through its iCERT portal (http://icert.doleta.gov/) and that each application form, also changed to request additional, new information, would be manually reviewed prior to certification. This change increased the official LCA processing time from a few seconds to 7 business days. Human error and other systemic problems at the onset of the change resulted in filings taking three weeks or longer to process which led to late filings on H-1B petitions, a public outcry and US Citizenship and Immigration Services (USCIS) temporarily allowing employers to file H-1B petitions without certified LCAs! The new iCERT system forced H-1B employers to change their approach to filing H-1B petitions. The LCA process is about to change again.

As a background, an employer seeking to employ a temporary foreign worker in H-1B, H-1B1 or E-3 nonimmigrant status must, as the first step in the petition process, file an LCA with the DOL and receive certification. The LCA is completed on electronic Form 9035 through the DOL’s iCERT system. The LCA collects information about the occupation and there are special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. An employer is permitted to file the LCA no more than six months before the initial date of intended employment.

The DOL now seeks to once again revise the scope of the information collected on the LCA citing, in its LCA supporting statement, a desire to improve its integrity review and ensure the accuracy and completeness of the information. On July 9, 2012, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. In a process that is likely to take several months, the changes must be approved by the federal Office of Management and Budget before they can be implemented.

Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the nonimmigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit US workers; and requiring the employer to list the address where the employee’s public access file is kept.

Some of the changes are even more significant.

Identification of Intended Beneficiaries

The current LCA does not require any information identifying the intended beneficiaries. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed.

n its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws which collectively cover virtually all private, State and local government employment, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.

The DOL makes some valid points.  The majority of employers do not need to complete an LCA for more than 10 workers at a time. iCERT indeed saves most of the information and it may not be overly burdensome to complete multiple LCAs.  However, since employers are required to make LCAs available for public inspection, privacy and identity theft concerns are easily justifiable. The DOL ought to address this.

In addition, what the DOL has not addressed is the flexibility that will be lost because employers will no longer be able to use an existing, certified LCA to file a nonimmigrant petition for a new hire. The new identification requirement may be hard on large employers who file numerous H-1B petitions. The current annual cap on the H-1B category is 65,000. Each year, on April 1, USCIS begins accepting cap-subject H-1B petitions for employment to commence in the new fiscal year, on October 1. Employers typically scramble to prepare and file cap-subject H-1B petitions before the cap closes. For large employers, especially those with branches abroad, it is may be difficult to come up with a list, in March or April, as to who will be transferred to the US to work in October. These hiring decisions are ongoing and employers rely on the flexibility of the LCA which allows them to quickly file an H-1B petition using an existing, certified LCA provided it lists the correct information such as visa category, job classification, etc. This way, employers are not always forced to spend 7 business days waiting for the LCA to be certified and watching existing H-1B visa numbers dwindle.

What about that H-1B worker who just received notice from his current employer and has luckily found a new employer willing to file an H-1B on their behalf? How significant would it be if the new employer is able to use an existing, certified LCA and file an H-1B transfer petition before that worker falls out of status? What the DOL describes as a “relatively quick turnaround on LCA approval” can seem interminable in the case of an emergency. The DOL must bear in mind that no matter the emergency, it provides no expedite procedures for the LCA. Flexibility is therefore very important.

Interestingly, the new LCA would require listing the beneficiaries’ PERM application numbers. At this time, the possible acceptable responses to this question are not clear. But, since the PERM application is filed by the employer, a new employer of an H-1B transfer might not have this information. But this requirement suggests that the DOL may begin to cross reference the job opportunities in the nonimmigrant and immigrant cases as well as match the wages in both the cases.

Limiting the LCA to only 10 workers

Currently, a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions.

The DOL now seeks to limit the number of workers to 10 per LCA explaining that it has found enforcement of LCA obligations difficult when an LCA is for 50 or 100 job opportunities and it would be a significant expenditure to build an electronic form to accept more than 10 names.

The issue, as discussed above, may not be with the limit of 10 names, but with naming requirement itself and the limitations that come from that.

Worksite Identification

The current LCA form requires the employer to identify the place(s) of intended employment. This entails listing the complete address and county where the beneficiary will work. The proposed new LCA will require significant additional detail.

The employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.

In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems.

Again, the employer’s flexibility may be taken away. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA. See 20 C.F.R. §655.731(a)(2) which states that the wage on an LCA is valid for the area of intended employment. If each LCA has to list the end client information, will the employer be required to complete a new LCA each time it moves an employee even if it is within the intended area of employment?

Also, in cases where the employer is filing a change of status petition on behalf of the beneficiary or the beneficiary is abroad and will obtain an H-1B visa to enter the US, until the beneficiary is lawfully present in the United States in valid H-1B status and is thereby authorized to accept employment in the United States, the employer cannot hold him out as an employee.  See 8 C.F.R § 274a.1(c) and (f). Therefore, the employer may not be able to obtain that end client agreement prior to preparing the LCA.

Business immigration practitioners may already know that cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. In light of that, the proposed changes to the LCA form are not surprising and seem to stem from some concern on the part of the DOL, with regard to LCA compliance and the bona fides of the offer of employment. Following the request for end client information on the proposed form is the irrelevant and possibly offending question, “Is this a bona fide job opportunity?” The DOL’s makes no effort to hide its blatant mistrust of the employer who places its employee at an end client site.

In recent times, the US government has taken small steps to attract foreign workers and to show that they are an asset rather than a liability. The changes to the LCA will again add more burdens on the employer by eliminating flexibility. On March 12, 2012, the USCIS issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition. The DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for US companies to attract global talent.  In addition to the proposed changes to the LCA, there is proposed legislation in the form of HR 3012 (following the compromise between Senators Grassley and Schumer) that will grant the DOL draconian powers in denying LCAs based on undefined indicators of suspected fraud and thus hold up the processing of H-1B petitions.    Are the proposed changes to the LCA form taking two steps back?

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Bloggers note:  Today's guest column is co-authored by two shining stars in the immigration firmament, Roxana Bacon and Esther Olavarria, who offer four innovative proposals for immigration reform conceived by their law students at the University of Miami Law School. The post is longer than usual but well worth your time.

The melding of  insights from the immigration professors and the students brings to my mind the formula for  success highlighted in Brain Pickings, a marvelous site run by one of the web's best curator's, Maria Popova.  Quoting An Anatomy of Inspiration by Rosamund E. M. Harding, Popova -- a woman who gets immigration -- offers one fine formulation:

This spring, we co-taught an immigration class with a twist at the University of Miami Law School. Under the leadership of Dean Patricia White, UM has reinforced its commitment to human rights and migration law, with a deep bench of scholars--Becky Sharpless runs the clinic, David Abraham and Irwin Stotzky are tenured faculty, Ira Kurzban is an Adjunct, Professor Alejandro Portes, Visiting from Princeton, added his expertise in issues of assimilations and estrangement within the immigrant experience.

Dr. Joseph Chamie, the lead demographer for the United Nations for many years, introduced the course with a lively overview of the cool and irrefutable demographics that compel global immigration.   Professor Rafael Fernandez de Castro, chief of the International Studies Department of Mexico’s ITAM and advisor to President Calderon on immigration matters, joined a panel with Professor Abraham comparing German, Mexican and U.S. immigration laws and policy.

Dennis Burke, a former U.S. Attorney from Arizona, explained the real-time ins and outs of state and federal enforcement approaches, and we discussed the morality (or not) of immigration with the help of philosophy professor and ethicist, Dr. James Nickel.  As the cherry on top, the noted documentary filmmakers, Shari Robertson and Michael Camerini, (whose film “Well Founded Fear” has become the  bible for most immigration courses) showed 2 of their 12-part film  series, “How Democracy Works Now”.  By exploring the efforts to pass immigration reform between 2001 and 2008, the films take the viewer inside the legislative sausage factory, with its stew of conflicting ideologies, outsized egos, re-election fears, and occasional moments of idealism and caring.  The students learned more about partisan gridlock from them than a year in a graduate program could teach.  We used no textbooks, grounded the course in as much hard data as possible, and supplemented materials from daily headlines.  In short, the students were served a vibrant buffet of experts and information that we begged, borrowed or stole from our contacts and archives.

Our goal was to encourage a small group of 3Ls and LLMs who had already completed basic immigration course/clinic work to think outside the U.S. framework, studying natural and political influences on human migration globally before turning their analysis to U.S. immigration problems.  Their final required them to design a reform element within an identified larger area of U.S. immigration, explaining what they would reform, why, and how.  Each then presented their reform analysis and conclusions in a 90-minute class session, and then edited it based on class feedback as their final written paper.

We gave them ample latitude, assigning each team of 4 students one of 4 topics:

1. Southern Border Enforcement;

2. Labor-based Immigration;

3. Interior Enforcement;

4. Forced Migration.

We were worried that the class was too amorphous, that the 30,000’ level overview would be too lofty for presentations that had to work at the 3 foot level, that the panoply of experts and views and materials too diffuse for the students to manage in a 3 unit course.  Not to worry.  The students were spectacular.  Each Team presented a solid idea for reform that was innovative as well as doable.  Each team demonstrated a mature understanding of the gridlock plaguing Congress and the Administration on all matters dealing with immigration except enforcement, and each advanced novel strategies to pass their proposals.  Most important, each team walked away wiser, but not more cynical, about the possibility of reform, eager to take on the decades-long stalemate to achieve a fair and transparent system that works for the long term national good.  Their ideas are worth our attention.

Team 1 was assigned the general topic of Southern Border Enforcement.  Having heard the concerns of Dr. Fernandez de Castro that Mexico’s immigration law and policy are not in better shape than ours, albeit for different reasons, and recognizing the intense CBP and ICE emphasis on expedited return for those apprehended at the Border, the team made a strategic decision to focus on an issue that occurs solely within U.S. jurisdiction, but away from the immediacy of the Border.  The problem they chose is rape of undocumented migrants in U.S. drop houses. The magnitude of the problem is shocking; more than half of all women, including very young children, seeking to enter the U.S. without documents are raped. It is considered part of the price of migration, so prevalent that coyotes often require a contraception injection to avoid rape-based pregnancies.  The problem is growing; the NY Times article on May 28, 2012 documents the horror and the spread of these “houses of hell” as they move from the border to interior cities and subdivisions.

Team 1’s reform proposal is to establish a new protocol for rape victims or suspected rape victims when encountered in drop houses.  The team would require that drop house enforcement teams include a First Response Team, staffed by professionals, including therapists, who are experts in rape.  The FRT would follow the same protocol widely adopted by state and local police that treats rape victims as victims first, rather than participants in any wrongdoing, whether criminal or civil.   It is a brilliant reform idea.  No political party can disparage or dispute treating rape victims as violent crime victims without courting the wrath of women and men everywhere; indeed, being indifferent to these rapes is tantamount to being “for” drop house rape, and in turn that is tantamount to being “for” human trafficking, the genesis of the drop house problem in the first place. Further, rethinking and improving treatment of drop house rape victims conforms to the spirit of VAWA and T and U visas.  It also leverages existing state and local law enforcement experience and priorities so that little if any controversy or additional cost would be incurred.  Last, it complements existing social service resources and current thinking about the most effective treatment of domestic violence victims, i.e. rape of those in a dependent relationship.

The FRT would be required to handle all suspected rape victims in any drop house or other holding center for undocumented persons.  Currently there is no uniform protocol for treating such victims, and the outcome of any particular case is idiosyncratic, devoid of predictability or transparency.  Victims identified by medical and social service experts would be granted interim protection while their medical and emotional conditions stabilize.  That treatment would not be dependent upon their ability to identify their trafficker/smuggler, but rather on their physical and emotional conditions. They would not be incarcerated; if supervision were required, ATDs would be used.  Finally, the length and type of treatment would be set not by ICE but by the therapist who would be chosen from a rotating list.  Service on an FRT would be pro bono but would satisfy the mental/medical health professional’s continuing education requirements.  The team recommends using Arizona for beta testing, and having The O’Conner House, a centralized anti-trafficking initiative jointly established by the former Justice and Arizona State University, serve as coordinator.

Team 2 was assigned employment-based immigration issues as its general topic.  Again, the students demonstrated a deep understanding of the art of the possible; using Florida as the beta site, they crafted a new visa category, H-2C, geared to identifying undocumented persons in Florida who qualify to fill vacancies in the state’s hospitality industry.  The proposed H-2C category is unique in that it (a) targets the largest portion of Florida’s undocumented population to solve a chronic shortage of workers in the industry most vital to the state’s economy; (2) provides immediate benefit to Florida’s economy by bringing that group of undocumenteds into the state and federal tax system; and (3) allows Florida, a politically powerful state with a history of sympathy to some immigration issues, to assume a major positive role in advancing innovations in federal immigration law and policy.

Protection of U.S. workers is ensured not by the tedious labor certification process that has never been proven to be effective but by a payroll tax incentive for employers who hire a citizen or permanent resident rather than the H-2C migrant.  The incentive would also include a $1,000 annual tax credit for any U.S. worker who is retained for at least a year of uninterrupted employment.  These hard dollar incentives should be much more effective than the paper chase of labor certification, and the tax revenue “lost” would be recovered by the H-2C workers who join the tax system as regular tax-payers.  An eventual path to full resident status would be available to the H-2C workers through an expansion of the quotas for essential workers, a reform that could be expanded to include hospitality workers nationally if the Florida pilot program is successful.

The Team also outlined a strategy for passing the pilot program that is built on demonstrating the economic benefits of the H-2C category.  Each stake-holder—the industry’s employers, the unions, the associations that promote Florida’s tourism, the politicians in key “destination” cities, the immigrant communities’ advocates—would enjoy an immediate return on their H-2C investment.  More profit from more tourists is the obvious outcome of a reliable, legitimate work force in the hospitality industry, and more public tax income is the obvious by-product from booming tourism.

Team 3 chose a topic, interior enforcement, that is perhaps the most polarizing of the assignments.  It brings into clear focus the tensions created by a civil immigration law whose enforcement is modeled almost exclusively on criminal law—we arrest, we interrogate, we jail and we sentence, but we do so without any of the Constitutional protections applicable to the criminal counterparts.  We do “enforcement heavy” but “rights light”.   Team 3 did not seek to reverse any existing interior enforcement infrastructure or priorities, but rather to implement them as written.  Their program, SMART (“Securing Migrants & Americans Rights & Trust Act”) simply imposes the intent of Secure Communities, and of 287(g), by limiting local law enforcement participation in immigration to only those immigrants, whether documented or not, who have been convicted of the crimes that are the most dangerous to public safety.  The list is short, and does not turn on complex INA definitions (“agg felonies”, for instance), but rather on crimes that anyone would agree are egregious, and are the same priorities set by local law enforcement agencies for their populations generally.  But the biggest difference is that no local law enforcement would be involved in the immigration process until after a conviction.  The list of crimes that would invoke local law enforcement participation with ICE is:

a. National security crimes, including terrorism;

b. Homicide/Murder;

c. Aggravated sexual offenses;

d. Armed robbery/burglary;

e. Domestic violence that involves physical assault or battery or severe mental or emotional assault or battery, and both must result in injury.

Under 287 (g), or any state law authorizing non-federal participation in immigration enforcement, the state agencies’ role is restricted to enforcing only these serious crimes, and only post conviction.  The Team relied heavily on the fact that ICE’s fingerprint identification system (IDENT) is expanding at an annual rate of 20 million new prints, a growth that ICE has financed by increasing that part of its budget from $23.5M in 2003 to $690M in 2011.  Leveraging ICE’s own information is a smart use of SMART, and allows the local law enforcement agencies’ to concentrate on their own communities’ priorities while simultaneously supporting immigration enforcement.

Its creators repeatedly have informed Congress and the public that Secure Communities is intended to identify, apprehend and remove “the worst of the worst” immigrants.  SMART simply gives that goal more teeth, removes ambiguities that have proven difficult to surmount under the current SC memos, and allows local and federal law enforcement agencies to focus on their own lanes, with a defined area of immigration enforcement overlap.  Logically and structurally all the stakeholders should embrace it.  If not, it turns a spotlight on whatever reasons other than law enforcement or public fiscal efficiency are behind the continued use of local enforcement agencies to detain non-priority migrants.

Finally, under SMART, the default ICE position on detention would be electronic monitors or other ATDs.  Actual incarcerations would require ICE to “show cause” why physical detention is necessary for public safety or to avoid the migrant’s flight.  This hearing would be like a reverse bond hearing where the government would bear the burden of proving beyond a reasonable doubt that no ATD will suffice to protect the public.  It would not replace the actual bond hearing (although some issues and facts would resurface) in that even once incarceration is shown to be necessary, the migrant could advance mitigating factors to argue for release on bond or other ATD.

Team 4 was charged with advocating a reform in the area of forced migration that took into account the global scope of the course’s materials.  They stepped up to the challenge with a novel take on demographics, global climate change, the scarcity of potable water and the hunger in the U.S. for capital.

Recommending the creation of an EB-6(a) category for water scarcity entrepreneurs, and an EB-6(b) category for watery scarcity researchers, the Team adopted a practical approach to an inevitability: much of the globe’s midsection will be subject to increasing drought, causing the movement of hundreds of millions of people to countries unable, and in some cases unwilling, to absorb them.   

In the most obvious scenarios, political stability in nations that have nuclear capacity (Pakistan, China, India) is threatened by water scarcity.

The problem is not just migration across national borders; 1,100 counties in the U.S. are already identified as suffering from or at risk for water scarcity, many in the Midwestern states that have traditionally been the U.S.’ prime agricultural region.  Developing answers to drought-related food and water scarcities is a critical goal of the U.S. now ($9.2 billion spent on water sector and sanitation initiatives outside the U.S., and another $41.8 million to U.N. programs addressing the same issues), with the problem only growing to tsunami size in the future.

Team 4 found that the U.S. is woefully unprepared to wage war for water.  The expertise needed to develop new water sources, better distribution systems, drought-resistant crops, more efficient storage, consumer conservation techniques, etc. depend on two fundamentals: capital and expertise.  Capital is obvious; it costs big money to redirect cities, consumers, industry and agriculture away from water-intensive habits.  Expertise is also obvious; the U.S. produces far fewer engineers and scientists than we need to address the water issues.  As 80% of the professional workforce associated with public wastewater and water retire over the next 10 years, we do not have enough replacements just to stay even.  Since the number of environmental jobs is expected to increase by over 50% in the next 10 years, the talent deficit grows ever bigger.   China and India both produce over 9 times more engineers each year than the U.S. (over a million to our 10,000), and that disparity increases each year even as competition for that talent becomes fiercer.

The EB-6(a) category would grant permanent residence to a discrete category of entrepreneurs in the field of water scarcity (desalination, purification, distribution, etc.) and/or food-related research (drought-resistant crops, waste-water crops, consumer conservation, etc.).  The entrepreneurs would themselves have to have graduate degrees in a STEM field directly related to their business proposal, and, in a flip on the current EB-5 program, could only be employed in their own start-up.  Direct involvement in their investment is required.

The investment would be much more modest; $100K initially, but with 5 employees, not related to the investor, in new jobs within 2 years.  Further, the business must have raised $500K in investment or generated $500K in gross revenue within 2 years.   To avoid the EB-5 problems, the science part of the investment proposal would be reviewed by scientists in the field, selected by the NSF, and if approved, would be sent to the Treasury Department to review the applicant and the proposal’s financial fitness.  DHS’ role would be limited to a review of the Act’s excludability factors.

The EB6(b) category is reserved for persons currently in the U.S., or who come in the future, to undertake and complete a graduate level degree in a STEM discipline at an accredited U.S. school who:

a. commit to work in the field of water/food scarcity (defined generously) for 3 years;

b. receive a letter from their employer(s) verifying a 3 year commitment (not enforceable as a private contract, but a statement of intent that can be investigated without cause);

c. if they do not have a letter, demonstration that they have assets sufficient to maintain themselves in the U.S. for up to one year while they look for qualifying employment;

d. become eligible to apply for permanent residence if employment in the field continues for 5 years.

Team 4 included extensive research documenting the statistics on U.S. engineering numbers, the growing need for more engineers and related skills in the field of water resources that only deepen our engineering talent deficit, and the need for rapid and prolific innovation in this area of the type best done in small start-ups.

We were delighted with the results of the Teams’ work, and hope some of you will be, also.  Each Team demonstrated an understanding of the intense anti-immigrant sentiment that is currently stopping reform, and they were wise in their selection of pieces of U.S. policy and law that could yield big dividends.  Most important, they recognized the almost impenetrable maze of political barriers to change, and in each case sought to build on existing law and policy, moving it ahead without burning bridges, but by building new, and natural, ones with partners whose  histories suggest they should be willing to sign on.  All 16 students (all 3Ls or LLMs) were smart, diligent and engaged, all remain interested in immigration law as a career, and not all have employment.  Upon request, we are happy to pass their names on to anyone who might be interested in following up with them, or with us, for each Team’s full submission.

by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

As Cyrus Mehta noted in his December 7, 2011 blogpost regarding H.R. 3012, “How Fair is the Fairness for High-Skilled Immigrants Act?”, although not a perfect bill, H.R. 3012 passed the House in November 2011 by a landslide. The bill, as passed by the House, would eliminate the employment-based per country cap entirely by 2015 and raise the family-sponsored per-country cap from 7% to 15%. The passage of this bill by a margin of 389-15 signaled the strong bipartisan concern with the significant inequities in the immigrant visa system with regard to individuals from certain countries, especially individuals from India and China sponsored for employment-based immigrant visas. Although the country limits addressed by H.R. 3012 were originally enacted for all countries, these limits have resulted in mind-boggling wait times for people from India and China. For example, for Indians in the employment-based third preference (EB-3) category, some have estimated the wait times could be up to 70 years!

The landslide, bi-partisan passage of H.R. 3012 in the House was also proof positive that Congress, despite the gridlock and often seething partisanship, is in fact deeply concerned with repairing our country’s dysfunctional and unfair immigration system, especially in at a time when economic and global realities require the United States to reform the system to facilitate our ability to compete more effectively in the global economy. Both our “home-grown” and imported talent will mutually benefit from more reasonable access to visas for highly-skilled immigrant (and nonimmigrant) workers, as many U.S. business leaders such as Bill Gates have attested (see pages 12 to 14 of his testimony). Further proof of that fact is the strong support of entrepreneurs, both foreign and domestic, by the Obama Administration, as demonstrated by the Start-Up America and Entrepreneurs in Residence initiatives.

Then along came Senator Grassley’s hold on the bill in December 2011. After extensive negotiations, on July 11, 2012, Senator Grassley lifted his hold. To remove the hold, senators in favor of the original bill reached what may well be a sort of “Faustian bargain” with Senator Grassley. In order to agree to lift the hold on the bill, Senator Grassley demanded provisions that could severely hamper the already difficult H-1B nonimmigrant visa process and, in tandem with that, hamper U.S. businesses and their ability to compete in the global economy.

So, what’s the big deal? This is what Senator Grassley had to say about the amendment he proposed:

Sounds fine, right? Protect American workers, combat fraud, what’s wrong with that? There is of course nothing wrong with protecting American workers and preventing fraud. Supporters of the amendment seem to frame their support in the same way that people who criticize the Constitutional protections against unreasonable searches and seizures and self-incrimination frame those criticisms: if companies are not doing anything wrong, they have nothing to fear, right, from a search, seizure or questioning?

Senator Grassley’s description of his proposed amendment is something of a gross oversimplification. First of all, the amendment covers issues already addressed by existing law so query whether the amendment will serve any constructive purpose. The Immigration and Nationality Act (“INA”) and implementing regulations, as well as the related rules promulgated by the Department of Labor (“DOL”) addressing the process of obtaining approval of a labor condition application (“LCA”), the necessary first step of the H-1B sponsorship process, already include extensive protections for American workers and provisions to search out and punish fraud, if it does occur. Just to name a few examples, the existing rules require notice to “U.S. workers” (which, pursuant to the DOL regulations at 20 C.F.R. § 655.715, include citizens or nationals of the United States as well as green card holders, refugees, asylees, or “an immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States” – it is unclear who Senator Grassley’s term “American workers” includes), provide minimums for offered salaries to ensure that such salaries do not undercut the salaries of U.S. workers, and where employers are “H-1B dependent”, the rules require, if such employers offer a salary of less than $60,000 per year, that they attest, and when called upon to do so, demonstrate, that they have made good faith efforts to recruit U.S. workers for the offered position (see 20 C.F.R. § 655.738-655.739)). Penalties for violations of the rules are already included in the statute and governing regulations (see INA § 212(n)(2)(C)).

So what does Senator Grassley’s amendment do? The amendment changes, but does not clarify, the trigger for DOL review of an application from “only for completeness and obvious inaccuracies” to “for completeness, clear indicators of fraud or misrepresentation of material fact.” The amendment does not define what might constitute “clear indicators of fraud or misrepresentation of material fact,” although these may be similar to the ones some authors have observed that USCIS followed (and may still) as indicators of fraud in H-1B cases: companies grossing under $10 million per year, companies with less than 25 employees, companies established less than 10 years ago, etc. Grassley’s amendment to the bill also changes the investigation process by removing the need for “reasonable cause” to conduct an investigation based upon a complaint, which continues to be the basis on which an investigation may be commenced. Thus, any complaint, reasonable or not, received by the DOL about an employer could serve as the basis for an investigation.

What does this mean for the process? It could bring the process of getting an LCA approved to a standstill and therefore limit or even prove fatal to an employer’s ability to hire a highly skilled foreign worker on an H-1B nonimmigrant visa. First, let us consider cap-subject cases. Each fiscal year, only 65,000 H-1B visas are available and time is usually of the essence because the H-1B cap “opens” on April 1, for an October 1 start date for cases subject to the cap, and in many years, the cap was often reached on or soon after that April 1 date, so there is great competition for these visas and having them ready to file on time is crucial. Currently, the process of getting an LCA approved takes about 7 business days. During this period, the DOL checks for obvious inaccuracies, checks the existence of the employer, salary details, and whether the employer has made the appropriate attestations, among other details. This 7-day period is a built-in delay of the process. Under the current laws, an investigation may be conducted for a period of up to 60 days (see INA § 212(n)(2)(G)(viii)). Under the proposed amendment, there appears to be no time limitation on the length of time an investigation may continue.

Without any sense of how long an investigation may take, and given the uncertainty of the trigger, an employer who is certain it wants to hire an individual for an October 1 start date, cannot build in more than 6 months of precautionary time for what could amount to a random investigation, because the current process does not allow an LCA to be prepared and submitted to the DOL for processing more than 6 months prior to the intended start date of the H-1B visa. For cases that are not cap subject, such as a company hiring an individual who already holds H-1B status, the risk is losing a highly-skilled prospective employee who may be desperately needed because of uncertain delay in the very first step of the process. The portability process created by the American Competitiveness in the 21st Century Act (“AC21”), which allows a change to a new employer immediately after that employer files an H-1B petition, cannot do anything for an employer looking to transfer someone’s H-1B to their company if they cannot get the H-1B petition filed because the LCA process is held up by investigation. Viewed in this light, this amendment to a well-meaning bill would obstruct the flexibility promoted by AC21, the intent of which was to promote the United States’ ability to compete in the 21st Century!

Senator Grassley’s amendment also allows the DOL to conduct “surveys of the degree to which employers comply” with Grassley’s new LCA regime. Exactly how such surveys would be conducted, who would be involved, and how long they might take is unstated. Under Senator Grassley’s amendment, the DOL may also conduct annual compliance audits of any H-1B employer. Of course, compliance audits are already a part of the existing rules. However, the new twist is that the DOL must conduct such annual compliance audits of “each employer with more than 100 full-time equivalent employees who are employed in the United States if more than 15 percent of the number of such full-time employees are H-1B nonimmigrants . . . .” Although there is a four-year period between allowed compliance audits for employers who pass muster, the amendment also provides for publication of the DOL’s findings. Given the current anti-immigrant climate and the tendency of many people to blame foreign workers for the lack of available jobs, publishing results even of companies who are completely in compliance could lead to backlash against the companies, or could lead companies to avoid hiring foreign workers in the United States, and perhaps moving operations overseas or to Blueseed to avoid exposure.

Removing per-country limits on employment-based immigrant visas and increasing the limits on family-based immigrant visas are obviously laudable goals, but query what risks Senator Grassley’s amendment poses. The reality appears to be that the amendment will not serve its stated ends but rather will serve to obstruct access to highly-skilled foreign workers and undermine U.S. businesses and their ability to compete in the global economy. Perhaps it would be best if H.R. 3012 were passed – without Senator Grassley’s amendment.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Immigration laws are increasingly more complex.  When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.

Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects  very poorly on this country.  These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system.  Many of these laws have ultimately proved to be an embarrassment.  A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed.  Under this law all Chinese were banned from immigrating to the United States and to naturalize.  Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902.  This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II.  130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.

In 1996 two laws were passed with the goal to deprive judicial review and discretion.  The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review.   Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation.  As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well.   As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.   

This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy.   The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA.  The law is based on the false premise that we need mass detention and deportation to keep dangerous "criminal aliens" off our streets.  In reality immigrants are less likely to commit crimes than native-born Americans.    Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses.   In the 15 years since IIRIRA's passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained.  Taxpayers pay for these detentions.  The detention include thousands of immigrants and permanent residents who pose no threat to the community.  It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.

We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety.   Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!

The failure to take individual circumstances into account has always resulted in untold human costs.  We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

A newly resurrected dispute over word choices has gone viral. Charles Garcia revived the debate by arguing that the term, "illegal immigrant," is a slur.  Ruben Naverette countered that it is apt, albeit a discomfiting truth, asserting in essence that a spade should be called a spade. Siding with the Supreme Court, Dan Kowalski parsed the term differently and offered a preferred adjective, "unauthorized," when referring to immigrants, and the noun used in federal law, though repugnant to many, "alien." Many others in cyberspace, especially friends of Facebook friends, piled on.

The brouhaha evokes the memorable words of Juliet who bemoaned the family feud epitomized by her differently surnamed lover, Romeo:

Few may recall that the aromatic rose of Shakespeare's coy reference was a double entendre also suggesting the odiferously unhygienic toilets of the Rose Theatre in Old London.

I join the fray and ask:

I say yes and side with the Drop the 'i' campaigners.  

As a matter of law and language, the phrase, "illegal immigrant," is improper. Worse still, it is a form of groupthink, an egregore with a life of its own, used wittingly by some (the nativists) and probably unintentionally by others (the AP Stylebook editors) as a group defamation, no less than the now discredited, "anchor baby." Indeed, I would drop both the "i" and the "a," notwithstanding that they are a statutorily recognized twosome, the even more repulsive,  "illegal alien."

"Illegal immigrant" is wrong on the law, though crashing the border without inspection is at least a federal misdemeanor.  It is mistaken because it omits a fundamental legal precept, the presumption of innocence until proven guilty.  Journalists, egged on by their lawyers, surely know this. Hoping to avoid a defamation suit, they routinely add "alleged" to any assertion of criminality.  When a particular immigrant is convicted of the crimes of illegal entry, or of illegal reentry after deportation, only then might the phrase be legally correct to refer to the individual as an "illegal immigrant."

But it would still violate the laws of grammar.  "Immigrant" is no less an adjective than a noun. When "immigrant" is used as a modifier and further modified, the term would be correctly phrased in reference to a person as an "illegally immigrant" individual, with the adjective "illegal" thereby converted to the adverb, "illegally."  Even used as a noun, "immigrant" when modified by "illegal" rings false in modern usage.  If it were otherwise, we would customarily refer to alleged lawbreakers as illegal tax evaders, illegal burglars, illegal child molesters, and yes, illegal lawyers, bankers and senators.  But we do not; hence, proper English usage ordains that "illegal immigrant" is poor parlance.  "Illegal" in reference to immigrants should not be singled out and used differently than references to all other alleged or convicted criminals.

Most importantly, "illegal immigrant" is wrong for its intended message, transformed by repetition into a meme. Frank Lutz, the man who turned the "estate tax" into the "death tax," has proven beyond doubt that words matter. The illegal immigrant is no longer the loving nanny caring for our kids but that scary "other" who is responsible for the alienation of our affection. Its suffix conjures associations with such other repulsive terms as "vagrant" or "rodent" and combines subconsciously to form "vermin."

People do not become evil by labeling them so; unless by popular delusion when everyone resorts to the same hurtful, bullying name-calling. We should all cut it out.  Drop the "i."

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

While many covet lawful permanent resident (LPR) status in the US, popularly known as the green card, since it allows them to freely live and work in the US, it can also become a burden if one remains absent from the US, which can result in the loss of this status. This happened in Lateef v. Holder, where the petitioner, a Pakistani national, argued that despite multiple long absences from the United States, she did not intend to abandon her status, which also served as the foundation for her husband's and child's entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA's finding that she had abandoned her LPR status. The court also noted that the petitioner, at the end of a long and exhausting international flight, fearful of losing her LPR status, had lied in one instance to border officials about the date of her last visit to the United States.

Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner's daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.

The main lesson learned from Lateef v. Holder is that waiting outside the US with your loved ones, until they can immigrate to the US, can result in abandonment of your green card. Due to the tremendous backlogs in the family-based immigration system, it can take years before an LPR can sponsor a spouse or child to the US, thus compelling the LPR to be absent from the US until such time that the family members are issued immigrant visas. The case highlights the tensions between a global world involving frequent travel, and where families live apart in different countries, and an insular immigration system.

Lateef, a native of Pakistan, became a LPR in 1991 along with her parents and brothers. She initially went back to Pakistan to complete her final 2 years of medical school, and then returned to the US and remained for over 2 years. After Lateef married her husband in Pakistan in June 1995, she spent most of her time in Pakistan until February 2001, when she was charged with inadmissibility based on abandonment of her LPR status. Between 1995 and 2001, she returned periodically to the US to take her medical exams. Her husband was also denied a visitor visa during this time. She also gave birth to a daughter in Pakistan. Although, according to the majority her daughter was granted LPR status “as a child born during a temporary visit abroad” to an LPR under 8 C.F.R. § 211.1(b)(1), Judge Stranch’s dissenting opinion disputes this fact. Due to an error by the INS at the port of entry, according to Judge Stranch, the daughter was not granted LPR status under this special dispensation. Lateef had to file a separate I-130 petition on behalf of her daughter, which resulted in the daughter having to wait in Pakistan for many years. Lateef’s daughter developed behavioral problems whenever she came to the US to take medical exams. She was thus forced to return to Pakistan, and she last left the US in November 1999 due to her daughter’s continuing behavioral problems, where she remained there for a year and three months. Her husband and children (by then she also had a son) were granted immigrant visas in November 2000, but she stayed in Pakistan until 2001 to attend weddings.

When Lateef last arrived in the US in February 2001 after being out since November 1999, she falsely told the officer that she was last in the US in July 2000. Upon being confronted, she changed her story that she was last in the US in April 2000, which was also untrue. When being further confronted with documents found in the family’s luggage, she confessed that she was out since November 1999 and that she had previously lied to immigration officials.

Before we draw further lessons from Lateef v. Holder, we give you a primer on the law of abandonment of LPR status. For a more extensive review on this subject, we refer you to our article, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

Singh v. Reno is worth further elaboration as the facts in this case are somewhat analogous to Lateef v. Holder. Singh obtained lawful permanent residence through the special agricultural worker program on December 1, 1990. From that date till the initiation of the proceedings on July 8, 1993, Singh spent less than one-third of his time in the US. In fact, he spent time with his wife and daughter in the United Kingdom who were waiting for their family-based immigrant visa petition to materialize. During the time Singh spend in the US, he worked sporadically for a restaurant in California, and lived in temporary housing provided by the employer. Singh also applied for a visitor visa at the US consulate in London and entered the US four times on that visa after he obtained permanent residency in the UK. The Ninth Circuit held that Singh’s long visits to the UK did not qualify as a temporary visit, even though he was never out of the US for more than a year, and upheld the Board’s decision affirming his abandonment of LPR.

In a scathing dissent, Judge Reinhardt criticized the majority for failing to consider that Singh’s motive for spending time abroad was due to the wait for his wife and daughter to gain immigration status. Moreover, the dissenting judge disagreed with the majority that the wife and spouse were free to reside in the US while waiting for their immigration status.

Another important case is Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), which in turn drew from Singh v. Reno. Although the facts in Hana v. Gonzales, are similar to Singh, the Sixth Circuit found that Hana, an Iraqi national, did not abandon her status. On May 22, 1992, Hana was granted LPR status upon which she immediately filed immigrant visa petitions for her husband and four children. A few weeks later, on July 19, 1992, Hana returned to Iraq, and to her job as an inspector at the Central Bank of Iraq under the Saddam Hussein regime. Hana was compelled to return to Iraq to work because she was afraid that the government would hurt her family. Upon obtaining a reentry permit, Hana spent in the next two years in Iraq with her family and to care for her terminally ill mother in law. Two weeks prior to the expiration of her re-entry permit in December 1996, Hana returned to the US but was detained and charged with inadmissibility as an immigrant without a valid visa. Hana admitted that she had never paid income tax in the US and had no property in this country, but had initially entered with $10,000 in jewelry and money, which she gave to her brother so that she could ultimately purchase a home and car, and provide for her children when they arrived in the US.

While ruling in Hana’s favor, the Sixth Circuit emphasized that it must take into account the totality of the alien’s circumstances in addition to the two-part test established in Singh v. Reno to determine what constitutes a temporary visit abroad. Thus, while Hana did not possess family, property or job in the US, the Court held that she still had an intent to return to the US upon the materialization of her family members’ immigration visa petitions. It appears that the Sixth Circuit was influenced by Hana’s decision to remain in Iraq with her family to ensure that they were not harmed by a brutal regime’s henchmen and for caring for her terminally ill mother-in-law. The Sixth Circuit distinguished Singh v. Reno, by observing that Singh’s family, even though not free to reside in the US, could freely travel between the two countries which were relatively safe democratic nations, although the Court acknowledged that Singh was a “close case.” Clearly, Hana is a better decision as it recognizes an LPR’s need to remain with family overseas, and is also more understanding of the realities of the backlogs in family-based immigration, along with the difficulty that sponsored family members may have in obtaining visitor visas to the United States as well as the political and economic realities that might hinder one’s ability to return to the US quickly.

Lateef v. Holder is also from the Sixth Circuit, and Lateef sought to show that her case was similar to Hana, but the majority thought otherwise. Unlike the Hana petitioner, who was forced to remain in Iraq to protect her family from a brutal dictatorship, the Lateef court thought that Pakistan was a free country that allowed its people to travel. Also compare Hana’s intent to return to the US upon the immigration of her relatives, which the Sixth Circuit paid attention to despite her lack of other ties, with the refusal of the Sixth Circuit to pay similar deference to Lateef’s intent as a controlling factor. It appears that the Sixth Circuit thought that Lateef’s case was more like Singh who could freely travel between two democratic countries, the United Kingdom and the US, even though they had relatives who were waiting in the preference system for immigrant visas. While this is a refreshing observation on Pakistan, we know anecdotally that Pakistani nationals do not otherwise fare too well in our immigration system. Their applications for routine immigration benefits get scrutinized more than others through the prism of national security, and they are more amenable to be placed in removal proceedings notwithstanding the new DHS prosecutorial discretion policy set forth in the Morton Memo of June 17, 2011. It is true that Lateef did not have a reentry permit, unlike Hana, when she returned to the US in February 2011 and even lied about the last time she came back to the US. This may have cut against her, but the misrepresentation would not have been material, and thus an additional ground of inadmissibility, if she had not abandoned her LPR status. Also, a reentry permit is not an essential prerequisite for maintaining LPR status. In yet another decision involving a Pakistani national, Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003), the petitioner, after obtaining LPR status, left for Pakistan to marry and spent the majority of the next several years with her husband and children in Pakistan. Even though Moin had a sick child who died after barely one year and had a reentry permit, the fact that she spent most of the time in Pakistan without an intent to return within a relatively short period caused the Fifth Circuit to affirm the abandonment of her LPR status. The Fifth Circuit observed that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.” Indeed, this lesson is one that is poorly understood by LPRs who see the re-entry permit as offering the absolute assurance of retention. The Lateef court, in finding that the petitioner had abandoned LPR status was more influenced by Moin and Singh than Hana.

Still Judge Stranch’s dissent in Lateef has considerable moral force like Judge Reinhardt’s dissent in Singh. Green card holders should not be deprived of their status primarily because they reside abroad with family members whom they have sponsored under our creaky immigration system. In Lateef, it appears that there was also an error with respect to her infant daughter being expeditiously granted LPR status at the airport under the special dispensation in 8 C.F.R. § 211.1(b)(1). Her daughter thus was forced to stay in Pakistan until the regular immigrant visa processing for a few years, and Lateef needed to be with her daughter in Pakistan due to continuing behavioral problems. Even though the court opined that Lateef and her family were free to travel, her husband was denied a tourist visa. This is often the case when a family member is being sponsored for a green card, and the tourist visa is routinely denied on the ground that the family member is wrongly suspected of being an intending immigrant and planning to overstay the visa. Moreover, the court seemed to be impressed by the fact that Hana brought $10,000 worth of valuables and cash with her to purchase a home and a car in the US when she finally would come and reside in the US. But the court glaringly missed the investment in time that Lateef was spending taking medical exams in the US that would qualify her to practice as a physician and establish a career in the US. It is clear that Lateef was expending her own human capital in the US even though she did not bring physical assets to the US like Hana, which appeared rather modest. On the other hand, Lateef’s investment of time in obtaining a medical license to practice in the US was impressive.

The unfortunate holding in Lateef v. Holder again compels us to offer our proposal that, if adopted, will change the law on preservation of LPR status in a really big way: green card holders, like US citizens, should not be presumed to abandon their status without a tangible manifestation or expression of informed consent. The significance of LPR status would be greatly enhanced if a presumption existed in favor of retention of status, notwithstanding the commission of certain acts that might suggest a contrary intent. US citizens now enjoy this same presumption and there is no reason why resident aliens should not as well. It is neither sound nor sensible to assume that naturalized Americans have a stronger or more meaningful attachment to this country than lawful permanent residents; indeed, there are numerous anecdotal reasons to commend the opposite conclusion. Extended absence from the US, without more, should never serve as the basis for abandonment; in a global economy, where an LPR may have to reside abroad with family members until their immigration process is completed or where international relocations are the price of career advancement or even job retention, the law should and must provide that no LPR can be stripped of their green card on the basis of abandonment unless he or she clearly states an unmistakable intention to give it up. No inference from proven conduct would be possible absent clear evidence that such was the desired and intended consequence. Application of this presumption would properly reflect the profound importance of lawful resident alien status while serving as symbolic recognition of the vast contributions that such permanent residents have made to their adopted home. How is the nation well served when we presume that a citizen does not intend the consequences of a potentially expatriating act while denying the LPR his or her right to rely upon the very same presumption? What reason is there to believe that a US citizen is more invested in keeping citizenship than an LPR in preserving the green card? Do we seek to punish the lawful permanent resident for retaining original loyalties and not taking that one, final, fateful step signifying that they have truly become one of us, making our cause their own?

So long as the green card holder has not violated our laws, or otherwise subjected themselves to justifiable removal, no public interest is advanced when the law refuses to shield permanent residents from involuntary loss of status. Our liberties are not made more secure, our federal coffers do not swell with more tax dollars, our enemies are not chastened nor our friends reassured from such an anomalous state of affairs. The genius of the American constitutional arrangement, that which has provided it with the equipoise so prized in times of crisis, lies in its ability to give all those affected by its operation a stake in society. As Professor Alexander M. Bickel taught us in Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), the value of citizenship is most authentically reaffirmed when the rights of citizens are least exalted above all others. No one, LPRs included, should have to choose between loyalty to family and retention of status. The true meaning of America lies elsewhere. F. Scott Fitzgerald in The Crack-Up (1933) points the way:

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

In a previous post on this blog, “The Prejudice Caused By Summary Removal After Visa Waiver Admission: What the Third Circuit Missed in Vera and Bradley”, I discussed the case of Vera v. Attorney General of the U.S., in which the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver.

As explained in my previous blog post, the assertion of lack of prejudice that formed an important part of the Third Circuit’s initial decision in Vera was based on an error. It has now become apparent that the presumption of a proper waiver in the Third Circuit’s decision was also based on an error, one that helps illustrate why courts in the immigration context should be reluctant to indulge unproven executive-branch assertions about how something must have happened. The Third Circuit has now had to vacate its decision in Vera, because the government discovered that Ms. Vera actually was not admitted under the VWP at all!

As discussed in a June 11 post on AILA’s Slip Opinion blog, following the Third Circuiit’s March 1 decision in her case, Ms. Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit, and they in conjunction with the New York State Youth Leadership Council succeeded in getting her released from immigration detention in April after she had been detained for nine months. Then, as reported on May 21, 2012 by Ms. Vera’s new pro bono counsel at the Heartland Alliance’s National Immigrant Justice Center (NIJC) , to whom congratulations are due, the Department of Homeland Security (DHS) cancelled the removal order against Ms. Vera after belatedly realizing that Ms. Vera had not been admitted under the VWP, and the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case. On May 25, 2012, at the urging of Ms. Vera’s new NIJC counsel, Ms. Vera was granted deferred action in the exercise of prosecutorial discretion. And in an order issued on June 13, 2012, the Third Circuit vacated its earlier decision in Vera and dismissed the case, because there was no longer any final order of removal and thus nothing for the Third Circuit to review.

In its June 13, 2012 order vacating its earlier decision, the Third Circuit stated: “The Court notes that it based its decision on the incorrect representation of the Department of Homeland Security that petitioner was admitted to the United States under the Visa Waiver Program and further notes that petitioner did not challenge this representation.” The original March 1, 2012 decision had acknowledged that Ms. Vera “did not concede expressly that she entered the United States under the VWP” but concluded that the government’s assertions, plus Ms. Vera’s failure to contend otherwise, left the Court “satisfied” that such was the case:

Vera v. Att’y Gen., 11-3157 (3d Cir. March 1, 2012), slip op. at 4 n.3. That is, the Third Circuit concluded from the government’s unchallenged descriptions of prior statements made by Ms. Vera and her father that Ms. Vera must have been admitted under the VWP, despite the lack of any documentation showing this to be true. This despite the fact that Ms. Vera was describing events that had happened more than 10 years ago, in September of 2000, when she was only 12 years old. Although hindsight is, to be sure, 20-20, it is problematic to expect someone to have definitive knowledge of what specific immigration-law provision she entered under many years ago during her childhood, and it is not that much better to rely on the recollection even of an adult layman regarding the legal details of an immigration-related event that occurred more than a decade ago.

One of the reasons that at our firm, and I suspect at most other firms practicing in the area of immigration law, prospective clients are asked to bring to the initial consultation any and all documents that may shed light on their immigration history, is that the vague recollection of a layperson regarding what formal program he or she may have entered under some time ago, and what may have happened since, is not particularly likely to be reliable when it is not backed up by documentation. Immigration law is incredibly complex. In softcover book form, the Immigration and Nationality Act alone is nearly four hundred pages long, and the related Title 8 of the Code of Federal Regulations is more than one thousand pages in length. There are also other federal regulations that relate to immigration law, various administrative handbooks of different agencies (such as the State Department’s Foreign Affairs Manual, or the Adjudicator’s Field Manual and Inspector’s Field Manual of U.S. Citizenship and Immigration Services and Customs and Border Protection respectively), and other government policy memoranda that will also sometimes need to be reviewed in order to determine precisely what has happened in a particular case. Moreover, not only the regulations and handbooks but the Immigration and Nationality Act itself can change frequently over time. The current version of the Visa Waiver Program, for example, was created by the Visa Waiver Permanent Program Act in October 2000, as explained by a 2004 Congressional Research Service report (see page 9)-- that is, the current version of the VWP was created by statute after Ms. Vera’s September 2000 entry into the United States.

Because of the complicated nature of the immigration system as it exists today, and because of the equally convoluted history underlying today’s version of the immigration system, a non-lawyer who has gone through the immigration process will often mistake one status or legal mechanism for another. In this field, fallible memory is often no substitute for actual paperwork. That is particularly so when one is trying to reconstruct events that happened more than a decade ago. While it is sometimes the case that one must rely on human memory because no paperwork was issued at the time of a particular admission (such as when a car is “waved through” at a border post, which is still an admission for purposes of adjustment of status as explained by the Board of Immigration Appeals in Matter of Quilantan), that is different from relying on memory when government paperwork should exist according to the government’s theory of the case, but the government simply cannot find it.

The path taken by Ms. Vera’s case demonstrates why it is problematic to assume the truth of facts not explicitly conceded by a particular noncitizen, in the absence of records showing the truth of those facts, simply because those facts appear most consistent with the orderly functioning of the immigration system and the noncitizen is not sure of their falsity. While it is perhaps understandable that the Court of Appeals for the Third Circuit chose to rely on facts confidently asserted by the government and seemingly not disputed by Ms. Vera or her then-counsel prior to the Court’s original decision, the ultimate outcome of the case demonstrates that government assertions about someone’s immigration status are not necessarily true just because the subject of the assertions cannot with assurance recognize them as false.

Immigration law is sufficiently complex that it is easy for laypeople and even government bodies to make mistakes. One important way to guard against a mistaken reconstruction of significant details of a case’s history is to insist that the government prove its allegations are true, rather than merely assuming them to be true because an immigrant is unable to state with certainty that those allegations are false. Particularly when the right to a full and fair hearing regarding one’s potential removal is at stake, the better approach, as the Court of Appeals for the Second Circuit held in Galluzzo v. Holder, 633 F.3d 111, 115 (2d Cir. 2011), quoting from Johnson v. Zerbst, 304 U.S. 458, 464 (1938), is to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” If the government cannot produce documentation proving that a particular person actually entered under the VWP and actually signed a valid waiver of her right to contest removal, then the government should not be permitted to remove that person without a hearing.