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

Consistent with its earlier policy of welcoming entrepreneurs, the USCIS launched a new portal called Entrepreneur Pathways providing resources on how foreign entrepreneurs can use existing visas to launch their innovative startups in the US.  The portal is quite good, and it is hoped that USCIS officials retreat from their culture of “No” and process cases in the spirit of this new guidance.

At the outset, 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 are still floundering. 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 raises 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.

There are enough opportunities under our existing immigration law for entrepreneurs who may not need to make such a high investment in their startup. The existing visa system if interpreted broadly, together with the Startup Visa, would provide a welcoming environment for job creating foreign entrepreneurs in the US. The new portal shows the way on how entrepreneurs can use the existing immigration system to set up ventures in the US and possibly even flourish. While these ideas have been used by creative immigration attorneys on behalf of their clients from time immemorial, it is good to know that the portal validates them, largely based on the input that the USCIS received from real entrepreneurs through its Entrepreneur in Residence initiative. Most important, the EIR has endeavored to train USCIS officers about the unique aspects of a startup business. It is hoped that USCIS officers, after receiving such training, will change their mindset and be willing to distinguishing a legitimate startup from a fraudulent artifice.

For instance, startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses.

The portal suggests that if a foreign student has a “Facebook” type of idea, he or she can start a business while in F-1 Optional Practical Training provided the business is directly related to the student’s major area of study. After completing F-1 OPT, this student can potentially switch to H-1B visa status (provided there are H-1B visa numbers at that time). Regarding the startup owner being able to sponsor himself or herself on an H-1B, the USCIS is surprisingly receptive, but still obsessed with the Neufeld Memo that there must be a valid employer-employee relationship and that the entity has a right to control the employment. Still, the USCIS suggests that a startup may be able to demonstrate this if the ownership and control of the company are different. This can be shown through a board of directors, preferred shareholders, investors, or other factors that the organization has the right to control the terms and conditions of the beneficiary’s employment (such as the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment). Some of the suggested evidence could include a term sheet, capitalization table, stock purchase agreement, investor rights agreement, voting agreement or organization documents and operating agreements.

Even with intra-company transferee L-1 visas for executives and managers, the portal recognizes that an entrepreneur may establish a “new office” L-1 (which could be a subsidiary, parent, affiliate or branch of the foreign company) with a validity period of one year, which allows a ramp up period where the entrepreneur can be involved in “hands on” tasks instead of function as an executive or manager. After the one year ramp up, the organization must be able to support the entrepreneur in a true managerial or executive capacity. The portal also refreshingly suggests that entrepreneurs who can demonstrate extraordinary ability in their field of endeavor can take advantage of the O-1 visa, and can set up a company who can sponsor them. Interestingly, there is no mention of the control test for the O-1 visa like for the H-1B visa. Finally, the portal also provides guidance for nationals of certain countries that have a treaty with the US, which facilitates the E-2 investor visa.

All this looks good on paper (rather online!), and it remains to be seen whether USCIS officers will faithfully interpret this guidance. Even if an H-1B founder of a company successfully establishes that the entity can control her employment through a board of directors or through preferred shareholders, the USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Also, positions in innovative startups may not necessarily fit under the occupations listed in the Department of Labor’s Occupational Outlook Handbook but may yet require at least a bachelor’s degree. It is hoped that USCIS examiners are trained to be receptive to other evidence to demonstrate that the position requires a bachelor’s degree. Furthermore, an MBA degree should be considered a specialized degree in itself since many MBA programs at top business schools focus on entrepreneurship and other fields, such as technology or web analytics, which equip one to be a successful entrepreneur.

In the end, the success of the Entrepreneur in Residence initiative largely depends on whether the USCIS has been able to alter the mindset of its officials who are in the habit of saying “No.”

by Bernard Wolfsdorf, ABIL Lawyer and Associate Minjie Xu
Wolfsdorf Connect

Charles Oppenheim, the Chief of Visa Control at the U.S. Department of State, recently announced that if EB-5 visa usage for Chinese nationals continues to grow, the issuance of EB-5 immigrant visas for Chinese investors may slow down sometime in the second half of fiscal year 2013. As demand continues to increase we can expect to see a quota waiting line appear during the period April 2013 until October 2013.  Chinese EB-5 investors with approved petitions should do everything possible to move up their final interviews and avoid any delays, or they may be stuck in this new waiting line. This would be the first time in the over 20 year history of the program that a cut-off date will have been established in the Employment Fifth Preference category.

Mr. Oppenheim did say if this happens, the Department of State would consider opening up the quota again in October 2013 when the 2014 immigration fiscal year begins. While China continues to take most of these EB-5 visas, we are seeing demand from other countries increasing steadily so Chinese EB-5 investors must expect to see delays. The big question is, how long will those delays be? Because petitions are currently taking 6-8 months to adjudicate, we would realistically expect to see delays of up to one year, otherwise this retrogression would have little impact on the quota.

The impact of a visa wait line could be far-reaching. Below are some possible consequences for Chinese investors:

With only 10,000 visas available worldwide, and as the EB-5 program becomes more and more in demand amongst Chinese (and other) investors, a backlog will inevitably come.  Exactly how long and how serious is not yet possible to predict.  What we do know is adding additional uncertainty to the program, with this lingering visa wait line, is not what is needed to make the program work. The good news is the program has bipartisan support in Congress, and while Republicans are opposed to increasing visa numbers (that have been frozen for over 20 years) it is hoped Congress will do the right thing and add visa numbers for employment (and hopefully family) visa categories soon. The time for immigration reform is now.

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

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

• Business/Tourism (B-1 and/or B-2)
• Dependent (J-2, H-4, L-2)
• Transit (C) and/or Crew Member (D) - including C-1/D
• Children applying before their seventh birthday traveling on any visa class
• Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

• Children applying before their 14th birthday traveling on any visa class
• Students returning to attend the same school and same program
• Temporary workers on H-1B visas
• Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with "clearance received," however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.

It remains to be seen whether the expanded IWP will improve the processing of H-1B and L visa applications. For over two years, US Consulates in India have routinely held up the processing of H and L visa renewal applications. Many of these applications are re-adjudicated even after the H-1B or L visa petition has been approved by the USCIS, and that too after the petitioner overcame objections by responding in detail to a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).  The visa applicant is often requested to provide further proof of the bona fides of the job opportunity or the petitioning company. This is done mainly for visa applicants who are employees of IT consulting companies. Even if the visa applicant is able to overcome any suspicions about the employer or the bona fides of the job opportunity at the US consulate, it could take several months before the visa is re-issued and this delay could cause extreme hardship to the applicant, including the loss of the job. As a result, many beneficiaries of H-1B and L petitions have not traveled outside the US, even for a vacation, out of an abundance of caution. First time H-1B and L visa applicants may still be subjected to a vigorous re-adjudication of their petitions, but it is hoped that the expansion of the IWP to H-1B and L applicants will eliminate further delays caused due to re-adjudications. If every H-1B or L renewal applicant is subjected to the same vigorous scrutiny as before then it would defeat the objective of the expansion of the IWP.

Still, applicants for renewals of their H-1B and L visas should not take for granted that they will be accepted for streamlined processing under the expanded IWP, especially if there have been changes to the terms of the employment. For example, if the H-1B petition was approved based on the beneficiary working at a client site in Philadelphia, and the client site has now been changed to San Francisco, the US Consulates in India do not take too kindly to this change after the approval of the petition. The US consul may want to see an amendment to the H-1B petition reflecting the new job site. Otherwise, there is a likelihood that the consul could recommend to the USCIS that the petition be revoked, leading to even further delays. Although petitioners may appropriately rely on USCIS guidance that an amended petition is not required if the job site changes, so long as a Labor Condition Application (LCA) is certified for the new site prior to the employee’s move there, US consuls in India may not honor this guidance.  It is therefore recommended that a petitioner continue to amend the H-1B petition if there is a change in the job site after the approval of the petition.

The U.S. embassy in New Delhi said that this is "one of many steps the Department of State is taking to meet increased visa demand in India." The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website at http://www.ustraveldocs.com/in. For more details about procedures for submitting a renewal application, see http://www.ustraveldocs.com/in/in-niv-visarenew.asp

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Despite all the post-election talk of a chastened GOP promising flexibility on comprehensive immigration reform (CIR), Republicans seem more determined than ever to reduce the number of green cards issued annually.  They would do so by eliminating the Diversity Visa lottery.  Their latest ante is a miserly family-unity sweetener to the failed STEM bill which would additionally benefit a population presently comprised of about 320,000 individuals -- family members of "green card holders who marry after getting their residency permits". In return for dropping the DV lottery, the GOP's new proposal would let these family members "come to the U.S. one year after they apply for their green cards," but would not let them "work until they actually got the card" -- years later. The annual 55,000 green-card DV lottery -- which I've criticized as a program "[relying] on casino-style randomness as the basis to sprinkle green cards on a lucky few" -- now upon further reflection seems to me as a category worth saving. 

Readers of this blog know that I've challenged the notion that the government is particularly good at picking immigration winners and losers. Don't get me wrong.  I'm all for allowing talented university graduates with degrees in Science, Technology, Engineering and Math to get accelerated green cards. Still, some of the greatest success stories from American history (from Washington, Lincoln, Edison, Carnegie and the Wright brothers) and our own era (Jobs, Gates, Dell, Puff Daddy, Lady Gaga and Jessica Simpson) never even graduated from college. 

So while we fashion a 21st Century CIR program to serve America's clear national interests, we should also acknowledge a degree of humility, and the benefits of randomness, chance and serendipity. We can never develop a flawlessly intelligent system that brings in just high-contributing immigrants.  But we can debunk the errant myths about immigration and humbly acknowledge that great achievers arriving in America can come in through other than the employment-based visa categories.  Sergey Brin, the co-founder of Google, came with his parents to America from Russia as a refugee, much like Tech CEO, Tan Le, fled Vietnam for refuge in Australia, and then immigrated to California:

In the same serendipitous way, the DV lottery brings in immigrants who tend to be younger and from countries with low rates of green card issuance. Some of them, or their children, achieve success in their chosen endeavor, whether that be in soccer, or, in helping American children understand one of the world's great religions, or, like two of my clients who won the DV lottery -- a Japanese MBA graduate of Stanford, or a political opponent of an oppressive Middle Eastern regime -- they achieve it by enriching America in lasting, immeasurable ways.

Proponents of an expansive form of CIR should therefore remind the Democrats to continue standing firm against the GOP's latest proposal to cut green-card quotas.  For as the Dems' former leader, Richard Gephardt, has noted: “Those who have prospered and profited from life's lottery have a moral obligation to share their good fortune.”

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

As Republicans join Democrats in contemplating reform of the nation's dysfunctional immigration system, the final line of the Pledge of Allegiance ("with liberty and justice for all") is the best place to start.  Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world. 

While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky.  We have posted a "road closed" sign when we should be cleaning off the welcome mat. 

Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who've too often espoused an inhospitable "culture of no."  

America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge's promise of justice and liberty for all.  Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:

Be more respectful and stop treating visa applicants like suspects and liars. Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants.  Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures.  In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers.  Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, "Ugly American" consular behaviors are a turn-off to those whom we would welcome.

Eliminate consular absolutism. No one -- not even someone as admired until recently as General David Petraeus -- is infallible.  Yet current law says that no government official, not the President or the Secretary of State or the Attorney General or any federal judge, can correct mistaken findings of fact made by a consular officer when deciding to refuse a visa application.  Justice for all means due process for all and it means that no one, not even consular officers, are above the law.  Congress should create a means of challenging consular visa refusals and visa revocations, especially where the rights of American companies and families are adversely affected.  The review process can begin with a pilot program covering all immigrant visas and nonimmigrant visas for investors and work-visa applicants, and then be expanded to cover additional categories.

Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation.  When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated "third-degree" style of border enforcement must give way to the rule of law and enhanced due process protections.

Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions.  Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-"tribunal" that has failed to fulfill its professed mission.  It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.  It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard. 

Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor's Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.

Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security's Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.

Reassign Agency Roles.  The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants.  FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor's Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as "labor certification."  Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists.  Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.

Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and -- through remittances sent back home -- in the exporting nation as well.  Why then should there be a quota on economic growth?  The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration.  Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics.  Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes.  The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low.  So, why have a quota on "smart people" (as business leader and philanthropist Bill Gates has asked)?

Establish uniform privileges across all work visa categories.  There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited.  If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories.  There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return.  Nor is it logical that H-1B visa holders have "portability" of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges.  And the mother of all illogical immigration notions -- the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven -- should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).

Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents.  Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system.  Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination.  Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators. 

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.

***

These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers.  While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.

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

It may have taken the Bolsheviks 10 days to shake the world but the presidential election last week did it in one. The political calculus on comprehensive immigration reform changed utterly and likely forever.

Hispanic voters accounted for 10% of voters on November 6th, reaching double-digits for the first time, and President Obama won them by a 71-28% margin. The number of registered Latinos soared by 26% in the past 4 years to an astonishing 12.2 million. The Hispanic rejection of Governor Romney contrasts sharply with the 44% of the Hispanic vote won by former President Bush in 2004. The latter pushed for CIR in 2007 and remains the only President ever to make a televised speech on immigration from the Oval Office. Moreover, the last time that CIR passed the US Senate in 2006, 23 of the 62 Aye Votes, came from Republicans, including one from then Senate Majority Leader Bill Frist of Tennessee.

Nor have Hispanics always been in love with President Obama under whose administration deportations reached record levels. Despite his 2008 promise to move on CIR, the President had done precious little until this summer, something he had to admit under tough questioning at a forum sponsored by the Spanish-language Univision network.  Then came the President’s Deferred Action for Childhood Arrivals (DACA) initiative and the momentum for change took off.  On the day after the election, an ABC News/Washington Post poll revealed a majority of all Americans (57%) backed a pathway for citizenship to bring the undocumented in from the shadows; among Hispanics the notion was even more popular (82%). Fox News commentator Sean Hannity proclaimed that his position on CIR had “evolved”; Arizona Governor Jan Brewer who rode to re-election on her state’s nativist immigration law now thought that CIR was “fine and dandy”; libertarian Senator Rand Paul  announced an intent to make CIR a key plank in his run-up for 2016 and old-time immigration stalwarts like John McCain and Lindsey Graham who had seemingly found their old views radioactive in recent years now rediscovered them, eager to join in bipartisan CIR discussions with their Democratic colleagues.

In his first news conference after his reelection on November 14, 2012, President Obama expressed confidence that he could pass an immigration reform bill early in his second term. He said that we should “seize the moment” buoyed by the strong endorsement he received from Latino voters favoring him over Mitt Romney. Here is a transcript of the section of the news conference dealing with immigration:

While it is remarkable that the strong Latino support has changed the dynamic on immigration reform, let us not forget that comprehensive immigration reform should also encompass all others who have been mired under a broken immigration system. President Obama did make reference to “[t]he business community continues to be concerned about getting enough high-skilled workers,” but he said it more as an afterthought. We completely and wholeheartedly support a pathway to legalization and citizenship for the millions of undocumented immigrants who have otherwise led productive lives in the US and benefit the country in more ways than one. Immigration reform should not be viewed as only a Latino issue, it is an American issue. The view that reform is a Latino issue is not surprising due to two reasons. First, most Americans continue to think that immigration benefits the immigrants not themselves. Second, because of that, business immigration is not deemed to have the ethical legitimacy the same way that family migration has. For that to change, for sweeping CIR to become reality, all of us must realize that immigration is not a problem to be controlled but an asset to be maximized.

Immigration reform will surely benefit immigrants, but in turn, will also benefits America. It will create a stimulus for the economy and make employers more competitive. We therefore hope that immigration reform will ameliorate the plight of beneficiaries of approved I-140 petitions who are stuck in the endless employment-based third (EB-3) backlogs. These are people whose employers have obtained labor certifications years ago, and who are in the pipe line for a green card, but for the oversubscription in the preference category. Indeed, the wait for an India EB-3 whose labor certification is filed today is anticipated to be 70 years. This is dysfunction at its worst.  The wish list for reform is endless and that is because the system is so broken. We clearly need to expand family-based visa numbers too, and it is clearly inhuman to tolerate spouses of permanent residents to be waiting for 3 years before they can get green cards.  We should bring back more due process as well as give more discretion to the USCIS or the Immigration Judge to decide whether an immigrant convicted of a crime should stay or be deported. The 3 and 10 year bars have had the perverse effect of creating a larger undocumented population in the US. Because of these bars, many are caught in a federal Catch-22. They are unable to apply for green cards in the US, but if they return to their home country to process for a visa at a US consulate they will be barred for 10 years.  Ironically, sluggish economic growth has done what ever-stricter border enforcement could not. Illegal immigration has consistently receded in recent years, spiking in 2000 under President Clinton but down by a third by the time that President Obama took office. Between 2005-2010, the Pew Hispanic Center estimates that as many Mexicans departed these shores as arrived. Today, net migration from Mexico is non-existent.

We focus here in this blog on the need to also reform our employment-based immigration system. Future blogs will focus on other reform proposals. Any CIR proposal needs to contemplate an expansion of the number of green cards under the employment-based preferences so that an employer is able to obtain the services of a foreign national more quickly after the US labor market has been tested through the labor certification process. We also need more temporary work visas. The current 65,000 H-1B cap, along with the additional 20,000 H-1Bs reserved for graduates with advanced degrees from US universities does not meet the demands of US employers. Moreover, we  eed to provide an incentive for foreign students whom we educate, especially in STEM (Science, Technology, Engineering and Math) fields, to not leave and compete with the US from their home countries. Studies have shown that the US is losing in the competition for global talent, and any reform proposal needs to stop this bleeding. There should also be better oversight over officers who are bent on denying temporary work visas because they have self-appointed themselves guardians of the economy or because they do not like a certain business model, such as India-based IT consulting, which is what the Neufeld memo sought to do. Officers must faithfully apply the law as intended by Congress. Finally, we also need to have a visa that will encourage entrepreneurs and startups in the US.

In addition to broadly reforming the employment-based immigration system, here are some additional pointers that can greatly improve the system we have presently. Even if there is reform of the employment-based immigration system, backlogs could still build up again the coming years. When the numbers in the employment and family-based system were last  increased under the Immigration Act of 1990, who would have envisaged that the EB-3 for India would be a 70 year wait!  As part of CIR, INA §203(d) should be modified to specify that family members should not be counted separate and apart from the principal alien to stop double or additional counting. Such double counting undermines the principle of family unity which is at the core of our immigration values. Also, when the Child Status Protection Act (CSPA) was enacted, the kind of visa retrogression we have today did not exist. Congress never anticipated systemic visa backlogs particularly affecting EB3 and EB2 for India and China. That is why they wrote the age formula the way they did. Not until the priority date is current can the pendency of the I-140 be subtracted from the chronological age to give you the CSPA age.  In any CIR proposal this should be changed so that you only look to the age of the child when the I-140 is approved. That would make the CSPA relevant to backlogged categories, which is not now the case. We also propose that INA § 245(a)(3) be modified to allow the filing of an adjustment of status application without regard to the priority date. This could be possible for both FB and EB beneficiaries who have an approved an I-130 or I-140 petition.  Such adjustment of status applications will be provisionally submitted with final approval subject, as under current law, to the immediate availability of an immigrant visa number.

With regard to H-1B visas, the truth is that a cap on H-1Bs is a cap on the US economy and should be removed. Since many Indian and Chinese students start work in the United States as temporary H-1B workers, we propose the creation of a streamlined or Blanket H-1B application process for large H-1B employers similar to the Blanket L system under which work visa applications can be presented directly to US Consulates abroad, thus bypassing the need for individual H applications with the USCIS. Allow large H-1B employers to enter into centralized application arrangements with US Consulates in connection with the Blanket H-1B similar to what the USCIS now offers many corporate employers so that economies of speed, efficiency, and informed adjudication can be achieved on a consistent basis. It would also be a good idea to remove the six-year maximum imposed by the Immigration Act of 1990 and transform the H-1B visa into what it really is, namely a "pre-immigrant" instead of a "non-immigrant" visa that it is not now and never has been. Also, end the ban on spousal employment for H-4s that cruelly and unnecessarily puts the promising careers of countless professional spouses into the deep freeze. There should be a broader more accessible visa, unlike the very limited H-2B visa we have today, for essential  factory, hotel, restaurant, construction and farm workers. That will be the only way to ensure that the undocumented population does not build up again.

If the labor certification procedure will still exist in a CIR proposal, the notion of minimal qualifications that is required when an employer files a labor certification is wholly artificial and does not exist in the real world. Although the points system was suggested in earlier CIR proposals in 2006 and 2007, a points-based system may not effectively match the skills of potential immigrants with prospective employers. Those who wish to be productively self-employed as entrepreneurs can avail of a specific startup visa.   CIR is a good opportunity to broaden the application of the equally qualified standard from academic to all PERM labor certification cases.  We also suggest removing the need for print advertisements in all PERM cases since many employers, especially in IT, advertise only on the Internet;   allowing use of experience with the same employer, and eliminating the need for a fixed job description that can never change no matter how long a wait till the green card. Keeping a PERM application so static will be totally unrealistic for EB backlogs if they again begin to accumulate.

The shocks waves of November 6th are only a harbinger of things to come.  A new study by the Pew Hispanic center predicts that, within 20 years, 40 million Hispanics will be eligible to vote as compared to 23,7 million today.  Hispanics are younger  and have a higher birth rate than other groups. If the rate of Hispanic political participation reaches the level of Whites and African-Americans, we could experience a doubling of Hispanic voters by 2032. Hispanic voters will constitute fully 40% of the growth in the American electorate between now and 2030. If the rate of Hispanic naturalization rises, this would be even more powerful since 5. 4 million permanent residents of Hispanic heritage did not vote.  Nativists should also take note of the fact that about 800,000 Latinos turn 18 each year. Furthermore, it was not just the strong Latino turn out in favor of Obama. Even Asian Americans, who make up 3% of the electorate, overwhelmingly supported Obama.

The graying of America may be the most serious domestic problem of the next quarter-century. As the massive baby boomer generation slouches towards retirement, an aging population needs the fountain of youth. Immigration may be the magic elixir. The US Census Bureau estimates that the number of elderly people over age 65 could rise from 34.6 million today to 82 million by the year 2050. This trend will be most evident between 2011 and 2030 when those baby boomers born from the late 1940's to the early 1960's hit retirement age. Census experts predict that the number of senior citizens over this period will soar from 13% to 20% of the population. During the same time, the number of foreign-born people living in the United States should dramatically increase, both in absolute terms and as a percentage of the general population. Their number should grow from 26 million today to 53.8 million by the year 2050, an increase from 10 to 13% of the population. If these census statistics are correct, continued high levels of immigration will be necessary to provide a large enough workforce to support a rapidly aging America.  The Census Bureau predicts the immigrants will become a majority in Texas within the next 14 years; five states will have a majority of non-White residents by 2025 and, in the course of the next half-century, Latinos may comprise about 25% of the entire US population. That's a lot of folks and they will no longer be concentrated in a select number of states, such as California, New York, Texas, or Florida, but will be distributed throughout the nation. They will be the deciding votes in elections on all levels and their voice will be a strong and powerful one in setting the political agenda. In 1998, the National Immigration Forum joined with the Cato Institute to publish a study by Stephen Moore on the fiscal impact of immigration. What he found was startling and directly relevant to the problem so much on the mind of Chairman Greenspan. Most immigrants arrive in the United States in the floodtide of their working years; more than 70% of them are over age 18 when they get here. Stephen Moore estimated that there were roughly 17.5 million immigrants now in America whose education was paid for by their home countries, not US taxpayers. He concluded that this represented an infusion of unearned human capital worth some $43 trillion into the US economy. At a time when fewer and fewer wage earners will have to be paying for growing retirement benefits enjoyed by more and more elderly, it is worth remembering that immigration is one of the main forces keeping the Social Security Trust Fund afloat. In 2007, for example, the Social SecurityTrust Fund realized a net benefit of $120-240 billion from undocumented workers in the shadow economy representing 5.4%-10.7% of the Fund’s total assets of $2.24 trillion. Immigration is an essential strategy that responsible policy makers must use in a robust way to solve the systemic problem of financing Social Security.

For all these reasons, there is no alternative to sweeping comprehensive immigration reform.  We are all in this together. The American poet James Russell Lowell famously wrote that “once to every man and nation comes the moment to decide.” This is our moment. The time to act is now.

Charles Kuck, ABIL President
Musings on Immigration

Now that Republicans have come to the immigration reform table, we have to ask ourselves, what will immigration reform look like five years after it was last addressed.  One thing is certain, the leverage has changed, and there are new players are at the table. Not the least of which are "Dreamers."  What would pass for immigration reform in 2007 under a weakened President Bush will NOT be enough to satisfy all of the constituencies demanding immigration reform in 2013.

What We Almost Had In 2007

There has been some talk of reviving the bill written in 2007 under President Bush.  This would be a monumentally bad idea and would be terrible for the future of immigration to America.   Let's take a look at what was on the table from a handful of Republicans, some anti-immigrant, (Graham, Kyl, Sessions, DeMint, Vitter, and some McCain), and more pro-immigrant Democrats (Feinstein, Martinez, Specter, and Salazar).  The Comprehensive Immigration Reform Act of 2007 was primarily an anti-immigration bill and included the following provisions, as outlined in Wikipedia:

Legalization and Future Flow

• a new class of visa, the "Z visa", that would be given to everyone who was living without a valid visa in the United States on Jan. 1, 2008; this visa would give its holder the legal right to remain in the United States for the rest of their lives, and access to a Social Security number. After eight years, the holder of a Z visa would be eligible for a United States Permanent Resident Card (a "green card") if they wanted to have one; they would first have to pay a $2000 fine, and back taxes for some of the period in which they worked. By the normal rules of green cards, five years after that the illegal immigrant could begin the process of becoming a U.S. citizen.
• would have required such an illegal immigrant to be in his or her home country when he or she applies for a green card.
• would have also ended family reunification, in which an immigrant who becomes a U.S. citizen can ease the process by which their relatives from outside the country can get green cards. Under the bill, only the spouse and children of a new citizen would be made eligible for green cards.
• would eliminate the employer-sponsored component of the immigration system and replace it with a point-based "merit" system. Points would be awarded by the USCIS adjudicating officers for a combination of education, job skills, family connections and English proficiency. Sponsorship of a U.S. employer would not be required although additional points would be awarded if a U.S. job offer was available. The labor certification process would also be eliminated. Several family-based immigration categories would also be folded into the point system. Points-based systems are already used for admitting skilled immigrants in the United Kingdom, Australia, Canada and other developed countries.

Guest worker program

• Another new category of visa, the "Y visa", would have been created, that would let temporary guest workers stay in the country for two years, after which they would have to return home. The original bill set this program at 400,000 people a year.

Increased enforcement

• The bill would have increased enforcement of the United States-Mexico border, including increasing the number of border patrol agents by 20,000 (not to 20,000!) and adding another 370 miles (600 km) of fencing, among others.
• The bill would have also created a new program, the "Employment Eligibility Verification System", that would be a central database meant to hold immigrant-status information on all workers living in the United States. Eventually all employers, regardless of size of the company, would have been required to assemble this information and keep the system updated on all their employees.
• Under the terms of the bill, no further part of the bill would have gone forward until these measures had been implemented.

DREAM Act provisions

• The bill contained within it the entirety of the DREAM Act, a bill that has been introduced unsuccessfully several times in the House and Senate, that would provide a path to citizenship for illegal immigrants brought into the country as minors who either go to college or serve in the U.S. military; it would also restore states rights in determining eligibility for in-state tuition.
• The DREAM Act has four basic requirements, which are:

The problems with this bill are multiple, most importantly the provisions that essentially stop further family based immigration to America, that make our employment based system one of points instead of process (ask Canada how many Ph.D. taxi cab drivers they have), and those that would delay the entire bill until the "borders are secure" and draconian enforcement provisions are in place.  Frankly, it was a bad bill that virtually everyone in the immigration advocacy community opposed.

What We Need In 2012

What we need now is an Immigration Reform Plan that looks likes the America of the future, NOT the America of the past.  We need changes to our immigration system that BRING the right people, at the right place, at the right time.   We need a 21st century immigration system that KEEPS America at the top of the world's economic, social, and political leadership.  We need an immigration system that keeps America Strong and growing for the future.

So, what does this 21st century immigration system look like?  Lets make a list of the five key parts of my plan (presuming I was a sitting U.S. Senator):

Verifiable, Secure Borders and Mandatory E-Verify (post immigration reform implementation)

• This means secure borders without militarization.  We have effective control over virtually all our territory but will never be able to wrap a bubble around America.   (can you say "war on drugs.") Let's effectively use our enforcement officers, let's give them the funding and the tools to do their jobs, and then let's trust them to make this happen.  ICE knows how to enforce our immigration laws. Let's let them. 
• We are going to have mandatory E-Verify. Let's phase it in over the next 3 years, while the immigration system is overhauled, so that no employer is deprived of necessary workers, and let's end this charade of the current system of "don't ask, don't tell."  THEN, you can go after the so-called "bad" employer.

Workable Employment and Investor Based Nonimmigrant and Immigrant Visa System (increased visas, simpler process, more accountability from USCIS)

• Our H-1B quota system unnecessarily ties the hands of employers; get rid of it.  The market will take care of the quota.
• There should be much more generous allowances for advanced degree holders to immigrate immediately to the US, with confirmation of employment in their fields.  There also needs to be no line longer than two years for those employers and employees who prove there are no American workers to fill their positions.  Doing otherwise is sheer lunacy, and is actually the system we have now!
• There needs to be better oversight of rogue and job-killing USCIS examiners who, at times, seem bent on denying an employer's cases, rather than on focusing on the merits of the case before them.  Allow USCIS (and ICE) officials fire bad employees.
• There needs to be broader and easier processes for immigrating to the US through Startups and other types of investment.  Incorporating the Startup Visa Act of 2011 into the immigration overhaul bill is an excellent "start."

Enhanced Quota Based Family Immigration Program to limit wait times, and ensure that no one in the "line" gets residence before those who apply for legalization.

• Family immigration is the backbone of the American immigration system, and we have built our country on its foundation for the last 50 years.  There is certainly no need to eliminate the program, but it could use an overhaul.
• No line should be longer than 7 years.  Waits we see now extending for up to 40 years for some countries are simply insane.  Increase the available numbers for three years, get the "line" to manageable levels, eliminate the brother/sister category, and make this system work.   Its doable, and fair.

Economic/Unemployment Rate based Temporary Worker Program (Agricultural and Non-Ag) for non-degreed positions

• Clearly we need an agricultural worker program that functions for farmers to use.  Senator Saxby Chambliss has long proposed a workable solution.  Include it in this bill.
• For future flow of agricultural worker, the system in place is too hard to use.  Have the USCIS run the program through State labor agencies, have the states set up the guest worker program for that state, serve as the primary recruiter, and ensure that employers comply with working condition and salary requirements.  This makes the system easier to use, not harder.
• For Non-agricultural workers, the answer is the same. Have the individual states serve as the clearing house and be the source of securing qualified labor. This process ensures that US workers are not overlooked and that temporary foreign workers are paid the correct wage and have approved working conditions.  The states can work effectively with ICE to ensure folks confirm their departure at the appropriate time.

Broad Legalization Program (apart from the DREAM Act) based upon length of residence (3 years), tax and fine payment, with temporary status and applicants placed at the end of the shortened line.

• This is the simple (but biggest) part of the immigration reform plan.  The first steps should be:

Obviously, there are many details to work out in this five point plan.  And, not all advocates for reform will agree with me. But, this plan makes legal status the norm, not the exception, is simple, straightforward and could be almost immediately implemented by USCIS.  Let's not settle for the terrible "immigration reform" bill of 2007.  We need the future.

What does this five point plan mean for Congress?  Besides working out the details, the key component in this plan means that the anti-immigration voices, e.g. those who favor NO immigration to America, including Romney's key immigration adviser Kris Kobach, are simply not welcome at the table. Now, it seems terrible to exclude people from what should be an inclusive process. But, folks like Kobach and his ilk, such as those at the inappropriately named "FAIR" ("moratorium") and "CIS," (enforcement only) have deprived themselves of a seat at the table by failing to offer any solution other than self-deportation to a broken immigration system that is vital for America's future well-being and economic growth.

So there you have it.  The How, the What, and the Why.  Now we need the When.  Let's get busy and starting calling our Senators and Congressman to make this happen this year!  You can reach them by calling the Capitol Switchboard at (202) 224-3121 and asking for your Senator.  Tell the receptionist you are calling to urge the Senator to pass immigration reform this year.  If you don't call,  I promise you the Know-Nothings will be calling and they will be loud and they will be forceful.  Now it is our turn to demand real immigration solutions and real change.  Let's not be shy!

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The caramelizing of the American electorate manifested itself last Tuesday in sweet, polychromatic splendor.  Clearly, American voters -- especially the youth vote, and ethnic communities of Hispanic and Asian-Pacific origin -- chose "leaders who are likely to welcome rather than reject our nation's courageous and deserving immigrants." With the elasticity of a yoga master, former CIR stalwarts in the Senate, who had later pivoted to the Tea-Party right to survive reelection, including Orrin Hatch (who's "willing to listen" on CIR), Lindsay Graham (who wants the poison pill of Birthright Citizenship added to CIR) and John McCain (who has moved from "complete the danged fence" to "support[ing]" CIR), are now bowing in "downward dog" to the popular will.

Sensing the prospect of irrelevance (an "angry white guy" problem) and perhaps extinction, much like the Beach Boys, whose fans -- according to Bill Maher -- "are dying" out, Republicans now are bending quite flexibly in an their about-face "evolution" on comprehensive immigration reform (CIR), including support for a path to citizenship, even if dubbed "amnesty."

Post-election discussions of strategy among family- and employment-based immigration stakeholders have ranged from the taking of baby steps in the lame duck session to more fundamental reforms in the next Congressional term.  Although in a different political environment I've recognized the CIR-piecemeal approach of politics as the art of the possible ("Timing is Everything for Hungry Immigration Reformers"), I think the country has shifted tectonically in its embrace of CIR, as confirmed by exit polls revealing a 65% preference among all voters for granting unauthorized immigrant workers "a chance at legal status." 

Like Lyndon Johnson upon his unforeseen ascent to the highest office in the land, the timing is perfect for President Obama to seize the moment and go BIG and go BOLD on CIR, as I suggest in my post-election interview on LXBN.TV, available in the 12-minute uncut version here, and in the summary version at this link and the video below:

In forthcoming blog posts, I'll drill down with specific suggestions to improve the immigration system, to make it more fair and welcoming, to reverse the brain drain and instead to serve as a multi-trillion-dollar stimulus.  I'll also discuss strategy by -- among other approaches -- using GOP talking points to gain consensus on massive skill-based immigration quota increases.

As with the Fiscal Cliff and the imminent increase of revenue (through elimination of the Bush tax cuts) and the automatic spending cuts (demanded by Sequestration), so too with immigration.  President Obama holds the upper hand, and Republicans can be made to stand tall like a skier in Dancer's Pose or to fall in the new American yoga of immigration reform.  His Administration's exercise of executive power through DACA --  a cost-free contribution to his reelection -- is but one of many examples of "pen-stroking" actions he can take to change the system, preferably with, but if necessary, without, Congressional cooperation on legislation.

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

Since President Obama’s decisive re-election victory, there has been a growing realization, mainly among Republicans, that the party will continue to be decimated in future elections if it does not take action on reforming the broken immigration system. It is clear that Romney’s comments on self-deportation, along with his embrace of Kris Kobach, the architect of the anti-immigrant laws of states like Arizona and Alabama, hurt him terribly among Hispanic voters in his quest for the White House. Recently, House majority leader John Boehner has pledged to work with the President and the Senate, which is controlled by the Democrats, to reach a deal on immigration. This would have been unthinkable before the election results on Tuesday, November 7 and is like music to the ears of immigration advocates who have been complaining for years about the need to fix the immigration system.

This bonhomie among GOP leaders and pundits for positive immigration reform may be short lived. Rancor may soon set in, as it is already happening, with regards to preventing the “fiscal cliff.” The country is still divided evenly, and a foreign newspaper, the Times of India, after the 2012 elections, astutely called us “The Divided States of America.” We still ardently hope that Congress can bring about comprehensive immigration reform (CIR), which would include an expansion of green card categories and temporary visas, along with the legalization of the 12 million or so undocumented people living here and contributing to the US. In order to prevent a buildup of the undocumented population in the future, reform must also allow for visas that would facilitate future flows of legal workers.

While all this is achievable, and a deal can be struck, it could also come apart if the bottled up enmity between the two parties flares up again. Notwithstanding the likes of Sean Hannity moving over to the side of CIR, there is bound to be rebellion in the rank and file of the Republican party, which considers CIR anathema. In his stirring victory speech Obama said, “We believe in a generous America, in a compassionate America, in a tolerant America, open to the dreams of an immigrant’s daughter who studies in our schools and pledges to our flag.” But Obama still has the ability to deliver his promise to the Hispanics, Asian Americans and others who voted him in and routed Romney in the event that Congress enters into another stalemate. He has a powerful card up his sleeve, and this is his ability to provide relief through administrative action. Administrative action is not a perfect alternative, as the President does not have the power to give green cards without Congressional authorization. But he does have the power to defer the deportation of large groups of undocumented immigrants, as he did through the Deferred Action for Childhood Arrivals (DACA) program, which we have shown can withstand judicial scrutiny. He can expand DACA to a broader group of undocumented immigrants who have lived in the US for say 5 years, and have not been convicted of a felony or three misdemeanors. As we have shown in our prior blog, Issues Ripe for Rulemaking: Some Modest Proposals, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation or even through a policy memo. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” This we have explained previously in Comprehensive Immigration Reform Through Executive Fiat.

Knowing the power of the President to take action on his own, Congress will want to remain relevant and protect its institutional prerogative by enacting legislation so as to avoid creating the opportunity for the exercise of presidential initiative.  That is why Obama might want to enlarge DACA to other groups, not as an alternative to CIR but to make it more likely. If he announces broader initiatives, he can use them as a bargaining chip to withdraw if and when Congress acts. The President remains the First Officer of our Government and, as the Republicans are beginning to realize, the political saliency of the immigration issue can no longer be denied or deferred. By keeping the pressure on through the sustained but disciplined assertion of executive initiative, the President makes it more likely, not less, that CIR will make the bumpy transition from rhetoric to reality.

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

Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a letter of Efren Hernandez or Jacqueline Bednarz from more than a decade ago as if they have the halo of an authoritative and binding decision. The problem is that unless the government actually promulgates a regulation under the Administrative Procedure Act, such memos and letters are hardly binding. Still, stakeholders, including the government agencies, have conveniently created an illusion that they are binding, and readily cite to them, even when they are not.  From an immigration attorney’s point of view, the stakes are too high for challenging their authority. It is strategically prudent to demonstrate how their client qualifies under such informal agency guidance, and seek a quick approval, rather than challenge their validity in long drawn litigation.

Agency interpretations advanced in “opinion letters” neither justify nor enjoy Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (contrasting interpretations in opinion letters with those “arrived at after…a formal adjudication or notice-and-comment rulemaking.”). Instead, “interpretations contained in less reliable formats such as opinion letter are ‘entitled to respect’ under Skidmore v. Swift., 323 U.S. 134, 140 (1944), but only if they have the ‘power to persuade.’” Christensen, 529 US at 587; see also Catskill Devel, LLC. V. Park Place Enter. Corp., 547 F.3d 115, 127 (2d Cir. 2008) (under Skidmore, agency viewpoint articulated in an opinion letter was “entitled to deference only to the extent that it ha(d) the power to persuade” the court).

Much of our legal reasoning rests upon a very uncertain foundation. One is reminded, for example, that all of the American Competitiveness in the 21st Century Act (AC 21) interpretations upon which we routinely rely are not the product of APA rulemaking but of agency memoranda or opinion letters. To the extent that these may benefit us or our clients, let us remember that they are not endowed with Chevron-style deference and can be ignored or overturned by subsequent court rulings.  We have seen this in the context of AC 21 adjustment of status portability. In a 2009 decision styled Herrera vv USCIS, No. 08-55493, 2009 U.S.App. LEXISs 14592 (2009), the Ninth Circuit held that the revocation of an I-140 petition under INA 204(j) without bothering to acknowledge or distinguish the facts of the case  sub judice  from the 2005 Aytes Memo on AC 21, which states that a withdrawal of an I-140 petition after 180 days did not undermine portability. See Cyrus D. Mehta, Ninth Circuit In Herrera v. USCIS Rules that Revocation of I-140 Petition Trumps Portability, http://www.cyrusmehta.com/Print_Prev.aspx?Subldx=ocrus200979113434.

Several years ago, stunned lawyers learned to their utter dismay that even opinions of the legacy INS General Counsel could not be counted on. Matter of Izumi, A 76 426 873 (decided by Associate Commissioner, Examinations, July 13, 1998). The absence of  guidance is the lawyer's worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.  In the absence of borders, can order survive?

At the recently concluded CIS Second Annual Conference in Washington DC on October 18, 2012, Cyrus D. Mehta addressed key issues ripe for rulemaking involving unlawful presence, American Competitiveness in the 21st Century Act (known as "AC 21"), EB-5, Child Status Protection Act and more. A power point presentation, which is part of the conference record, lays out some areas that are in need of rule making as well as some areas that do not need new rulemaking. Of course, this presentation does not claim to cover every issue, but selects a narrow slice of issues, which can greatly benefit from rulemaking.  The need for rulemaking, in the opinion of the authors, can be broken into several components, as follows:

First, some areas are ripe for rulemaking especially when the law has been interpreted in a consistent and reasonable manner over several years through policy guidance memos.  Although there may be no compelling need for a rule, a rule affirming a guidance memo would create consistency and would guide all the agencies administering immigration law. One area that would benefit from such rulemaking is unlawful presence that triggers inadmissibility under INA 212(a)(9)(b)(B). There already exists a weighty USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence, which has generally been accepted by the government and stake holders. Still, a   rule on unlawful presence  affirming this memo would bind CBP, where some offices have taken inconsistent position on Canadian overstays not being treated as if they are in duration of status (like students in D/S) and thus not accruing unlawful presence and triggering the 3 or 10 year bars. Such a rule could also potentially help to clarify the conundrum between maintenance of status and period of stay authorized by the attorney general (POSABAG)., as discussed in  this previous blog,  Cyrus D. Mehta, Victory in El Badrawi: Narrowing The Disconnect Between Status and Work Authorization, http://blog.cyrusmehta.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. It is incongruous to allow ICE to attempt to remove one from the US while that person has filed a timely application with USCIS to extend nonimmigrant status or is in the process of adjusting status to permanent residence.  The promulgation of a rule may also avoid differences in interpretations by US consulates, such as minors accruing unlawful presence for purposes of INA 212(a)(9)(C) bar when  minors do not accrue unlawful presence for purposes of the 3 and 10 year years under 212(a)(9)(B)(iii)(I).  Finally, such a  rule should affirm informal USCIS Chief Counsel Divine letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US, See Cyrus D. Mehta,  Can One Spend The 3-And 10-Year Bars In The US? http://cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=30&Year=All.

Second, some areas simply cry out for a rule because the absence of which renders the statute inoperable. A regulation long overdue   will assist a group of EB-5 investor applicants who have filed removal of their conditional resident applications more than a decade earlier. The 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273 – which affect investors who filed I-526 applications between January 1, 1995 and August 31, 1999 and I-829 applications before November 2,2002 -  can only take effect upon the promulgation of a regulation.  Their I-829 applications still remain pending in 2012 due tot the absence of a  regulation. Even in the absence of such a long overdue regulation, EB-5s should at least be found eligible for naturalization as they have been conditional residents for over a decade.

Third, we can and should advocate for new or modified regulations, where there has been harshness and the impact to those seeking immigration benefits that may not necessarily reflect the plain meaning of the statute. Such regulations may also be in the spirit of the Obama administration’s policies concerning prosecutorial discretion. We make a few selected proposals that can greatly improve both efficiency and fairness:

Finally, there are legal issues, where regulations have already been promulgated, that do not require modification through a new rule just because of a new sentiment. For example, since the economic downturn, there has been a tendency on the part of immigration officials to become self appointed guardians of our economy, and with misguided zeal, they endeavor to protect jobs of American workers by reinterpreting the law. The definition of the employer-employee relationship for H-1B purposes is quite clear under 8 CFR 214.2(h)(4)(ii), and attempts to modify it through the Neufeld Memo are  simply not necessary, See Cyrus D. Mehta, Halcyon Days In H-1B Visa Processing,  http://blog.cyrusmehta.com/2010/02/halcyon-days-in-h-1b-visa-processing.html.  The Neufeld Memo too has been treated as interpretive guidance and not binding in Broadgate v. USCIS, http://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2010cv00941/142518/15.  We propose that the Neufeld Memo be withdrawn. Similarly, the L-1B specialized knowledge definition under 8 CFR 214.2(l)(1)(ii)(D) reflects the intent of  the Immigration Act of 1990 (IMMACT90), and there is no need to muddy the waters by restricting the definition by resurrecting administrative decisions prior to IMMACT90 when the specialized knowledge definition was more restrictive, and included proprietary knowledge, which was eliminated after 1990.

What is blindingly transparent is that what we have now simply has broken down. Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration practice who would not acknowledge a real and present need for rules that are clear, specific and accurate?  While the broad outlines of immigration policy are set by Congress what this policy means each day in real life is most often a matter of what the implementing regulations say. The job of Congress is to articulate a long- range vision while that of the Executive is to make short-term, tactical adjustments.

How the agency puts the law into practice often has more to do with its ultimate impact, of lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. The proposals we advance reflect our core belief that the American economy would benefit from a more cooperative relationship between regulators and those they regulate.  We urge that traditional notice and comment rulemaking be informed by a creative exchange about possible solutions to ultimate problems. Our hope is that the rulemaking process itself facilitates mutual education on the proposed rule’s practical effect so that honest strategies can emerge capable of resolving fundamental differences.

Those who believe as we do that immigration is good for America have their principles right. Our challenge as a nation is to translate these principles into practice. This is why we write. We do not expect that this will be easy but we ask our readers who shrink from the task to remember the story of the rebellious prince who ran away from the palace of his father the King. “Come back” said the King through his most trusted messenger, only to be told “I cannot.” Back came the royal reply: “Go as far as you can, and I will come to you the rest of the way.”